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Overlooked: Surveillance and personal privacy in modern Britain 11 against the press. As a consequence, the development of common law interpretation of privacy has revolved around high profile cases such as those of Naomi Campbell and Catherine Zeta Jones. Media privacy is also an interesting area in terms of potentially clashing rights. There is often a natural tension between Article 8 and the Right to Free Expression contained in Article 10 of the ECHR. A series of decisions in 2006 and 2007 have developed the relationship between privacy, free expression and the law of confidence. However, as the chapter on media privacy will demonstrate, much still depends on case by case interpretation. The work on media privacy differs from the other parts of this work. While other sections are primarily concerned with the relationship between the state and the individual, media privacy remains firmly in the realm of dispute between private parties. Liberty will traditionally approach an issue from the perspective of identifying the limits of legitimate state interference into the privacy of the individual. This approach is not appropriate for media intrusion. The media is not part of the state and enjoys the right to free expression. At the heart of any consideration of privacy is the concept of balance and proportionality. Thus use of intrusive surveillance powers under the Regulation of Investigatory Powers Act 2000 (RIPA) balances privacy rights against the need to detect and prevent crime, protect national security and so on. While these are legitimate interferences into privacy they are not ‘rights’ in themselves. Free expression is different. It is a specific right within the human rights framework which itself can only be intruded upon for specific legitimate purposes in a manner that is within the law and proportionate to need. This makes the content and thrust of the media privacy work different. We do not try to create a hierarchy of rights or make specific recommendations. Rather the approach is to set out the development of caselaw and then identify areas of concern or those which remain unresolved. The recommendations suggest a number of possible approaches without identifying any specific preferred option. This different approach reflects the problems experienced by the courts in squaring a very difficult circle. Structure The intention is to allow this project to be taken as a whole or as a series of individual discussions. Those interested in mass informational surveillance might not have the same interest in media privacy. As a consequence there is a certain amount of repetition of key aspects of the legislative framework and so on. This is because we do not wish to assume that an analysis of, for example, Article 8 HRA contained in one section has been seen by the reader of another. In any event, some repetition is necessary as the relevance of legislation varies according to the context. The Legal Framework The European Convention on Human Rights The European Convention on Human Rights (the Convention) was drafted after the Second World War and the UK became a signatory in 1953. The Convention provides protection for an individual’s private life. Article 8 provides:
12 Overlooked: Surveillance and personal privacy in modern Britain 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Article 8 is a qualified right. This means that even if the right to respect for privacy in Article 8 (1) is engaged, Article 8 (2) allows for circumstances in which this right can be curtailed. There are three requirements that must be satisfied before any interference can be justified. First, it must be in accordance with the law. This means the interference must have a proper legal basis, such as a piece of legislation or rules of a professional body. The law or rule must be understandable, detailed and clear enough to allow a person to regulate his or her behaviour. The second condition that the interference must satisfy is that it must pursue an identified legitimate aim. The legitimate objectives set out in Article 8(2) are; acting in the interests of national security, public safety or the economic well-being of the country; acting for the prevention of disorder or crime; acting for the protection of health or morals; acting for the protection of the rights and freedoms of others. These objectives are widely drawn and it will often be possible for an interference to be categorised as being in pursuit of one of these legitimate objectives, for example, telephone tapping for the purposes of investigation or prevention of crime. More difficult questions arise where there are competing interests at issue, such as balancing privacy rights against the right of freedom of expression in cases of publication of photographs or materials about a person’s private life. In some cases it will be important to distinguish between a lawful interference in someone’s private life in the public interest, as opposed to an unlawful one which has occurred merely because it is something in which the public might be interested. Even if the infringement of privacy is in accordance with the law, and it is for one of the legitimate objectives, it must still be ‘necessary’ in order for it to be justified under Article 8. This is the third and most stringent condition that any infringement must satisfy, bringing in a requirement that the act must be ‘proportionate’. The requirement of proportionality is often colloquially described as ‘not using a sledgehammer to crack a nut’. In essence, this means that the nature and extent of each interference must be judged against the end it is meant to achieve and any interference with your rights under Article 8 that goes further than is necessary may well be unlawful. For example, a blanket policy of excluding prisoners during examinations of their legally privileged correspondence was considered a disproportionate interference with their rights to privacy and correspondence under Article 8. The more severe the infringement of privacy, the more important the legitimate objective in each case will need to be. In most cases, the interference will be judged against whether it meets a pressing social need, and the extent to which an alternative, less intrusive interference would achieve the same result.
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Overlooked - Liberty

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