Overlooked - Liberty

78 Overlooked: Surveillance and personal privacy in modern Britain
(Processing of Sensitive Personal Data) Order 2000 allows the processing of sensitive personal data
for journalistic, artistic or literary purposes relating to a wide range of conduct, for example, unlawful
acts, dishonesty and incompetence. The processing must be in the substantial public interest.
The Protection of Harassment Act 1997
The Protection of Harassment Act 1997 (PHA) establishes criminal and, in some cases, civil liability
for a course of conduct that amounts to harassment of another or two or more people. The PHA
provides an exemption under section 1(3)(c) if it can be shown that the conduct alleged to be
harassment is reasonable in the circumstances.
Although not precisely defined in the PHA, the definition of harassment allows a liberal application
by the courts. As such it extends to “harassment” by the media, and could include several forms
of investigative journalism, such as “doorstepping”, which may also amount to trespass, and also
the publishing and broadcasting of material. In this regard, any instance where a
broadcast/publication occurs more than once, the journalist/media organisation may be subject to
the criminal and civil sanctions imposed under the PHA. Furthermore, the PHA provides no
guidance as to whether harassment for the purposes of reporting material would be deemed to fall
within the exemption relating to ‘reasonable’ conduct as set out in section 1(3)(c). As such, the
PHA provides a platform, albeit through the ambiguity of certain defined terms, from which judicial
interpretation may determine the extent to which individuals should be protected from such
conduct. The PHA also has the potential to address the fundamental harm at the heart of an
invasion of privacy in that it focuses on the nature of the intrusion itself, and not simply the
information or knowledge obtained from it.
In a case 153 brought by an individual against The Sun newspaper, the publication of articles by the
newspaper, which were foreseeably likely to cause the claimant distress and stimulate a racist
reaction on the part of readers, was a course of conduct amounting to harassment under the PHA.
Further, in order to determine whether in any individual case harassment was established, the
publisher is now required to consider whether a proposed series of articles likely to cause distress
would constitute an abuse of freedom by the press. The pressing social needs of a democracy
require that such abuse should be curbed by the State.
The Regulation of Investigatory Powers Act 2000
The Regulation of Investigatory Powers Act 2000 (RIPA) sets out the terms upon which the
interception of public and private communications will be an offence. RIPA regulates both postal and
electronic communications and includes emails. RIPA may have relevant application in the context
of surreptitious recording of, for example, the telephone conversations of public figures.
The Protection of Privacy – Regulation
The regulatory codes are important for two reasons. First, they have an effect in themselves in the
areas they regulate. Additionally, the courts are obliged under the HRA, as outlined in paragraph 15
above, to pay particular regard to any privacy code when considering whether to grant any relief that
may limit freedom of expression.
153
Thomas v News Group Newspapers and Another [2002] EMLR 4 CA.