Overlooked - Liberty

Overlooked: Surveillance and personal privacy in modern Britain 91
markedly different in defamation cases, where often large sums can be awarded. It could be argued
that damage to one’s reputation has the potential to persist for the longer term than the distress
caused by an invasion of privacy. However, it is doubtful whether this can be measured with any
accuracy. It seems likely that damages in respect of privacy breaches will rise in the future 178 . If the
right is worth protecting, it may have to be afforded real monetary value.
Shortfalls in the current position
Introduction
This section explores the shortfalls inherent in the area of privacy protection, from legislation and
privacy codes, to gaps in judicial interpretation and protection of privacy and freedom of expression.
We focus specifically on whether adapting the traditional breach of confidence action to address
privacy concerns is an effective method of protecting privacy, and the difficulties raised by
attempting to define privacy as a legal concept.
Legislation and Privacy Codes
Legislation in respect of privacy is piecemeal and has evolved reactively, rather than proactively. The
HRA is an exception. However, it merely provides a vehicle by which privacy rights may be
safeguarded and was perhaps intended to address violations of Convention rights by the State or
emanations of the same. Despite this, it cannot be denied that it has played a central role in making
possible a new climate for privacy protection. The PHA and the DPA provide very useful platforms
from which to launch actions for invasions of privacy. Each is, however, customised with exemptions
that might easily be utilised by the media. For example, the exemption (not specifically relating to
media conduct) contained in the PHA would potentially allow the media to escape its provisions if
reasonable conduct could be shown. The vague nature of this exemption has the potential to allow
for a wealth of argument in defence to an allegation of harassment under the PHA.
The exemptions from the data protection principles under the DPA may also assist the media. Section
32 relates specifically to the media and provides for a public interest defence that is doubly
strengthened by reference to the general public interest and to the public interest entrenched in the
concept of freedom of expression itself. However, the section will not apply where there is no
conceivable public interest in the story in question. The section has been held to apply both before and
after publication 179 . This seems somewhat odd, as the provisions expressly relate to the processing of
data “with a view to the publication by any person of any journalistic, literary or artistic material” 180 .
It might be argued that the relevant legislation cements freedom of expression as the point from which
privacy is viewed. Does the concept of privacy in English law come ready-packaged with
concessions to free speech, rather than these concessions acting as secondary limiting factors on
the right This is a difficult question. One may counter that the need to protect the privacy of
individuals is clearly the propulsion behind the enactment of the provisions of the HRA, DPA and PHA.
178
See “Privacy Protection Today – from Abstract Principle to Effective Remedy” by Antony White QC, 5th
February 2007.
179
Campbell v Mirror Group Newspapers Ltd. [2003] QB 633.
180
Information Commissioner Richard Thomas has called for criminal sanctions to be imposed on those that
breach the DPA, recommending a maximum two year prison sentence for those who unlawfully obtain or
sell the personal information of others. The PCC think that this would be disproportionate.