Former Sun editor Kelvin MacKenzie has a simple explanation for why judges are so keen on privacy and issuing injunctions and super-injunctions to protect it: they must all be wearing silk knickers.
There are, of course, a few lady judges (a very few) whose choice of underwear cannot be impugned. But Kelvin is worried about the men. They have something to hide, he believes, so they are constructing a law on privacy out of the European Convention on Human Rights to help them hide it. David Cameron too has complained about judges creating privacy law illegitimately: “What’s happening here is that the judges are using the European convention on human rights to deliver a sort of privacy law without parliament saying so.”
Nothing could be further from the truth, said the Lord Chief Justice, Lord Judge, welcoming the Neuberger report on injunctions. “Contrary to some commentary, unelected judges in this country did not create privacy rights. They were created by Parliament. Now that they have been created judges in this country cannot ignore or dispense with them.”
So who is right? The issue is one of “horizontality”. (No, Mr Mackenzie, we are still not talking about the private lives of judges). Horizontality is embodied in the Human Rights Act 1998, Section 6 which says:
“Acts of public authorities: (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. … (3) In this section “public authority” includes – (a) a court or tribunal …”
The provisions of the European Convention on Human Rights (which the Act allows to be directly accessed in UK courts) apply directly only to governments and the public authorities that are regarded as offshoots of governments. They pass “vertically” between the European Court of Human Rights interpreting the convention and national governments. So you cannot go to the court to “get your human rights” against peeping Toms – or even, on the face of it, newspapers, though long-established UK laws may cover their more undesirable activities.
Article 8 (1) of the Convention says: “Everyone has the right to respect for his private and family life, his home and his correspondence.” This is clear and direct as far as privacy vis a vis the state is concerned. But judges have utilised Section 6 of the Human Rights Act to make it operate horizontally too. The Act says courts, along with all public bodies, must not operate incompatibility with the convention – so judges, it is argued, can, indeed must, introduce its provisions into the private sphere through their judgments – horizontally.
The convention makes an assertion: that private and family life must be “respected”; the Act insists on a double negative: that public authorities should not act incompatibly with the convention. From this judges are creating a positive right to privacy for all people (who can pay) against all organisations and individuals – not just against the state.
There was a certain reluctance to apply horizontality in some earlier privacy cases, such as the 2003 high court case of Douglas and Others v Hello! Ltd, (the Catherine Zeta-Jones wedding photos) where the issue was bundled into one of confidentiality (where there is a long-standing English law tradition), and A v B plc, in 2002 a typical errant footballer case (B being the Sunday People newspaper). The doctrine of confidence, given a bit of backbone by Article 8, provided sufficient remedy in these cases. In finding for plaintiffs on the basis of confidentiality, the judges felt they had satisfied the requirement not to act incompatibly with the convention.
In Campbell v MGN Baroness Hale said: “The 1998 Act does not create any new cause of action between private persons. But if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties’ Convention rights.” This means a claim of confidentiality will be viewed in the light of Articles 8 and 10.
In Douglas, Sedley LJ nevertheless stated that “by virtue of s.6 [of the HRA] the courts of this country must themselves act compatibly with” the convention. He did not use the double negative of the Act itself, implying perhaps that plaintiffs could indeed “get their human rights” against private individuals or organisations.
A European Court of Human Rights case in 2004, Von Hannover v Germany, makes this explicit to the extent of requiring the state to pass laws that extend human rights into the private sphere:
‘The Assembly [ie court] points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media’
It added: “The Assembly calls upon the governments of the member states to pass legislation, if no such legislation yet exists, guaranteeing the right to privacy”. In Britain, of course, such legislation has not been forthcoming, but since Von Hannover it is noticeable that judges have become more confident in issuing their injunctions and super-injunctions as if such legislation does exist, founding their judgments in the convention – or elsewhere.
In a recent injunction case, (March 2011) ETK v News Group, Lord Justice Ward sought his legal principles not only in Article 8 of the Convention but also various other extra-national documents to which Britain is signed up: the United Nations Declaration of the Rights of the Child 1959, the Convention of the Rights of the Child 1989 (UNCRC) and the European Union’s Charter of Fundamental Rights. (The argument was that the children of an adulterous man in the public eye would be bullied if his indiscretions became public.)
Playground bullying is increasingly used in such cases to protect exposure of fathers’ sexual behaviour, a matter of concern, no doubt, to newspapers wishing to expose those hiding behind a “family man” persona. Newspapers may also worry that the law is being created out of interim injunctions as in ETK rather than substantive cases in open court. Often they do not make it that far, as Liberal Democrat MP for Birmingham Yardley, John Hemming, pointed out the Commons: “There is a tendency for people to issue injunctions on the basis of a claim that they intend to issue proceedings but not actually to issue those proceedings. One case such as that is AMM [a married television personality who wants to protect details of his private life] where no proceedings have been issued.” (See previous Alrich blog on super-injunctions)
The answer would, of course, be for Parliament to legislate. It is obliged to as a signatory to the convention – just as judges feel obliged to fill the gap, however unsatisfactorily, if it doesn’t. The legal world has got its knickers in a twist – whatever fabric they might be made of.
Note: There is further discussion of privacy law in light of the Leveson phone-hacking inquiry here