Michael Harris and Kirsty Hughes
The right to a private life and the right to freedom of expression are not only both fundamental, universal rights; they are also self-evidently important to almost all people in their daily lives – whether through their presence or their absence. They are strongly related rights. If state authorities, or other actors, are monitoring, recording, putting under surveillance, bugging or otherwise intruding into people’s lives, then freedom of expression is compromised. We behave differently when we know that a third party is recording, bugging or monitoring us. Surveillance is intended to intimidate and encourage self-censorship as well as control and inform those doing the monitoring.
Authoritarian and totalitarian states, such as Russia, China, Azerbaijan and Iran, are most often the source of intrusive direct surveillance that breaches the right to privacy – just as they are the most active states in implementing direct and intrusive censorship in direct violation of the right to freedom of expression. But breaches of the rights to privacy and to free expression happen in democracies too. Sometimes that is driven by government and sometimes by the judiciary – in the UK, the Public Order Act 1986 has been used to criminalise speech, ‘super-injunctions’ have arisen from a narrow judicial interpretation of the right to privacy, and the Communications Data Bill threatened to create an extraordinary degree of web surveillance – unprecedented in a democracy.1
At other times, private companies have been involved in breaches of these rights. In the digital world, privacy can often be compromised more extensively and easily than offline, and web hosts, Internet service providers and others take decisions about removing content, or set rules for communication and interaction online – effectively the privatisation of censorship. This coincides with the commercial pressure to harvest data that can invade privacy.
Privacy and freedom of expression can and do at times conflict. The desire to comment on, analyse, or write about aspects of people’s private lives will always raise questions about where the boundaries should lie between what is public and what is private. These questions are especially relevant to questions of media freedom and media standards – and have been pored over recently during the Leveson Inquiry. At the heart of this debate lies the question of public interest, and whether, when and how invasions of privacy, which go beyond any agreed boundaries, can be justified. A related question is whether politicians or others who hold great power or influence in our societies are less entitled to a private life – or whether, rather, there is a greater public interest justification for investigating and reporting on aspects of their private lives.
The right to privacy is set out in Article 12 of the 1948 Universal Declaration of Human Rights, and the right to freedom of expression in Article 19 – these rights are also incorporated into regional human rights declarations, such as the European Convention on Human Rights (EHCR) (in Articles 8 and 10 respectively), and often into national law, such as in the UK by the Human Rights Act 1998. These twin rights are fundamental rights, not absolute rights – but any limitation on these rights should be necessary, limited and proportionate. Even in democracies, governments can too often reach for pre-set excuses, whether it is national security or public order, to censor or intrude where they should not – and often such behaviour in democracies is then used as a justification by more authoritarian regimes.
In this chapter, we set out some of the key challenges in defending and promoting the twin rights to freedom of expression and to privacy. We outline where they are most clearly under joint threat and attack, and where they compete with or complement each other. We look first at the twin rights in the context of press freedom, then at challenges to those rights in the digital world.
The British press often views privacy and free expression as competing rights. This debate is certainly not new, but has been brought into sharp relief by the News of the World phone-hacking scandal, which broke in 2011. Such was the public outrage at the serial breaches of privacy by journalists that the Prime Minister announced a far-reaching Inquiry into the role of the press and the police on 13 July 2011, chaired by Lord Justice Leveson. For the press, this Inquiry may well redefine the relationship between privacy and free expression for decades to come.
Index on Censorship has been involved in the debate, which has become increasingly sharp, since the introduction of the Human Rights Act in 1998 which enshrined the right to privacy in domestic UK law for the first time. The introduction of Strasbourg jurisprudence on privacy has come as a shock to parts of the British media not used to restraints on invasions of privacy. It also reflects in part a different culture on privacy which has emerged from differing historical circumstances between Britain and mainland Europe. Article 8 of the European Convention on Human Rights was created in the aftermath of the Second World War with the principle of protecting individuals and families from state intrusion. Formed to protect citizens from the totalitarian state, in light of both Hitler’s atrocities and Stalin’s increasing influence in Soviet-dominated Eastern Europe, the Article emphasised the importance of the personal sphere.
Prior to the enactment of the Human Rights Act 1998, English law recognised rights related to privacy such as freedom from trespass, harassment, breach of confidence and defamation, but not a discrete tort of privacy. This is perhaps illustrated most profoundly in the case of Kaye v Robertson.2 In January 1990, television actor Gordon Kaye, star of the situation comedy ’Allo ’Allo, was involved in a serious car accident and required emergency brain surgery. Whilst Kaye was lying semi-conscious in his hospital bed, Sunday Sport journalist Roger Ordish entered his room without permission and took unauthorised pictures of the star. At trial, the court ruled that such photographs were legal provided that the paper did not claim that they were authorised. Significantly, Glidewell LJ famously remarked that ‘it is well-known that in English law there is no right to privacy’,3 whilst Leggatt LJ concurred,4 adding that ‘the right to privacy has so long been disregarded here that it can be recognised only by the legislature’. Nowhere is this clearer than in R v Central Independent Television PLC,5 where an unsuccessful attempt was made to prevent the television company revealing that R’s child’s father was a paedophile. In his judgment, Lord Hoffman highlighted that free speech was ‘a trump card, which always wins’ and emphasised that:
publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom … the principle that the press is free from both governmental and judicial control is more important than the particular case.
Since the Human Rights Act 1998, this behaviour is unthinkable. As the Court of Appeal noted in Douglas v Hello!,6 it is ‘unlikely that Kaye v Robertson … would be decided in the same way today’. We have in fact come a long way since the Human Rights Act 1998, with free speech no longer dominant over individual privacy.
For Index on Censorship, the starting point in any general discussion on the development of privacy is that English privacy case law has had a difficult start, swinging too far in favour of Article 8 rights but now beginning to acknowledge the balance between the public interest and privacy. A number of important cases, including Theakston v MGN Ltd,7 A v B and C,8 Campbell v MGN Ltd9 and, in the European Court of Human Rights, Von Hannover v Germany (No. 2),10 have attempted to balance freedom of expression with privacy, with varying degrees of success. In Von Hannover (No. 2), the Grand Chamber set out relevant criteria which national courts should consider: whether the information contributes to a debate of general interest; how well known the person concerned is and the subject matter of the report; the prior conduct of the individual concerned; and the content, form and consequences of the publication. Whereas rulings of the European Court of Human Rights on privacy (in particular in the first Von Hannover case11) have been too restrictive against free expression, in Von Hannover (No. 2) the Court emphasised the margin of appreciation applicable to national courts in overseeing these cases. This margin should be used by UK judges to arrive at a different balance between free expression and privacy compared to that, for example, found in France. Judgments in the European Court of Human Rights in favour of privacy have also benefited journalists, such as in Financial Times v United Kingdom,12 which protected the anonymity of journalists’ sources.
It is also clear that judicial attitudes in the UK towards privacy are markedly different from other neighbouring Council of Europe jurisdictions, in particular from those in France. France’s privacy laws date from the 19th century when personality rights began to develop. The French approach to privacy has been to allow individuals to take control of their individual image to an extent unimaginable in the UK. Protection of privacy covers not only the disclosure of details of an individual’s private life, but also the taking and publication of photographs of an individual without prior consent. In the case of an interview, an individual’s photograph may not be published for a purpose or in a manner which differs from the one which was originally agreed, or in order to distort the manner in which the interviewee has elected to project his of her image or express his of her opinion.13
France’s privacy law has allowed the rich and powerful to manage their image in a manner that has been damaging to freedom of expression. The most infamous example of this came in 1996, with the publication of Le Grand Secret. The book, by François Mitterrand’s doctor, gave a detailed account of the then President’s cancer whilst he was still in office. Mitterrand’s family alleged that even though he was a public figure (the Head of State), the account was a breach of medical confidentiality and the President’s right to privacy. The family obtained an injunction for the immediate suspension of the distribution of the book. In his appeal, the book’s author did not rely on arguments of public interest but instead on his right to freedom of expression. The court refused the author’s appeal against the injunction, arguing that details of the President’s illness involved the most ‘intimate’ aspect of privacy. Yet, prior to his death and during his election campaign, the President himself issued reports on his health which airbrushed out the cancer that killed him. The legal expert Etienne Picard observed that what prevailed was ‘the right of the subject of the invasion [of privacy] to reveal what he wishes about himself even if, as in this case, it was not the truth’.
This heady mixture of a popular press that has failed to acknowledge its new obligation to protect privacy under the Human Rights Act 1998, readily available examples from overseas of a privacy culture that has stifled free expression, and new online media that allow breaches of privacy to be disseminated quickly has led us to our current impasse.
The Leveson Inquiry has brought some of these issues into focus. The Inquiry is attempting to address the most egregious, and in some cases corrupt or criminal examples of the invasion of privacy, while, we hope, defending strong public interest journalism. At the Leveson Inquiry, critics of the current privacy status quo argue that it is not adequate and then jump from that to conclude that a form of statutory regulation is needed to stop breaches of privacy:
Witnesses have argued that the current crisis in the press results not from a failure of regulation but from failures to enforce the law. Again this is untrue.14
Yet, it is unclear why the leap to statutory regulation is needed. Stronger, sharp-toothed independent self-regulation, as well as the better application of existing laws, will avoid the need for state intervention. The most notorious case, in which murdered schoolgirl Milly Dowler’s mobile phone was hacked by a News of the World reporter, involved a crime under the Regulation of Investigatory Powers Act 2000. It is important that any new regulator takes crime seriously. It is also clear that, as with our libel laws, one of the key factors in preventing legal action by claimants whose privacy has been seriously breached (or defendants fighting cases) is the high cost of privacy actions, as recognised by the European Court of Human Rights in MGN Ltd v United Kingdom.15
While the direction of travel in privacy case law has been positive, the laws governing the press still do too little to protect public interest reporting. It is crucial to get the balance right between genuine public interest defences for what would otherwise be intrusive journalism, and journalism invading privacy against legal and self-regulatory restraints for no adequate reason. Index on Censorship has campaigned for three years with English PEN and Sense About Science for reform of England and Wales’ archaic defamation law, which fails to protect those speaking out in the public interest.16 As pointed out by Index in our submission to the House of Lords’ Communications Committee report into investigative journalism, important bodies of law still have no public interest defence, including: the Official Secrets Act 1989, the Regulation of Investigatory Powers Act 2000 and the Computer Misuse Act 1990. This creates risks for journalists handling private data, including the possibility of imprisonment. In the public interest, it should also be recognised that, occasionally, journalists will transgress the law as it stands.17 Furthermore, while the law develops on privacy, it must better recognise the public interest in the occasional breach of privacy. However, public interest cannot be the only defence available. As in libel, where Index has argued for a threshold that takes into account whether a defamatory statement is both ‘serious’ (that is highly damaging to reputation rather than trivial) and ‘substantial’ (published to a large enough audience to cause significant harm), privacy case law must take into account the content and context of privacy breaches.
Much tougher self-regulation, with clear guidelines on journalistic standards and ethics, is needed in the UK to create an environment where press freedom is upheld but clear codes and standards exist and are used. This will help guide a better balance between free expression and privacy. Statutory regulation is unnecessary and unacceptable; often in countries that rush to such legislation it is the beginning of a move towards state intrusion of a free press, Hungary being a recent example.18 A stronger regulator should be in a position to mediate privacy intrusions on behalf of claimants (reducing the cost of such actions and opening up access to justice), taking into account public interest factors to prevent a chill to free expression.
Some parts of the British press may see privacy and free expression as competing rights. But as we have argued in this chapter, they often go together, and even where there are conflicts between privacy and journalism in the public interest, there are ways, through tougher self-regulation – together with proper application of existing laws and their improvement – to manage such conflicts.
Human rights apply online as well as offline – universal rights transcend digital boundaries just as they transcend geographical ones. The digital world, with its wide reach and rapidly changing technologies and products, opens up new ways to promote and defend rights but also new ways to attack or undermine those rights (whether deliberately or inadvertently). While some have argued that the digital revolution has undermined privacy but promoted freedom of expression, the real picture is much more complex, with these rights often being both mutual and complementary.
The ability, through the World Wide Web, mobile phones and social media, of individuals to self-publish and to communicate and interact across borders, and the rise of citizen journalism, all extend and promote the ability to practise our right to freedom of expression. But new technologies also allow governments to monitor and record conversations and communication, to gather information and even to track individuals’ movements and locations offline.
China’s ‘Great Firewall’ is one of the best-known and most extensive efforts to censor through the Web and to monitor and undertake surveillance – violating the right to privacy and the right to free expression simultaneously. As Index’s China correspondent, Dinah Gardner, notes:
The key to their control is the fact that unlike many other countries, China is only connected to the outside internet through three links (or choke points as Fallows calls them) — one via Japan in the Beijing-Tianjin-Qingdao area, one also via Japan in Shanghai and one in Guangzhou via Hong Kong. At each one of these choke points there is something called a ‘tapper’ which copies each website request and incoming web page and sends it to a surveillance computer for checking.19
Iran is currently attempting to build a national ‘halal’ internet, so that it can cut its citizens off entirely from the World Wide Web, which will curtail the right to online free expression but also embed surveillance technology used to invade the right to privacy.20 The uprisings of the Arab Spring, driven by a demand for freedom and for respect for human rights (as well as for economic freedoms), made extensive use of social media. States and governments threatened by uprisings and domestic protests have targeted and are targeting social media, whether by shutting it down (as in pre-revolutionary Egypt) or by monitoring Facebook, Twitter and other social media to track and target activists (as Iran among others has done extensively). Nor are such tendencies limited to authoritarian regimes. In the UK, Prime Minister David Cameron suggested during the 2011 London riots that social media could be shut down as part of an attempt to counter the disturbances, telling the House of Commons:
Everyone watching these horrific actions will be struck by how they were organised via social media. Free flow of information can be used for good, but it can also be used for ill, so we are working with the police, the intelligence services and industry to look at whether it would be right to stop people communicating via these websites and services when we know they are plotting violence, disorder and criminality.21
Some countries attempt to censor or intrude on digital freedoms through rather traditional offline means of harassment and intimidation. In both Russia and Azerbaijan, for example, the Internet is freer than in China, but the authorities monitor journalists, activists and civil society both online and offline. In one notorious case, Azerbaijan resorted to the secret filming of Radio Liberty journalist Khadija Ismayilova’s private life in an attempt to blackmail her into stopping her critical online blogging – a deliberate invasion of privacy used to attempt to censor her online free expression.22 Meanwhile, in the UK, the Public Order Act 1986 and the Communications Act 2003 have been used to prosecute individuals for remarks on Twitter and Facebook, including jokes. These issues are complex, with the courts throwing out some of these cases. To understand the issues better, the Crown Prosecution Service launched a consultation on social media in 2012, and subsequently introduced new guidelines which came into effect in June 2013.23
One of the most serious current threats in any democracy to online privacy and freedom of expression is the UK’s Communications Data Bill. Aptly labelled by the media a ‘snooper’s charter’, the Bill would give the authorities unprecedented powers to force population-wide collection and filtering of data across all forms of digital, and offline, communication. This would constitute both a major invasion of privacy and would lead to a deep chill on freedom of expression in the broadest possible way. It would also be used, with alacrity, by governments in authoritarian regimes to justify their own digital surveillance – and even quite possibly to imitate the UK’s law. It is somewhat ironic, and suggests confusion in the British Government’s approach, that at the same time as it is promoting such a deeply illiberal bill, the Government is also one of the leaders in developing proposals for export controls on digital surveillance technology to unsavoury regimes.
Anonymity online is another area where privacy and freedom of expression go together. While the need for anonymity is most obvious in authoritarian countries where dissidents, activists, journalists and others simply cannot be open about their activities as they face the threat of violence or legal sanctions, anonymity is important in democracies too – whether for whistle-blowers, or for a wide range of people who might self-censor online if they were not able to discuss sensitive (for them) issues without using their real identity.
Anonymity and the explosion of debate and comment online has also led to concerns over online ‘trolls’ and Twitter ‘storms’, leading politicians to question whether free speech online has gone too far. The rise of social media sites such as Facebook has also meant that a wide range of information about individuals that would once have been deemed private has been put in the public domain. Postings on social media can breach the right to privacy in cases where there is no public interest and where the breach will cause actual harm. After Welsh international footballer Ched Evans was convicted of rape in a case where the victim remained anonymous, Twitter users identified and abused the victim within hours of his sentence. Her name was so widely circulated that it became one of the top trending phrases on the site, leading other users to discover that she was the victim of the attack. The victim’s mother told the Daily Mail: ‘Putting her name on Twitter is just another horrendous ordeal for her’.24 The use of social media can also breach the privacy of important constitutional functions. Amy J St Eve, a US District Court Judge for the Northern District of Illinois, has conducted an interesting survey, ‘Ensuring an Impartial Jury in the Age of Social Media’, concluding that judges need to give strong instructions to juries to stop them using social media that may prejudice cases.25
Some of this may reflect technology driving genuine social change. How attitudes to privacy will change as a result of online communities, social media and other communication tools is an open question. But Web companies are increasingly providing, often in response to users’ demands and criticisms, a wider range of tools and filters that can ensure greater privacy, and users are showing more awareness and sophistication in using such tools. Many users are becoming much more alert to how to set privacy filters, or how to self-manage online debate forums and online communities.
In finding ways to manage their individual or community online settings, people are becoming their own editors. Just as editorial decisions in offline publishing are rightly separate from any legal regulation of free speech and privacy, we are now seeing a range of new means of editorial control online. Much of this is entirely positive. Just as there is a wide range of publications, clubs, societies and so on in the offline world, the online world has the same and more. But there also remain challenges in finding the best ways with some new tools, such as Twitter, to have an open debate while dealing with Twitter ‘storms’ and what can sometimes be chilling forms of online abusive comments.
There are also risks that the digital world may fragment too much. The fact that individuals can set their own privacy filters, set their own individual feeds and filters on types of content they want to receive or not receive, set who they do and do not want to interact with, is a central part of both privacy and free expression. But as governments and corporations control, block, monitor, set filters, take down content and fragment the digital world in a range of means that limits free expression and invades privacy, then these actions and decisions need to be challenged.
Setting of editorial rules, or membership rules, online can raise issues that have no exact counterpart offline. An individual newspaper can exercise editorial control on, for example, the nature of letters from the public they will publish (in print and online too). But when a company like Facebook provides a space for discussion and free expression used by one billion people, and sets rules for that discussion, then the digital world is posing a whole new set of questions and challenges about government and corporate roles in promoting and censoring free expression. Some of the large Web companies are aiming to deal with such challenges in a consistent way – a number of them, including Google, Yahoo and Microsoft, have come together in the Global Network Initiative, a multi-stakeholder group (of which Index on Censorship is also a member) to set and discuss clear practices for respecting human rights online, aiming, for example, only to take down content either on a court-backed request from a government or where it clearly violates their own terms of use. Google and Twitter are now both also publishing so-called transparency reports on the number of takedown requests they receive, by country, and how many they accede to.
The Internet has become a place both for exercising rights and for considerable challenges to rights, with privacy and freedom of expression at the heart of many of these challenges. It is no coincidence that the countries most active in lobbying for top-down regulation of the Web are authoritarian ones, with China and Russia amongst others pushing for the International Telecommunication Union to be used as a vehicle for that. The EU and US have so far resisted these pressures, pushing for an open, multi-stakeholder approach and emphasising freedom of expression. But, as in the case of the UK Government’s proposed Communications Data Bill (now unlikely to become law26), democratic governments can easily undermine or contradict their own positions supportive of human rights in the digital world. And, as we have discussed, the increasing role and power that Web companies and intermediaries have – in either respecting, defending or infringing rights to privacy and to freedom of expression – means that to defend rights in the digital world, both governments and companies must fully respect those rights and must be held to account for those obligations and commitments.
Closer to home, the Internet has provided a challenge to privacy that has bolstered free expression. In recent years, there has been concern over the granting of so-called ‘super-injunctions’, which not only prevent the publication of private or sensitive material but also disallow the defendant from revealing even the existence of the injunction. Human rights organisations, including Index on Censorship, have raised concerns that the extension of Article 8 rights to corporations, combined with these secretive injunctions, have allowed them to cover up information that it is in the public interest to publish.
‘Super-injunctions’ may cover up a variety of private activities: examples range from a public figure who has beaten up his girlfriend to someone who has privately sold arms in breach of UN sanctions.27 Judges will often be inclined to grant these injunctions to protect privacy as once a story is out it cannot be retracted. Media commentator Joshua Rozenberg suggests that judges will ‘grant an injunction first and ask questions later, it being obviously safer to maintain the status quo while deciding what to do’.28 Yet, because of the high costs of English law, few of these injunctions are challenged. The cost to challenge, around £60,000 a day (with the possibility of lengthy proceedings), combined with an unreliable public interest defence, makes supposedly temporary injunctions likely to be permanent. It is difficult to run the ‘Reynolds’ responsible journalism defence in libel, without putting your allegations to the other party first.29 But this gives the other party the opportunity to seek an injunction. The expense of challenging any injunction on privacy grounds makes media outlets less inclined to undertake investigative journalism in the first place – a significant chill on free expression. As lan Hislop, editor of satirical magazine Private Eye, told the Culture, Media and Sport Select Committee:
We attempted to run a story in January [2009] and we still have not been able to run it. The journalist involved put it to the person involved, which was an error; there was an immediate injunction; we won the case; they have appealed; we are still in the Appeal Court. Essentially it is censorship by judicial process because it takes so long and it costs so much.30
In 2009, at what is considered to be the high-point of this phenomenon, Index on Censorship trustee Mark Stephens estimated there to be between 200–300 ‘super-injunctions’ in place at any one time.31 The most striking example of how these ‘super-injunctions’ placed Article 8 rights above those of Article 10 arose when international corporation Trafigura attempted to place a ‘super-injunction’ on an internal report (the Minton report) which explored the dumping of toxic waste outside Abidjan, the capital of the Côte d’Ivoire. On 13 February 2007, Trafigura paid the government of Ivory Coast an out-of-court settlement of $200 million, but accepted no liability for the dumping of the waste. The Guardian obtained a leaked copy of this report and attempted to publish it, but Carter-Ruck solicitors obtained a ‘super-injunction’ on 11 September 2009 in the High Court on behalf of Trafigura to prevent the Guardian from publishing the report, or even publishing that the injunction existed. Five days later, the Guardian and the BBC published internal emails between Trafigura employees about the waste. Libel threats were issued by Carter-Ruck against both the BBC and the Guardian. A key moment came when the Guardian on 1 October 2009, unable to report that an injunction existed against it publishing the Minton report, told Carter-Ruck that it intended to publish a copy of Paul Farrelly MP’s question to Parliament on the use of injunctions, which read:
Mr Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, what assessment he has made of the effectiveness of legislation to protect (a) whistleblowers and (b) press freedom following the injunctions obtained in the High Court by (i) Barclays and Freshfields solicitors on 19 March 2009 on the publication of internal Barclays reports documenting alleged tax avoidance schemes and (ii) Trafigura and Carter-Ruck solicitors on 11 September 2009 on the publication of the Minton report on the alleged dumping of toxic waste in Ivory Coast, commissioned by Trafigura.32
Carter-Ruck responded the same day. Guardian editor Alan Rusbridger recalled the events, once the injunction had been lifted:
[T]heir letter unequivocally asserted that the Guardian would be in contempt of Court and sought an immediate undertaking that we would not publish. The letter also stated that Carter-Ruck did not even accept that the publication by Parliament of Mr Farrelly’s question placed the existence of the injunction in the public domain! We took leading counsel’s advice on this letter. She advised us not to publish, but to return to court to seek a variation in the order.33
The Guardian challenged the injunction alongside Index on Censorship (who due to the injunction did not know the party who served it, or its function). However, the issue quickly became extra-judicial and increasingly a matter of constitutional importance as MPs challenged this attempt to override Parliamentary privilege, with Carter-Ruck writing to the Speaker of the House to suggest the issue may be out of bounds for debate. What broke the injunction was not the intervention of Parliament, that merely revealed its existence, but the fact that the Minton report appeared on whistle-blower website WikiLeaks three days after the injunction was served and social media allowed this to be disseminated.
No newspaper or individual journalist could even mention the words ‘Minton report’ without falling foul of the law of contempt of court, which potentially carried a long jail sentence. Yet Twitter allowed citizens to piece together the story and eventually find the embargoed report on WikiLeaks. The Guardian ran a teaser article that it could not report on a Parliamentary question, followed by a tweet from the editor Alan Rusbridger. In addition, Wikipedia, with its servers based in the US and thus protected by the First Amendment, freely linked to WikiLeaks, giving comprehensive coverage that gave the game away. Suddenly the terms ‘Trafigura’ and ‘Carter-Ruck’ began trending on Twitter as the first and second most popular hashtags in the UK. By then, the game was over and the injunction all but obsolete. New technology breached an injunction that valued a corporation’s Article 8 rights over the Article 10 rights of journalists, Parliamentary privilege, as well as the public’s right to know.
Since social media has challenged ‘super-injunctions’ in such a public manner, they have become a less popular tool for reputation management lawyers, with the Ministry of Justice (now compiling official statistics) finding a total of 18 applications or continuations of such private injunctions in the first half of 2012,34 with only two relating to the media (one of which was unsuccessful).35 Without this technology we would not have seen the fall of the ‘super-injunction’. Social media brought these two rights into direct conflict, but a conflict which rebalanced the inequality between the right to privacy over the right to freedom of expression.
Freedom of expression and privacy are in many fundamental ways complementary rights. This is particularly obvious in totalitarian states where breaches of privacy are used to suppress freedom of expression both online and offline, but it is the case too in democracies where key elements of the right to free speech, such as anonymity for whistle-blowers, the right to associate in private, protection of sources and the ability to maintain confidential contracts, all pivot on the right to privacy.
However, privacy and freedom of expression can sometimes appear to be more conflicting than complementary. This is especially the case when there are either over-restrictive privacy laws (such as in France) or where the boundary between privacy and public interest is blurred or unclear. In the UK, there is a need both for incorporation of public interest tests into a range of laws, but at the same time for the media to respect better its commitment to privacy under the Human Rights Act 1998. As the Government considers how to respond to the Leveson Inquiry, it will need to strike a better balance between free expression and privacy, responding to widespread criminality and breaches of privacy, while developing the framework for a sharp-toothed press body without opting for chilling statutory regulation. The debate over super-injunctions has shown where the Internet can force the hand of judges who have been too willing to grant punitive injunctions to respect the privacy of corporations over that of freedom of expression. This is a clear example of where the Internet has challenged privacy to the benefit of freedom of expression, but in general the relationship between these rights is more complementary.
Privacy and free expression in the digital world are mostly complementary – and often under threat at the same time. Surveillance and censorship often go hand in hand in the online world, and the threat – and ease – of widespread surveillance is very chilling to free speech. China’s state surveillance, Azerbaijan’s breach of the privacy of activists, the lack of clear corporate rules over the use of private data and the UK’s Communications Data Bill36 proposal all present or have presented major new challenges for freedom of expression. Those who care about free speech must also care about the right to privacy. As more of our personal sphere is placed online, the relationship between these rights will grow increasingly complex as individuals will expect privacy, while at the same time demanding ever more access to information and the right to speak out freely. This debate will continue to evolve, as technologies develop, but with millions of new users accessing the Internet for the first time every month, pressure from civil society is needed to ensure corporations take responsibility, and states do not undermine these rights.
1 However, the Bill looks unlikely to become law, at least in its current state, since the Liberal Democrat partners in the Coalition Government withdrew their support for it in April 2013. It was not included in the Queen’s Speech outlining proposed legislation for the 2013–2014 parliamentary session.
2 [1991] FSR 62.
3 Ibid. p. 66.
4 Ibid. p. 71.
5 [1994] Fam 192 at 203.
6 [2001] QB 967 at [167].
7 [2002] EMLR 22.
8 [2003] QB 195.
9 [2004] 2 AC 457.
10 App. Nos 40660/08, 60641/08, 7 February 2012.
11 Von Hannover v Germany (No. 1) (2004) 40 EHRR 1.
12 [2010] EMLR 21.
13 Submission to the Leveson Inquiry: Culture, Practice and Ethics of the Press, January 2012: http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Submission-by-Index-of-Censorship.pdf.
14 Hacked Off campaign submission to module 4 of the Leveson Inquiry (June 2012): http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Hacked-off-campaign-submission-dated-12.06.121.pdf.
15 [2011] ECHR 66.
16 See libelreform.org.
17 House of Lords’ Communications Committee Investigative Journalism report evidence base (p. 226): http://www.parliament.uk/documents/lords-committees communications/Investigativejournalism/IJev.pdf.
18 http://www.indexoncensorship.org/2011/11/hungary-a-lesson-on-how-not-to-regulate-the-press.
19 http://uncut.indexoncensorship.org/2012/08/china-internet-censorship.
20 http://www.indexoncensorship.org/2012/02/iran-internet-censorship-increases.
21 House of Commons debate, ‘Public Disorder’, 11 August 2011: http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110811/debtext/110811–0001.htm.
22 http://www.indexoncensorship.org/2012/04/azerbaijan-journalists-under-attack.
23 Available at http://www.cps.gov.uk/legal/a_to_c/communications_sent_via_social_ media/.
24 http://www.dailymail.co.uk/news/article-2133792/Ched-Evans-rape-victim-named-abused-Twitter-girlfriend-stands-Wales-footballer.html#ixzz2960CFdaJ.
25 Hon. Amy J St Eve and Michael A Zuckerman, ‘Ensuring An Impartial Jury In The Age Of Social Media’, Duke Law & Technology Review, 11(2) (2012), 1.
26 See n. 1 above.
27 United Kingdom Government submission, p. 7.
28 J Rozenberg, ‘Private Lives’ in J Glanville (ed), Index on Censorship, ‘The Big Chill’, vol. 38(2) (London: Routledge, 2009), p. 105.
29 The Reynolds defence can be raised where it is clear that a journalist had a duty to publish an allegation even if it turns out to be wrong.
30 Press standards, privacy and libel – Culture, Media and Sport Committee: www.publications.parliament.uk/pa/cm200910/cmselect/cmcumeds/362/36205.htm, note 32.
31 ‘Press freedom and the internet: Barbra Streisand strikes again’, The Economist, 15 October 2009.
32 http://blog.indexoncensorship.org/2009/10/14/trafigura-mp-farrellys-censored-questions.
33 http://www.libelreform.org/news/1-briefing-paper-free-speech-libel-law-and-super-injunctions.
34 http://www.justice.gov.uk/downloads/statistics/civiljustice/privacy-injunctions-stats-jan-jun2012.pdf.
35 http://inforrm.wordpress.com/2011/04/12/anonymised-privacy-injunction-hearings-january-to-march-2011
36 See n.1.