Introduction
The concept of privacy of the citizens of a country has become very important over the years. Many laws and regulations have been passed that ensure the right to privacy for the citizens from the government as well as other business and not-for-profit organizations. But the world is not what it used to be a decade back. International concerns like terrorism have changed the way information and privacy are handled. This will entail a balance between the right to privacy and the right to information from the point of view of security. The people who often find themselves as victims of this situation are the innocent citizens who value their privacy and are honest and upright citizens of a country.
This paper will look at the increasing concerns for intrusion into privacy in the UK. The government is caught in a dilemma as how to strike a balance between the duties of a citizen and his rights with regard to privacy. As a result, privacy issues are becoming more important and calls to bring in laws and amendments to ensure that the privacy of individuals is being more heard today. The issue will be studied with a focus on decided court cases in the country.
Human Rights
The aspect of human rights to confidentiality and privacy, or the need to be left to oneself, is intrinsic to each human being. This is more evident in the areas of medical care, hospitalization, and protection of patient records. It is proposed to first consider the aspects governing the Human Rights Act concerning obtaining consent of the patients in medical research settings before accepting them for medical research, or bio-medical use.
Strike a balance between protection of patients’ rights and need for law:
This aspect is important since in recent times, it is seen that the fine equilibrium between protecting the privacy of patients on the one hand, and the need for legal confirmation on research and exploration of new frontiers in bbiochemistryand medical science, on the other, needs to be maintained.
The aspect of tissue collection is important since it could be done only after obtaining the consent of the parties under the Human Tissue Bill which was flouted by the medical authorities during earlier times. This is important since law makers are of the considered opinion that one’s body tissues forms part of one’s physical and moral personality, and cannot be excluded from it, even if the person is in no position to offer consent. During earlier times, the consent of the patient was not directly needed, and thus lot of medical research was done, without the knowledge by the patient that their bodies, or part of it were used without their knowledge and permission. In the Alder Hey Report it was found that some health institutions regularly held back human limbs and tissues after post mortem without gaining the permission of relatives. This was considered “unlawful and contrary to the provisions of the Human Tissue Act 1961.” (The Transplant of Human Organs Bill: Bill 17 of 2000/01 A. The Alder Hey Inquiry: 1. The background to the Inquiry
HT Act 2004
However, the HT Act 2004 changed all that, and in the present context it is mandatory that the prior consent of patients, and/or relatives are required before using organs and tissues for bio- medical, or research purposes. However, there are apparent loopholes in that cell that have been removed from the bodies do not fall within the purview of this act. Only untreated bodies come within its ambit. Therefore it becomes necessary to remedy this situation in the best interests of patients. Human rights to confidentiality. It is now necessary to consider the aspect of human rights to confidentiality and privacy. This could be seen in separate contexts. Under the norms of confidentiality, It is seen that it relates to the fact that sensitive matters about the patients’ personal information should not be disclosed, except to authorized persons for the purpose of treatment, etc. This in the case of confidentiality, the aspect of trust and belief is underpinned. Since the aspect of confidentiality arises from, or emanates from personal knowledge about a patient, gained during the course of medication and treatment. Thus nurses, doctors and health care professionals are in a position to access confidential information about the patients they treat.
However, privacy is with regard to the right of a person to dominate or control his own life or conduct. It refers to certain action that could rightly be said to be the exclusive domain of individuals and need to be protected. Thus the scope of confidentiality is wider than privacy, in that it includes control over documented fact, while privacy related to individual’s personal conduct and movements. Campbell v. Mirror Group of Newspaper (2004) 2 AC 457 (HL In the case of Campbell v. Mirror Group of Newspaper(2004) 2 AC 457 (HL), it is seen that photographs of supermodel Naomi Campbell coming out of a Narcotic Anonymous Meeting center were taken. The supermodel complained that this was a violation of her privacy and filed a suit against the newspaper company. Although the Lower Courts and the Courts of Appeal settled this issue for small amount, during May 2004, by decisive voting, the House of Lords reversed the earlier decisions, and ordered defendants to pay “pay Ms. Campbell’s costs” in the Court of Appeal and in this House.” (Opinions of the Lords of Appeal for judgment in the cause: Campbell (Appellant) v. MGN Limited (Respondents).
Freedom of the press in conflict with privacy rights
The defendants appealed that their right to freedom of speech had been violated since this sum as good as had to pay damages, while all that the defendants and done was to publish the truth about the fact that Ms. Campbell was a drug addict and was undergoing treatment for her condition. If bringing the truth about a public figure‘s drug addiction is a violation of her privacy, it is not known what role a responsible paper needs to perform. In this case, it is seen that there are conflicting aspects. On the one hand it the plaintiff’s right to privacy and confidence, and on the other is the right of the reading public to know about the conduct of public figures and really reveal the true story.
It would have been interesting to know the court’s decision had the issue related to an ordinary person and not a celebrity model like Ms. Campbell.
“The law lords emphasised the need to carry out a balancing act between articles 8 [concerning respect for private and family life] and article10 [freedom of expression].”
In yet another case, the European Court of Human Rights (ECHR) awarded £ 1.5 Million damages in the Tolstoy Miloslavsky v. U.K. (1995) 20 EHHR 442 case., in which the applicant was required to post this amount as security for legal charges of defendant. It was seen that this Breached Article 10 of EHRC, and was devoid of the privilege of “free expression.” (swarb.co.law :2008: Defamation 1995.
In the case of Michael John Durant v Financial Services Authority [2003] EWCA Civ 1746, the Courts considered the aspects of what constituted “personal data.” It is believed that just because data is available in a person’s name does not mean that it is personal data. There must be sufficient grounds to believe that the data belongs to him and relates to him. And could be linked to him personally. Just one name in a plethora of names does not constitute persona data. In this case, Durant, after putting an unsuccessful suit against Barclays Bank, sought to retrieve personal data held by FSA (Financial Services Authority) in both electronic and manual files. The data held in electronic storage was handed over to him after alterations, but the defendants did not provide him with the records held in manual files. Upon Appeal, the Court of Appeals held that “the Court held that the information sought by Durant was information about his complaints and about the objects of his complaints, namely Barclays Bank and the FSA, and not information relating to Durant himself. “
In the case of Malone (1979)2 All ER 620, the defendant, an antique dealer was accused of dealing with stolen property and arrested. During the criminal trial that ensued he remonstrated that the policemen had tapped his telephone lines which, he believed was an infringement of his Privacy. After his acquittal, he brought a case against the concerned policemen alleging that phone taping “constituted a breach of confidence, a trespass, and an unlawful interference with his privacy.”
When his case was dismissed in the Courts, he took up the matter with the European Court of Human Rights which under Article 8 which interalia offers sanctuary with regard to personal freedom of individuals. “Its object is essentially that of protecting the individual against arbitrary interference by the public authorities in his private or family life.”
The ECHR verdict in the Malone case was that the English system did not have enough grounds with regard to communication control that could be protected under Article 8(2). In other words, the stand of Malone was vindicated and later appropriated legal amendments were made in UK laws to reinforce and strengthen the case for suitably amendment in communication laws.
Law of privacy in UK
The law of privacy in UK needs to be suitable amended in the light of many incidents. If one were to consider the case of Princess Diana, it could be reasonably be said that constant hounding by the press into her private life was a precipitating cause for her untimely death in a car crash during September 1999. There have been repeated incursions into her private life by paparazzi that used to sell her snaps to the newspapers.
“Once again the Princess of Wales has been harassed by a photographer. Once again this has become the subject of inaccurate press comment. The Princess hopes that the recently passed Protection from Harassment Act will give greater protection to people such as herself who are victims of this kind of distressing intrusion into their private lives.” (UK Law Online: Princess Diana, Privacy Law and press Freedom in the United Kingdom: Press intrusion and Princess Diana.
Kaye v. Robertson ([1991] FSR 62
In the case of Kaye v. Robertson ([1991] FSR 62, the aspects of lack of privacy has been vividly portrayed. It is seen that in this case, an eminent Television personality, Gordon Kaye was hospitalized with head injuries sustained in an accident. Despite the fact that there was a ban on publicity, two photographers were able get his photos in this state and publish it in newspapers. In his ruling “Bingham L.J. said that the case highlighted the failure of both the common law and statute to protect in an effective way the personal privacy of individuals. “ (CHANCERY DIVISION: MILLS v NEWS GROUP NEWSPAPERS LTD [2001] LTL C0101483 : ( 2001 ).
Again, if one were to consider the facts of the case of relating to Regina v. Chief Constable of South Yorkshire Police (Respondent) ex parte Marper (2004) UK HHL 39, it is seen that as per Section 64 of the Police and Criminal Evidence Act 1984, (PACE) it is illegal to retain samples and DNA of persons after they have been acquitted.
However, in apparent transgression of Section 64, it has been provided under Section 64 ( IA) that “Where – (a) fingerprints or samples are taken from a person in connection with the investigation of an offence, and (b) subsection (3) below does not require them to be destroyed, the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation.”
This in effect means that the personal data of the persons may be used for assessing their involvement in future cases. There are also possibilities that once these data have been entered in a DNA database, it would be a permanent record and proof of the person’s guilt, although the person has been proved innocent. This could be seen in terms of an infringement of person’s right to future privacy, in that an innocent person’s DNA and samples are stored in DNA databases, which could, even erroneously be used for incriminating him in future offenses.
It could be seen that most cases on privacy have either absolved the authorities of not infringing in privacy and at best has provided relief under tort laws. Thus, it is seen that a stringent application of privacy laws have not been maintained in the UK context, nor appropriate violations of privacy punished commensurating the degree of offence committed. It is seen that in the case of X v. Y (1988) All ER 648, the fact that two doctor who was believed to have contracted AIDS were not allowed by the Court to be published in newspaper. The papers gained the identities of the AIDS doctors but the courts ruled that preference needs to be given to protecting the public from the possible risks posed by the infected doctors, and restrained the press from publishing such information. In this way the “confidentiality of hospital records” were considered more important by law than the apparent health risks such doctors may prove to the community. (NLM Gateway: X v Y (1988); When is confidentiality a legal right?
This principle of confidence of records could also extend to patients. It is often seen that there are lowered standards of record maintenance and maintaining secrecy of patients’ illnesses and related matters, especially when it concerns discussions with other third parties, or health care professionals. It is not often that the best interests of the patients may not be maintained, and sometimes, there may be compromising of patient’s interests, as was seen in the Alder Hey and Bristol inquiries.
It is seen that in the UK context, the enforcement of human rights and privacy and confidentiality of dealings especially in the health, communications and broadcasting sector need to be further improved. In the medical field, it is seen that the Human Rights Act of 1998 needed to be amended to address to current forms. Again, with regard to the Human Tissues issues, it needed to be reformed to become HT Act of 2004. In the telecommunication field, it is seen that the basic privacy of citizens in terms of right to use of telecommunication instruments are also under surveillance, since it is quite possible for telephone lines to be tapped by intelligence agencies.
Michael Douglas case (2007 )
In the case of Douglas v. Hello (2007), it was seen that the marriage of actor Michael Douglas with Catherine- Zeta-Jones was considered to be a very exclusive and private affair, with only selected people invited and rights of admission, strictly reserved, even to press. The couple had signed exclusive contract with OK, an exclusive magazine to cover the event. Despite tight security, it was seen that a paparazzi photographer managed to sneak through and photograph the event, including the couple. These photographs were then sold to the magazine, Hello at a high price.
OK magazine brought a court order restraining Hello from publishing the photographs and story, and the court ordered an injunction in the matter. “Applying the test propounded by the House of Lords in Campbell v MGN, photographs of the wedding plainly portrayed aspects of the Douglases’ private life and fell within the protection of the law of confidentiality, as extended to cover private or personal information.” Thus, it is seen that where doctrine of privacy of people, especially celebrities are involved, it is possible to secure this against use by unpermitted people. (Gillian Black: Douglas v Hello! – An OK!
It is seen that laws need to conform with and underpin contemporary requirements and current demands. It would be presumptuous to use outdated laws to meet current challenges, especially in the Lego- criminal areas. Our worldly resources are being devastated by human and natural calamities. About the latter, nothing much can be done, except take preemptive means either for early detection, alleviation or even disengaging such occurrences.
But man made disasters, especially terrorism has cast a vice like grip on the world and is determined not to let go. Terrorism, an illegitimate child of globalisation and internationalisaton, fostered by high tech, instantaneous technology, nourished with a readily destructive infra-structure at the drop of a hat, financed by merchants of death and destruction competing in the global market ; terrorism has began where imperialism has left, but in a stronger and more belligerent way.
Leaving a trail of death and destruction strewn on its paths, it has served to bring the world community united as a single force, in their attempts to thwart and destroy this menace from the face of the earth.
Privacy Rights of Children
An instance where the rights of children (whose parent/parents happen to be celebrities) is found in the case of Murray v Big Pictures UK Ltd. The case involved publishing the picture of the 19 month old son of Dr Neil and Joanne Murray while the family was walking along a street in London. The picture was taken by the above mentioned company for The Sunday Express (owned by Express Newspapers Plc) who eventually published it without taking the permission of the parents. Joanne Murray is popularly known as J K Rowling, the internationally celebrated author of Harry Potter books. “Dr and Mrs. Murray issued proceedings on David’s behalf as his litigation friends. David asserted an infringement of his right to privacy for the taking and subsequent publication of the photograph contrary to art 8 of the Convention” (Facts, Published by the Law Resource Centre, Melbourne Australia).
Express Newspapers settled for an out of court settlement with the author, but Big Pictures decided to contest the case. Article 8 of the Human Rights Act 1998 states that “Everyone has the right to respect for his private and family life, his home and his correspondence”. (Article 8 (1), Right to respect for Private and Family Life, Schedules, The Human Rights Act 1998, OPSI – Office of Public Sector Information). The High Court upheld that the photographer (and hence Big Pictures) was well within his rights to take the photograph. Judge Patten who heard the case gave the verdict that as a 19 month old child, the boy is not sensitive about privacy. The Lordship added that the photograph was taken using a long distance lens and the photographer did not intrude physically into the boy’s personal space. The couple moved to the Court of Appeal who overruled the decision of the High Court. According to the Court David was not a celebrity in his own right and if he was the child of ordinary persons, the newspaper would not have cared to publish a story or picture about him. The court ruled that “It was at least arguable that David had a reasonable expectation of privacy. The wish of parents, on behalf of their children, to protect the freedom of the children to live normal lives without the constant fear of media intrusion was (at least arguably) entirely reasonable and, other things being equal, should be protected by the law”. (Murray v Express Newspapers plc and another [2008] EWCA Civ 446; [2008] WLR (D) 143, The WLR Daily, ICLR – The Incorporated Council of Law Reporting For England and Wales).
Immoral Acts and privacy
A recent landmark judgment would provide people who indulge themselves in immoral (not criminal) activities something to cheer about. The judgment was considered a landmark one since invasion of privacy with regard to immoral behaviour has not yet been passed by the Parliament. It is also an instance where other individuals would not have suffered public disgrace (for immoral activities) had the verdict already been delivered earlier. Lawyers in the country have opined “the judge’s ruling would effectively have barred newspapers from reporting a series of high profile cases involving politicians if they had happened today.” (Max Mosley orgy ruling will allow ‘adultery without fear of exposure’, Andrew Pierce and Caroline Gammell, Telegraph.co.uk, July 2008). They include such high profile persons such as Jeffery Archer, David Mellor, and John Prescott. The Mosley case involved an orgy that involved Mosley and five other women at the same time. Mr Mosley, at that time was the president of the Fédération Internationale de l’Automobile (or Formula 1) and the newspaper he sued was called the News Group Newspapers Ltd. The whole event was photographed clandestinely by a publishing company and later uploaded on to their public website. Nearly 3 million hits occurred and Mr Mosley claimed for damages saying that his whole career and life was ruined. The court observed that this behaviour will definitely be viewed with great distaste by most of the public, but this does not mean that the press had the right to intrude upon the privacy of a person even under such circumstances. The Court also observed that there was nothing highly criminal in the act. The final verdict included the following sentence namely “Of course, I accept that such behaviour is viewed by some people with distaste and moral disapproval, but in the light of modern rights-based jurisprudence that does not provide any justification for the intrusion on the personal privacy of the Claimant”. (233, Before the Honourable Justice Eady, Between Max Moseley and News Group Newspapers Ltd, In the High Court of Justice Queen’s Bench Division, England and Wales High Court (Queen’s Bench Division) Decisions, BAILII, July 2008). The Murray case (Rowling) and the Mosley case at least shows that the judiciary is taking a stronger stand with regard to personal freedom versus the press than before.
Laws to curb terrorist violence also need to consider privacy of innocent citizens
The laws, especially in the UK need to be reinforced to tackle this Frankenstein, given the enormous influence and access it has along the corridors of power and money. It is necessary that laws need to contain the menace of such activities, and the scope of human rights restrained to manage and destroy this worldwide menace.
Given the kind of global environment in which we presently reside, it is a mission that need to succeed, a goal that must be achieved. Laws need to unite not only countries like the UK, USA, it also needs to bind the entire world into one fighting force against the evils machinations of terrorism in all its manifestations and violent demonstrations. Humans need to come together with robust laws to fight such adversaries.
It is seen through recent cases that anti terrorism laws sometimes intrude the lines of privacy and personal conduct. The distinctions between laws and their restraints are getting blurred and sometimes laws may not be able to confine wrong doing.
However, it is necessary that the controlling aspects of privacy laws need to be further reinforced, and the surveillance and scrutiny of law enforcement agencies, throughout European community and across global networks need to be made.
Under the circumstance of the need to keep safety and security at optimum levels The role of intelligence, police and security departments, and other Executive agencies need to complement and reinforce the role and responsibility of the judiciary and the justice delivery systems. The law makers need to enforce laws to secure the country, both internally and externally, and it is the duty of the enforcement to execute laws, reward the good and punish the evils.
Even in the context of research studies, it is necessary for ethical and value based principles to reign supreme. It is seen that her are several impediments to drafting strong laws and its implementations. The research needs to take into consideration the facts that sometimes data may be inadequate, not original in nature, subject to vagaries in data collections or may be limited in scope and scale of operations. Further it is seen that all laws may not be applicable, or suitable in all conditions, and therefore, needs to be amended or restructured to suit requirements.
DPA and RIPA
The relatively two new statutes namely the Regulation of Investigatory Powers Act of 2000 (RIPA) and the Data Protection Act 1998 (DPA) are the main reasons for the state of affairs. Even though both statutes are aimed at giving more protection towards privacy, in reality the revere is true. Government agencies throughout the country are using the exceptions where data can be intercepted or surveillance can be done to various other uses. The full impact and implications of this practice is only now being understood by privacy advocates and the citizens in general.
The DPA Act specifies that any data collected from citizens should be used for the purpose it was collected. It also states that only the necessary data required for investigation should be collected. DPA allows collection of data from employees for business purposes, no proper definition as to what is business purpose is not available. RIPA has a wider scope in the sense that interception of private communication is also allowed. The four areas which could be used to intercept information and communication are quality control, national security, and crime prevention and detection. This gives wide powers to government agencies and employers in collection and interception of data and information.
Surveillance and privacy
The United Kingdom is now more and more being referred to as a surveillance society where certain statutes give governments statutory powers to put its citizens under surveillance under the pretext of certain conditions. The surveillance that is practiced in the society is still not understood fully by the citizens of the country. A paper titled ‘A Report on the Surveillance Society’ prepared by the Surveillance Studies Network on behalf of the Information Commissioner clearly states the extent of the problem. “We live in a surveillance society. It is pointless to talk about surveillance society in the future tense. In all the rich countries of the world everyday life is suffused surveillance with encounters, not merely from dawn to dusk but 24/7”. (Surveillance society – summary, history, definitions, Page 1, Part A: Introducing the Surveillance Society, A Report on the Surveillance Society).
The paper provides a comprehensive list of the ways in which the citizens of the UK are under surveillance, without their knowledge and tacit approval. It also states the level of surveillance in a society increases due to factors like the technology available, threats like terrorism etc. But this situation has now changed and now surveillance is common in many areas of a person’s life. The article lists the areas in which this surveillance takes place. It is done through the life of an imaginary family where the wife is from an Asian country and holds dual citizenship. A brief review of the different areas is given here to illustrate the extent of the surveillance society in the United Kingdom.
Due to the fact that the wife is from an Asian country, she is searched more thoroughly at the airport after they return from visiting her home country. The husband has been fined six times for over speeding and he can be tracked again using technology if he does so again. It also means that the concerned department can also know exactly where the man has driven to whether he likes it or not. When the husband tries to pay for groceries using a credit card, authorization is withheld. Immediately a call from the issuing bank’s anti-fraud department calls up to check whether the card holder is genuine. This is because the card had been used in two continents is a short period. This method of tracking even though is used to prevent fraud lets the bank know where the card owner had travelled and used the card. Even children are not spared because of the letter from their younger boy’s school. The school electronically keeps track of what the boy eats by implementing a cashless card to pay for it. This information can be used to by the parents to see whether the child has healthy eating habits. The paper also mentions the countless CCTV cameras that are being used in banks, hotel and flat lobbies and entrances which keeps track of the movements of all those who come and go. The electronically operated number plate tracking system that is used by the police to track down stolen cars is also another area of surveillance on innocent people.
Even though the intention of these surveillance is good and in most cases unavoidable, the concept of privacy is being eroded to a large extent in many parts of the world. Websites and telecom providers also keep track of a user’s web browsing habits by using special software even though this is usually done with the permission of the user. These are some of the areas where increased levels of surveillance are reducing the privacy of the average citizen. In most case the person is unaware of the surveillance or does not understand the significance of the fact that almost each and every movement is being tracked by a private or governmental organization.
UK Bill of Rights
The Human Rights Act may find itself replaced by a Bill of Rights if Conservative MP and Leader of the Opposition in UK have his way. He has argued that the present Act given too much protection to people when the matter is related to serious issues like terrorism. Even if this does not happen, the UK Government may be looking for bringing in more stringent amendments that may erode the rights of UK citizens even further. The reason for this is due to concerns that the present Act “it is promoting criminals’ rights over their victims and hindering security…” (Cameron promises UK bill of rights to replace Human Rights Act, Mike Woodward, The Guardian UK, 2006).
The conflict between Article 8 and Article 10:
It is an irony that two contrasting statements appear so close to each other in Articles given in the Human Rights Act 1998. These two contrasting statutes are the main issues that come up in courts regarding many privacy claims. Article 8 (1) has already been mentioned in the paper. Article 8 (2) states that “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(2), Right to respect for private and family life, The Human Rights Act 1998, OPSI – Office of Public Sector Information). On the other hand Article 10 is about freedom of expression. according to the Article, everyone has this right and will include the right to opinions without any form of public authority interference. It also adds the receiving and imparting of information as rights without interference. There shall be no censorship of public broadcasting medias. But all these rights are subject to duties and responsibilities also the restrictions placed by law as can be expected of a democratic society. Special mention is made of national security, health, morals disclosure of sensitive information, personal reputation etc that may prevent people from exercising their right for freedom of expression. Publishing of photographs by the paparazzi of celebrities is done on the basis of this freedom of expression.
Conclusions
The fundamental and quintessential question that arises in the context of laws of privacy would be in terms of what the breach of privacy means, in material terms and how it could be possibly alleviated or remedied. Privacy is of different hues and colours, of a variety of human and non- human context. However, more than the laws themselves, what is even more necessary are is enforcement, its perceived threats, challenges, benefits and advantages. Also, its implications on a long term basis, need to be assessed and identified.
In the UK context, it is seen that human rights need to be improved, especially wit regard to the innocent, average, law abiding person, who values family ties more than anything else, and does little to provoke the law. But, paradoxically, it is the average person in the streets who is a victim of a battery and assault case, a casualty of class or race violence, or a fatality of senseless terrorist attack.
These needs to be eliminates with the aid of the international community, the EU and Enforcement agencies. both at UK and international levels.
It is also necessary that the human rights records of honest, law abiding citizens are preserved and promoted, including the need for respecting their privacy and confidentiality, especially in matter affecting day- to- day living.
It is seen that several “International governmental organizations have played an active role in privacy policy formation. Several countries have adopted or amended data protection legislation with an eye to entering the European Union or the European information technology market. The EU’s adequacy requirement has played an important role in the development of international standards. “(Privacy international: 2008: PHR2006 – Executive Summary: 5. Actions of international governmental organizations.
Under such circumstances, it is necessary that due importance needs to be given to the various aspects of privacy and how it underpins the lives of average citizens in the United Kingdoms.