A picture's worth a thousand words

The winning student essay in the competition organised by the Society and the Scottish Parliament, arguing for privacy as the aspect of Scots law most in need of legislation

19th July 2010 | Suzie May

Official reports would probably list whisky and electronics as Scotland’s highest yielding exports. Unofficially, however, there is an export so famous that it is known the world over. With as much sting as electricity, but holding an appeal for all ages that whisky never has, is that most famous of wizards, Harry Potter, whose literary journey was penned in our own capital.

Even excluding the book and the film sales and the endless list of memorabilia, Harry Potter has magicked up a magnitude of tourist revenue for Scotland. A walk down Edinburgh’s George IV Bridge would take in a café which proudly purports to be the birthplace of Harry Potter, and a walk down the parallel-running Nicolson Street would involve passing a sign to that effect. Scotland has cashed in on Harry Potter.

Yet, in another respect, Scotland has been unable to cash in on everything to do with the lucrative character. Another walk may be used to illustrate this, this time with his renowned author, J K Rowling, and her son. Throw in some covert paparazzi and, several court cases later, the deficit is illustrated. Scotland’s privacy law had nothing to offer the family.

Across the border, following the supermodel Naomi Campbell’s controversial battle against the press in 2004, the law of England & Wales has developed some strong precedent on privacy, leaving Scotland behind. Privacy is a difficult common law concept in both England and Scotland which, in modern times, has been truly eclipsed by the doctrine of breach of confidence, but common law can only develop when there are cases to be heard and therefore Scotland is currently stuck in a very private rut.

A committee of the Scottish Parliament should be formed to tackle the issue head on and consider a statutory remedy.

The necessity for this can be explained by tracing the history of privacy, the case law in England and Scotland, with particular emphasis on Campbell’s case Campbell v Mirror Newsgroup Ltd 1 and Rowling’s case Murray v Express Newspapers plc 2, and by reference to the UK Parliament’s own report on privacy, with the conclusion that there is no other option or better use of a committee’s time. While privacy covers a wide range of matters, such as privacy of the person, this essay will focus on informational privacy only, or what the English courts refer to as the misuse of private information.

In England, up until recently, privacy was classified as an equitable wrong and not a tort. In Scots law, aspects of privacy have long been recognised, such as professional privacy which can be found as far back as 1709 in the Statute of Anne – also known as the Copyright Act.

More recently, protection of privacy and information has become more important because the channels through which information can be collected and distributed have become more numerous, with the internet having an ever increasing involvement in daily life.

Furthermore, the introduction of the Human Rights Act in 1998, ratifying the European Convention of Human Rights (ECHR) into the laws of the United Kingdom, has significantly affected whole areas of the law, including privacy. Of particular consequence is, on the one hand, article 8 of the ECHR which protects the right to respect for private and family life, and article 10, on the other, which protects freedom of expression. Cultural and technological developments should be reacted to by the law in order to maintain an effective system and this has not yet happened with protection of privacy, especially in Scotland, and this should not remain the case. Privacy needs to be brought into the present, after a full consideration of its past, in order to make it best suited for the future.

It was trite law that the law of England contained no general tort of privacy, most recently affirmed in the judgment of Wainwright v Home Office 3 in 2003. Shortly after, however, there began a pattern of more radical law. The pivotal judgment came in the form of Campbell v Mirror Newsgroups Ltd 4.

The litigation, which reached the House of Lords, concerned photographs secretly taken of Naomi Campbell as she left a narcotics anonymous meeting. These were then published in a newspaper under the somewhat conspicuous title “Naomi: I am a drug addict”. Campbell is a public figure, who has enjoyed a “long and symbiotic relationship with the media” 5, and these photos were taken in a public place and thus there should have been no problem. However, the photos were found to fall under one branch of privacy law: namely wrongful disclosure of private information.

As Lord Nicholls described, this subdivision covers “the familiar competition between freedom of expression and respect for an individual’s privacy” 6. On the one hand, the Mirror’s freedom of expression was backed by its assertions that the public had the right to know of Campbell’s lies about her drug use because she had consistently declared that she did not take drugs, unlike so many of her contemporaries. Respect for an individual’s privacy, on the other hand, has been more closely safeguarded since the introduction of the Human Rights Act 1998. By a narrow majority of three to two the House of Lords created a new tort which has become commonly known as the misuse of private information.

The significance of this decision is considerable. It meant that the law of privacy went from a largely unformulated concept to a concrete precedent in the form of misuse of private information, opening the door for other cases to follow.

Cases have followed and, in 2004, Murray v Express Newspapers plc 7 was heard in the High Court. This was an action brought by J K Rowling and her husband on behalf of their young son for invasion of his privacy following photographs which were taken and published of him as he was pushed down a street in his buggy.

Their case was struck out in the High Court but the Court of Appeal granted their appeal. It was held that a child has a right to privacy which is separate from that of each of its parents but which can be affected by the extent to which the parents choose to have their child in the public eye. The right to privacy is decided by the test of legitimate or reasonable expectation and then whether rights under articles 8 and 10 of the European Convention of Human Rights have been infringed.

Murray v Express Newspapers plc was brought to court after Campbell had been decided. Indeed it was the first such decision to follow in Campbell’s footsteps. However, the case should have been heard in Scotland. After all, that is where the alleged invasion of privacy occurred and where the litigants are resident. The reasons for this somewhat unusual decision are simple. Although the occurrence happened on Scottish ground, the jurisdiction for publication was elsewhere. Furthermore, with the advancements in English law, the outcome in Scotland would have been uncertain whereas in England, while it was by no means indisputable, the result of Campbell was that there was a defined tort which could form the basis of the Murrays’ argument. Murray has confirmed that the English courts will be willing to follow Campbell and the tests which were devised in that case, and so it can be seen that the English tort of misuse of private information is flourishing.

Comparatively, therefore, Scotland is in a weak position. With no statute to refer to, case law must be examined in order to find a modern position on privacy. Unfortunately, this endeavour does not prove particularly fruitful either. In the drought of Scottish privacy cases there are few which can be pointed to. X v BBC 8 involved a pursuer, aged 17, attempting to prevent footage of her that was filmed by the BBC being aired. While this could have proved to be a seminal case on the law of privacy it instead became more of a question of setting aside the pursuer’s agreement with the defenders on the basis of her age and lack of capacity when the document was signed.

As time goes by, without a Scottish privacy case, it seems like the law is set to become less and less certain. The Scottish courts may well follow the English precedent but it is unlikely that a pursuer will choose to be a metaphorical “lab rat” for Scotland, whereas if a pursuer has the opportunity to bring their case in England or Wales then they have the comfort of a more settled law of privacy and hence a more settled outcome.

The UK Parliament’s Culture, Media and Sport Committee released its report on Press Standards, Privacy and Libel in February 2010. Its conclusion on the law of privacy is that it should remain how it is and “should continue to be determined according to common law, and the flexibility that permits, rather than set down in statute” 9. This was considered especially important in light of the relatively recent introduction of the Human Rights Act 1998, which should be given time to develop under the common law.

Significantly, however, its conclusion is based on the belief that the law relating to privacy will “become clearer as more cases are decided by the courts” 10. This is in stark contrast to the Scottish position where recent cases have been few and far between and, unless there is a dramatic change made to the law, privacy in Scotland will continue to stagnate while it flows freely in England and Wales.

Protection of privacy has, in some form, long been recognised in the laws of Scotland, England and Wales. However, with the introduction of the Human Rights Act 1998 and developments in the ways information can be circulated, the time has come for modernisation.

While the UK Parliament has shown itself willing to watch from the sidelines as the Human Rights Act plays out its effects on the common law, it can afford to do this because of recent case law such as Campbell which has substantially strengthened the English position on privacy. The Scottish Parliament cannot afford to wait for a case which may never arise in order to formulate a contemporary law of privacy. As a small jurisdiction compared with its neighbour, Scotland should consider the implementation of a statute, either mirroring the English position or containing necessary differences, in order to prevent the continuation of uncertainty which has for so long characterised the Scots law of privacy.

While a statute would inevitably do away with a degree of the flexibility which exists under the common law, it is this writer’s considered assertion that a degree of certainty is of greater importance to the law of privacy at the moment. Therefore, the Scottish Parliament Committee for Education, Lifelong Learning and Culture should look into the matter of privacy or preferably a subject Media Committee should be set up.

Scotland cannot afford to wait any longer for the case which may or may not resolve the weighty issues surrounding invasion of privacy, but must instead make use of its devolved statutory powers or else face a continuous catch-up with England and Wales, their footprints among the desert of cases already beginning to fade into the distance.

Suzie May is a third year law student at the University of Edinburgh. Prior to university, she went to Bearsden Academy in East Dunbartonshire. During her third year of the LLB she studied delict, tax and trusts & succession, and in fourth year she plans to study contract and labour law.

Notes

Bibliography

Press Standards, Privacy and Libel, report by the Culture Media and Sport Committee
Campbell v Mirror Newsgroup’s Ltd [2004] UKHL 22; [2004] 2 AC 457; [2004] 2 WLR 1232
Murray v Express Newspapers Plc [2008] EWCA Civ 446; [2009] Ch 481 (CA (Civ Div))
Wainwright v Home Office [2003] UKHL 53; [2003] 3 WLR 1137
X v BBC 2005 SLT 796