Defining privacy

MPs have been agitating for Parliament to define the limits of privacy protection, in the wake of judicial decisions exploring (some would say expanding) the extent of the article 8 ECHR right, and particularly where the line is drawn in relation to article 10 freedom of expression - which includes the rights of the media.

It seems to me they are barking up the wrong tree. We are after all talking about Convention rights, in relation to which the ultimate authority is the Human Rights Court in Strasbourg. The law is as set out in the articles, and Parliament can only cut across such rights at risk of awards of damages against the UK Government.

Perhaps - and I am not an authority on this - there is room for some margin of appreciation, the area where the court recognises that the precise scope of the Convention right is open to national authorities to delimit, as with the Mosley case (see below). But this may be more readily applied to ancillary measures than to the essence of the right itself.

A more worthwhile subject for debate would be the available legal protections for privacy, in the light of emerging information about the frequency with which superinjunctions have been granted, and the Max Mosley case where the Human Rights Court itself ruled that UK law was not deficient in not requiring proposed disclosures to be put to their subject in advance.

The court decided that the availability of a potentially substantial remedy in damages, together with the sanction of a Press Complaints Commission adjudication (a questionable deterrent to my mind), was sufficient remedy, recognising that a public interest exception would have to apply to any notification rule, which therefore could not be watertight.

People in Mr Mosley's situation therefore may have to rely on their ability to detect a story before it breaks, to provide the opportunity to seek an injunction/interdict. That seems to add to the incentive to the press to keep things well under wraps until they break the story. Our parliamentarians may care to consider whether additional sanctions might be available in that case, such as an accounting for the profits of the relevant issue (which would not have to go to the person concerned), or permanent exclusion from the paper's  website even if the story has otherwise spread across the web: papers will seek to drive up traffic to their websites in order to boost advertising revenue, so depriving them of that opportunity from a wrongly published story would continue to serve a purpose.

As for the (super)injunction, the considerations are finely balanced. The argument that it's only available to those with means doesn't take things very far to my mind: the same can be said of any type of legal action. And it's well known that if it gets out that an individual within a defined category is involved in such a case, the list of possibles is soon narrowed down. Nor is this the only type of case where justice may have to be carried out in secret in order to achieve its objects.

The real objection to secret court orders of "worldwide effect", it seems to me, is the risk of disseminating information covered by the order, in ignorance of the existence of the order. As to that, I would hope that article 7 of the Convention would step in to prevent any sanction. So the onus is then on someone obtaining an order to make it widely known among those who might be interested in publishing the story; and the more they do so, the greater the risk that details will leak, especially online.

The press will obviously rail against the use of blanket orders. But we should look beyond the special pleading and ask whether they are disproportionate in effect. That would be a useful debate for our MPs to have.