Page 35 - Law and the Media

Introduction
in 1990. Each recommended against the introduction of a statutory law of privacy on the basis of an
unworkable definition of the tort and the undesirability of such a law, although the Calcutt Report did
result in the establishment of the Press Complaints Committee.

The Human Rights Act 1998 establishes for the first time in English law an ‘express’ right to privacy
by reason of the Article 8 right to respect for privacy. The courts must now recognize and determine
the inevitable tension between the Article 8 right to privacy and the Article 10 right to freedom of
expression in cases involving breach of Convention rights by public authorities. This tension will be
of particular concern in cases involving figures in the public eye such as politicians and celebrities.
Furthermore, although the Article 8 right relates only to action by public authorities and not private
individuals, judicial interpretation of the Human Rights Act 1998 in the 12 months since its enactment
seems to suggest that an express right to privacy relating to, and between, private individuals may be
developed by the courts in the future. In the much publicized case of Douglas v Hello! (2001), the
actors Catherine Zeta-Jones and Michael Douglas signed a contract with OK! magazine for exclusive
coverage of their wedding. However, rival magazine Hello! published photographs of the wedding
three days before OK!. The Court of Appeal found that Zeta-Jones and Douglas had a ‘powerfully
arguable’ case in respect of the infringement of their privacy based on the tort of confidence and
Article 8 of the Convention. However, despite these major developments in the law, there is still no
prospect of specific Parliamentary legislation creating a statutory tort of privacy.

Furthermore, the terrorist attacks of 11 September 2001 are likely to impact on the pace and
direction of the development of any ‘law of privacy’. The Anti-terrorism, Crime and Security Act
2001, which came into force on 20 December 2001, enables communication service providers to
retain data (although not content) for reasons of national security or where it may be vital for
criminal investigation, gives law enforcement authorities the right to demand passenger details
from transport providers and gives financial authorities the power to freeze funds. Although the
Government seems for the present time to have backed down on the issue of identity cards, it also
proposes increasing the provisions of the Regulation of Investigatory Powers Act 2000 (‘RIPA’)
which only came into force fully at the end of 2001. RIPA, already dubbed the ‘e-snooping bill’,
allows the police and MI5 to collect Internet data without a warrant in certain circumstances.
However, freedom of speech will not be further limited by a new offence of incitement to religious
hatred, as this was rejected by the House of Lords in December 2001. Although the legislation has
been subject to considerable criticism by the media, civil liberties groups and human rights
lawyers, the Government insists that the measures are necessary and will not impinge upon the
rights of ordinary subjects.

Moreover the Government, standing ‘shoulder to shoulder’ with the USA in the ‘war on terror’, will
no doubt closely observe the effectiveness in the USA of the Combating Terrorism Act 2001 and the
USA Patriot Act 2001. The Combating Terrorism Act 2001, passed by the Senate late at night only two
days after the terrorist attack in such haste that Senator Patrick Leahy complained he only read the Bill
half an hour before debate began, greatly extends the powers of surveillance by Federal and State
governments including the monitoring of communications over the Internet and the installation of FBI
Internet surveillance such as the infamous ‘Carnivore’ system. The USA Patriot Act 2001 allows law
enforcement officials to seek court orders placing ‘roving wiretaps’ on individuals and to subpoena the
addresses and times of email messages of those suspected of terrorism. Both Acts have been accused
in the USA of trampling over privacy issues in favour of rushing through legislation in order to lessen
domestic fears.
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