Are privacy laws weakening in the UK?

Privacy law is a complex area of legislation in the UK. Here are some case studies that provide evidence in support of privacy laws remaining strong in Britain. For instance, former Blackburn footballer Gary Flitcroft was granted an order by a high court judge protecting his privacy and preventing him from being named in a kiss and tell story published in the Sunday People newspaper.

In another case involving a high-profile name, Radio 1 DJ Sara Cox was photographed naked on her honeymoon on a private island in the Seychelles. The pictures were taken without their knowledge. Cox sued under article 8 (right to privacy) and law of confidence forcing the newspaper (Sunday People again) to pay costs of over £100,000 and destroy the pictures. Previously, the paper had apologised as part of a deal brokered by the PCC. Critics of the PCC say it has been discredited as a watchdog by Cox's decision to go to law even after the PCC had negotiated an apology.

The PCC code advises journalists to respect the privacy of others, and not harass them. A number of acts also protect privacy, article 8 (right to privacy), confidence law and the data protection act. The Data Protection Act is a United Kingdom Act of Parliament. It defines a legal basis for the handling in the UK of information relating to living people. It is the main piece of legislation that governs protection of personal data in the UK. Although the Act does not mention privacy, in practice it provides a way in which individuals can enforce the control of information about themselves.

Britain’s first law protecting personal privacy on a more general basis was announced as part of Queen’s Speech on the 14th of May 1997. It is a part of the new Labour Government policy ‘Bringing Rights Home to Britain,’ and the new privacy legislation will arise through legislation which incorporates the European Convention on Human Rights into UK law. If it is incorporated, it would mean that ‘a right to respect for a private life’ will be part of the British law for the first time. However, much of the development will be left to the discretion of judges, and it is not clear how quickly or how far the judges will move the law in the direction of the protection of privacy.

One concern which might give them pause for thought is that individual privacy cannot be considered in isolation. Privacy must be weighed alongside freedom of speech and expression, which is also an important right under the European Convention.

As a member of the European Convention on Human Rights, the United Kingdom adheres to Article 8 ECHR, which guarantees a "right to respect for privacy and family life", subject to restrictions as prescribed by law and necessary in a democratic society towards a legitimate aim.
However, Britain has one of the worst records in the developed world for protecting the privacy of its citizens, according to international research carried out by Privacy International. The proposed national identity register is further proof of the UK’s disregard of privacy. The project which will be introduced in 2011 has been met with heated opposition by human right groups who believe that ID cards will take away their privacy and turn Britain into a nanny state.

In addition, there is no independent tort law doctrine which recognises a right to privacy. This has been confirmed on a number of occasions. In 2003 a young man with cerebral palsy went to visit his brother in Leeds prison. Because the brother had been suspected of taking drugs in jail, they were asked to consent to strip searching. The young man suffered post traumatic stress syndrome. The judge held that this was both battery and an invasion of their "right to privacy". He awarded compensatory damages of £7000 and Mr Wainwright got £4500. This was overturned in the Court of Appeal by Lord Woolf MR, who set aside the damages for "privacy invasion" and kept the damages for battery.

Lord Hoffmann held that there was no tort for invasion of privacy, because it was too uncertain. Moreover, a claim under Article 8, (right to privacy and family life) did not help because the Convention was merely a standard which applied to whatever was currently present in the common law.