APPENDIX 4: CALL FOR EVIDENCE
A new joint committee has been appointed by both
Houses of Parliament to consider privacy and injunctions. The
Joint Committee comprises 13 MPs and 13 peers. It will take oral
and written evidence and make recommendations in a report to both
Houses. The Joint Committee invites interested organisations and
individuals to submit written evidence as part of the inquiry.
The Joint Committee would welcome written submissions
on all or any of the following questions:
(1) How the statutory and common law on
privacy and the use of anonymity injunctions and super-injunctions
has operated in practice
(a) Have anonymous injunctions and super-injunctions
been used too frequently, not enough or in the wrong circumstances?
(b) Are the courts making appropriate use of
time limitations to injunctions and of injunctions contra mundum
(i.e. injunctions which are binding on the whole world) and how
are such injunctions working in practice?
(c) What can be done about the cost of obtaining
a privacy injunction? Whilst individuals the subject of widespread
and persistent media coverage often have the financial means to
pursue injunctions, could a cheaper mechanism be created allowing
those without similar financial resources access to the same legal
protection?
(d) Are injunctions and appeals regarding injunctions
being dealt with by the courts sufficiently quickly to minimise
either (where the injunction is granted or upheld) prolonged unjustifiable
distress for the individual or (where an injunction is overturned
or not granted) the risk of news losing its current topical value?
(e) Should steps be taken to penalise newspapers
which refuse to give an undertaking not to publish private information
but also make no attempt to defend an application for an injunction
in respect of that information, thereby wasting the court's time?
(2) How best to strike the balance between
privacy and freedom of expression, in particular how best to determine
whether there is a public interest in material concerning people's
private and family life
(a) Have there been and are there currently any
problems with the balance struck in law between freedom of expression
and the right to privacy?
(b) Who should decide where the balance between
freedom of expression and the right to privacy lies?
(c) Should Parliament enact a statutory privacy
law?
(d) Should Parliament prescribe the definition
of 'public interest' in statute, or should it be left to the courts?
(e) Is the current definition of 'public interest'
inadequate or unclear?
(f) Should the commercial viability of the press
be a public interest consideration to be balanced against an individual's
right to privacy?
(g) Should it be the case that individuals waive
some or all of their right to privacy when they become a celebrity?
A politician? A sportsperson? Should it depend on the degree to
which that individual uses their image or private life for popularity?
For money? To get elected? Does the image the individual relies
on have to relate to the information published in order for there
to be a public interest in publishing it (a 'hypocrisy' argument)?
If so, how directly?
(h) Should any or all individuals in the public
eye be considered to be 'role models' such that their private
lives may be subject to enhanced public scrutiny regardless of
whether or not they make public their views on morality or personal
conduct (i.e. in the absence of a 'hypocrisy' argument)?
(i) Are the courts giving appropriate weight
to the value of freedom of expression in 'celebrity gossip' and
'tittle-tattle'?[249]
(j) In the context of sexual conduct, should
it be the case that a person's conduct in private must constitute
a significant breach of the criminal law before it may be disclosed
and criticised in the press?
(k) Could different remedies (other than damages)
play a role in encouraging an appropriate balance?
(l) Are damages a sufficient remedy for a breach
of privacy? Would punitive financial penalties be an effective
remedy? Would they adequately deter disproportionate breaches
of privacy?
(m) Should we introduce a prior notification
requirement, requiring newspapers and other print media to notify
an individual before information is published, thereby giving
the individual time to seek an injunction if a court agrees the
publication is more likely than not to be found a breach of privacy?
If so, how would such a requirement function in terms of written
content online eg blogs and other media?
(n) Should aggravated damages be payable if a
media publisher does not give prior notification to the subject
of a publication which a court finds is in breach of that individual's
privacy?
(o) Is section 12 of the Human Rights Act 1998
appropriately balanced? Should the media's freedom of expression
be protected in stronger terms? Or is there a disproportionate
emphasis on the media's freedom of expression over the right to
privacy? Has Section 12 of the Human Rights Act 1998 ensured a
more favourable press environment than would be the case if Strasbourg
jurisprudence and UK injunctions jurisprudence were applied in
the absence of Section 12?
(p) Is the test in section 12 for an injunction
to be granted too high a threshold? Should that test depend on
the type of information about to be published? Has the court struck
the right balance in applying section 12?
(q) Is there an anomaly requiring legislative
attention between the tests for an injunction for breach of privacy
and in defamation?
(3) Issues relating to the enforcement
of anonymity injunctions and super-injunctions, including the
internet, cross-border jurisdiction within the United Kingdom,
parliamentary privilege and the rule of law
(a) How can privacy injunctions be enforced in
this age of 'new media'? Is it practical and/or desirable to prosecute
'tweeters' or bloggers? If so, for what kind of behaviour and
how many people—where should or could those lines be drawn?
(b) Is it possible, practical and/or desirable
for print media to be restrained by the law when other forms of
'new media' will cover material subject to an injunction anyway?
Does the status quo of seeking to restrict press intrusion into
individual's private lives whilst the 'new media' users remain
unchallenged represent a good compromise?
(c) Is enough being done to tackle 'jigsaw' identification
by the press and 'new media' users? For example see Mr Justice
King's provisional view in NEJ v Wood [2011] EWHC 1972
(QB) at [20] that information published in the Daily Mail breached
the order of Mr Justice Blake, and the consideration by Mr Justice
Tugendhat in TSE and ELP v News Group Newspapers [2011]
EWHC 1308 (QB) at [33]-[34] as to whether details about TSE published
by The Sun breached the order of Mrs Justice Sharp.
(d) Are there any concerns regarding enforcement
of privacy injunctions across jurisdictional borders within the
UK? If so, how should those concerns be dealt with?
(e) PARLIAMENTARY PRIVILEGE:
(i) With regard to the enforcement of privacy
injunctions and the breaching of them during Parliamentary proceedings,
is there a case for reforming the Parliamentary Papers Act 1840
and other aspects of Parliamentary privilege? Should this be addressed
by a specific Parliamentary Privilege Bill or is it desirable
for this Committee to consider privilege to the extent it is relevant
to injunctions?
(ii) Should Parliament consider enforcing 'proper'
use of Parliamentary Privilege through penalties for 'abuse'?
(iii) What is 'proper' use and what is 'abuse'
of Parliamentary Privilege?
(iv) Is it desirable to address the situation
whereby a Member of either house breaches an injunction using
Parliamentary Privilege using privacy law, or is that a situation
best left entirely to Parliament to deal with? Indeed, is it possible
to address the situation through privacy law or is that constitutionally
impermissible? Could the current position in this respect be changed
in any significant way? If so, how?
(4) Issues relating to media regulation
in this context, including the role of the Press Complaints Commission
and the Office of Communications (OFCOM)
PCC
(a) Do the guidelines in section 3 of the Editors'
Code of Practice correctly address the balance between the individual's
right to privacy and press freedom of expression?
(b) How effective has the PCC been in dealing
with bad behaviour from the press in relation to injunctions and
breaches of privacy?
(c) Does the PCC have sufficient powers to provide
remedies for breaches of the Editors' Code of Practice in relation
to privacy complaints?
(d) Should the PCC be able to initiate its own
investigations on behalf of someone whose privacy may have been
infringed by something published in a newspaper or magazine in
the UK?
(e) Should the PCC have the power to consider
the balance between an individual's privacy and freedom of expression
prior to the publication of material—or should this power
remain with the Courts?
(f) Is there sufficient awareness in the general
public of the powers and responsibilities of the PCC in the context
of privacy and injunctions?
OFCOM
(g) Do the guidelines in section 8 of the Ofcom
Broadcasting Code correctly address the balance between the individual's
right to privacy and freedom of expression?
(h) How effective has Ofcom been in dealing with
breaches of the Ofcom Broadcasting Code in relation to breaches
of privacy?
(i) Is there a case that the rules on infringement
of privacy should be applied equally across all media content?
You need not address all these questions. Short submissions
are preferred.
Submissions, which should be original and not copies
of papers written for Government consultations or any other inquiry,
must be received by Thursday 6 October 2011.
249 The courts have referred to this type of information,
eg. "tittle-tattle about the activities of footballers'
wives and girlfriends". See, for example, Jameel v Wall Street
Journal Europe SPRL [2006] UKHL 44, [2007] 1 AC 359 at 147, [2006]
4 All ER 1279, at [147], CTB v Newsgroup Newspapers Ltd and another
[2011] EWHC 1232 (QB) at [33], ETK v News Group Newspapers Ltd
[2011] EWCA Civ 439, at [11]. Back
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