Gavin Phillipson

Breach of Confidence as a Privacy Remedy in the Human Rights Act Era

This article examines the impact of the Human Rights Act (HRA) on the current lack of a remedy for non-consensual publication of personal information by the media. It argues that the action for breach of confidence is now ripe for development into a privacy law in all but name and that the normative impetus for this enterprise can be found in the HRA which will require domestic courts to consider Convention jurisprudence. It will suggest that when Strasbourg decisions are examined in the context of more general Convention doctrines, they may be seen to suggest the need for an effective privacy remedy. Drawing upon approaches from other jurisdictions it seeks to demonstrate that principled solutions may be found to the thicket of legal problems associated with such development. It contends that the main objection to this enterprise, the perceived threat to media freedom, is largely misplaced, as analysis at the theoretical and doctrinal levels reveals that speech and privacy interests are in many respects mutually supportive and the areas of conflict small and readily susceptible to resolution.

Policing, profiling and discrimination law: US and European approaches compared

Counter-terrorism officials in the USA and the UK responded to the events of 11 September 2001 and 7 July 2005 with an increasing resort to the use of ‘intelligence-led policing’ methods such as racial and religious profiling. Reliance on intelligence, to the effect that most people who commit a certain crime have a certain ethnicity, can lead to less favourable treatment of an individual with that ethnicity because of his membership in that group, not because of any act he is suspected or known to have committed. This paper explains the context in which intelligence-led policing flourishes, and how this discussion contributes to the profiling debate in both the USA and the UK, and then sets out two key contentions. First, we argue that Article 14 ECHR as applied under the UK Human Rights Act has a more protective, and less ‘prosecutorial’, conception of discrimination than has the US Equal Protection Clause, meaning that judges need not find a discriminatory motive to find that discrimination has occurred. Second, we contend that Article 14 provides the judiciary with the key tool of proportionality, which, when properly applied, makes it harder for discrimination to stand up to scrutiny.

Max Mosley goes to Strasbourg: Article 8, Claimant Notification and Interim Injunctions

This article considers the argument made in the current application of Max Mosley to the European Court of Human Rights that Article 8 requires media bodies to notify potential claimants before stories that invade their private lives are run, in order to give them the opportunity to apply for an interim injunction. It argues that such relief is the only truly effective remedy for a threatened invasion of privacy and that at least in the context of UK law and the attitudes and culture of the British tabloid media, such a notification requirement is reasonably necessary. It contends that, given the safeguards in section 12 of the Human Rights Act, such a requirement would not amount to a disproportionate restraint on the Article 10 rights of the media.

Leveson, the Public Interest and Press Freedom

What is the public interest in a free press? Is the value of a free press simply the value of freedom of speech, as the press would have us think, so that we can use the terms ‘free speech’ and ‘free press’ interchangeably? This issue is important because it is a central battle ground not only in relation to the merits of press regulation, but also in terms of the linked issue of how press freedom should be balanced with other rights, such as privacy and reputation. If we regard press freedom as merely an aspect of freedom of speech, or see the two freedoms simply as equivalent, then we might be inclined to see the proposed regulation of newspapers, which on any judgment will reduce their freedom,in the sense of freedom-from-interference, as a bad thing. On the other hand, if we regard the value or role of speech in the mass media as somehow different from the value of individual free speech, seeing it as less concerned with the rights of the ‘speaker’ and more to do with the benefit obtained by the audience, then we might be more open to the view that regulating the press could actually enhance its value, from an audience perspective. This might be particularly so, if we had reason to believe, following the findings of the Leveson Report, that the unrestrained freedom of the press could be—and had been shown to be—a sometimes destructive force both for particular individuals and for the quality of public discourse overall. In short, the view taken of the nature of,

Text, cases and materials on public law and human rights

1. Constitutional Theory and the British Constitution after Devolution 2. The Nature and Role of Constitutional Conventions 3. The Rule of Law and the Separation of Powers 4. Parliamentary Sovereignty 5. The European Union and Parliamentary Sovereignty 6. Devolution 7. The European Convention on Human Rights 8. The Commons: Elections, Parties, Legislation and Scrutiny 9. The House of Lords and Reform 10. Parliamentary Privilege 11. Prerogative Powers 12. The Central Executive: Structures and Accountability 13. Official Secrecy and Access to Information 14. Judicial Review: Availability, Applicability, Procedural Exclusivity 15. Grounds of Judicial Review 16. Ombudsmen 17. The Traditional Protection of Civil Liberties in Britain and the Impact of the Human Rights Act 1998 18. Freedom of Expression 19. Freedom of Assembly, Public Protest and Public Order 20. Police Powers

Clarity postponed : horizontal effect after Campbell.

Introduction The issue of whether the Human Rights Act imports Convention rights – or Convention principles – into private law is of great importance to the judicial attitude towards the HRA project. This chapter seeks not simply to analyse the doctrinal treatment of the issue by the courts, but to suggest, tentatively, some considerations underlying the judicial approach to it which might explain the result that, six years after the HRA came into force, there is still considerable ambiguity surrounding this point. I start with the following contention: that to allow what was hitherto an international treaty to penetrate deep into the common law was something about which the judiciary was always likely to feel ambivalent. It is one thing when Parliament simply replaces an area of common law with a statutory code – though it may be noted that even the enactment of a new statutory code in a particular area has not prevented the judiciary from developing the common law in a way that arguably circumvents or subverts it. But for Parliament to enact a statute that had the capacity to colonise whole swathes of the common law with general Convention principles was quite another matter: it threatened the whole traditional common law style of reasoning and the judiciarys autonomy in developing it.

Confidence and Privacy: A Re-Examination

The flexibility of the doctrine of confidence and its adaptability to illsorted and disparate situations has often attracted academic attention, but although it continues to develop, its ability to protect privacy has not perhaps been sufficiently emphasised in recent discussions of both privacy and confidence,despite the debate generated by the (recently abandoned) proposals for a new tort of invasion of privacy. The notion that developments in the doctrine of confidence could properly render it apt to protect privacy came under attack by Wilson in 1990 on the ground that legal obligations to maintain confidence of intolerably uncertain scope might arise as a result of the normal incidents of social life and friendship.

A Dive into Deep Constitutional Waters: Article 50, the Prerogative and Parliament

This article analyses the Article 50 TEU debate and the argument that for the UK Government to trigger the formal withdrawal process without explicit parliamentary authorisation would be unlawful, because it would inevitably result in the removal of rights enjoyed under EU law and the frustration of the purpose of the statutes giving those rights domestic effect. After a brief survey of Article 50, this article argues first of all that the power to trigger Article 50 remains within the prerogative, contesting Robert Craigs argument in this issue that it is now a statutory power. It then suggests a number of arguments as to why the frustration principle may be of only doubtful application in this case, and in doing so it re-examines one of the key authorities prayed in aid of it - the Fire Brigades Union case.