The Guardian has a piece suggesting, following the judgment of the UK Supreme Court this week in ZXC, that privacy laws could be rolled back by replacements to the Human Rights Act.
Following the judgment in ZXC a government spokesperson has stated: “A free press is one of the cornerstones of any democracy. The government recognises the vital role the media plays in holding people to account and shining a light on the issues which matter most. We will study the implications of the judgment carefully.”
Whilst political sources are usually careful not to criticise judges, the balance between freedom of expression and privacy rights of individuals is a contentious area, drawing critical voices from both sides of the debate. TPP advocates balance between the two competing rights.
It should be noted that whether someone has a reasonable expectation of privacy in respect of information regarding a criminal investigation pre-charge is still a highly fact-sensitive and nuanced approach. The court has set a general presumption. But it reflects a careful case-by-case approach in which all the circumstances of a case are taken into account.
The finding in ZXC does not to say there cannot be a case where criminal investigations pre-charge can be made public by the press. This involves a balancing of privacy rights against freedom of expression- the second limb of the well-entrenched test. Its notable that this second limb was not at issue in ZXC.
Therefore, ZXC serves to reinforce pre-existing caselaw, particularly following the Cliff Richard case, in finding that pre-charge details of a criminal investigation fall within ones reasonable expectation of privacy. This then needs to be rebutted by freedom of expression, and one would posit, public interest arguments.
The suggestion from the Government that “there should be a presumption in favour of upholding the right to freedom of expression, subject to exceptional countervailing grounds, clearly spelt out by parliament” is a dangerous one.
As the ZXC judgment rightly points out- neither privacy rights nor freedom of expression takes precedence over the other. The rights have, importantly, always been couched as equally weighted. Both rights are fundamental to a democratic society.
The government wading into such a sensitive process is concerning. Not least by touting criticised approaches to reforming the Human Rights Act. The safeguarding of an individuals privacy, allowing for autonomy, is as fundamental to a democratic society as a free press.
Examine the cases and a fact-sensitive highly nuanced approach to balancing the competing fundamental democratic rights of privacy with freedom of expression readily emerges.
Judges are acutely sensitive to this fact in striving to independently adjudicate complex matters of fact and law. The Meghan Markle case is one of the recent examples of where the balance between privacy and expression has been bought to debate in the public consciousness. The Brett Wilson’s Media Law Blog comes to the defence of privacy and the judiciary- an approach which TPP endorses.
To circle back around- ZXC has ensued a fresh wave of criticism in an area which has typically been at the cutting edge of this debate- the rights of those suspected of criminal activities. And, I add with emphasis here, at pre-charge stage without applying the second limb of the two-stage test.
Again the law makes a the critical distinction here. Open justice and public interest rightly hold sway at a post-charge stage.
And even in these circumstances balancing competing rights comes into play. In the right to be forgotten cases of NT1 and NT2, the right to privacy has evolved and reinforces the right to be forgotten where “the right to be left alone” presents itself.
And, as the court rightly observes in ZXC, where factors to be considered are drawn into lists, such as the Murray factors, these are non-exhaustive. This serves contextual approach serves as “a legitimate starting point”- it affords judges the leeway to take into account fact-sensitive nuances in cases and balance the countervailing rights. Because that is what is takes to safeguard both fundamental rights.
For those interested in this debate I highly recommend Hugh Tomlinson QC’s article in the Guardian: Privacy law: what’s the way ahead?