Sunday, 29 May 2011

These Are Secrecy, Not Privacy Laws.
(+ Aaronovitch on sexual frugality)

The big problem with recent developments in common law 'privacy' protection is that they are happening under the rubric of the tort of breach of confidence. They are thus highly likely to be used by corporations to press even further the absurd degree of 'commercial confidentiality' and even 'taxpayer confidentiality' that they already enjoy, and which helps to obscure the workings of what is now in effect the ruling class.

Once precedents and principles have been set by personal privacy cases, they are likely to be used by corporate lawyers. Given the huge resources at the disposal of big corporations, they can afford to wait for favourable cases, then press their advantage to the full. An example of one such principle is the idea that confidentiality can be owed to someone you've never had anything to do with before, rather than resting on a duty that emerges from some particular relationship.

Talking of 'privacy' law as protecting corporations and other impersonal entities is of course quite out of place. Describing laws about what may be published, however the information was obtained, as being about privacy rather than secrecy is somewhat strained too. I tend to think of privacy as being concerned with such issues as freedom from intrusive surveillance, spying and indeed phone hacking, which is a criminal matter apart from anything else. I'm not sure I've made out an utterly clear distinction here, but I think there is one to be made which is of some importance.

The recent civil actions that have carved out the new doctrines have tended to rely not solely on the tort of confidentiality as extended in reponse to the HRA and Convention, but also on such actual invasions of privacy. This tends to muddy the waters, since the 'anti-invasive' conception of privacy undoubtedly has an influence on what is seen by the judge as the desirable outcome, but given the prior state of the common law and an incremental approach to developing it, the legal doctrines enunciated in their decisions tend to fall on the secrecy/confidentiality side of the distinction.

For example, Naomi Campbell received an award in relation to surreptitious photography and subsequent publication:

The Law Lords reinstated the High Court award of £3,500, based on breach of confidentiality and breach of duty under the 1998 Data Protection Act.

 And Max Mosley, of whose award Eady J. remarked:

Naturally, the very fact of clandestine recording may be regarded as an intrusion and an unacceptable infringement of Article 8 rights. That is one issue. Once such recording has taken place, however, a separate issue may need to be considered as to the appropriateness of onward publication, either on a limited basis or more generally to the world at large. In this case, the pleaded claim is confined to publication of the information; it does not include the intrusive method by which it was acquired. Yet obviously the nature and scale of the distress caused is in large measure due to the clandestine filming and the pictures acquired as a result.

Again, Eady, deciding CTB v Thomas:

It now seems that the Claimant may well have been "set up" so that photographs could be taken of Ms Thomas going to one or other, or both, of the hotels. Although the position is not yet by any means clear, the evidence before me on 14 April appeared to suggest that Ms Thomas had arranged the hotel rendezvous in collaboration with photographers and/or journalists. He first began to "smell a rat" when she told him at the first April meeting, perhaps feigning innocence, that she had been followed and recognised when she visited the first hotel.

The law is certainly developing on the basis that the extension of confidentiality protections applies to individuals and is based on the Convention and HRA, but the first Trafigura injunction, which only unravelled (and was not reversed) due to a combination of Parliamentary privilege and internet traffic, seems to have been granted in recognition of commercial confidentiality being applied to a party not itself participating in a relationship of confidence.

As far as I can tell, this was a new move, and may well have gone through by some kind of vague analogy with cases involving individual privacy. In effect, this makes the right over confidential information an in rem claim, like a property right, which attaches to the information and protects it against the world at large, not merely an in personam one, based on particular obligations. (These are not legal terms strictly applicable in this context, but denote general juridical concepts.)

If that is the case (and it's very hard to tell since the proceedings seem to be shrouded in some mystery), then this effectively gives companies the same protections as individuals: since confidentiality is not a matter of intrusion, and if the protection of 'confidential' information (as opposed to a relationship of confidence) is to be good against the world, then corporations can prevent publication of certain information simply because the information is held in confidence by some third party. This is a very easy condition to meet - if, for example, the corporations' lawyers have been told about it.

The other problematic aspect of the Trafigura and similar super-injunctions is that of prior restraint. The courts have been increasingly wiling to enjoin non-publication rather than granting compensation for damage after the fact. This development too seems to have been developed primarily with an eye to interests in individual privacy, which makes sense since it is far easier to argue that a natural person has an interest which is not open to trade-offs (is incompensable) than that a corporation, especially a profit-seeking one, does. And yet such injunctive relief has, almost as night follows day, also been granted to corporate claimants like Trafigura.

This is a common enough pattern: rights are first granted to to natural persons, who have a strong claim to various protections, and once established, are made use of by artificial, merely legal 'persons' like commercial companies. In the US, for example, there has been a steady trend of corporate 'persons' claiming, and being granted constitutional protections which were not originally envisaged as applying to such entities, and which it is counterintuitive and highly dubious to grant to them.

If the Trafigura case should find a slightly more worthy successor, especially if in the meantime decisions in cases with natural persons as plaintiffs should have been made in expansive language, or the justifications for 'privacy' injunctions come unmoored from their origins in the HRA and Convention, we can expect to see even less transparency and even more power to suppress information being accorded to the corporations which are already probably the primary locus of power and influence worldwide, and whose power is increasing as they capture regulators and take over state functions through privatisation.

This aspect of things might play a part in explaining why the business class, even including Murdoch, seem happy to let the courts keep developing 'privacy' law.

But what, I hear you cry, of Aaronovitch? What Voodoo Bollocks has he come up with on this topic from behind his paywall? The answer: I don't know. I do know that he's not yet in a position to jack in the Times gig in favour of a permanent Radio 4 job, so is still churning out his column, and has evidently recently done something broadly in favour of injunctive relief based on an expanded conception of breach of confidence, though framed as a discussion of adultery by public figures.

And how do I know this? Because, in a vaguely Carrolian move (Aaronovitch Watch having shifted its attention to Nick Cohen more than anyone else) Philipa of Christopher Hitchens Watch has addressed the 'Vitch's article, quoting:

"anyone can see that there's no read-across from sexual frugality to professional capacity"

As Philipa points out, there is equally no 'read-across' (not to be confused with 'read-ahead', which I've been known to accuse Aaronovitch of) from a lack of sexual 'frugality' to adultery. I'm inclined to disagree with her that adultery by those in positions of trust should be presumed to suggest dishonest character, and that there is therefore a legitimate public interest in reporting it.

Marriage is a sensitive business, people have their own arrangements, and infidelities are not always secret from the spouse (e.g. Mary Archer), even though they might well not want the details of such 'arrangements' made public, nor indeed to fully recognise the situation. Unhappy though such spouses might be, it is not always going to be the case that dishonesty is involved of a kind that will be reflected in public life. And I speak as one who agrees that ethical standards in public life are abysmal and worsening.

Another issue that might be thought to justify publication is security: Philipa mentions Profumo as an example. This is basically a counter-espionage issue, and applies to those with access to national secrets. What Fred Goodwin got up to is not therefore terribly relevant, to my eye. If he was involved in cosy corruption between the sheets, that would need to be established rather than presumed or, like a conflict of interest, regarded as discrediting in a quasi-presumptive way.

In cases of counter-espionage there are two strands. One is pillow-talk and the risk that sexual intimacy loosens tongues. I suppose one could just about argue that the threat of publicity - if it acts to deter - might help by reducing the incidence of sex with relative strangers, but that is pretty tenuous and a funny way of going about things.

Vulnerability to blackmail is the second aspect. This was used, especially but not only, pre-1967, as justification for (very, very selectively) treating homosexual activity as a bar. If anything, secrecy laws might be thought to reduce blackmail risk from those in high office with guilty secrets, at least insofar as the potential blackmailee perceives the risk of exposure as non-negligible. But this too is highly implausible.

Not being embarrassed or feeling the need for secrecy, however, is enough to remove the danger of blackmail entirely, as I think vetters have more or less acknowedged in recent years with regard to open homosexuality. Philipa says:

the public are right to mistrust a politician given to deceit and debauchery if Lord Boothby is any example. More recently David Laws' deceit about his expenses was fraud.

I'm not sure exactly what the Boothby point is - there seems to be some speculation that he might have been involved with murders, and he was certainly involved with the Krays. However, the fact that he was protected from publicity (and that apparently to an extent the Krays benefited from this press reticence) was not of course due to secrecy laws, but to informal influence - including, it seems a strange kind of implied reverse blackmail: don't publish this or you will expose the Macmillan family. Laws' blaming his fraud on closet homosexuality sounds to me like a contrived mitigation, but even if accurate, rests on the same points already made in connection with blackmail, and doesn't indicate a connection between deceit and fraud - there was as far as I know no deceit apart from the fraud.

To address what I take to be Aaronovitch's argument: while I don't necessarily disagree with him (or rather with what he wrote) on the substantive point that marital infidelity doesn't indicate unfitness for office, the fact remains that if adultery, or indeed Oaten-style 'hardsports' (trickier, though, that one) are to be irrelevant to peoples' careers, that has to be because the public accept that fact and behave accordingly, and not because the facts are hushed up by secrecy laws.

Philipa has an interesting remark on the need for trust, though I think in the context it must be about intra-marital trust. If so, I'd suppose it appeals to the likelihood - or at least possibility - of public exposure, and sees that as supplying a general deterrent to adultery, and/or a reassurance that undiscovered adultery is less likely. I don't think these would be strong points, but in a wider context, the same kind of point might be, given that we are talking about 'confidentiality' and not privacy.

we need to trust. I know that. Life is far too scary without it.

Unfortunately I think this is often true, even (or especially) when such trust is not well-founded. What do you do when trust can't be justified, yet it's too scary not to trust? Trust unjustifiably, that's what. That's why Aaro's particular brand of authoritarian quietism is so successful in my opinion. But I'll give the prolonged discursus on the topic of 'conspiracy theories', attitudes to, self-censorship, wilful ignorance etc. a miss for now.

[EDIT 31 Mar 2011 - typo, 'extended by' the HRA etc altered to 'extended in response to']


  1. Anthony McCarthy30 May 2011 at 17:45

    "the fact remains that if adultery, or indeed Oaten-style 'hardsports' (trickier, though, that one) are to be irrelevant to peoples' careers, that has to be because the public accept that fact and behave accordingly, and not because the facts are hushed up by secrecy laws."
    But 'public acceptance' (and I'm not at all sure there is general public acceptance for adultery) that adultery, usually involving deciet in the most intimate area of a person's life, is a bad thing. Why? Because widespread adultery distabilises the institution of marriage which has been shown in nearly every survey undertaken, to be crucial in the good upbringing of children and a stable socal order based on fidelity and honsty (not to mention the benefits of bestowing on another an unconditional gift recognising their unique irreplaceable role).
    So, actions which help to increase such public acceptance (or weaken public resistance) are not desirable if we are interested in achieving a common good based around fidelity/honesty etc.
    Your hastily

  2. Tim, thanks for your attention. Sorry for my delay in responding - I've been away. Did you see that Tim Luckhurst wrote about this too?

  3. Anthony - I did say if.

    Philipa - I don't agree with Luckhurst that the adulterous party (along with spouse, children) 'deserve to be exposed' in any very positive sense. My own view is that freedom of expression and free flow of information generally trumps an interest in secrecy about personal matters, and that privacy is to be protected by preventing intrusion rather than by suppressing information.

    I'd also point out that adultery is not by any means the only aspect of private life one might want to protect, and provides a weaker case than many others.

    Unsurprisingly, I can't endorse 'I know and admire David Aaronovitch. He has a first-rate mind and a rare predilection for intellectual honesty.'

    In fact I find it reflects rather badly on the guy's judgement. Though it perhaps also reflects well on Aaro's ability to be ostentatiously judicious on peripheral issues: 'I was wrong... (about what the public thinks).'

    (No Dave, you weren't assessing what the public thinks; you were telling them what to think, remember? It's called the bandwagon effect, a favourite of propagandists and in particular politicians.)

  4. Tim, we find ourselves in agreement. Am with you completely except on the personal issue - I cannot comment on Luckhurst's personal knowledge as I don't have access to it. Sorry for the delay in responding but I've had difficulty posting a response. As to the other points I've replied to your comment on Hitchwatch. There I've also listed a debate (tonight?) at the Frontline club where DA will debate Jack of Kent on these issues. Should be good!