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Chapter

Cover The Changing Constitution

13. Information: Public Access, Protecting Privacy and Surveillance  

Patrick Birkinshaw

The Freedom of Information Act is a statute of great constitutional significance. The Act heralded a right to publicly held information which government had attempted to keep private. FOIA laws have their origins in the pre-digital age and any discussion of information rights must take on board the contemporary reality of the global digitization of communications via social media networks and the enhanced capabilities of state intelligence agencies to conduct surveillance over electronic communications. The General Data Protection Regulation seeks to give greater security to personal data. However, private information is harvested by private tech companies which they have obtained often ‘voluntarily’ and used by intermediaries to influence public events, public power and elections—as illustrated by recent scandals involving the practice of ‘data farming’ by social media networks and the sale of personal data to political campaign consultants seeking to pinpoint electors and thereby affect the outcomes of national elections and referenda. Government surveillance is age-old, but the emergence of digital power has enabled public authority to invade our private lives far more intrusively and effectively. The most recent example is the Investigatory Powers Act 2016. All this poses substantial challenges for the public regulation of information access in a growing confusion of public and private in the constitution. Courts, meanwhile, have to balance demands for privacy protection, open justice and secrecy.

Chapter

Cover Essential Cases: EU Law

Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others (Case C-159/90), EU:C:1991:378, [1991] ECR I-4685, 4 October 1991  

Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others (Case C-159/90), EU:C:1991:378, [1991] ECR I-4685, 4 October 1991. The document also includes supporting commentary from author Noreen O'Meara.

Chapter

Cover Essential Cases: EU Law

Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others (Case C-159/90), EU:C:1991:378, [1991] ECR I-4685, 4 October 1991  

Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others (Case C-159/90), EU:C:1991:378, [1991] ECR I-4685, 4 October 1991. The document also includes supporting commentary from author Noreen O’Meara.

Chapter

Cover Civil Liberties & Human Rights

7. Freedom of Expression (Article 10) I: Official Secrets and Freedom of Information  

Course-focused and comprehensive, the Textbook on series provide an accessible overview of the key areas on the law curriculum. This chapter discusses the law governing official secrets and freedom of information. It covers arguments for the protection of freedom of expression; arguments for and against official secrecy; official secrecy under the Human Rights Act 1998 (HRA 1998); the Official Secrets Acts 1911–1920; the Official Secrets Act 1989; the action for breach of confidence; breach of confidence under HRA 1998; and the Freedom of Information Act 2000.

Chapter

Cover Contemporary Intellectual Property

17. Breach of confidence  

This chapter discusses contemporary law and policy relating to the protection of confidential information, under the common law. It considers the key elements of breach of confidence: the nature of confidential information, circumstances imparting obligations of confidence, and unauthorised use of confidential information. The chapter also considers the increasing impact of the Human Rights Act 1998 (HRA 1998) and the relevance of international perspectives and approaches. The chapter summarises some key cases to give examples of the issues that arise, discusses the evolving relationship between secrecy and innovation, and the impact of other forms of information control and the relevance of freedom of expression.

Chapter

Cover Tort Law

16. Invasion of privacy  

This chapter examines the nascent ‘tort’ of invasion of privacy. It first considers why no free-standing tort of invasion of privacy exists, before looking at breach of confidence—a legal concept straddling tort and equity and concerned with ‘secrets’ and judicially adapted to protect privacy by developing the new tort of misuse of private information. The chapter then asks whether developments in the law protecting privacy—particularly in the wake of the Human Rights Act 1998—threaten freedom of expression and therefore the general public’s ‘right’ to information, particularly about celebrities, including royalty and politicians.

Book

Cover The Changing Constitution

Edited by Sir Jeffrey Jowell and Colm O'Cinneide

Since its first edition in 1985, The Changing Constitution has provided analysis of the key issues surrounding the UK’s constitutional development, and debates around reform. The ninth edition of this volume is published at a time of constitutional turbulence, with Brexit putting pressure on key aspects of the UK’s unwritten constitutional system. Other aspects of the UK constitution are also in a state of flux, and continue to generate political and legal controversy: the legal protection of human rights, understanding of parliamentary sovereignty and the rule of law, separation of powers, restructuring of the system of justice, the regulation of access to information and data privacy, and pressures for increased devolution to Scotland, Wales and Northern Ireland. These issues and more are covered in this latest edition of one of the UK’s leading texts on the constitution, which includes contributions from a range of leading public law scholars.

Chapter

Cover Tort Law

16. Invasion of privacy  

This chapter examines the nascent ‘tort’ of invasion of privacy. It first considers why no free-standing tort of invasion of privacy exists, before looking at breach of confidence—a legal concept straddling tort and equity and concerned with ‘secrets’ and judicially adapted to protect privacy by developing the new tort of misuse of private information. The chapter then asks whether developments in the law protecting privacy—particularly in the wake of the Human Rights Act 1998—threaten freedom of expression and therefore the general public’s ‘right’ to information, particularly about celebrities, including royalty and politicians.

Chapter

Cover Concentrate Questions and Answers Public Law

9. Freedom of expression  

The Q&A series offers the best preparation for tackling exam questions. Each chapter includes typical questions, diagram problem and essay answer plans, suggested answers, notes of caution, tips on obtaining extra marks, the key debates on each topic, and suggestions on further reading. This chapter moves on from the previous one to examine the freedom of expression. Under common law, freedom of speech is guaranteed unless the speaker breaks the law, but this is now reinforced by the right of free expression under the European Convention on Human Rights. The questions here deal with issues such as obscenity law and contempt of court; the Official Secrets Act; freedom of information; data protection; breach of confidence; and whether there is a right of privacy in English law.

Chapter

Cover Evidence

8. Public Interest Immunity and Related Matters  

Chapter 8 examines the doctrine of public interest immunity. It discusses the development of the law; ‘class’ claims and ‘contents’ claims; national security and analogous concerns; proper functioning of the public service; the two main contexts in which public interest immunity disputes in criminal cases have arisen—the disclosure of the identity of police informers, and the disclosure of the location of police observation points; how the doctrine of public interest immunity stands alongside, and probably overlaps with, the operations of the Freedom of Information Act 2000; and section 10 of the Contempt of Court Act 1981, which governs the disclosure of sources of information contained in publications.

Chapter

Cover European Intellectual Property Law

13. Copyright and Related Rights Exceptions and Limitations  

Justine Pila and Paul L.C. Torremans

This chapter concludes the discussion of European copyright and related rights law by considering the exceptions and limitations permitted (and potentially, required) by Article 5(2) to (4) of the Information Society Directive. A central theme is the increasing challenge being presented to domestic law- and decision-making by the EU law of fundamental rights, including the growing body of EU case law regarding the implications of the Charter of Fundamental Rights and Freedoms of the European Union for the scope and enforcement of copyright and related rights and the coherence and consistency of the emerging jurisprudence in this area.

Chapter

Cover Administrative Law

11. Giving Reasons for Decisions  

Mark Elliott and Jason Varuhas

This chapter examines the content and scope of the duty to give reasons, suggesting that giving reasons for decisions should be treated as a central facet of procedural fairness in administrative law. It first differentiates the duty to give reasons from the duty to give notice, the possibility of inferring unreasonableness from an absence of reasons, the proportionality doctrine, and the duty of candour. It then considers why reasons are required and goes on to discuss the duty to give reasons at common law. It also describes statutory duties and other duties to give reasons, paying attention to the provisions of the Freedom of Information Act 2000 and Article 6 of the European Convention on Human Rights. Finally, it analyzes the question of whether a duty to give reasons has been discharged, and provides an overview of the remedial consequences of a breach of the duty to give reasons.

Chapter

Cover Tort Law Concentrate

15. Privacy  

This chapter discusses the law on the protection of privacy. The passage of the Human Rights Act 1998, incorporating the European Convention on Human Rights (ECHR) into domestic law, enabled a new perspective on the question of protection of privacy, previously not covered by a specific tort. The art 8 right to respect for private and family life must be balanced with the equally powerful art 10 right to freedom of expression. Campbell v MGN (2004) provides a detailed consideration of this area of law by the House of Lords. The chapter covers the action for misuse of private information, the issue of photography, and that of remedies.

Chapter

Cover Human Rights Law Directions

22. Applications: media law and privacy  

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter deals with human rights and the media. It considers the widespread tension between, on the one hand, the importance in a democratic society of freedom of expression and, on the other, the rights of persons to protect their various interests, particularly when these involve matters of privacy and confidentiality. The importance of the media is fully recognised by the European Court of Human Rights, and Convention rights have had a significant impact, both directly and indirectly, on media law. However, the issue often involves balancing the clear commitment to media freedom derived from Article 10 with other rights such as those in Article 8.