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Abstract
This paper examines narratives about the right of privacy in the UK. It argues that until relatively recently the dominant narrative was one that associated privacy with celebrity claimants and media defendants. Other narratives, such as those concerned with digital privacy and data protection, did not feature as prominently. But changing technological and social contexts mean that these narratives are now understood to be of immense importance too. This paper explores these narratives against the backdrop of the European Commission's proposals for a ‘right to be forgotten’ (now relabelled a ‘right to erasure’), the subject-matter of this special issue, as well as the 2014 Google Spain judgment. The paper emphasises the importance of forgetting as an aspect of the right to privacy and argues that while the UK legislator and courts have been slow to give effect to erasure remedies, they must now start exploring the bounds of legal possibility in order to meet the challenges of the digital age.
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Notes
1 Although these narratives did not feature as prominently as the dominant narrative, this is not to say that they have been neglected by scholars. Over the past few years, academics have produced many instructive textbooks and monographs which deal (at least partly, if not wholly) with the subject of privacy law and the internet. See, for example, Hedley (Citation2006); Murray (Citation2010); Reed (Citation2011); Bernal (Citation2014).
2 Case C-131/12, Google Spain SL v AEPD [2014] ECLI:EU:C:2014:317.
3 These rules do not apply to every criminal conviction. See further the Rehabilitation of Offenders Act (1974).
4 Consider, for instance, the recent case of R v Secretary of State for the Home Department (2014) UKSC 35. Here the Supreme Court upheld the Court of Appeal's declaration that particular sections of the Police Act (1997) were incompatible with Article 8 ECHR. See also MM v UK (2012) ECHR 1906.
5 See, for example R (Ellis) v The Chief Constable of Essex Police (2003) EWHC 1321 (Admin); S and Marper v United Kingdom (2008) ECHR 1581; R (Wood) v Commissioner of Police for the Metropolis (2010) 1 WLR 123. We are grateful to Andrew Watson for drawing our attention to these cases.
6 See Venables v News Group Newspapers Ltd and Others; Thompson v News Group Newspapers Ltd and Others (2001) Fam 430; X, A Woman Formerly known as Mary Bell, Y v S O, News group Newspapers Ltd, MGN Ltd (2003) EWHC 1101.
7 It is noteworthy that the discussion in the UK focuses on one aspect of the ‘right to be forgotten’ i.e. being forgotten by others. The language used in other European legal systems reveals another aspect, i.e. the importance of forgetting for the individual agent. Consider, for example, the German Recht auf Vergessen or the French droit à l'oubli. On this point see further Koops (Citation2011, 231–232).
8 Wainwright v. Home Office (2004) 2 AC 406 at 422 (per Lord Hoffmann).
9 Semayne's Case (1604) 5 Coke Reports 91a.
10 See, for example Merest v Harvey (1814) 5 Taunton 442; Jones v Tapling (1862) 12 Common Bench Reports (New Series) 826, 142 ER 1367; Gee v Pritchard (1818) 2 Swanston 402; Prince Albert v Strange (1849) 2 De Gex & Smale 652.
11 See Walker v Brewster (1867) LR 5 Eq 25.
12 See Harrison v Rutland (1893) 1 QB 142; Hickman v Maisey (1900) 1 QB 752.
13 Seipp provides examples of ‘longstanding prohibitions against peeping Toms and eavesdroppers.’ See Seipp (Citation1983, 337).
14 Tolley v. Fry (1931) AC 333 is a neat illustration of these developments.
15 See, for example, Tolley v. Fry (1931) AC 333; Kaye v Robertson (1991) FSR 62. There were occasional exceptions, cases involving non-public claimants. See Malone v Metropolitan Police Commissioner (1979) Ch 344; Wainwright v Home Office (2004) 2 AC 406.
16 A small selection of these cases include Theakston v MGN Ltd (2002) EMLR 22; Campbell v MGN Ltd (2004) 2 AC 457; Douglas v Hello (No 3) (2006) QB 125; McKennitt v Ash (2006) EMLR 10; Mosley v News Group Newspapers Ltd (2008) EMLR 20.
17 HL Deb 24 November 1997, vol 583, col 784.
18 (1969) RPC 41
19 Lord Nicholls refers to the equitable doctrine as a tort in Campbell, n 20 above, at 14: ‘The essence of the tort is better encapsulated now as misuse of private information’. See also Vidal-Hall v Google Inc (2014) EWHC 13; Vidal-Hall v Google Inc (2015) EWCA Civ 311.
20 Of the occasional exceptions, see, for example, Applause Store Productions v Raphael (2008) All ER (D) 321.
21 For Bakhtin, in each epoch or social group there are authoritative utterances that ‘set the tone’, on which ‘one relies, to which one refers, which are cited, imitated and followed’ and which, ultimately, shape our way of life and cultural practices. See Bakhtin (Citation1984, 88–89).
22 We should note here that despite their different treatment, courts have sometimes discussed data protection in the context of the emerging law of civil liability for invasion of privacy. See, for example, Campbell v MGN (2002) EWHC 499 (QB); Campbell v MGN (2002) EWCA Civ 1373; Murray v Big Pictures Ltd (2008) EWCA Civ 446.
23 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (1995) OJ L 281/31.
24 See Google Spain, paras. 93-94. For detailed analysis, see Orla Lynskey, ‘Control over Personal Data in a Digital Age: Google Spain v AEPD and Mario Costeja Gonzalez’ (2015) 78 MLR 522.
25 The courts have interpreted s.14 accordingly: see P v Wozencroft (2002) EWHC 1724 (Fam); (2002) 2 F.L.R. 1118; Quinton v Peirce (2009) EWHC 912 (QB); (2009) F.S.R. 17 (QBD) [91].
26 See, for example, KJO v XIM (2011) EWHC 1768 (QB) (QBD) [50], on the ‘limits to the re-writing of history’ in the context of the Rehabilitation of Offenders Act (1974).
27 HL Deb 2 Feb 1998, vol 585, col 440.
28 DPA 1998, Schedule I, Pt II, s.7.
29 The Law Society and Ors v Kordowski (2011) EWHC 3185 (QB) at 78, 142.
30 See, for example, Brown and Czerniewicz (Citation2010, 357–369).
31 By ‘normative agency’ Griffin means the ‘capacity to choose and to pursue our conception of a worthwhile life.’ See Griffin (Citation2008, 45). On the importance of privacy for normative agency see O'Callaghan (Citation2012).
32 Hachette Filipacchi Associés v France (2009) 49EHRR 23; Mosley v United Kingdom (2011) 53 EHRR 30.
33 On ‘social primary goods’ see Rawls (Citation1999, 90–95).
34 Hegglin v Persons Unknown (2014) EWHC 2808 (QB) (QBD)
35 Mosley v Google Inc (2015) EWHC 59 (QB).
36 Mosley v Google, ibid., 52.
37 C-293/12 Digital Rights Ireland (2012) ECLI:EU:C:2014:238
38 Vidal-Hall v Google Inc (2014) EWHC 13; Vidal-Hall v Google Inc (2015) EWCA Civ 311; Hegglin v Persons Unknown, n 84 above; Mosley v Google, n 85 above (wrong reference n84, n85 – see original document).