{"id":415,"date":"2019-04-17T10:22:17","date_gmt":"2019-04-17T10:22:17","guid":{"rendered":""},"modified":"2019-06-07T12:42:39","modified_gmt":"2019-06-07T12:42:39","slug":"human-rights-act-privacy-law-8262","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/human-rights\/human-rights-act-privacy-law-8262.php","title":{"rendered":"Impact of the Human Rights Act 1998 on Privacy Law"},"content":{"rendered":"

Privacy is a crucial issue in relation to the information society. In our contemporary society, filled with all sorts of innovations, new technologies have posed risks to privacy, but at the same time, they have as well facilitated new ways of protecting it (Lyon, 2002). With the acceptance of the significance of privacy, many countries have undertaken unequivocal legislation in sustaining privacy defense. It was the year 1998, when the Labour government passed the Human Rights Act (HRA), which incorporated the European Convention on Human Rights into the UK law. The Act received Royal Assent on 9th November 1998, but was only brought fully into force on the 2nd October 2000 and eventually developed into a privacy law. Before this act, information that was classified as private, would be sent to the European Court of Human Rights in Strasbourg without a judgment from a British court. This paper will explore the current aspect of the legal development of privacy<\/a> due to the Human Rights Act 1998 <\/a>and its impact to privacy law with a focus on privacy and freedom of expression rights. <\/p>\n

Human rights principles are based on values
\nof freedom, respect, equality, fairness, and autonomy, which are recognised in
\nthe Universal Declaration of Human Rights. The Human Rights Act encourages
\npublic authorities to respect and protect these values. One of these
\nfundamental values is the right of an individual to respect of their privacy. There
\nis a general agreement that privacy is essential (Carey, 2010). It is an
\ninherent human right, and as Article 12 of the Universal Declaration of Human
\nRights states: \u2018No one shall be subjected to arbitrary interference with his
\nprivacy, family, home or correspondence, nor to attacks upon his honour and
\nreputation. Everyone has the right to be protected by the law against such
\ninterference or attacks\u2019. Privacy was explained as \u2018the right of the individual
\nto be protected against intrusion into his personal life or affairs, or those
\nof his family, by direct physical means or by publication of information\u2019 by
\nthe Calcutt Committee in their first report on privacy (Leeds.ac.uk, 2017) but,
\nas there is no absolute definition for the term, it can be generally
\ncharacterised as a state of affairs, a claim, and an outline of control or a
\ncharge. There are several approaches related to privacy that are worth
\nexploring in a more extensive way, perhaps in another paper. What is essential
\nfor this paper is to take a brief consideration of the various reasons why
\nprivacy should be valued. This can provide a better understanding as to why the
\nHRA impacted the development of a privacy law in the UK and, essentially, why
\nprivacy should be protected by law in the first place. <\/p>\n

Firstly, privacy can be understood as
\nan important factor in society because a truly private space is necessary for
\nmental health (Nissenbaum, 1997). Therefore, a society that wishes to function
\nright requires the provision and protection of privacy for its members
\n(Introna, 1997).<\/p>\n

Secondly, privacy is closely related
\nto power relationships and as surveillance nowadays is one of the main
\nchallenges to privacy, it can be used to establish and strengthen power. However,
\nliterature has defined privacy as the \u2018right to be left alone\u2019 (Warren and
\nBrandeis, 1890). The right to be left alone is an attractive definition which seems
\nto consider one\u2019s imagination but does not provide a clear or moral
\nimplementation (Phillipson
\nand Fenwick 2000). The right to privacy involves rules relating to the
\ncollection and handling of personal data (such as medical records or credit
\ninformation), the right to to control one’s identity and the right to restrict
\naccess to oneself (for example, control on communication and intrusion into
\ndomestic and work space). Privacy also conflicts with subjects such as freedom
\nof speech; powers of surveillance; national security; personal morality and freedom
\nof information (Markesinis et al., 2004). <\/p>\n

In creating more clarifications,
\nliterature have coined various approaches on privacy. A crucial stream has
\nlinked privacy with control of information or control over access to
\ninformation. In addition, there is the related approach on the information
\nself-determination.  Privacy has been
\nconsidered as a right of determining who will have access to person-related
\ninformation (Krisch
\n2008). Moreover, there is the relation of this
\nprivacy approach with issues of property. In case person-related information is
\nconsidered as property; then privacy aspects may be reduced and be established
\nor refer to intellectual property law (McCrudden 2000).\n<\/p>\n

There has been a significant
\ndivergence on the level in which privacy consideration differs among employment
\nand personal state of affairs (Phillipson and Fenwick 2000).
\nIn such situations, there is a common distinction since employers can invade
\nthe employees\u2019 privacy to make sure that the work is done. Thus, there may be the
\nneed for sensitive information, such as pay salaries, bank details or location
\ndata, to be shared so that employers can be sure that their employees will
\nundertake tasks that are assigned to them (Krisch 2008).
\nThe law of \u2018breach of confidence’ has been extensively used to protect such
\ntrade secrets and commercially sensitive information. Employees owe a duty of
\nconfidence to their employers, either under the terms of a written contract or
\nby an implied term of loyalty.<\/p>\n

Technically speaking, the ECHR is an
\ninternational treaty which lists a set of rights which must be respected and
\nguaranteed by the different states within their jurisdictions (Kiestra, 2014).
\nThe HRA\u2019s main goal is to ‘give further effect’ in UK law to the fundamental rights
\nand freedoms listed in the ECHR. Consequently,
\nindividuals who feel that their human rights have somehow been breached are now
\nable to go directly to UK courts, instead of complaining only to the Strasbourg
\ncourt, after having exhausted all other domestic remedies first (Hoffman and
\nRowe, 2003). The rights contained in the HRA affect vital matters of life and
\ndeath (for example the right to be freed from torture or killing), but also
\nmatters regarding someone\u2019s daily life (e.g. privacy, freedom of expression
\netc.) (Carey, 2010). Due to this wide range of fundamental rights covered, it
\nis not surprising, that the HRA is considered one of the most significant
\npieces of legislation ever passed in the UK (Hoffman and Rowe, 2003). According
\nto The Equality and Human Rights Commission\u2019s, \u2018The case for the Human Rights Act \u2013 Part 1 of 3 Responses to the
\nCommission on a Bill of Rights \u2013 HRA Plus Not Minus, <\/em>this key piece of
\nlegislation has three goals: to bring rights home, by ensuring that all
\nindividuals in the UK have protected their human rights in UK courts, without
\nthe need to go to Strasbourg in first place; to introduce strong constitutional
\nmechanisms in order to ensure that all powers (i.e. Parliament, Executive and
\nJudiciary) respect human rights in their work with the aim of enhancing the
\ndemocratic process and to increase the awareness of human rights throughout society
\n(2010). As set out by Masterman (2005), with
\nthe Human Rights Act, privacy law has developed far from the law of buoyancy
\nand will remain a chronological thing. However, the incursion of personal
\nprivacy will be recognized as a different tort. It is worth noting that the
\nArticle 8 protects both individuals (by the law of slander) as well as any sham
\npublication that hurts one\u2019s status and (by the new tort) the factual
\npublication which has unjustified impositions of one\u2019s privacy (McCrudden 2000).
\nHowever, after a revelation of one\u2019s awful manner moves out of the specialty of
\npublic and political being, it may no longer be probable to remain justified on
\nattack of solitude with an appeal to the saying \u201cthere is no confidence in
\niniquity\u201d (Phillipson
\nand Fenwick 2000).  Conversely, exposure of iniquity may relate to
\npublic interests, but a case of a sense of disclosure on aberrant sexual conducts
\n(which may be combined with photographs) may not require fortification of
\nunrestricted attention shield (Phillipson and Fenwick 2000). <\/p>\n

Those who state invasion of privacy
\non their behalf generally rely on an action in \u2018breach of the right to
\nconfidence’. The essence of this can be summarised as misuse of private
\ninformation (Hart and Fazzani, 1997). It has been established in many of the UK
\ncourts\u2019 decisions, that publishing or obtaining information or unauthorised
\nphotographs equals to a breach of confidence in situations where it is
\nconsidered that a relationship of confidence exists. In other words, it is a
\nbreach of confidence if the information is damaging to the owner or the subject
\nof such information and used without their consent. <\/p>\n

Article 8 of the ECHR protects an
\nindividual\u2019s right to respect for their private life. \u2018Private life\u2019 is a broad
\nterm and covers aspects such as one\u2019s right to determine their sexual
\norientation, their lifestyle, and the way they dress and look. It also includes
\ntheir right to control who sees and touches their body (Review of the
\nImplementation of the Human Rights Act, 2006).<\/p>\n

New technologies have raised various
\nissues on privacy protection. Governments in various countries have undertaken
\nthe issue seriously since it has been a problem to the citizens. Hence, there
\nhave been laws and regulations aimed at addressing issues of privacy (Ewing 1999).  According to Phillipson and Fenwick (2000), privacy
\nhas been accepted as a main issue in relation to computer and information
\nethics. However, behind the laws, there are philosophy issues related to
\nprivacy and have not been easier to identify, but are good to be noted, if one
\nwishes to understand why and how privacy can be legally protected. Along with
\nthe Human Rights Act of 1998, the European Directive 95\/46\/EC was implemented
\nas the Data Protection Act (DPA), aiming to produce universal European
\nstandards for the storage, collection, and processing of one\u2019s personal
\ninformation. That information refers to one\u2019s personal data, which can be
\nanything that is used to identify an individual (Legislation.gov.uk,
\n2017). Although the Act itself does not mention
\nprivacy, it is intended to bring British law into line with the 1995 EU Data
\nProtection Directive for the protection of individuals on issues regarding the
\nprocessing of personal data and on the free movement of that data. Therefore, it
\nprovides a way for individuals to control and protect information about
\nthemselves and, in extension, leads to an interpretation of the HRA as a strong
\nmeans to ensure privacy.  It is, though
\nquite direct about the need to consider employer interests in collecting data. On
\none hand, employers are supposed to collect personal data from their employees
\nonly for relevant business purposes, but on the other hand there is no explanation
\nof what would account for as a legitimate business interest (Johnson, 2001). Generally,
\nhuman rights act may be used directly by employees for public departments since
\nit imposes duties of public authorities to make sure that the convention is complied
\nwith. Conversely, employees within the private sector receive support from
\nprivacy concerns since it offers general duties in interpreting legislation. In
\nfact, the Article of Convection requires the country to ensure that Convection
\nright for everyone is secured (Phillipson 2003).<\/p>\n

As set out under Article 8, everyone
\nhas been guaranteed right of respect for one’s privacy, family life, one home
\nand their correspondence. Section 2 of the Article details the limits of the
\nrights (Equalityhumanrights.com, 2017). In general, history of interpreting the
\nArticle 8 by European Court of Human Rights shows rights to privacy which are
\nwell understood. This relates to the aspect of sexual individuality, individual
\ninformation and phone calls made from commerce locations (Warren et al, 2008).<\/p>\n

One significant case that establishes
\nthe girth of interpreting the HRA\u2019S impact on privacy law was the Halford vs.
\nthe UK (1997) case. This case was the first to raise the issue of employers\u2019
\nright to privacy at work. Alison Halford was an Assistant Chief Constable and while
\nshe was in her post in Merseyside, senior police officers intercepted her
\ntelephone calls. She then proceeded to apply under the European Convention claiming
\na breach of her right to privacy as protected under Article 8. Nine judges of
\nthe European Court of Human Rights decided unanimously that there had indeed
\nbeen a violation of Article 8 of the European Convention (Case of Halford v.
\nThe United Kingdom, 1997). The European Court of Human Rights has also examined
\nthe role of privacy and sexual identity. In Dudgeon v UK (1983) the European
\nCourt of Human Rights decided that the forbiddance in Northern Ireland of
\nhomosexual acts between consenting males was a breach of Article 8, in response
\nto which the law was changed. In that case, it was held that interception of
\nphone calls resulted in breaching of privacy. This was even though the claimant
\nwas the police and the call was made from “business premises”. Also,
\nthis was the case that was upheld in Valenzuela Contreras vs. Spain (1999)
\nwhere it was held that aspect of monitoring telephone conversation was a breach
\nof the right to respect for private life (Ewing 1999). Possibly,
\nthe most significant impact that Human Right Act has had towards privacy in
\nemployment relates to influence on jurisprudence (Phillipson and Fenwick 2000).
\nUnder Section 3, Human Resource Act requires the court to make interpretation
\nof legislation in a way that is in line with Human Right Act. This relates to
\ndistinct interpretation on the aspect of reasonableness that is expected to be
\napplied in employment tribunals (Phillipson 2003).<\/p>\n

However, there has also been certain
\ntension found under Convection Article 8 on the right to privacy and Article 10
\nrights which offer freedom of expression (Amos, 2009). Article
\n8 of the Human Rights Act is one of the most open-ended of the Convention
\nrights, and covers a growing number of issues with negative and positive responsibilities.
\nThe state is under a negative responsibility not to interfere with privacy
\nrights, but additionally, Strasbourg case law has also extended Article 8 to inflict
\na positive duty to prevent private parties from interfering with these rights:
\n(1) X (2) Y v the Netherlands (1985) 8 EHRR 235. The four main protected
\ninterests under Article 8 are private life, home, family, and correspondence,
\nwhich all together broadly translate to personal privacy (Equalityhumanrights.com,
\n2017).<\/a> It is therefore clear that
\nthis right is protected against actions by public bodies but it does not
\ncategorically state that it enjoys horizontal application. Article
\n10 provides everyone with the right to freedom of expression (including the
\nfreedom to hold opinions and to exchange information and ideas without State
\ninterference) (Equalityhumanrights.com,
\n2017).  Additionally, through this
\narticle, one\u2019s right to communicate and to express oneself in any medium and\/or
\ntext is protected. Obviously there needs to be a healthy collaboration of these
\ntwo articles, since it is very possible that someone\u2019s free expression could
\ndamage or breach someone else\u2019s private life. But, in such cases, who can win
\nthe argument, the one whose private life is breached or the other who simply
\nexpresses their opinion? In this way, privacy and free expression become two
\nsides of the same coin, each of them being an essential condition to the
\nenjoyment of the other. To freely form and convey ones political, religious, or
\nethnical beliefs one needs a private space free from interference. Equally,
\nviolations on the right to privacy \u2013 physical or online surveillance,
\nmonitoring of communications or activities\u2013 prevent an individual from
\nexercising their freedom expression. In
\nthe modern world, almost every act online is an act of expression yet each of
\nthese acts can also generate transactional information, and can easily be
\nmonitored by unintended parties. The article provides for limitations to the
\nright of freedom of speech. It specifically refers to those restrictions that
\nare necessary in a democratic society (Williams, Beatson and Cripps, 2002). In
\nthe case of super-jurisdiction, the court provides an order that requires that,
\nwhen the injunction is set in place, its existence may not be published nor
\ndisclosed. Article 8 notes that, \u201ceveryone has the right to respect for one
\nprivate and family life, his home and his correspondence\u201d (McCrudden 2000). It
\ngoes further to state that, there are no interferences by the public
\nauthorities in exercise of right expected in accordance with law and the
\nrequired independent civilisation for interest of nationwide safety,
\ncost-effective well-being, and public safety of the nation to prevent disorder
\nand crime to protect morals or health and protect rights and freedom for others
\n(Woogara 2001).\n<\/p>\n

This paper has attempted to discuss
\nthe development of the Human Rights Act 1998 and its relation to UK\u2019s laws on
\nprivacy, with a specific focus on its articles 8 and 10, regarding freedom of
\nprivate life and expression. Whether the Human Rights Act has been identified
\nas a critical driver for change, or just part of this wider framework, is not a
\nblack-and-white issue and is in most cases a matter of perspective (Arnold,
\n2013). Sometimes, on close inspection, the role of the Human Rights Act is
\nfound to be minimal or non-existent and other times the Act directly
\ncontributes to greater personalisation and better public services. Generally, in
\nexercise of freedoms, it is related to duties and responsibilities subjected to
\nissues such as conditions, formalities, penalties, or restrictions as noted by
\nlaw and relevant for the democratic community. This must be an interest of
\nnational safety, territory integrity, and public safety. Prevention of disorder
\nand crime to protect health and morals and protection of reputation and rights,
\nas well as prevention of disclosure of information sourced due to confidence
\nand maintenance of authority are some of the Act\u2019s purposed. The arguments for
\nand against it could be further explored in another paper, in order to examine
\nhow the limitations of the Act could be eliminated. <\/p>\n

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