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Privacy law: a 10 minute tutorial

By Mark Warby

My mum told me the other day that she found all this publicity about privacy, super-injunctions, and Twitter most confusing. So do I, because the way it is reported seems to bear little resemblance to the world I thought I worked in and knew. So in case anybody else out there is befuddled I thought I would have a go at clarifying things by providing a glossary. Here are some of the key terms, and some definitions. In some cases I have offered alternatives, to help understanding.

A bit of cross-referencing is necessary here, so I have used asterisks to mark out terms you will find explained elsewhere in the glossary.

Privacy law glossary

Apply to the court: (1) what a person has to do if they want to obtain an injunction* (2) what any person has a right to do if served with or notified of an injunction* with which they disagree, and want to challenge (3) an expensive and uncertain alternative to Contempt of Court no 2* (4) see Waste of time and money.

Appeal: (1) what any person can seek to do if a court makes an order that affects them with which they disagree (2) see Apply to the Court no 3 (3) see Apply to the Court no 4.

Contempt of court: (1) speech or act which defies an order of the court, or defeats or undermines its purpose (2) see Making a Mockery.*

Court of Appeal: (1) one of the Houses of Parliament (2) Twitter (3) place staffed by Judges* to which you can go to obtain a fair hearing and challenge an injunction you disagree with (4) see Apply to the court nos 3 and 4.

Democracy: system of government using. See Votes.*

Fair hearing: (1) a fundamental human right (2) what people go to a court to get, when asserting their rights (3) reading Twitter, not consulting the people affected, deciding unilaterally what is right or wrong, and announcing it to the world.

Freedom of expression: (1) unequivocally good thing in all possible circumstances, when exercised by the print media or online (2) one fundamental right which may come into conflict with another, namely privacy*, so that a delicate balance has to be struck.

Gagging order: bad thing; order of a Judge that prohibits something being said that ought to be made known.

Hemming: fearless campaigner for the freedom to use parliamentary privilege to name with impunity well-known people who have obtained injunctions* from Judges* to prevent disclosure of information in the public interest* (2) not.

Injunction: (1) court order which prohibits things being said or done which the court considers ought not to happen (2) gagging order* made by a Judge.*

Issuing: (1) what celebrities do with injunctions, apparently (2) the act of starting legal proceedings, preliminary to asking a court to rule on a claim.

Judge: (1) person who makes it up as they go along, treats freedom of speech with contempt (2) fantasist with delusions of omnipotence (see also Unelected*) (3) individual appointed by the state to decide disputes about legal rights after a fair hearing.*

King Canute: see Judge no 2*. See also next section.

Making a mockery: (1) an exercise of freedom of speech* on Twitter or otherwise which involves deliberately disobeying a court order, undermining its effect, and so demonstrating Judges to be King Canute* (2) see Contempt of Court.*

Parliamentary privilege: fundamental right of any MP to do with impunity an act which would be a contempt of court*.

Privacy rights: (1) bad thing; synonym for adulterous or other sexual activity of the most shocking kind, the details of which rich people try to hide, but which need to be revealed in the public interest* (2) fundamental human right to respect for private and family life, home and correspondence.

Public interest, in the: (1) something that the public is curious about, and would really like to know (2) what an individual parliamentarian thinks ought to be made known after a type 3 fair hearing* (3) information that it is so important the public should know that any rival claim to privacy rights* should yield.

Rule of law: (1) outmoded notion, supplanted by modern technology, and inapplicable to MPs (2) fundamental democratic principle that society’s affairs should be governed by rules of law rather than executive discretion; often contrasted with dictatorial regimes.

Super-injunction: (1) bad thing; a gagging order* made by a Judge*, preferably to be derided, ignored or disobeyed (2) a kind of injunction that prohibits publication of the fact that the legal proceedings are happening, and is very rarely granted.

Take out: (1) Glasgow fish and chip shop (2) what celebrities do with injunctions. See also Issuing.*

Unelected: members of the House of Lords who complain about Judges* granting gagging orders*, and bravely undo it all because that is in the public interest*.

Votes in support: Judges*: none. Lords: none. Mr Hemming MP* at, 2010 election: 16,162 (0.36% of UK Electorate; 22% of constituency electorate). Mr Hemming MP, in Parliament: none.

Waste of time and money: take your pick.

Wrong: your call.

Give Canute a break?

In 1995 a judge said that raking up past events could be a breach of privacy. And before he became a Judge, Sir Michael Tugendhat drew attention to the “right to be forgotten” which is an established aspect of French privacy law. Now Sir Michael is hearing most of the privacy cases. So should King Canute be seeing his lawyers?

Canute, or Cnut, has been in the news a lot in recent weeks, repeatedly accused of vainly commanding the inrushing tide to stop. The comparison, of course, has been with media judges, trying to hold back the tide of Twitter (see Judge no 2, above). If Canute did such a thing, it was nearly 1,000 years ago. He died in 1035. So why not let bygones be bygones?

What’s more, it seems the better view is that Canute was not the idiot that legend has it he was. If he ever did stand on the shore commanding the waters to stop, his actual purpose was to show his fawning courtiers that he was not almighty – there were limits on his royal powers. If that is right, then it’s not only old news, it’s unfair. As all media lawyers now know, the right to respect for personal reputation is one of those guaranteed by Article 8 of the European Convention. Perhaps somebody should take out* a gagging order* to protect Canute’s privacy?

Mark Warby QC is a leading silk in media, entertainment, sports and regulatory law. Over the years he has acted for and against all the UK national newspaper groups, and major broadcasters, national, regional and local newspapers and magazines and several Internet organisations. Along with Iain Christie and Nicole Moreham, he has co-edited Tugendhat and Christie: The Law of Privacy and The Media, which is now in its second edition.

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