CHAPTER 2: PRIVACY
(b)
In Digital Rights Ireland (5.62-5.78 below), the CJEU was of the view that the
EU Data Retention Directive, which the UK Government had strongly promoted,
entailed “a wide-ranging and particularly serious interference with those
fundamental rights in the legal order of the EU”.43
(c)
In a recent case about the retention of electronic data, Lord Sumption correctly
noted that the ECtHR “has in the past taken exception to the characterisation
of interferences by English courts with private life as being minor”, before once
again so characterising the retention of electronic data by the police on an
individual associated with a political protest group.44
It is hard to think of any other area of human rights law that is characterised by such
marked and consistent differences of opinion between the European courts and the
British judges who in most respects rank among their most loyal and conscientious
followers. To the extent that the law permits, it seems to me that there would be
wisdom in acknowledging and seeking to accommodate such differences, which owe
something at least to varying perceptions of police and security forces and to the
different (but equally legitimate) conclusions that are drawn from 20th century history
in different parts of Europe.
Modern attitudes to privacy
2.25.
Attitudes to privacy, surveillance, and investigatory powers are frequently surveyed.45
But the treatment of those surveys requires some care, as results may well be
influenced by a wide range of factors, including recent newsworthy events,46 the exact
wording of the question or indeed the identity of the questioner.
2.26.
Even within the UK, people vary widely in their attitude to privacy. Research by
DEMOS into data sharing places people into different categories, described as:
nonsharers (30% of the population), sceptics (22% of the population), pragmatists
(20% of the population), value hunters (19% of the population) and enthusiastic
sharers (8% of the population).47 These groups have very different views on issues
relating to privacy. Moreover, research has showed that people’s own personal
43
44
45
46
47
judgment of 23 March 2010)) (duty of care to parents of children suspected to be subjects of abuse)
was 1-4 then 7-0.
Digital Rights Ireland, judgment at para 65.
R (Catt) v Commissioner of Police of the Metropolis and others [2015] UKSC 9, para 26.
Some of those I have considered are: Special Eurobarometer 359, Attitudes on Data Protection and
Electronic Identity in the European Union, (2011), (“Eurobarometer”); Demos, The Data Dialogue,
(2012), (“Demos”); Wellcome Trust, “Summary Report of Qualitative Research into Public Attitudes to
Personal Data and Linking Personal Data”, (2013) (“Wellcome Trust”); Pew Research Center, “Public
Perceptions of Privacy and Security in the Post-Snowden Era”, (2014) (“Pew, Public Perceptions”); Ipsos
MORI, “Public Attitudes to Science”, (2014), (“Ipsos MORI, PAS”); TNS-BMRB Polling 23-27 January
2014, (“TNS-BMRB”); Dr J. F. Rogers, “Public opinion and the Intelligence Services”; (2014) (“YouGov”);
Ipsos MORI for ESRC/ONS, “Dialogue on Data: Exploring the public’s views on using administrative
data for research purposes”, (2014) (“Ipsos MORI: ESRC/ONS”); Deloitte, Data Nation 2014: Putting
Customers First, (2014) (“Deloitte”); Ipsos MORI, “Public attitudes to the use and sharing of their data”,
for the Royal Statistical Society, (2014) (“Ipsos MORI: RSS”); and Pew Research Center, “Americans’
privacy strategies post-Snowden” (2015), (“Pew, Privacy strategies”).
It was stated in Ipsos MORI, PAS that the survey may have been influenced by recent NSA leaks and a
trial on phone hacking in the UK.
Demos.
32