CHAPTER 2: PRIVACY
can be no fairness in litigation involving the state if one party to it has the ability to
monitor the privileged communications of the other.24 Indeed, Lord Neuberger,
President of the UK Supreme Court, recently suggested that, “at least in many cases”
the right to privacy is “an aspect of freedom of expression”; as when one wishes to do
or say something only privately, it is an interference with expression when one
cannot.25 He noted that this is particularly true of anonymous speech, where an
author’s article 8 (privacy) rights “reinforce” his or her article 10 (expression) rights,
both generally and particularly in relation to confidential speech.26
2.13.
Fourthly, privacy empowers the individual against the state. The state’s ability to
monitor communications offers opportunities for manipulation or control, for example
by the publication of truthful yet embarrassing facts or images intended to discredit or
tarnish the citizen; the ability to predict the actions of citizens and to respond to
perceived threats to power; the profiling of dissenters or minority groups; and the
capacity to control the information received or dispensed by the target.27 All these
practices, described by George Orwell,28 were known in totalitarian states from
Eastern Europe to Iraq, leading to the observation that intrusion on privacy is a
“primary weapon of the tyrant”.29 Echoes of such tendencies have also been observed
(and commendably brought to light) in the United States of America.30
Privacy: a qualified right
2.14.
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However powerful the need for privacy, it is not (as is, for example, the prohibition
against torture) an absolute right. Just as the interests of public safety and law
enforcement will sometimes have to give way to the right to privacy, so the right to
privacy may need to yield to competing considerations. That is acknowledged in
Article 8(2) of the ECHR, which approves interference by public authorities with the
right to respect for private life and correspondence in circumstances where that
interference is in accordance with the law, necessary and a proportionate method of
achieving specified objectives including the interests of national security, the
prevention of disorder or crime and the protection of health.31
See further 5.45-48 below.
Lord Neuberger at the Hong Kong Foreign Correspondents’ Club, “The Third and Fourth Estates:
Judges, Journalists and Open Justice”, 26 August 2014.
Lord Neuberger at 5 RB Conference, “What’s in a name? Privacy and anonymous speech on the
Internet”, 30 September 2014.
Frequently cited in this regard is the comment attributed to Cardinal Richelieu: “Show me six lines written
by the most honest man in the world, and I will find enough therein to hang him.”
Nineteen Eighty-Four, 1949.
Bloustein, p. 974.
The Church Committee, a Senate Committee that sat in the mid-1970s, concluded that “too many people
have been spied upon by too many Government agencies and too much information has been collected.
The Government has often undertaken the secret surveillance of citizens on the basis of their political
beliefs, even when those beliefs posed no threat of violence or illegal acts on behalf of a hostile foreign
power”. Reference was made to the careful surveillance of groups deemed dangerous, on the basis of
vague standards, and the use of “unsavoury and vicious tactics”. Famous examples set out by the
Committee include surveillance and thereafter improper pressure being applied to the Women’s
Liberation Movement and Dr. Martin Luther King (including using information obtained to encourage him
to commit suicide, or to destroy his marriage). The Committee also describes the seeking of “political
intelligence” from wiretapping under President Nixon and others, including Watergate: Final Report of
the Select Committee to Study Governmental Operations with respect to Intelligence Activities, 94th
Congress, 2nd Session, Report No. 94-755, Book IV, pp. 5-13.
See further 5.21-5.22 below.
28