CHAPTER 2: PRIVACY
revolting to Englishmen than the espionage that forms part of the
administrative system of continental despotisms. It haunts men like an
evil genius, chills their gaiety, restrains their wit, casts a shadow over
their friendships, and blights their domestic hearth. The freedom of this
country may be measured by its immunity from this baleful agency.”39
(d)
2.21.
The dystopian society described in George Orwell’s book Nineteen Eighty-Four
was one in which the inhabitants of Oceania live and work in places equipped
with two-way “telescreens”, allowing them be watched at any time, and in which
correspondence is routinely opened and read before delivery. The link between
surveillance and total state control is a central theme of the novel, which after
its publication in 1949 resonated with particular force in the Soviet Union and
Communist Eastern Europe. Phrases such as “Big Brother” and “Thought
Police” remain commonplaces to this day in any debate on surveillance and its
limits.
So generalisation is dangerous. Attitudes will be shaped by experience, personal as
well as national. That is as it should be: tolerance of the need for surveillance rightly
depends both on how useful and on how intrusive it is, as well as on the threat picture
and the degree of risk that society, and its individual members, are prepared to
tolerate.
Judicial approaches
2.22.
Different concepts of privacy are given prominence in different legal systems. Thus,
the concept of dignity is said to underlie continental, and particularly German, privacy
law, whereas liberty from the state finds more prominence in United States law.40
2.23.
The UK – so often positioned midway between the norms of the US and continental
Europe – is in this respect something of an outlier: privacy protection from state
intrusion was given little emphasis by the common law, and has recently been
guaranteed largely under the influence of European legal norms.41
2.24.
Article 8 is now applied domestically under the Human Rights Act 1998 [HRA 1998],
as discussed in detail below (5.13-5.14). However, there is still a striking difference
in emphasis between UK judges and the European courts as regards the degree of
protection to be accorded to privacy. For example:
(a)
39
40
41
42
In a number of cases, unanimous rulings by the highest UK court have been
countermanded by unanimous rulings of the ECtHR upholding privacy rights.42
T.E. May, Constitutional History of England since the Accession of King George III, vol. 2, 1863, p.
275.
See J. Whitman, “Two Western Cultures of Privacy”, (2003-2004) 113 Yale LJ 1151.
See 5.11 and 5.17 below.
S v United Kingdom (Application no. 30562/04; judgment of 4 December 2008) (DNA retention: 0-5 in
the judicial House of Lords (0-10 if the lower courts are included) then 17-0 in Strasbourg); Kay v
United Kingdom (Application no. 37341/06; judgment of 21 September 2010) (home repossession: 0-7
then 7-0); Gillan v United Kingdom (Application no. 3158/05; judgment of 12 January 2010) (nosuspicion stop and search: 0-5 then 7-0). A further case (MAK v UK (Application no. 45901/05;
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