Vol. 13.1, March 2009


EDITORIAL


2008 Annual Symposium of the UK National Committee for Comparative Law: Four Key Themes in the Modern Debate on the Law of Privacy

The articles presented in this issue were originally presented as papers at the 2008 annual symposium of the UK National Committee for Comparative Law. Each of the four speakers at that event took on a key theme in the modern debate on the law of privacy.

Privacy is clearly neither a new concept nor one which can be considered exclusively within national boundaries. John Blackie’s article uses sources hitherto little explored to trace the shared background to the protection of personality rights in the literature of the ius commune. His researches show that some areas of privacy, notably that relating to professional and other “secrets” have a long history. His survey of the law as applied in European jurisdictions of the sixteenth and seventeenth century also suggests that, even at this early stage, analysis was broken down into particular subcategories to deal with infringement of distinct personality rights. Blackie casts the Roman law concept of iniuria as the “trunk” of the “tree” of personality rights protection, with the two main branches as iniuria realis and iniuria verbalis as its two main branches, subdivided into numerous smaller branches for specific nominate categories of injury. This metaphor may be found helpful not only in illuminating the law of the ius commune period but also the structure of the modern law as applied to personality rights in general and privacy in particular.

An important modern development in the law of privacy is of course the need to align municipal law with the competing demands of Articles 8 and 10 of the European Convention on Human Rights – provisions which the English judiciary now recognizes as having entered “the very content” of the common law.1 As the courts in the United Kingdom continue to develop this “new methodology”2 by which to balance reasonable expectations of privacy against countervailing considerations of public interest and freedom of expression, reference may usefully be made to the South African experience. Jonathan Burchell’s article traces the interpretation of the core constitutional values of privacy and dignity through the common law of the second half of the twentieth century and in particular recent Constitutional Court jurisprudence. Notwithstanding the obvious differences between the ECHR and the South African Bill of Rights, the similarities in approach to these fundamental concepts are sufficient to indicate that South African jurisprudence may a valuable source of comparative inspiration to jurists in the United Kingdom.

French law has traditionally been regarded as providing much closer protection for the private lives of public persons than may be expected on the other side of the English Channel, so that French politicians have enjoyed a level of secrecy for personal matters, such as extra-marital affairs or serious illness, which their British counterparts would find remarkable. However, the presidency of Nicolas Sarkozy and the media attention on his eventful personal life seems to have marked a new phase in the interaction between “la presse people” and those holding political office. In her article here Eva Steiner examines recent case law in the light of these developments. She concludes that there has been no significant change of approach so that even those who court publicity may continue to expect redress when the ensuing media coverage oversteps the line between public and private.

Finally, Ian Lloyd’s article explores some of the myriad ways in which information about almost every aspect of our private lives is routinely gathered in electronic form. Modern information technology now permits the routine collection, processing and systematisation of vast amounts of data. Such activities may be put to purposes which the individuals concerned could have little anticipated and all the while remain within the legislative framework which regulates data handling. Lloyd argues that traditional concepts of privacy have become increasingly difficult to apply in this environment. Instead he suggests that protection for the interests of the individual may be more usefully brought into focus by directing attention more specifically at how far anonymity might be preserved.

While these papers were presented with a UK audience in mind, the themes which they address plainly have relevance to wider debates on current challenges to protection of privacy. The UKNCCL thanks the EJCL Editorial Board, and in particular its Editor-in-Chief, Professor Sjef van Erp, and Assistant Editor, Dick Broeren, for the opportunity to bring them to the attention of the readers of this journal.

Elspeth Reid
University of Edinburgh
Treasurer, UK National Committee for Comparative Law



Notes

1. McKennitt v Ash [2008] QB 73 per Buxton LJ at para 11, in turn citing Lord Woolf CJ in A v B plc [2003] QB 195 at para 4.

2. See, e.g., Mosley v News Group Newspapers Ltd [2008] EMLR 20 per Eadie J at para 11.





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