Editorial: Commission on track over surveillance

Sir Geoffrey Palmer, president of the Law Commission.

In a world of fast-paced technological change, it is not surprising that the Law Commission has found significant gaps in the laws designed to protect privacy. At the moment, it may be an offence to record a private conversation, but it is not to secretly film someone or use a device to track them. So there can be few quibbles over the commission's recommendations to plug these gaps with a new law covering installation and use of surveillance, interception and tracking devices. The danger was that, in traversing other issues relating to privacy, it would suggest measures that promoted this but at the expense of other crucial personal and public interests, notably freedom of information. Happily, the commission has, by and large, resisted that.

This awareness has resulted in a recommendation to reduce the threshold for granting restraining orders in instances of harassment, but the rejection of a new law to explicitly address invasions of privacy. The danger in changing the 1997 Harassment Act to cover surveillance is that its orbit would be extended to encompass activities that are merely irritating. This seems not to be the case and, most importantly, the commission's proposals do not scotch the defence of "lawful purpose".

This would cover most media activity, as is the case now. The defence may, for example, be used by a media outlet that has used a hidden camera to obtain information of real public concern. The commission notes, quite reasonably, that such activity must be proportionate to the purpose. Clearly, it would not encompass anything that was unsavoury or ill-intended.

Addressing the issue of a person suing someone who publishes private facts about them, the commission says the law now being applied and developed by the courts is sufficient. A tort of privacy, which arose from a 2004 Court of Appeal case involving broadcaster Mike Hosking's attempt to ban a women's magazine from publishing photographs of his children, stipulates grounds on which people can expect to successfully sue the media. The commission says that tort should be left where it is, with the defence of "legitimate public concern" in the information providing an appropriate defence for the media. The alternative of enacting the tort in statutory form is rejected. That is the right step, given that, in matters of privacy, parliamentarians are unlikely to be as astute as judges in discerning the appropriate balance.

The Court of Appeal got that balance largely right in assessing the interests of privacy against those of freedom of information in the Hosking case. The threshold for seeking damages was set at an appropriately high level. Likewise, the commission has had balance near the forefront of its thinking. Clearly, there can be no defence for the media engaging in activities such as breaking and entering private homes. But, as the commission recognises, it may, for example, be justifiable to challenge a person in the street on more than one occasion if information of legitimate public concern is being sought.

The president of the Law Commission, Sir Geoffrey Palmer, describes several aspects of the present privacy law as bizarre. That is inarguable, given that in the use of surveillance devices, private citizens are able to do things for which the police require a warrant.

The commission has targeted the most objectionable brands of surveillance, leaving aside the likes of people filming in public and the use of closed-circuit television. It has, in other words, resisted the urge to tinker to the nth degree.

Parliament should respect its discretion and its parameters for a new surveillance-devices law.