England's new privacy law
OUT-LAW Radio, 25/01/2007
We hear how a new privacy law is developing in England for the
first time, and investigate a piece of software for Skype that
could land you in jail.
A text transcription follows.
This transcript is for anyone with a hearing impairment or who
for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew
Magee.
Hello and welcome to OUT-LAW
Radio, the weekly podcast that keeps you up to date on all the
twists and turns in the world of technology law.
Every week we bring you the
latest news and in depth features that help you to make sense of
the ever-changing laws that govern technology today.
My name is Matthew Magee,
and this week we have a privacy special for you. We look at how
recent judgments in the English Courts are creating a law of
privacy for the first time.
But first, the news.
- Texas Court bans deep
linking; and
- Apple's iTunes in legal hot water in Norway.
A US court has found a
website operator liable for copyright infringement because his site
linked to an 'audio webcast' without permission.
Robert Davis runs
supercrosslive.com and put direct links on his site to audio
streams of motorcycle racing. Those streams were created, owned and
hosted by SFX Motor Sports, which is behind some of the events
covered.
The Judge ruled that Davis'
activity infringed copyright and curtailed the ability of SFX to
sell advertising and sponsorship on its site. That advertising is
displayed when the audio streams are listened to from the SFX site
but not when they are linked to from Davis'.
Davis argued that he did not
actually copy any material, he only provided a link to it which
opened the material in a user's media player, but the Court ruled
that that link broke the law.
Apple's digital rights
management lock on its iPod device and iTunes software is illegal,
the Consumer Ombudsman in Norway has ruled. The blow follows the
news that consumer groups in Germany and France are joining
Norway's action against Apple.
The Norwegian Consumer
Council lodged a complaint with the Ombudsman on behalf of
Norwegian consumers claiming that the Fairplay DRM system acted
against the interests of consumers. It said that the fact that the
technology stopped songs bought from iTunes being played on any
player other than an iPod broke the law in Norway.
The Ombudsman has now
agreed, according to Torgeir Waterhouse, a senior advisor at the
Consumer Council.
The Council believes that
Apple has only three options: it can license Fairplay to any
manufacturer that wants iTunes songs to play on its machines; it
can co-develop an open standard with other companies; or it can
abandon DRM altogether.
The addition of French and
German consumer groups to the opposition to Fairplay could cause
Apple further trouble. France had previously passed a law which
threatened to undermine Apple's lock-in. It mandated suppliers of
music to make their digital rights management (DRM) code available
to other vendors, but though passed by both of France's Houses of
Parliament it was ruled unconstitutional by its Constitutional
Council.
That was this
week's OUT-LAW News.
There's a funny thing
happening down in the courts. Bit by bit, case by case, England is
getting something it has never had: a privacy law. From folk singer
Loreena McKennit to Prince Charles by way of Catherine Zeta Jones,
the courts are handing down judgments that are creating a pretty
comprehensive law protecting individuals rights to privacy.
Zeta Jones and Hollywood
legend husband Michael Douglas are at the centre of a row about
their wedding photos, while Prince Charles won the right to keep
his diaries out of the newspapers. McKennit recently won a ruling
that will keep against a former friend's book about her life off
the bookshelves.
So what has happened? Why
are the courts suddenly so keen on letting celebrities keep their
secrets? Privacy law expert Rosemary Jay, of Pinsent Masons, the
law firm behind OUT-LAW, is going to tell us exactly that, but
first she explains how the emerging privacy law began.
"If you go back, there isn't
a common law right of privacy but what the courts have developed is
the concept of an obligation of confidence, where somebody confides
something secret or private in you, then you would have an
obligation to maintain their trust and not to go blabbing it to the
world at large. And then there was a case called Kay &
Robertson and the court very definitely said, a very senior judge
said no, no law of privacy in English Law and that had quite a
chilling effect really in terms of the courts developing a law of
privacy from confidentiality and so the case law had to wait until
after the Human Rights Act came into force in 2000 and since then
there has been a steady number of cases going through the
court."
The human rights convention
protects a person against the effect of their privacy being
invaded, while the rulings in the Zeta Jones case so far protect
information even when breach of confidence doesn't apply. The
result is that a privacy law is being created before our very
eyes.
"What they have done is
taken the law of confidence as the start point and said well it
used to be that we would protect people's secrets if you had
confided your secret to somebody that could be protected. But now
it's enough that a third party has come into possession of
information that's known to be private, even if it wasn't confided
in them and they have used that and drawn on the concept of privacy
in Article 8 of the Human Rights Convention to say the courts have
to respect people's right to privacy of private and family life,
home and correspondence. And so they have developed this action for
breach of confidence into allowing you to go to court if you can
claim there is a miss-use of private information about you."
Prince Charles won a case
just weeks ago which protected his journals from publication in a
newspaper. Seen as a landmark judgment, that ruling said that
famous people have just as much, if not more, right to privacy than
the rest of us.
"They said a consideration
that weighs in the scales against the press saying that they should
be entitled to report everything, was what was described in
argument as the importance of a private space. The right to be able
to commit private thoughts to writing and keep them private, moreso
as he, as Prince Charles, is inescapably a public figure who is
subject to constant and intense media interest. The Claimant is as
much entitled to enjoy confidentiality for his private thoughts as
an aspect of his own human autonomy indignity as is any other
person."
The emerging law has one
potential weak spot though. In the Loreena McKennit case lawyers
for the author of the now-banned book argued that the author should
be entitled to describe her experiences on the road with singer
McKennit because they were her experiences too. No court, they
argued, should ban someone from telling their own story, even if it
does intertwine with that of someone famous. That could be a future
faultline in privacy cases, but Jay says that the issue has been
clear cut in cases to date.
"The court was having none
of it. The court said look in both cases the disclosures were
utterly parasitic. It wasn't that the person who wanted to make the
disclosure was writing about their own experience or information,
they were simply writing about the other person or indeed trying
the sell something that the other person had produced."
The developments are welcome
for celebrities, but is there a cost to a privacy law? Newspapers
are arguing that it amounts to a suppression of free speech and
could damage the social fabric. Jay says that newspapers' claims
are so far not well founded.
"The courts have been
incredibly careful to continue to make clear in all the judgments
that legitimate press freedom remains an important right in
democracy and will be supported. I don't think it's ad hoc, in the
sense that it is built very firmly on existing common law
traditions of confidentiality and the rights under articles of the
Human Rights Convention and in all of the cases the courts have
really thought very carefully about freedom of speech and the
importance of that."
[The second feature that
appeared in this podcast has been removed because it was found to
contain inaccuracies. Please direct any questions to OUT-LAW's
editor, struan.robertson@out-law.com.]
That's all we have time for
this week, thanks for listening.
Why not get in touch
with OUT-LAW Radio? Do you have a legal problem you would like
us to discuss on air? Do you know of a technology law story? We'd
love to hear from you on radio@out-law.com.
Make sure you tune in next
week; for now, goodbye.
OUT-LAW Radio
was produced and presented by Matthew Magee for international law
firm Pinsent Masons.
