Guest post: Deeper than Privacy Failure

Shatter the silence

Guest post by @Super__Cyan

Publishing names of individuals has implications that can go beyond privacy

As stated by the Guardian, Politics Home and various other media outlets (see the Internet for rest), survivors of child sexual have received death threats after their identities and personal details were published by the Home Affairs Select Committee. After complaints from the victims, the committee began to redact he names of individual survivors from the correspondence on its website. The Committee said in a statement:

‘Last week, some material from the Independent Panel Inquiry into Child Sexual Abuse came into the committee’s possession in the course of our inquiry. The material included directions to panel members about how they should answer questions from the committee, as well as email exchanges between panel members about the panel’s external communications strategy. These emails included the names of third parties. At the request of the individuals concerned, the material has been redacted to remove references to these individuals. The names of all these individuals were already in the public domain. (bolding this will be explained later).

In their letter to May the survivors said: “The release of emails and correspondence constitute a breach of data protection and also a breach of trust….”

Now here is where human rights may strike again. The survivors acknowledge that the names being leaked constitute a breach of data protection and trust, but it also involves a possible breach of Article 8 of the European Convention of Human Rights (ECHR) which states that:

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  1. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

So essentially this means everyone has a right to privacy, subject to qualifications set out in subsection two. Public authorities, like local councils and the police aren’t allowed to arbitrarily mess with these rights. And the Human Rights Act 1998 (HRA) which brings the ECHR from across the pond to allow UK courts to enforce it. So not only does the European Court of Human Rights have the ability to tell the UK (as it would be the state, not the public authority in this instance) off for violating the rights of those under its jurisdiction, but UK courts have a similar ability to tell public authorities off. I feel like I mentioned this before somewhere….But for Article 8 to even be used as a sword, it has to be engaged.  Private life which is not susceptible to exhaustive definition which includes an individual’s name and other means of personal identification (the claimant’s address and date of birth) therefore falling within the ambit of private and family life for the purposes of Article 8 (see S and Marper v United Kingdom 30562/04 [2008] ECHR 1581)

So unless you are Sauron…

Faceless

…you should be fine.

I bolded the quote regarding the names already being in the public domain, Eady J in McKennitt v Ash [2005] EWHC 3003 (QB), para 81, noted that:

‘[I]t does not necessarily follow that because personal information has been revealed impermissibly to one set of newspapers, or to readers within one jurisdiction, that there can be no further intrusion upon a claimant’s privacy by further revelations.’

The point here is that even if what the Home Affairs Select Committee says is correct, this may not preclude a breach of Article 8.

However, all this talk about human rights means squat when it comes to the Home Affairs Select Committee, because of the definition of a public authority in the HRA. This is because of the cleverly crafted s.6(3) of the HRA. This section does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament within the definition of a public authority (the italics are what are applicable to the Home Affairs Select Committee.) Therefore despite Article 8 being engaged, it has no application because the right cannot be enforced against the Home Affairs Select Committee. This would explain why in the letter to the Home Secretary, T. May only data protection and breach of trust were mentioned. I could get all political with this but I don’t like politics.

But does the human rights protection end there? Not necessarily. We’ve established that Article 8 has no application in this particular circumstance but it might in another and this is because of the death threats made to survivors. There is not much that has been revealed about the nature of the threats as this can be crucial, but it is important to look at the relevant case law. The European Court of Human Rights (ECtHR) found itself presiding over the case of Hajduová v. Slovakia (Application no. 2660/03) which involved a mother who had been verbally and physically attacked by her husband which also included death threats. At para 49 the ECtHR noted that:

The Court observes that the instant application is distinguishable from the cases to which it has referred concerning domestic violence resulting in death (see, in particular, the Court’s judgments in the cases of Kontrová v. Slovakia, no. 7510/04, ECHR 2007-VI (extracts) and Opuz cited above, in which it found violations of Articles 2 and 13 and Articles 2, 3 and 14 of the Convention respectively). It is clear that A.’s repeated threats following his release from hospital, which constitute the basis of the applicant’s complaint under Article 8 of the Convention, did not actually materialise into concrete acts of physical violence (compare and contrast the case of Bevacqua, cited above, in which the Court found that the State had breached its positive obligations under Article 8). Notwithstanding, the Court considers that given A.’s history of physical abuse and menacing behaviour towards the applicant, any threats made by him would arouse in the applicant a well-founded fear that they might be carried out. This, in the Court’s estimation, would be enough to affect her psychological integrity and well-being so as to give rise to an assessment as to compliance by the State with its positive obligations under Article 8 of the Convention.

This means that Article 8 could be engaged and violated even if threats do not materialise.

Moreover, this issue runs deeper than a failure to protect privacy, again because of the death threats that were made to survivors. This therefore brings the issue within the ambit of Article 2 which states that:

  1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
  1. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

Article 2 consists are two aspects, positive and negative obligations, a positive obligation to protect life, and a negative obligation to refrain from the unlawful taking of life. Under these circumstances, only the positive obligations are relevant here which can be further subdivided into two categories, prevention and investigation. In Osman v UK 23452/94 [1998] ECHR 101 it was established that authorities have a duty to prevent and suppress criminal offences if it is established that:-

(a) the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party, and

(b) that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.

Now clearly this would be trickier if the threats were made anonymously, but that doesn’t mean that a state has no options to try and find the identity of the issuer of death threats. For example, if the threats were sent electronically, powers in the Regulation of Investigatory Powers Act 2000 could be used in the hopes of identifying the issuer of such threats or caught under s.127 of the Communications Act 2003. In Branko Tomašic and others v Croatia (Application no. 46598/06) although a case concerning domestic violence (therefore a history of abuse) and eventual murder, the ECtHR acknowledged that:

The above findings of the domestic courts and the conclusions of the psychiatric examination undoubtedly show that the domestic authorities were aware that the threats made against the lives of M.T. and V.T. were serious and that all reasonable steps should have been taken in order to protect them from those threats. The Court will now examine whether the relevant authorities took all steps reasonable in the circumstances of the present case to protect the lives of M.T. and V.T.(para 53).

The ECtHR concluded that there were no adequate measures were taken to diminish the likelihood of M.M. to carry out his threats upon his release from prison and this was sufficient to enable the Court to find a violation of the substantive aspect of Article 2 of the Convention on account of failure of the relevant domestic authorities to take all necessary and reasonable steps in the circumstances of the present case to afford protection for the lives of M.T. and V.T. (para 60-61).

Though it is not clear whether these threats were made anonymously or by individuals known or by what means, this post is aimed at highlighting the possible application of human rights laws that public authorities should be aware of when it concerns a situation like this. The Home Affairs Select Committee very fortunately would not be under any obligation despite their disclosure but other public authorities are. It is true that ‘not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising’ (Branko Tomašic and others v Croatia (Application no. 46598/06) para 50) but at the same time they should still be taken seriously.

3 thoughts on “Guest post: Deeper than Privacy Failure

  1. I have a general question you might be able to answer. Why some published case law mention the parties names and sMe replace them by anonymised X/Z ?

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