Monthly Archives: July 2015

Upcoming information law and policy academic events in autumn 2015

We’ll be publicising some new Information Law & Policy Centre events over the next couple of weeks, but in the meantime, here’s a reminder of various other information law themed academic events and deadlines in the UK, Germany and Australia:

Philip Murphy: Obsessive secrecy impedes an informed discussion about the UK monarchy

In this post, originally published on The Conversation UK, Director of the Institute of Commonwealth Studies and Professor of British and Commonwealth History at School of Advanced Study, Philip Murphy, reflects on the Royal Family’s secretive handling of its records and suggests that greater openness would enable serious historical investigation. The Palace would do well, he argues, to learn from the intelligence community which has benefited from gradually opening up its archives

The debate about the access (or lack thereof) to the royal archives prompted by The Sun’s publication of a very small Princess Elizabeth performing a Nazi salute conjures up for me a certain sense of déjà vu. Because 20 years ago, the archives of the British intelligence services were surrounded by a similar smokescreen. And it caused the same sort of frustration to historians.

I began teaching an undergraduate module about the history of the British intelligence community around this time and would tell my students at the outset that essentially this was a course about “gossip” and what we could learn from “bad books” – the sort of brightly-coloured paperbacks that used to populate airport bookshops, promising shocking revelations about the glamorous world of spying.

The refusal of the intelligence agencies to release documents about their activities meant that beyond a few official accounts of the World War II and some pioneering works by the likes of Christopher Andrew and Richard Aldrich, there was very little work on British intelligence that resembled conventional academic history. The intelligence writer Stephen Dorril once described his work as a kind of “archival archaeology” – making sense of the incomplete scraps of information that reached the public domain, sometimes because government censors had simply overlooked them.

More intelligent

Since then intelligence history has changed out of all recognition. In no small measure this was because, by the end of the 1980s, parts of the intelligence community had realised that an insistence on absolute secrecy was counter-productive. It meant that the public only learned about their activities from official inquiries into their failures – and from the often ill-intentioned and ill-informed testimonies of former employees, keen to fight out old internal battles and rake over ancient grievances.

The farcical and ultimately futile attempt to prevent the retired MI5 officer, Peter Wright, from publishing his memoir Spycatcher, helped to persuade the security service to change tack. Since the 1990s it has sanctioned the gradual release of its archives. This has allowed it to boast about its achievements and to put its failures into proper historical perspective. Indeed, it has achieved the remarkable feat of making intelligence history “boring” by encouraging historians to treat the intelligence community as just another part of the administrative framework of the British state (few sets of papers are quite as dull as the minutes of the Joint Intelligence Community).

So the current silly-season sensation of the little princess’s Nazi salute shows just how much the Palace can learn from the intelligence community.

The majority of books about the contemporary monarchy bear a striking resemblance to the intelligence literature of the 1980s. Like the pre-1990s intelligence community, the Palace places entirely unreasonable restrictions on the work of professional scholars. It prohibits all but a small handful of “authorised” writers from viewing papers in the Royal Archives relating to the current reign.

In the dying days of Gordon Brown’s administration, it also managed to negotiate an absolute exemption from the Freedom of Information Act for all correspondence with government relating to the Queen, the heir to the throne and the second-in-line. This blanket of censorship covers not merely official files in the National Archives dating as far back as the 1950s, but also private collections of papers such as those of Anthony Eden at the University of Birmingham, and Harold Macmillan and Harold Wilson in the Bodleian Library, Oxford.

As a consequence, what we know about this fascinating and hugely significant part of the British state still consists mostly of reheated gossip, self-interested briefings from a range of current and former royal flunkeys, and tabloid revelations. And since the tabloids are largely interested in charting the misdemeanours of the royals (apparently from as far back as a 1930s home movie), this poses a real problem for the Palace’s image merchants.

Stubborn secrecy

This obsessive secrecy also impedes an informed and rational discussion about the nature of constitutional monarchy. In many respects, we know far less about how this institution operated in our lifetimes than our grandparents did. The 1950s saw the publication of official biographies of George V by Harold Nicolson (1952) and of George VI by John Wheeler-Bennett (1958). Both authors were under strict instructions to exercise discretion about the private lives of the Queen’s father and grandfather. They were, however, able to be fairly candid about their political attitudes and interactions with government. The sheer longevity of the Queen means we have no such authoritative accounts of the political role of the Palace in the 1960s or 1970s.

Some of those who make a living peddling royal gossip have been quick to defend the Palace’s refusal to make its papers more freely available, arguing – ironically – that the royal family has a right to privacy. Yet it is precisely the mixture of the personal and the political that makes constitutional monarchy so intriguing. And for the past 60 years it has been impossible to disentangle the institution of monarchy in the UK from the remarkable personality of the Queen herself.

A measured and duly sensitive policy of opening up royal papers from the current reign would be in everyone’s interests. It would allow the monarchy to become the object of serious historical investigation rather than simply gossip and scandal. Isn’t it time we stopped learning our royal history from The Sun?

Philip Murphy is Director of the Institute of Commonwealth Studies and Professor of British and Commonwealth History at School of Advanced Study. This article was originally published on The Conversation. Read the original article.

Is data protection the new defamation?

“If the headline asks a question, try answering ‘no'” says Andrew Marr in My Trade (2005, p. 253).

The answer to this post’s headline, as I see it, is a bit uncertain. I ignored Betteridge’s Law and used the same question as a title for a presentation at the University of Winchester’s Conference on Trust, Risk, Information and the Law (#TRILCon15) in April 2015 because I’d seen it popping up on Twitter (for example: here and here), and a piece in the Economist describing a ‘new front’ in media law.

spenceThe question of whether data protection  is superseding defamation can’t be answered definitively because of the inadequate data on defamation and data protection. I’ve set this out in more detail in a post on the Inforrm blog and the LSE Media Policy Project.

In April, I answered the question with a “not yet, no”, but it is becoming (or should be) an area of increasing concern for news organisations and journalists, which will need careful scrutiny and further research.

Things are certainly changing in terms of the impact of Article 8 of the Human Rights Act and the Data Protection Act 1998 on journalism and online publishing, but I’m not convinced that either, or both, have totally overtaken libel. My research in 2011-13 indicated that libel was still the major concern and preoccupation for bloggers, journalists and media lawyers.

And defamation certainly isn’t dead. There are two interesting defamation related developments to report since I wrote that post.

The first is a case described by the Times as ‘libel tourism’, a phenomenon that better data would allow us to monitor properly (cf. this Guardian’s piece – another one with a question in the headline).  Although the claimant  in Sloutsker v Romanova (Rev 1) [2015] EWHC 2053 (QB) (16 July 2015) lives outside the jurisdiction and the material complained of was published on Russian websites by a journalist living in Russia, the judge “concluded that the claim involves a real and substantial tort in this jurisdiction, and that England is clearly the appropriate place in which to try the claim” [para. 12; para. 100 Sloutsker v Romanova [2015] EWHC 545 (QB) (05 March 2015)]. He awarded the claimant £110,000 in damages.

The second is not a defamation case, but a Supreme Court decision that relates to the issue of costs in privacy and defamation proceedings, since it discusses at length the ECtHR’s rejection of the pre-LASPO Conditional Fee Agreement regime in MGN v United Kingdom (Coventry & Ors v Lawrence & Anor [2015] UKSC 50 (22 July 2015)). As 5RB notes here, “by a majority of 5-2 the Supreme Court held that the pre-LASPO CFA regime, which remains applicable in a small minority of claims including privacy and publication cases, is compatible with the ECHR“. More on the UK Human Rights blog here.

Lorna Woods: The ruling that overturned DRIPA

Last week the English High Court ruled that surveillance legislation enacted in 2014  was unlawful, in David Davis and others -v- Secretary of State for the Home Department [2015] EWHC 2092 (Admin). In this post, which first appeared on the LSE Media Policy Project blog, Professor Lorna Woods, University of Essex, explains the ruling and its implications. 

In a very rare outcome, the English High Court has declared that the Data Retention and Investigatory Powers Act (DRIPA) is inconsistent with European Union law and therefore is “disapplied”, although the Court suspended the effect of its order until after 31 March 2016. Liberty to appeal was granted.

DRIPA was rushed through Parliament last summer, much to the consternation of many, as this judicial review action evidences. DRIPA had been enacted in the wake of the Digital Rights Ireland decision of the European Court of Justice (ECJ) invalidating the Data Retention Directive (2002/58/EC), and the recognition that some of the activities of the police and security forces in this country in terms of surveillance and data access in any event had at best very dubious legal authority. DRIPA went through on the basis, that rather than involving new principles, it constituted mere clarification of the law. It was on the basis of EU law following Digital Rights Ireland that this action was brought.

The Judgment

Argument in court concerned what Digital Ireland in fact said, and the impact that a ruling on a directive should have on national legislation designed to implement it. The High Court argued that, although Digital Rights Ireland related to the Directive and not to national legislation, the ECJ was questioning whether the EU legislature had, by instituting its data retention rules, overstepped the principle of proportionality in balancing the rights to privacy and data protection in the EU’s Charter on Fundamental Rights against law enforcement and national security objectives (see Articles 7, 8  on rights & Article 52(1) on limitations). The Court took the meaning of the case to be that:

‘the ratio of Digital Rights Ireland is that legislation establishing a general retention regime for communications data infringes rights under Articles 7 and 8 of the EU Charter unless it is accompanied by an access regime (laid down at national level) which provides adequate safeguards for those rights’. [para 89]

In terms of the criteria by which any domestic legislation should be judged, the English High Court held that “[w]e do not accept that the [ECJ’s ruling in Digital Rights Ireland] is authority for nothing more than the verdict [ie it only speaks to the validity of the directive], any more than we interpret the judgment as meaning that each criticism or concern which the Court expressed involves a fatal flaw in the legislation”. [para 90]. The English Court then came up with a three-part structure summarising the requirements of any such legislative scheme for it to be acceptable under EU law:

  • Derogation and limitations in relation to the protection of personal data must apply only is as far is strictly necessary, so any legislation must set down clear, precise rules regarding scope of derogation and safeguarding rights against risk of abuse;
  • Legislation establishing a general scheme of retention must expressly restrict the purposes for which the scheme is used to precisely defined serious crimes;
  • Prior review by a court is required [para 91]

The Court decided not to make a reference to the ECJ on the question, although similar questions are pending from a Swedish Court before the ECJon similar domestic legislation. The requirements in derived from Digital Rights Ireland were not satisfied by DRIPA.

Next Steps

Although the Court ordered disapplication, which means the law will not be enforced, it suspended the effect of that order to allow the Government time to re-legislate. It seems that there is a growing consensus that some change to allow proper safeguards is required – as can been seen in the Anderson Report and in the RUSI Report. It is to be hoped that this time, the Government gives adequate notice to allow proper scrutiny of the proposed measures: a lack of scrutiny has been an ongoing concern about the passage of DRIPA and other measures in this area.

This case will no doubt give rise to a number of legal questions – and leave to appeal has been granted – but two immediate questions occur. The first relates to the scope of the disapplication: the Secretary of State for the Home Department who was defending DRIPA in this case raised at the last minute whether national security fell within the scope of EU law. If it does not, the arguments raised here would not apply to it. The Court did not deal with this argument as it was raised at the least minute. Secondly, if the High Court accepts that DRIPA is incompatible with EU law, as it has just argued, then how does it have the power to suspend disapplication until March next year? According to the ECJ, EU law is supreme and needs no intervention from the domestic legal systems to make it so. From that perspective, today’s disapplication could not be delayed. The Government now needs to prioritise re-legislating on the retention and investigation of communications data.

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