MILKY WAY AND ANDROMEDA: PRIVACY, CONFIDENTIALITY AND FREEDOM OF EXPRESSION

• Author: George WEI Sze Shun Diploma in Law (London), LLM (University College London); Barrister (Inner Temple, London), Barrister (Hong Kong), Advocate and Solicitor (Singapore); Professor of Law, Lee Kong Chian School of Business, Singapore Management University.
• Date: 01 December 2006
• Published date: 01 December 2006
• Citation: (2006) 18 SAcLJ 1

This article examines the extent to which the law of confidence protects private personal information. In the UK, much of the impetus for greater protection comes from the European Convention on the Protection of Human Rights and Fundamental Freedoms. How privacy and freedom of expression are to be balanced either within the law of confidence or through the development of a new tort of privacy is a question that has given rise to much discussion in the courts and elsewhere. Developments in this area are the focus of this article together with the issue as to whether similar developments might take place in Singapore.

I. Introduction

1 In some two to three billion years, our galaxy, the Milky Way, is likely to meet its nemesis in the local galactic cluster, the Andromeda. It is thought that this galactic “mother of all collisions” will occur at a time when life may still exist on planet Earth. Whether life can survive the encounter is a matter for speculation. Some have suggested, there is so much space between the stars, that collisions between actual stars are unlikely. Even if this proves to be the case, there is no doubting the incredible gravitational tension that will arise as the two galaxies intersect and eventually merge or emerge as the case may be. It is clear that neither galaxy will look the same or feel the same after the event.1

2 Civilisation operates on a dynamic balance between competing rights, interests and obligations. The balance is always in a state of flux. Sometimes, small changes will suffice to restore an acceptable equilibrium. Other times, major developments in how we live, communicate, work and play will require rather larger changes. Development of modern information technology is one such example. It has called into question the copyright balance between rights of authors, copyright owners, users and the public at large. Authors and copyright owners plead that new strong rights are needed to restore the equilibrium in the light of rampant on-line copying and distribution. Users and readers cry foul: the promise that the Internet will be the information leveller will ground on the bedrock of new or strengthened rights. No, what are needed are new exceptions and qualifications to redress the imbalance. Copyleft, open source software, private use defences are what is needed: not lengthened terms of protection, obligations concerning technological measures or rights management information. The ideal is relatively easy to state (or is it?): a system that encourages and supports the creation of new works and which protects the financial investment in commercialisation and which at the same time encourages and supports access to information and use of works so that knowledge can be built on knowledge for the benefit of all. How that balance is to be achieved and whether there is any presumptive priority for some interests over others is a matter that is keenly debated between interest groups and between nations. Similarly, the long established social and legal galactic norm or right, freedom of expression, has never been a universe of its own. It has always been but one galaxy in the universe of social and legal norms and rights. One long established counterbalance is the right of an individual to protect his reputation. If defamation actions are said to carry a potential chilling effect on free speech, so too, unrestrained freedom of speech may have a chilling effect on an individual’s relationship with the world at large. What has always been needed is to locate the appropriate and acceptable balance.2

3 Of late, another right, or is it merely a value, has begun to interface much more sharply with freedom of expression. That right or value is privacy. How the social and legal tension between free speech and privacy is best resolved is the issue that has been much debated in recent times. But, unlike the future collision between the Milky Way and Andromeda galaxies, the long existing and building interface between free speech and privacy, if appropriately balanced, should do much for the quality of life in this information age. The location of this balance in England and Singapore is essentially the subject matter of this article.

II. The setting

4 The need to achieve a balance between freedom of expression and privacy is not new. In their now seminal article published in 1890, Warren and Brandeis wrote:3

Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the house tops.”

… The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. … The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual …

5 The authors argued that what was needed to redress the balance was a new tort of privacy based on the “right to be left alone”.4 More than

a hundred years later, Lord Denning MR echoed the 1890 clarion call for a tort of privacy with his suggestion that:5

[A]ny unreasonable intrusion upon the plaintiff’s seclusion or solitude or into his private affairs is an infringement of his right of privacy.

6 What Lord Denning was suggesting, was the development of a tort that protected privacy as a high level principle of liability: that there should be a right of privacy as opposed to mere use of privacy as a policy factor that might be taken into account in developing or explaining established causes of action such as the action for breach of confidence in respect of personal information.

7 Similarly, at the start of the new millennium in Singapore, the sentiments of Warren and Brandeis found a resounding echo in the High Court decision of Malcomson Nicholas Hugh Bertram v Naresh Kumar Mehta.6 There, in the context of developing a new common law tort of harassment, Lee Seiu Kin JC explained that increasing urbanisation, the

widespread availability of leisure time and new widely available communication technology had combined to create a problem which did not exist before. This was not just the increased opportunity to indulge in “fantasies” about other people — but also the greatly increased opportunity to contact and communicate with those persons by SMS, e-mail or mobile phone calls. The learned judicial commissioner concluded that:7

But life can be unbearable for the person who finds himself the object of attention of one who is determined to make use of these modern devices to harass. That person’s mobile phone can be ringing away at all times and in all places. He may get a flood of SMS messages, which can now be conveniently sent out by computer via e-mail. His inbox can be flooded with unwanted e-mail. These communications can be warm words of adulation or they can be chilling threats to property or personal safety. The result can range from displeasure to distress to debilitation.

…

I do not believe that it is not possible for the common law to respond to this need. In Singapore we live in one of the most densely populated countries in the world.

8 This was the setting for the acceptance by the learned judicial commissioner of a new tort of harassment in Singapore. Whilst privacy concerns clearly lay at the heart of the decision, it was accepted that any privacy right was qualified and that:8

There is of course the need to balance the plaintiffs’ right to privacy against Mehta’s right to free speech. However the latter right has always been subject to existing law, eg defamation, sedition … Freedom of speech, as with any other freedom, extends to where it begins to impinge on another person’s rights.

9 The attainment of the proper balance between privacy and free speech in the context of repeated unwanted interferences resulting in

emotional distress required, in the Malcomson’s court’s view, the development of a new harassment tort.

10 If privacy is beginning to impact on the development of common law rights and obligations in Singapore, the impact in Europe has been even more dramatic.9 The seeds were sown shortly after the end of World War II with the coming into force of the European Convention on the Protection of Human Rights and Fundamental Freedoms 1950 (“the European Convention”).10 Article 8(1) sets out the Eurpoean Convention right of privacy in broad terms. It covers respect for an individual’s private life and family life, his home and correspondence. Article 10(1) sets out the Convention right of freedom of expression which includes

the “freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”. Both rights are subject to broad qualifications that underscore important aspects of the public interest including the need to balance privacy against freedom of expression.11

11 It was not, however, until the start of the new millennium that the UK passed and brought into force legislation to implement the Convention. The legislation, the Human Rights Act 1998, incorporates the values and principles of the European Convention into domestic English law.12 Unsurprisingly, the European Convention and the Human Rights Act is proving to be a fertile ground for litigation in the UK.13 Many important questions have arisen including: (a) whether there is any presumptive priority for free speech over rights of privacy; (b) whether compliance with Arts 8 and 10 requires the development of a cause of action to protect privacy head on; (c) whether the Art 8 right...