SINGAPORE ACADEMY OF LAW ANNUAL LECTURE 2015—“IS NOTHING SECRET?

Citation(2016) 28 SAcLJ 1
Published date01 December 2016
Date01 December 2016
Lecture
I. Introduction

1 It is a signal honour to be invited to give this lecture, especially in Singapore's 50th anniversary year. Since 1965, Singapore has come an impressively long way from being a little-known speck on the map at the bottom of the Malaysian peninsula. You have a government, which, according to the highly respected Economist magazine, “hold[s] [itself] to high standards”, and you have become “the world's only fully functioning city state”, with a “diversified economy with a strong manufacturing base as well as many service industries”, low unemployment, and “a structural surplus [which represents] a higher proportion [of GDP] than any other developed economy”.1

2 I know from first-hand experience of the high quality of your judges from their judgments which come to our attention in the UK Supreme Court. We recently followed2 what we called “an impressively wide-ranging judgment”3 given by your Chief Justice4 on the subject of passing off (ie, marketing goods and services giving the impression that they are someone else's). The appellant claimed that the reputation it

had built up in the UK through merely advertising its services meant that it had enough of a reputation to bring a passing off claim. This was inconsistent with established principles, but the appellant argued that we should change the law because of developments in IT, and in particular the Internet. We rejected that, saying:5

… given that it may now be so easy to penetrate into the minds of people almost anywhere in the world so as to be able to lay claim to some reputation within virtually every jurisdiction, … the imbalance between protection and competition which [the appellant's] case already involves … would be exacerbated.

II. Privacy is a fundamental right

3 The effect of the Internet on legal rights is central to my talk today. However, the right in question, privacy, is perhaps more fundamental than any intellectual property (“IP”) right, although it has only relatively recently been recognised in law. Today, most international conventions on human rights and liberties now protect the right to privacy.6

4 As was famously said 45 years ago, “[a] man without privacy is a man without dignity”.7 Indeed, simply knowing that your actions and words are, or even may be, heard or seen by others affects what you say and do. The 18th-century philosopher Jeremy Bentham designed a

prison where all the prisoners could be under observation at any point. He described it as “a new mode of obtaining power of mind over mind, in a quantity hitherto without example”.8

5 However, even the identity and nature of fundamental rights may vary with time and place. Virtually every fundamental right which most people in the UK would take for granted today would not have been seen as a right at all by anyone in England 400 years, let alone 800 years, ago, when Magna Carta was sealed.9

6 A wide-ranging new law in France, with its relatively dirigiste tradition, seems to have prompted a relatively muted response, whereas in Germany, with its memories of the Nazis and the Stasi, a proposed new law, which is probably less intrusive,10 has caused much outrage.11

III. Privacy is a qualified right

7 While it is vital, the right to privacy has to be subject to constraints. Perhaps the most frequently encountered constraint is when privacy comes into conflict with another, perhaps even more important, and qualified, right, freedom of expression. Partly because it is the media who most frequently question the right to privacy, at least in the UK, we may overlook the fact that, in many ways, the right to privacy is an aspect of freedom of expression. Most people would feel very constrained about what they felt free to say or do on social, family or even many business occasions if they knew that their words or actions would or even might be broadcast generally.

8 An equally important tension exists between privacy and national security and law enforcement. The extent of the tension is no better demonstrated than through the contrasting public reactions to the revelations published by Edward Snowden. Condemnation and praise are handed out in almost equal measure by journalists and political commentators — and with almost equal vehemence and one-sidedness. A balanced and thoughtful analysis of the tension between national security and privacy can be found in the report12

published a couple of months ago by David Anderson QC, the UK Independent Reviewer of Terrorism Legislation.
IV. Role of the law in protecting privacy

9 If privacy is to be protected, competing rights and interests have to be balanced in particular cases. Such an exercise can only be carried out through the law, which, at least normally, means legislation setting out the principles and the courts then applying and developing those principles. The law is the watchman on the walls, and there are three overarching problems for the watchman guarding the walls of the citadel of privacy.

10 The first is that the precise extent of the citadel is by no means clear. It is quite hard to define the nature of the right to privacy, not least because it is a relatively new legal right. It has, I think, two main facets: first, the right to prevent anyone from misusing (which can include accessing, retaining, using or disseminating) personal information; and secondly, the right to seclusion, ie, the right to personal space, the right to be left alone.13 But the precise boundary between the private and public spheres is unclear and controversial in many cases.

11 The second overarching problem for the watchman is the difficulty in distinguishing friend from foe. Almost all the rights which privacy rubs up against are rights which, like privacy, are subject to conflicting and strong opinions. Accordingly, a difficult and often potentially controversial balancing exercise has to be carried out, and it is an exercise which requires weighing of factors which are inherently mutually incommensurate.

12 The third overarching problem for the watchman is that, since about 1985, the weaponry available to assault and breach the walls has become remarkably sophisticated and bewilderingly fast-changing, as a result of developments in IT. It is now possible to communicate immediately with almost anybody, indeed with almost everybody, across the globe, and instantly. Further, an enormous amount of personal information is available on the Internet, not merely through our conscious communications, but also through records which we unconsciously make available (eg, by shopping online or by using search engines). And all this information is accessible to many entities and people, who may collate it and find it a valuable commodity. Quite apart from this, a huge number of people willingly place large quantities of information about

themselves online, without fully appreciating the import of what they are doing.

13 Thus, the Internet, particularly bearing in mind its “almost unlimited search and memory capacity”,14 represents a “quantum leap” in scale over the past. In addition, the Internet is subject to disaggregated control and is effectively outside any single national jurisdiction. Indeed, the whole thrust of the Internet is inconsistent with the core principles of data protection,15 namely limiting the collection of data to what is strictly necessary for a specific lawful purpose, limiting the use of that data to that purpose, not sharing the data, and deleting the data as soon as it is no longer needed for that purpose.

14 Both statute law, with its prior investigatory, consultative and democratic processes, and the common law, with its focus on gradual development on a case-by-case basis, are therefore facing unprecedented challenges from the Internet, which has been described by one of Google's founders as “the largest experiment in anarchy that we have ever had”.16

15 These problems for the watchman reinforce the importance of the role of the law in defining the extent of the right to privacy, and indeed the other rights and interests which it rubs up against. Only the rule of law is capable of effectively providing proper protection of such a vital right and defining its limit. This is reflected in the fact that many major human rights instruments require interferences with many rights can only be justified if they are “in accordance with the law”.17

V. Current law on privacy and data control

16 By Art 8, the European Convention on Human Rights18 (“the European Convention”), which dates from 1953, recognises that privacy as a fundamental human right, and, following the enactment of the Human Rights Act 199819 (“the 1998 Act”), Art 8 is part of UK law. However, many countries have no law which specifically grants its citizens an express right to privacy. Thus, the constitutions of Singapore and the US do not include a right to privacy; nor do the Charters or Bills of Rights of Canada, New Zealand or Hong Kong.20 That is scarcely surprising. While the common law has long recognised a right in confidential information, it has been very reluctant to recognise a right to privacy. While the English Court of Appeal refused to recognise a common law right to privacy in 1990,21 the 1998 Act has changed things and a few months ago it recognised misuse of private information as a tort.22 The New Zealand courts have been prepared to develop a tort of wrongful publication of private information,23 and those in Ontario a tort of intrusion on seclusion.24 And, in an interlocutory judgment last month,25 the Singapore Court of Appeal has specifically left open the question whether a common law right to privacy should be recognised in this jurisdiction.

17 Apart from the 1998 Act, UK statutes give some protection to privacy, but the pattern of statutory control has rightly been described as being “neither coherent nor comprehensive” so that there is “duplication in some areas and gaps in others”.26 More...

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