The International Covenant on Civil and Political Rights and United Kingdom Law

By David Harris; Sarah Joseph | Go to book overview

United Kingdom Compliance

Presenting individuals in a false light is largely remedied in English law by the torts of defamation and malicious falsehood, although defamation law in particular is very far from satisfactory. Whether the existing system of defamation law actually satisfies the requirement of Article 17 for a remedy cannot be predicted with any certainty until the Committee receives an appropriate communication. The absence of legal aid is just one of the aspects of defamation law that might be found to fall short of the requirements of Article 17. The adoption of the amendments proposed to the Lord Chancellor's Department by Lord Neill, under which there would be an opportunity for correction and clarification and a ceiling on damages, might go some way towards making defamation law a reasonable and realistic remedy.

It should not be forgotten that Scotland's separate, and largely civil, legal system has something like a general right to privacy through the principle of actio injuriarum, providing a remedy for injuries to honour.95 There is also some dispute in Scotland whether certain aspects of privacy could still be protected by a remedy based upon convicium, the essence of which is the holding of an individual up to public ridicule or contempt. Veritas is not available as a defence, as it is in actions of defamation, thus allowing this form of verbal injury to provide some additional protection.96


CONCLUSION

The clearest obligation imposed on the United Kingdom by Article 17 is to provide a remedy in law for interference with privacy. In Malone v. Metropolitan Police Commissioner97 and Kaye v. Robertson98 there has been judicial recognition of the absence in English law of any general tort of invasion of privacy, and the Committee has commented on this absence. It seems at least possible that the frequently postponed Government White Paper on Privacy and the Press may propose such a general tort. It is more likely that the White Paper will propose specific legislation on the sale and use of devices for surreptitious surveillance, which was recommended by the Younger Committee in 1972, and which the Human Rights Committee also has asked about.

A basic difficulty is in legislating to provide sufficient protection for

____________________
95
Kilbrandon, "'The Law of Privacy in Scotland'" ( 1971) 2 Cambrian LR35.
96
Walker, D. M., Delict ( 2nd edn., Edinburgh, 1981), 736; cf. Thomson, J. F., Delictual Responsibility ( Edinburgh, 1994), 220-1, doubting whether an action on this head would be competent.
97
[ 1979] Ch. 344.
98
[ 1991] FSR 62.

-353-

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