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Campbell’s Scoop

Tom Bennett and I, along with the regular editors (Eric Barendt, Rachael Craufurd Smith and Tom Gibbons) have put together a special issue of the Journal of Media Law (volume 7, issue 2) arising out of the workshop we hosted at Newcastle Law School on the Campbell Legacy and broader issues of privacy law in the UK and Commonwealth. The original workshop (discussed here) was a ‘ten years on’ discussion of the decision of the House of Lords in Campbell v MGN [2004] UKHL 22. Papers in the issue come from Nicole Moreham, Jacob Rowbottom, Rebecca Moosavian, Paul Wragg, Eric Descheemaeker, and my co-editor Tom. We also wrote a short editorial, which appears below.

Introduction: The Campbell Legacy (2015) 7 JML 152

The early years of the 21st century have seen a number of significant developments in the law that have impacted upon the media. The impetus for many of these was the enactment of the Human Rights Act 1998 and perhaps the most dramatic was the recognition by the House of Lords in Campbell v Mirror Group Newspapers Ltd of a cause of action for ‘misuse of private information’ (MPI). This case is rightly regarded as seminal. For, in recognising a head of liability apt to protect against the wrongful publication of private information, the English judiciary took a step towards fulfilling Lord Irvine’s pre-HRA prophecy that English judges were ‘pen-poised’ to develop the right to privacy in domestic law.

The decision of the House of Lords in Campbell has been followed by a decade (or so) of cases and discussion on the shape and purpose of privacy law in England and Wales. The judicial recognition of the MPI cause of action has had a significant impact on the media. Moreover, the decision and its subsequent refinement have formed part of a transnational conversation on privacy, reputation, celebrity, information, and speech, with many other legal orders continuing to grapple with common law and statutory approaches to privacy. Courts in Canada and New Zealand have, whilst developing their own privacy torts, given substantial consideration to the Campbell model. Furthermore, the Australian Law Reform Commission recently recommended the adoption of a ‘misuse of private information’ tort, taking its preferred nomenclature directly from Campbell. Clearly, then, Campbell’s legacy – whatever else it may be – courts global attention.

This ‘legacy’ was the subject of a one-day workshop held at Newcastle University on 23 April 2015, convened by the guest editors of this issue. With support from the Journal of Media Law, Schillings, and the Newcastle University Conference Fund, we were joined by speakers and participants from universities and legal practice, spanning England, Wales and Scotland. In addition, we were particularly pleased to welcome Dr. Nicole Moreham from the Victoria University of Wellington (New Zealand), who gave the closing keynote address.

This special issue of the Journal of Media Law brings together a selection of papers first presented at the workshop, and subsequently revised by the authors. The contributors address the Campbell legacy from a range of perspectives including tort law, human rights, and comparative law; they discuss broader themes of power, metaphor, consistency, and technological change.

Nicole Moreham, who has written extensively on post-Campbell developments, focuses her attention on one of the most recent MPI decisions: Gulati v MGN in the High Court. Concentrating on the treatment of ‘intrusion’ in New Zealand and in Canada (Ontario), and the evolution of doctrine in England and Wales, she concludes that the decision in Gulati is a new and welcome extension of privacy law in this jurisdiction.

Like a number of contributors to this issue, Jacob Rowbottom situates Campbell in the long history of English privacy law. Doing so allows him to highlight the interaction between the development of the law on MPI and broader concerns on the power and influence of the mass media. However, with cultural, economic and technological factors in play, the concept of media itself is under strain; Rowbottom asks whether alternative approaches to what was promulgated in Campbell might be more appropriate in certain cases – especially concerning the use of the Internet.

The decision in Campbell is replete with provocative and complex terms such as ‘balance’. Rebecca Moosavian’s concern is with the poorly-understood significance of metaphors within legal discourses. She traces the use of the ‘balance’ metaphor in Campbell and subsequent cases (with particular regard to articles 8 and 10 ECHR), arguing that it promotes acceptance of decisions by alluding to justice and appearing certain and calculable.

Like Moosavian, Paul Wragg focuses on the ‘ultimate balancing exercise’ undertaken at the second stage of Campbell’s methodology. Wragg presents a more sceptical response than Moosavian, however, offering evidence that the courts have failed properly to engage in ‘balancing’ at all. He contends that, on many occasions, courts have adopted a substantially blunter instrument (a ‘zoning’ approach) in their efforts to decide between the interests of claimants and defendants in MPI.

Thomas Bennett’s essay considers one way in which cases subsequent to Campbell have expanded the law more broadly than might have been expected, given the restrictive undertones of the pre-Campbell decision in Wainwright v Home Office. Focusing on the issue of third parties’ interests in MPI cases and the manner in which the common law develops (‘incrementalism’), Bennett finds cause to be critical of Wainwright for what he sees as a short-sighted and unnecessary insistence upon leaving the law to develop in such a piecemeal fashion.

Eric Descheemaeker’s article, like Bennett’s, concerns Campbell‘s place in the field within which MPI is most often thought to sit – tort law. Focusing on the recent case of Gulati (also discussed by Moreham), Descheemaeker brings to the fore the question of where ‘harm’ lies in MPI cases. This, he observes, is an issue of high significance within tort law generally, and the failure of the courts adequately to theorize it in MPI cases leads to conceptual incoherence.

A number of the articles, then, strike a distinctly critical note. Despite its significance, Campbell is readily identified as a doctrine with imperfections. The contributors to this volume offer up their criticisms regarding doctrinal coherence, the protection of various rights, and the quality of judicial decision-making. The initial decision, while not entirely unexpected, left us with an inchoate doctrine that, in the ten years or so since, the courts have begun to develop further. Each of the authors here, in their own way, cautions against complacency. Clearly, the accumulated caselaw and commentary of the post-Campbell decade point to a clearer notion of what privacy law in England and Wales should look like. Some measure of redress for infringements of privacy is here to stay. Nonetheless, both the doctrinal imperfections and the underexplored alternatives from elsewhere should be given greater attention in Campbell’s second decade.

After the Coalition

Last March, I wrote a blog post (itself based on a speech given at the launch of the new Information Law & Policy Centre at the Institute for Advanced Legal Studies) on what happened in the field of IT law over the five years of the Conservative / Liberal Democrat coalition government in the UK. An extended version of that speech and post has now been published in the journal SCRIPTed, and can be found here:

Daithí Mac Síthigh, ‘Computers and the Coalition: Legislation on Law and Information Technology, 2010-2015’ (2015) 12 SCRIPTed 141

It’s not easy being green

The UK Government’s ‘Fulfilling Our Potential’ green paper on higher education (subtitle: “Teaching Excellence, Social Mobility and Student Choice”) was published today (not yet on official site, but PDF here). Of course, there is excellent coverage in places such as the Times Higher and WonkHE. Here are some initial impressions on my part (breakfast reading, so excuse errors). Bear in mind that my current admin role is on the research side of the house – and I have not kept up to date with developments in national HE teaching policy in recent years; working in Scotland was a part of that, for sure, and it’s worth remembering that today’s paper is what the Government has to say in respect of England in most cases. In particular, I am not very familiar with the latest developments for ‘alternative’ providers, etc, so haven’t really considered those aspects of the paper.

In no particular order:

  • There is, as expected, some discussion of data obtained through the National Student Survey (NSS), including a proposal that it be one of the three (existing) data sources for teaching excellence. Now, the main thing the NSS tries to measure is satisfaction. That’s something to be interested in, for sure. What I don’t yet see is the link between satisfaction and quality. To take one (disturbing) example, evidence from the US suggests that there may be a relationship between student surveys/evaluations and particular forms of discriminations (e.g. gender, race) (see here, and here). Of course, student evaluations can be a useful part of a conversation on teaching. And, if a group of students feels dissatisfied with their teacher on gender grounds, that is a scientifically interesting finding for all sorts of reasons. What it isn’t is anything meaningful about the quality of the teaching delivered by that teacher.
  • Similarly, we’re asked whether data on careers (the Destinations survey) and retention should be used – these are the other two ‘existing’ sources proposed to be used, alongside institutional evidence and new data. Destinations is tricky in some disciplines (like mine) and using retention measurements might mean a perverse incentive to do everything to avoid students failing, at the cost of academic standards.
  • The report identifies competition for attention and resources between teaching and research within institutions. (This is primarily attributed to Graham Gibbs’ work). In my view, this section could have been greatly strengthened with a discussion of the relationship between research and teaching – particularly positive dimensions (e.g. the sometimes-mocked but potentially very thoughtful concept of research-led teaching). Ironically, the report ends up reinforcing the separation.
  • As expected, and just as in consumer policy (a clear template for the current Government approach to higher education governance), there is a great focus on the provision of information. Better information would be useful, but is not an answer in its own right. We know this from research on consumer law itself, e.g. Geraint Howells’ work (where there has been a similar obsession with how homo economicus will make better decisions and drive competitive markets if only standards and requirements are replaced with disclosure…), and we also need to know more about the relationship between information and quality (if 50% of staff in university X have a teaching qualification, is that important because students say they want to know that or because it affects the quality of teaching?)
  • Rather comically, after pages and pages on the importance of information and transparency, there’s a suggestion that requiring publicly funded institutions to comply with the Freedom of Information Act might need deregulation (because ‘private’ providers aren’t covered – not truly private given the indirect state support through the loan system of course). The idea of levelling the field through extending the FOI Act to all providers seems genuinely not to have occurred to them, despite the love affair with information.
  • I didn’t expect to see discussion of GPA rather than classic classification. It’s in gentle terms (not to be part of the TEF in the first instance), although it is something that might be welcome (personally I would favour it). The problem for the current approach to HE policy is that something like this (which if it is to work requires coordination) isn’t being discussed in a coordinated way. It’s far too easy for a Government to claim things are student-led and based on institutional autonomy while still trying to achieve its preferred results.
  • One of the ideas being floated as a new measurement of teaching excellence is ‘learning gain’. This is a significant part of quality discussions in other sectors e.g. post-primary (GCSE and A Level). The difference, though, is that universities set their own exams and marking standards. So, it places a lot of pressure on external examiners and QA processes, to guard against learning gain being demonstrated through grade inflation (which the report highlights as a problem, separately). (By the way, what about institutions already admitting students with very high school-leaving performance – zero gain?)
  • Whatever happened to the poor Office of the Independent Adjudicator? Its work has been hugely significant, not just in individual cases but in prompting universities to revisit their policies and procedures (sometimes long overdue). But, there’s discussion of Which?’s work on HE conditions/contracts (which I thought much less important), and nothing on the OIAHE. Odd.
  • The discussion of research (policy and funding) is quite thin. There is a broad commitment to dual support (i.e. a mix of funding for institutions based on past quality, and funding for specific projects), but not much detail on how this is to be governed. We see mention of the forthcoming review of the research councils, as well as a couple of points on the REF (pretty much confirming the next one will happen but not until 2021), and  some harsh words on internal ‘mock REFs’ and similar exercises going too far. That last one is an important point, although specific evidence or advice would have been more useful. (I know, I know, it’s only a Green Paper, but there’s no reluctance to supply evidence or detail in some other parts – it does seem like an afterthought mixed with gossip and gut feeling!)