19 April 2014


The Office of the UN High Commissioner for Human Rights (OHCHR) has expressed "deep concern" about Brunei Darussalam's revised penal code, which introduces stoning to death (aka lapidation) as the specific method of execution for crimes of a sexual nature.

The revised code stipulates the death penalty for offences such as robbery, murder, blasphemy, adultery, sodomy, insult or defamation of the Prophet Mohammed, insulting any verses of the Quran and Hadith, and declaring oneself a prophet. The shift to sharia law is reflected in provision for caning and for removal of limbs for property offences.

It is unclear whether the code emulates Saudi Arabia, which has capital punishment for witchcraft, or the death penalty from apostasy from Islam (the latter being a criminal but not capital offence in parts of Malaysia).

A OHCHR spokesperson comments that
Application of the death penalty for such a broad range of offences contravenes international law.
We urge the Government to delay the entry into force of the revised penal code and to conduct a comprehensive review ensuring its compliance with international human rights standards
Under international law, stoning people to death constitutes torture or other cruel, inhuman or degrading treatment or punishment and is thus clearly prohibited.
 One local legal scholar was reported last year as commenting
Let us not just look at the hand-cutting or the stoning or the caning per se, but let us also look at the conditions governing them. It is not indiscriminate cutting or stoning or caning. There are conditions and there are methods that are just and fair.
The OHCHR notes that
women are more likely to be sentenced to death by stoning, due to deeply entrenched discrimination and stereotyping against them, including among law enforcement and judicial officers. The criminalization and application of the death penalty for consensual relations between adults in private also violates a whole host of rights, including the rights to privacy, to equality before the law, the right to health and freedom from arbitrary arrest and detention.


In the UK the Surveillance Camera Commissioner (SCC) is reported by the UK Independent as warning that the public face "a very real risk" to their privacy from ANPR and CCTV.

The Commissioner has urged that
clear guidance be provided to ensure “innocent” people do not fall victim to roadside automatic number plate recognition (ANPR) cameras which have been the centre of concerns over the rise of surveillance in Britain. 
Through the Commissioner's interview with the newspaper UK  police have supposedly been "put on notice over their use of personal data". Regrettably there is no statement on the SCC site.

The Independent states that
Local authorities control more than 50,000 cameras while thousands of roadside cameras collect owner information on more than 18 million car journeys every day, in a swift and unregulated expansion over the past 30 years.
Police have declined to say how many cameras are used for the ANPR system, but it has the capacity to check information on up to 50 million cars every day, and cross-check it with other police databases to trace wanted offenders.
The information, which according to police has led to important intelligence gathering and tens of thousands of arrests every year, is retained for up to two years, even when there is no evidence of any wrongdoing.
But reports into three cases that highlighted failings in the system prompted the police watchdog to warn that the scale of the system meant it was “impossible” to achieve its full potential. In April 2012, the database held almost 11.2 billion vehicle sightings.
“I think there has to be very clear guidance to officers about the way in which ANPR is used and once it has been used, ensuring that data is removed or at least is updated to that effect. I think that’s crucial,” said Mr Porter, a former senior police anti-terror officer.
“There is a very real risk that if systems aren’t adhered to innocent members of the public could be put at risk of having their privacy impacted upon. I can see the value of understanding how many ANPR cameras there are. There are other concerns that have been expressed … the large data-grab of information and the period of retention of that information.”to encourage compliance with the surveillance camera code of practice.
The office of the Commissioner was created under the Protection of Freedoms Act 2012 (UK) to regulate CCTV. It is independent of the Information Commissioner (counterpart of the OAIC in Australia).

The 2012 statute required a Code of Practice regarding surveillance camera systems. That Code of Practice sets out guidelines for CCTV and ANPR. It is not applicable to domestic use in private households.

The Code states -
Surveillance camera systems are deployed extensively within England and Wales, and these systems form part of a complex landscape of ownership and operation. Where used appropriately, these systems are valuable tools which contribute to public safety and security and in protecting both people and property.
The government is fully supportive of the use of overt surveillance cameras in a public place whenever that use is: in pursuit of a legitimate aim; necessary to meet a pressing need2; proportionate; effective, and; compliant with any relevant legal obligations.
The purpose of the code will be to ensure that individuals and wider communities have confidence that surveillance cameras are deployed to protect and support them, rather than spy on them. The government considers that wherever overt surveillance in public places is in pursuit of a legitimate aim and meets a pressing need, any such surveillance should be characterised as surveillance by consent, and such consent on the part of the community must be informed consent and not assumed by a system operator.
Surveillance by consent should be regarded as analogous to policing by consent. In the British model of policing, police officers are citizens in uniform. They exercise their powers to police their fellow citizens with the implicit consent of their fellow citizens. Policing by consent is the phrase used to describe this. It denotes that the legitimacy of policing in the eyes of the public is based upon a general consensus of support that follows from transparency about their powers, demonstrating integrity in exercising those powers and their accountability for doing so.
In order to achieve this, the code sets out guiding principles that should apply to all surveillance camera systems in public places. These guiding principles are designed to provide a framework for operators and users of surveillance camera systems so that there is proportionality and transparency in their use of surveillance, and systems are capable of providing good quality images and other information which are fit for purpose.
The 12 principles are -
1. Use of a surveillance camera system must always be for a specified purpose which is in pursuit of a legitimate aim and necessary to meet an identified pressing need.
2. The use of a surveillance camera system must take into account its effect on individuals and their privacy, with regular reviews to ensure its use remains justified.
3. There must be as much transparency in the use of a surveillance camera system as possible, including a published contact point for access to information and complaints.
4. There must be clear responsibility and accountability for all surveillance camera system activities including images and information collected, held and used.
5. Clear rules, policies and procedures must be in place before a surveillance camera system is used, and these must be communicated to all who need to comply with them.
6. No more images and information should be stored than that which is strictly required for the stated purpose of a surveillance camera system, and such images and information should be deleted once their purposes have been discharged.
7. Access to retained images and information should be restricted and there must be clearly defined rules on who can gain access and for what purpose such access is granted; the disclosure of images and information should only take place when it is necessary for such a purpose or for law enforcement purposes.
8. Surveillance camera system operators should consider any approved operational, technical and competency standards relevant to a system and its purpose and work to meet and maintain those standards.
9. Surveillance camera system images and information should be subject to appropriate security measures to safeguard against unauthorised access and use.
10. There should be effective review and audit mechanisms to ensure legal requirements, policies and standards are complied with in practice, and regular reports should be published.
11. When the use of a surveillance camera system is in pursuit of a legitimate aim, and there is a pressing need for its use, it should then be used in the most effective way to support public safety and law enforcement with the aim of processing images and information of evidential value.
12. Any information used to support a surveillance camera system which compares against a reference database for matching purposes should be accurate and kept up to date.
The SCC role is to -
  • encourage compliance with the surveillance camera code of practice
  •  review how the code is working 
  • provide advice to ministers on whether or not the code needs amending.
Importantly (and fostering suspicions that the SCC is a potemkin regulator) the commissioner has no enforcement or inspection powers but "works with relevant authorities to make them aware of their duty to have regard to the code".  The Commissioner  must consider how best to encourage voluntary adoption of the code by other operators of surveillance camera systems. The Commissioner is responsible for -
  • providing advice on the effective, appropriate, proportionate and transparent use of surveillance camera systems 
  •  reviewing how the code is working and if necessary add others to the list of authorities who must have due regard to the code 
  • providing advice on operational and technical standards 
  • encouraging voluntary compliance with the code

UK bulk tax data for sale?

Under the heading 'Taxpayers’ data could be sold to private companies by HM Revenue & Customs' the UK Independent reports that the UK Government is considering a proposal to sell deidentified taxpayer data.

So much for the acknowledgment of concerns regarding the care.data fiasco and cautions provided by the earlier Caldicott Report or research on reidentification of supposedly deidentified (anonymised) sensitive personal information.

The controversial move raises questions over civil liberties and confidentiality and prompted immediate condemnation by Tory MP David Davis who branded it “borderline insane”.
Treasury Minister David Gauke is overseeing the plans to sell information on taxpayers, supposedly anonymously, to businesses, researchers and public bodies where it there is a “public benefit”.
Suitable precautions will, the government insisted, be put in place to ensure all data passed on to third parties is anonymous but there are doubts such a promise can be kept.
HMRC is already notorious for its loss of data on 25 million child benefit claimants.
Davis reported as commenting
The officials who drew this up clearly have no idea of the risks to data in an electronic age. Our forefathers put these checks and balances in place when the information was kept in cardboard files, and data was therefore difficult to appropriate and misuse.
It defies logic that we would remove those restraints at a time when data can be collected by the gigabyte, processed in milliseconds and transported around the world almost instantaneously.
Unresponsiveness to concerns aside, what is particularly interesting from the reporting is the indication that the Government doesn't expect to make much money from release of the data -
The proposals were originally announced last year but have only now come to public attention. The next stage is for the plans to be published in draft legislation but no date for such a move has yet been set.
A spokesman for HMRC said: ”No final decisions have been taken, but HMRC remains committed to safeguarding taxpayer confidentiality.”
“HMRC would only share data where this would generate clear public benefits, and where there are robust safeguards in place.”
“There would be a rigorous accreditation process for anyone wanting access to the data and that any access would take place in a secure environment. Those accessing data would be subject to the same confidentiality provisions as HMRC staff, including a criminal sanction for unlawful disclosure of taxpayer information.”
“HMRC will be consulting further and will ask for views on whether to charge to cover the costs of processing and providing anonymised data. This would not be charging for the data itself, purely covering the costs of providing it.
The authors of the plan might usefully take a few hours out to read The Blunders of Our Governments (Oneworld, 2013) by Anthony King and Ivor Crewe.

The Guardian reports -
The government has strict rules about what can be released outside HMRC, with a near total ban on data sharing unless it is beneficial for the organisation's internal work. But despite the restrictions, HMRC has quietly launched a pilot programme that has released data about VAT registration for research purposes to three private credit ratings agencies: Experian, Equifax and Dun & Bradstreet.
To comply with the law, the private ratings agencies, which determine credit scores for millions of people and businesses, have been contracted to act on behalf of HMRC and are "therefore treated as part of the department" – giving them access to tax data about businesses that would otherwise be confidential.
The government's plans to change the law to allow the sale of anonymised individual tax data and release of the VAT register were buried in documents as part of the autumn statement and recent budget.
Emma Carr, of Big Brother Watch, said the government should not try to sneak the plans through without a public debate. She said: "The ongoing claims about anonymous data overlook the serious risks to privacy of individual level data being vulnerable to reidentification."
During the consultation process officials acknowledged there were "concerns around the dangers of individual identities being disclosed inadvertently" but they believe the data can be appropriately protected.
Stephen Coleclough, president of the Chartered Institute of Taxation, said HMRC had failed to grasp the "worrying and dangerous" implications of what would be made into law.
"We are concerned that even the strictest safeguards and deterrents may not prevent misuse of the data, or identification of the underlying taxpayer," he said. "There are already examples of aggregate data being provided at such a granular level which would enable identification of the relevant individuals, and we are anxious that any broadening of HMRC's powers of disclosure will inevitably lead to the identification of individuals, and a consequential breakdown in trust between HMRC and taxpayers, not to mention contravention of legislation such as the Human Rights Act."
The Treasury confirmed it was proceeding with plans to legislate to make aggregated and anonymised data more widely available, as set out in an HMRC document that said: "The government has decided to proceed with the proposal to remove the legal restrictions that currently limit HMRC's ability to share anonymised individual level data for the purpose of research and analysis and deliver public benefits wider than HMRC's own functions, but they accept that this must be done only where there are sufficient safeguards in place to protect taxpayer confidentiality.


'The Diffusion of Drone Warfare: Industrial, Infrastructural and Organizational Constraints' by Andrea Gilli and Mauro Gilli Sr. comments that
Many scholars and policy-makers believe that drones will spread quickly because of their low price, of their reliance on cheap commercial components and of their relative unsophistication. According to this view, this process will redistribute military power at the global level and, possibly, promote international instability. The literature in international relations and on globalization almost unanimously supports these concerns. Drawing from the scholarship in management, we show that such consensus is unwarranted. Specifically, even if we assume that advanced components are cheaply and easily available, drone warfare casts two major challenges. First, the production of combat-effective drones require advanced competences and industrial capabilities that are generally difficult, expensive and lengthy to develop. Second, the employment of drones calls for expensive and burdensome organizational and infrastructural support that, often, only few countries can afford. We test our claims by focusing on three types of military relevant drones – loitering attack munitions (LAMs), unmanned combat aerial vehicles (UCAVs) and ground and airborne surveillance drones (ISR and AEW&C). Our analysis shows that drone warfare poses significantly more daunting challenges than the current debate acknowledges. ....
First, drone warfare requires combat-effective unmanned aerial vehicles (UAVs) able to withstand potential counter-measures and to meet specific requirements in terms of performance and capabilities. The production of such drones, in turn, requires advanced design and systems integration competences that are difficult, expensive and hence lengthy to develop. Second, in contrast to the current debate, drones are not stand-alone platform as they are virtually useless without data-link, communication relays and ground control stations – just to name a few. Thus, considering the single drone without its supporting infrastructures is tantamount to counting trains, in the late 19th century, without considering countries’ rail-networks extension. As we argue, the infrastructural and organizational support necessary for the employment of drones is extremely complex and expensive, such that in some cases it is beyond the reach of most countries.
The case of drones is not only substantively important, but also methodologically relevant. Drones are among the many transformative technologies of the post-industrial era. However, in comparison to others like direct-energy weapons, rail-guns and to certain extents even cyber capabilities, they draw more extensively from commercial components, which in turn should make them more likely to spread easily, at least according to the literature in international relations. By studying drones, we are hence able to investigate a broader issue: whether globalization, along with progress in communications and science, is undermining the US leadership in military technology.
The current debate tends to lump together all types of drones, ignoring that different drones with very different military capabilities exist. Some scholars have restricted their focus on armed drones. However, also this generalization is too broad: different types of drones with very different striking capabilities exist. For this reason, we focus on the three types of drones that can conduct different types of land-attack missions and that provide relevant military capabilities: loitering attack munitions (LAMs), unmanned combat aerial vehicle (UCAVs) and ground and airborne surveillance drones that can also conduct the (in)famous drone strikes (for intelligence, surveillance and reconnaissance, ISR and airborne aerial early warning and command, AEWC). Although we are in the early stages of the drone age, and hence data is inherently limited, our investigation suggests that drones are far from cheap and easy to develop and to employ. We conclude that drone warfare poses more challenges than generally acknowledged, and hence will spread less quickly and less widely than many believe.
The rest of the article proceeds as follows: first we summarize the existing literature on the diffusion of military technology and on the diffusion of drones. Second, we present our theoretical framework. Finally, we conduct our empirical analysis. Conclusions follow.

Corporal Punishment

The Australian Institute of Family Studies has updated its useful guide to corporal punishment of minors.

The guide notes that parents in all jurisdictions may lawfully use "reasonable" corporal punishment to discipline their children, with NSW remaining the only state to have made legislative amendments concerning corporal punishment by parents. The Crimes Amendment (Child Protection Physical Mistreatment) Act 2001 (NSW) states that physical punishment should not harm a child "more than briefly" and specifies the parts of a child's body that can be subject to force; the Act does not ban the use of corporal punishment altogether.

The guide identifies the following regimes -
  • ACT - no legislation regarding the use of corporal punishment by parents. The defence of "reasonable chastisement" remains in common law. 
  • NSW - the Crimes Amendment (Child Protection-Physical Mistreatment) Act 2001 (NSW) amended the Crimes Act 1900 (NSW), specifies that physical punishment by a parent should not harm a child more than briefly and specifying the parts of a child's body that can be subject to force. 
  • NT - the Criminal Code Act (NT) s 27 provides for parents and teachers (unless parents expressly withhold their consent) to lawfully apply force to a child for the purposes of discipline and correction.
  • Qld - the Criminal Code Act 1899 (Qld) s 280 provides that it is lawful for a parent (or person in the place of a parent) "to use, by way of correction, discipline, management or control, towards a child or pupil, under the person's care, such force that is reasonable under the circumstances". It therefore remains lawful for a parent to physically punish/correct their child. 
  • SA - no enactment expressly provides for the use of corporal punishment by parents but the Criminal Law Consolidation Act 1935 (SA) s 20(2) provides for contact between persons that would generally be regarded as accepted within the community, in addition to the common law defence of "reasonable chastisement".
  • Tas - physical punishment by a parent or a person in the place of a parent remains lawful under the Criminal Code Act 1924 (Tas) s 50, which provides for use, by way of correction, of any force that is reasonable in the circumstances. 
  • Vic - the common law defence covers parental use of corporal punishment that is neither unreasonable nor excessive
  • WA - the Criminal Code Act 1913 (WA) s 257 provides that it is lawful for parents or a person in the place of a parent to use, by way of correction such force as is reasonable under the circumstances. 
In relation to childcare and early education the guide comments that
In 2011, the Education and Care Services National Law was introduced by way of an applied law system where the host jurisdiction (Victoria) passed the law - Education and Care Service National Law Act 2010 (Vic) - and other jurisdictions adopted that law or passed corresponding legislation.
Under s 166 of the Victorian statute it is an offence for a provider, nominated supervisor, staff member, and volunteer or family day care educator of an approved education and care service to subject a child to any form of corporal punishment. Consistent with the preceding comments not all jurisdictions have specifically included corporal punishment as an offence under individual education and care services statutes, with variations as follows -
  • ACT - adoption of the National Law Act through the Education and Care Services National Law Act 2011 (ACT). The Children and Young People Act 2008 (ACT) states that a person responsible for a childcare service commits an offence if they use unreasonable discipline in the form of physical punishment or any behaviour management strategy likely to cause physical harm to a child, which includes but is not limited to smacking. A childcare service includes long day care, family day care, outside school hour's care and pre-school services.
  • NSW - the Children (Education and Care Services National Law Application) Act 2010 (NSW) adopting the National Law Act prohibits use of corporal punishment by providers, nominated supervisors, staff members, volunteers and family day care providers of an approved education and care service.
  • NT - adoption of the National Law under Education and Care Services (National Uniform Legislation) Act 2011 (NT) prohibits the use of corporal punishment by providers, nominated supervisors, staff members, volunteers and family day care providers of an approved education and care service.
  • Qld - the Education and Care Services National Law (Queensland) Act 2013 (Qld) does not expressly prohibit or condone the use of corporal punishment in education and care services. The guide notes that the 2011 Bill commented that because of the ambiguity of the offence, it would be difficult to prosecute and that procedural manuals and other guidance notes developed at the national level for use in administering the National Law are expected to provide regulatory authorities with direction about the circumstances in which action should be taken in relation to the proposed offence.
  • SA - the Education and Early Childhood Services (Registration and Standards) Act 2011 (SA) adopting the National Law Act prohibits use of corporal punishment by providers, nominated supervisors, staff members, volunteers and family day care providers of an approved education and care service. 
  • Tas - adoption of the National Law under the Education and Care Services National Law (Application) Act 2011 (Tas) specifically excludes services that provide childcare, addressed under the Child Care Act 2001 (Tas). 
  • Vic - the Education and Care Services National Law Act 2010 (Vic) prohibits the use of corporal punishment by providers, nominated supervisors, staff members, volunteers and family day care providers of an approved education and care service. 
  • WA - adoption of the National Law Act under the Education and Care Services National Law (WA) Act 2012 (WA) prohibits use of corporal punishment by providers, nominated supervisors, staff members, volunteers and family day care providers of an approved education and care service.
What of primary and secondary schools? The guide comments that "There has been considerable uniformity across Australian states and territories in either explicitly banning the use of corporal punishment in schools or removing provisions in education Acts that provided a defence to the use of reasonable chastisement by people acting in the place of a parent". Queensland and South Australian statutes do not expressly state that corporal punishment is banned in schools but provisions that previously allowed for the use of corporal punishment in schools have been removed from relevant education legislation.
There remains some ambiguity in the Northern Territory, Queensland and Western Australian law, where amendments have been made to education legislation that previously allowed for the use of physical punishment, but not to criminal codes that still (in principle) give authority to a parent, or a person in place of a parent, to "use reasonable corrective force".
There is less consistency in the degree to which Australian jurisdictions have abolished the use of corporal punishment in non-government schools. New South Wales, Tasmania and Victoria are the only states where statutes clearly stipulate that corporal punishment is banned in both government and non-government schools. The Australian Capital Territory Education Act 2004 does not explicitly ban corporal punishment in non-government schools, however, the interpretation of the Act, which states that corporal punishment is banned in "all schools", is that the relevant provision applies to both. 
Statutes are as follows -
  • ACT - corporal punishment is banned in "all schools" under the Education (Amendment) Act 2004 (ACT) s 7(4). 
  • NSW - the Education Act 1990 (NSW) s 35 prohibits corporal punishment in government schools in NSW, extended to non-government schools under the Education Discipline Act 1995 (NSW).
  • NT - the Education Amendment (Non-Government Schools) Act 2009 (NT) s 61A(m) amended the Education Act requiring that the use of corporal punishment be banned in non-government schools as part of the school registration requirements. There is currently no provision expressly banning or permitting the use of corporal punishment in government schools. The Criminal Code Act (NT) s 11 makes it lawful for teachers to use corporal punishment unless parents expressly withhold their consent to such forms of correction.
  • Qld - the Education (General Provisions) Act 2006 (Qld) repealed provisions that allowed for corporal punishment in state schools.
  • SA - the Education (Amendment) Act 1991 (SA) repealed provisions that allowed for corporal punishment in schools
  • Tas - corporal punishment was banned in government and non-government schools under the Education Amendment Act 1999 (Tas) s 82A, specifying that school principals are responsible for ensuring that students under their care are not subjected to corporal punishment. 
  • Vic - corporal punishment was banned in government schools in 1985 and banned in non-government schools in 2006 under the Education and Training Reform Act 2006 (Vic) ss 2.4.60 and 4.3.1(6)(a)
  • WA - corporal punishment was banned in government schools under the School Education Act 1999 (WA). The School Education Regulations 2000 (WA) s 40(2) indicate that the ban does not extend to non-government schools.

18 April 2014

Image Rights

In Weller & Ors v Associated Newspapers Ltd [2014] EWHC 1163 (QB) the three children of UK celebrity Paul Weller have been awarded an aggregate £10,000 damages for misuse of private information in litigation that is likely to be seen as extending image rights under UK law. Weller had sought £45,000.

Seven unpixellated photos of the children were published by Mail Online (the online presence of the London Daily Mail) in October 2012 under the headline "A family day out: Paul Weller takes wife Hannah and his twin sons out for a spot of shopping in the hot LA sun". Those images had been made by one of the Los Angeles paparazzi.

Weller sued the Mail Online publisher in the UK on behalf of his children for misuse of private information under UK law, reflecting Article 8 of the European Charter of Human Rights.

Dingemans J noted the tension between communication about matters of general concern and public interest in privacy, asking whether communication of information about public figures in this instance outweighed the right to privacy. In the absence of a compelling public need to know about the Weller family and given the ages of the children  the Mail Online’s right to publish did not prevail
the balance comes down in favour of finding that the article 8 rights override the article 10 rights engaged. These were photographs showing the expressions on faces of children, on a family afternoon out with their father. Publishing photographs of the children’s faces, and the range of emotions that were displayed, and identifying them by surname, was an important engagement of their article 8 rights, even though such a publication would have been lawful in California. There was no relevant debate of public interest to which the publication of the photographs contributed. The balance of the general interest of having a vigorous and flourishing newspaper industry does not outweigh the interests of the children in this case. 
Dingemans had stated-
It is common ground that the Claimants' claim is for misuse of private information. It is also common ground that the claim for infringement of the Data Protection Act will stand or fall with the claim for misuse of private information. It is also agreed that, in relation to the claim for misuse of private information, the first question to be asked is "whether there is a reasonable expectation of privacy", but there is a dispute about whether that needs to be "known or ought to be known" by the publisher.
If the answer to the first question is yes, and there is a relevant reasonable expectation of privacy, "the next question would be how the balance should be struck as between the individual's right to privacy on the one hand and the publisher's right to publish on the other. If the balance were struck in favour of the individual, publication would be an infringement of his or her article 8 rights, whereas if the balance were struck in favour of the publisher, there would be no such infringement by reason of a combination of articles 8(2) and 10 of the Convention", see Murray v Express Newspapers at paragraph 40.
In addition to the disagreement between the Claimants and Defendant about whether the reasonable expectation of privacy either needed to be known or should have been known to the publisher to be actionable, there is a dispute about the effect of the local law at the location in which the photographs were taken. There was also a disagreement about the proper approach to issues of damages for misuse of private information, and I will address that issue at the end of the judgment.
Given the areas of disagreement, it is necessary to set out something about the cause of action for misuse of private information before I consider the evidence. The House of Lords decided in Wainwright v Home Office [2003] UKHL 53; [2004] 2 AC 406 that there is no general tort of invasion of privacy. That remains the law, see McKennitt and others v Ash and another [2006] EWCA Civ 1714; [2008] QB 73. There is no law of "image rights". Different legal jurisdictions have taken different approaches to the law in England and Wales.
After the enactment of the Human Rights Act 1998 ("HRA 1998"), claims for misuse of private information were absorbed into the established claim for breach confidence, see A v B plc [2002] EWCA Civ 337; [2003] QB 195 at paragraph 4. In paragraph 53 of Douglas and others v Hello! Ltd and others (No.3) [2005] EWCA Civ 595; [2006] QB 125 Lord Phillips said "we cannot pretend that we find it satisfactory to be required to shoehorn within the cause of action for breach of confidence claims for publication of unauthorised photographs of a private occasion".
This process of absorbing claims for misuse of private information into the cause of action for breach of confidence was undertaken to prevent the Court, as a public authority, from acting in a way which was inconsistent with rights in the European Convention on Human Rights ("ECHR") incorporated into domestic law by the HRA 1998, see A v B at paragraph 4 and McKennitt v Ash at paragraph 10.
Both articles 8 and 10 of the ECHR were therefore accommodated in the new cause of action. The House of Lords in Campbell made clear that "the values enshrined in articles 8 and 10 are now part of the cause of action for breach of confidence". Article 8 of the ECHR provides that "everyone has the right to respect for his private and family life, his home and his correspondence". Article 10 provides that "everyone has the right to freedom of expression". Both articles 8 and 10 are rights which can be qualified pursuant to the respective provisions of article 8(2) and article 10(2).
It might be noted that alongside this development of the law of misuse of private information, which inevitably impacts negatively on freedom of expression, the law has also shown greater latitude towards freedom of speech in matters of controversy concerning public figures, see Jameel v Wall Street Journal [2006] UKHL 44; [2007] 1 AC 359 at paragraph 38.
This claim is an action for breach of confidence, which has been renamed as a cause of action for misuse of private information, see Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457 at paragraph 14. It might be noted that the issue of whether the cause of action for misuse of private information is now a separate tort, as opposed to an equitable cause of action, is an issue to be addressed by the Court of Appeal on an appeal from the judgment of Tugendhat J. in Vidal-Hall v Google Inc [2014] EWHC 13 (QB). It is common ground that I do not need to say anything further on that issue, and I do not do so.
I have not been addressed on the debate between senior Judges in England and Wales, which has become more pronounced in recent extrajudicial lectures, about the extent to which decisions of the European Court of Human Right should be followed by domestic Courts. This is because the domestic law in this area is now based on both articles 8 and 10 of the ECHR, and it is therefore necessary to look at the judgments of the European Court of Human Rights to determine the content of both articles 8 and 10.
The Court noted
Paul Weller and Hannah Weller had referred to the fact that the photographs had been published for money, and that consent had not been obtained. Paul Weller said the complaint in this action was not about privacy it was about unauthorised photographs being taken and published of his children without any attempts at pixilation of their faces. He said he considered that: his children being followed; pictures being taken despite his asking for them not to be taken; photographs being published in a national newspaper without consent and without any attempt to hide or disguise their faces; was completely wrong. He said that just because a father is well known doesn't mean that the children should be. Paul Weller said that the primary objective in bringing this claim on behalf of the children was to ensure that it never happened again.
Paul Weller was asked about the security issues that he referred to in his witness statement. In answer to the suggestion that nothing had increased the security risk to his children, he said who knows. Paul Weller asked whether any father would like pictures of his children being published regardless. He said there might be threats when the children were out with nanny, granny or aunty. He said there was an intrusion in to his family life. He said that pixilation would make it better but it would be better still if it didn't happen. He said it was impossible to prevent paparazzi photographs and that responsibility should lie on the magazine.
Paul Weller confirmed that if he had been asked for permission to publish these photographs or the photographs that he'd shown the Sun journalist he would have replied "absolutely not". He had never done any lifestyle shoots showing the children, saying that he couldn't think of anything more "naff".
He said he wasn't promoting an image of himself. His work didn't work like that and he wasn't in showbiz. He wasn't interested in nice photos only, he just wanted no photos until the children were 16 or 18 and could make up their own minds.
Associated Newspapers, publisher of the Daily Mail and Mail Online, indicated that it would appeal -
The photographs showed nothing more than Paul Weller and three of his children out and about in public places.
There was no claim and no finding that we had followed, harassed or targeted Mr Weller or his children and no request had ever been made to pixellate the children’s faces.
Our publication of the images was entirely in line with the law in California where they were taken by a freelance photographer.
The suggestion that children have an expectation of privacy in relation to publication by the media of images of their faces when one child (now nearly 18) has modelled for Teen Vogue, images of the babies’ naked bottoms have been tweeted by their mother, and their father has discussed the children in promotional interviews is a worrying development in our law, as it has conferred unfettered image rights on all the children.


'Certifying Identity' by Annette Ruth Appell in (2014) 42 Capital University Law Review argues that the  birth certificate is
 not merely as a reporter and portable record of having been born, but also as a powerful creator, regulator, and arbiter of identity and belonging, including sex, gender, race, age, production, reproduction, and kinship. Initially a public health and children’s rights innovation, the birth certificate’s assignment of family and individual identity connects the certified person to norms, rights and limitations according to the state’s certification of the sex, race, age, parentage, and birthplace of the body born. The birth certificate is both historical and constitutive in that it creates and certifies individual identity, even when that identity is malleable or ambiguous.
This article rehearses the modern practice of recording births and the advent of the birth certificate — disciplines that imbue humans with intrinsic and instrumental value, but also create, regulate, and define individual identity through permutations of race, sex, gender, and kinship with and without the consent of the person certified. The birth certificate serves state interests in identifying, tracking, marshaling, and managing human resources. This certificate also ties the born person to the state or nation, not just in the sense that being born in the United States creates citizenship, but also as a rights-holder — someone to be counted. As such, the certificate serves as a gatekeeper for gender, family, race, legitimacy, and identity according to the birth certificate’s terms, categories, and data.
Appell concludes
Birth certificates began as a public health innovation, but have become a norm regulator and tool of social engineering: defining and regulating sex, gender, race, identity, and family. The birth certificate creates and limits identity through the establishment and codification of gender, race, parentage, and citizenship. The very fact of the birth certificate and its resoluteness in telling one story about the creation of children and families — as coital reproduction between a man and a woman — funnels human creation into the powerful norm of heterosexual reproduction. Even as law and society  win (and lose) struggles to complicate identity and the legal norms of reproduction, they remain bound to this Progressive Era accomplishment, which predates so many new reproductive and technological developments. The birth certificate might tell the genetic truth or the family truth; but in many instances the law erases the facts of children’s births and identities, leaving children and adults without a coherent or descriptive record of their births and identities.
For these reasons, the birth certificate has become a site for contests among biological, chosen, and reformed identities and about sex and sexuality, family composition, childhood, and adulthood. Moreover, less transparently, the birth certificate funnels identity into state-approved categories and relationships. Indeed, the work of the birth certificate is structural and pervasive. This is unsurprising in light of the conflicting uses of the certificate or, perhaps, its service to two masters: the person whose identity is certified and the state that both creates legal identity and ties identity to certain rights and disabilities arising out of that certificate. Thus, the the birth certificate’s role as proof of identity and the rights and obligations that flow therefrom creates inherent conflicts for the individual and the state. The birth certificate thus raises questions regarding who controls identity, what precise interest does each potential master have in that identity, and how can the state’s need to catalogue and track its citizens be disaggregated from the individual’s authority over one’s own life and relations.
These questions suggest that the birth certificate may be serving too many masters and thus seeking the certificate to do too much: to protect the rights and individuality of each person and to provide proof of one’s eligibility for rights and protections. In some way, the birth certificate sits at the intersection of the government’s parens patriae and police power. The state has an interest in protecting vulnerable subjects, but also has an interest in law and order, which suggests some need for establishing and tracking identity. However, the birth certificate is not just meaningful for the state; it is also meaningful to the person certified for those reasons and because personal identity is, well, personal and, in a liberal regime, private. After all, the state’s interest is in public health, and the state can meet that interest through birth registration information. The birth certificate’s primary import is the identification. Not surprisingly, law and society are moving toward more malleable certifications.
Possible revisions of this regime might disaggregate the birth registration data from the certificate so that the person can self-identify, even as the state creates and maintains the birth registration information. A less appealing and less private solution would be a birth passport that might reflect the changes in a person’s identity, but perhaps omit information regarding race and gender. The government could make the certificate easier to amend or leave portions of the birth certificate blank until the born person fills in the person’s own identity.
Ultimately, this Article creates more questions than it can answer. For example, with race and gender less salient as formal legal matters, is it necessary to worry so much about identifying the race or ethnicity of the parents or one’s gender or sex? Certainly, tracking race, ethnicity, age, and sex is useful from public health, planning, and related economic perspectives, but do these data need to reside on the birth certificate? Also, what precisely is the state interest in controlling individual identity? What if the state stopped tracking gender? Would that affect gender norms? If the state stopped tracking race, would that affect white supremacy or would race neutrality enlarge racial gaps? How would such changes affect self-determination and benefits?
The current system connects registration with identification, through the birth certificate, and connects the birth certificate to a series of rights, entitlements, and limitations. While this system of birth registration and certification provides vital tools for public health and protection of relationships and identity, this system may assume too much power to construct individual identity and to dictate the legitimacy of identity and relationships of individuals and families. These records also protect relationships and access to various rights, privileges, and protections. While this Article reports on the benefits that birth registration provides for children and families, some countries are moving toward biometrics to track identity. This approach seems to provide a level of certainty for the state and might reduce the state’s role in regulating individual identity, particularly naming and tracking gender, but it remains to be seen what gains and losses would emerge through and after such a transition and what might happen to gender if states established individual identity without regard to race, gender, age, and national origin.