CHAIRMAN: Our Next Speaker is going to talk about engineering and law - compatible or contradictory Brian Niblet is a barrister and a computer scientist He was for several years a tenant of the intellectual property chambers in the Temple and has been a professor of computer science at The University Of Wales He presently acts as a commercial arbitrator dealing especially with disputes concerning computers and computer systems and disputes involving intellectual property.. Brian [privacy] SPEAKER: Like the other speakers here today, I'm delighted to be here and I'm honoured to be here. This is a conference on Licence, Liberty and Privacy and in the last few years I have, on occaison, been to a number of conferences on Privacy and I have to tell you that conferences on Privacy are dangerous. They are very dangerous conferences. The danger is that they infringe privacy. Every Privacy conference i have ever been to has infringed privacy. You see, the first thing that happened at this conference is that they sent me a badge - a label. You must be identified at a privacy conference. Now I don't wear badges. But it doesn't help me. Because I'm always identified as the man who doesn't wear a badge at Privacy conferences Thats the danger to the audience. Then there is the danger to the speakers. You see, when I was invited to give a talk they said ofcourse your talk will be recorded, it will be transcribed, it will be published. Thats what happens at Privacy conferences. Now I have an agreement with the organisers here, a legally binding agreement, a contract indeed, that my talk will not be transcribed. And I wanted this. Because I believe in privacy. Privacy is freedom. I want the freedom to talk today at this closed meeting without being transcribed and published - I want that freedom. Thats the first thing I have this contract with the organisers for. The second reason I negotiated a contract with the organisers was for this reason - I wanted to demonstrate to you that the contract, that legally binding agreement, a private treaty between two parties, is one of the effective methods of protecting privacy. And its protecting my privacy today, limiting my talk to the audience which is here. Now, its a feature of regulation (the regulation here is that you wear a badge and that you are recorded) its a feature of regulation that it does infringe privacy. I want to tell you today that the most effective method of protecting privacy is the Common Law Of England. It is the Common Law of England that can protect our privacy, [Regulation 2_4] Regulation infringes privacy. Let me draw the distinction between Common Law and Regulation. Common Law is the aggregate of commands developed by induction in a process based on reality. The Common Law is anchored in reality. The judges deal with actual facts and actual cases. actual circumstances and from that they abstract a principle which is grounded on reality It is a bottom-up process. Regulation is a top-down process, it never reaches the ground. It is bureaucrats and legislators. It is not in touch with the ground. Regulation infringes privacy quite often. And the extreme example of that is the first statute in this country said to be concerned with Privacy - The Data Protection Act of 1984 The Data Protection Act of 1984 is a regulatory measure.It infringes privacy therefore. The first thing it does is have a regulatory Officer - The Data Protection Registrar. Then it has a register of every data user and computer bureau in the country. You must be identified. You must wear a label. In that register you must disclose every purpose for which you are going to use that personal data. If that is not an infringement of privacy I don't know what is. And if you don't register, if you don't disclose, there are 15 criminal offences created by that Act. You see regulation creates criminal offences. Common Law is mainly dealing with civil matters, and criminal matters, but the emphasis is on civil matters. Regulation creates criminal offences. So that is the injury of the Data Protection Act. And then comes the insult added to that injury - you will pay for this. Every data user in the country who is registered has to pay ffor it. It is a system of taxation of business in this country. So that is Regulation. Reason I say Regulation infringes Privacy. A better way to protect Privacy is to develop and extend the principles developed in the Common Law. It was Edward Cook, one of our great Common Lawyers in the 16th century, who said that the Common Law is the perfection of Reason. I agree with that. Its not so reasonable now as it was in his time. But I agree that the Common Law is the perfection of Reason because it is anchored in Reason. Reason is grasping Reality. The Common Law grasps Reality. If you look at any book on Privacy there is a case I want o mention its the case of Kaye against Robertson A recent caes dealing with privacy I forgot to mention on e thing I want to emohasis when dealing with regulation and privacy that its based on the premise that since some people may be wrong everyone must be supervised and regulated thats really the main thing i dislike about Regulation and thats what the Data Protection Act does. It says that because some people may abuse personal data then everyone must be supervised. Everyone must be inspected and registered and they must all disclose. The honest citzen who decides to act with personal data in a perfectly lawful and proper way he has to register and pay and disclose. [Reality6_8] NOw I want to mention Kaye against Robinson which is 1991 case in the Court of Appeal. I'll just quote what Lord Justice Clydewell said in his judgement on that case. "Its well known in English Law that there is no right to privacy" Now that statement occurs in every text you read on privacy on every case. It is well known and perfectly true - in English Law there is no right to privacy. The reason for that is that the Common Law is the Perfection of Reason. It would be unreasonable to have a general right of privacy. Because as someone here said this morning You can't define privacy Privacy is not anchored in reality It's not something you can create a general right about What the common law does in its reasonableness is not develop abstractly a general right of privacy what it does is it supplies a bundle of rights that are anchored in reality that deal with privacy. I think, and this is really the thesis of my talk, that they should be developed and extended to give us all the privacy that we want. I want a lot of privacy. By the way privacy costs money. Noone is going to put a cctv in my street beause I own the street. I live in a private road. and with my neighbours we protect our privacy in our private road. Anyone who enters the road is a trespasser. So privacy costs money and i'm prepared to pay money for privacy. and the common law has developed these bundle rights that deal with various aspects ofp rivacy and they are capable of great development. That is the way to go to develop these Common Law Rights. They are based on rights tto person and rights to property Trespass 8-10 if you assume evry person has a right to his own person has property in his own person they can be summed up as property rights Tresspass The great action for tresspass very important protection of privacy used to be called breaching or breaking the close thats what trespass is - crossing a barrier a civil remedy for crossing a barrier thats what privacy is about Trespass is a great way of protectig privacy Trespass to land ofcourse, trespass to the person, trespass to chattles. Nuisance The action for nuisance which is accompanied by posession of land deals with the peeping-tom type of infringement of privacy. Somebody mentioned that this morning Defamation Property in ones reputation Slander and libel protecting reputation The action for breach of confidence which has been developed pretty well by the judges a great way the common law supllies for protecting the privacy of confidential information Then there is the law of contrac,t the private treaty between 2 parties I'm demonstrating today that can protect privacy But particularly the employment contract The contract for disclosure of information The contract to a user of a database All these things are things which the contract can protect [copyright 10_12] i want to talk about Copyright Law Copyright Law can be used to protect information as part of the contract I own the copyright to the talk i am giving. my privacy is protected today by copyright Copyright is a great law Ofcourse its now enacted in statute most recently in the 1988 Copyright Patents aand Designs Act But it started of as a Common Law and its been developed through statute but its really a part of the Common Law its a great property law i think it is the most important of our property laws We are moving into a world in which copyright will be the main source of wealth in the world its the foundation of the publishing industry its the foundation of the entertainment industry it suppports the computer industry programmes and databases are protected by copyright law The richest man in the USA Bill Gates owes his wealth to copyrighting computer programmes and That was a genre of work that didn't exist 40 years ago when he was born A great Property Right, Copyright. And it protects privacy Lets compar e it with the Data Protection Act of 1984 In the Uk no bureaucrats involved in it There is no copyright Office in this country One or two people looking at c in the Patent Office noone else No register of copyright noone has to disclose what copyrights they have you don't have to pay for it Its a great property right and It will protect privacy Kaye 12_14 I say the common law is the way to go for protection of privacy all these remedies, and there are more, can be exteneded and developed the great pity and shame in the last 25-50 years is that the judges have abdicated their responsiblities for developing these laws as judges did in the old days you heard about the case of Vilince against Fletcher which brought in that strict liability for dangerous things brought onto land a major step a major torte of nothing to do with Parliament nothing to do with any bureaucrat it ws simply the judges themselves developed English Law they have not done that in the last 10 or 20 years let me tell you about kaye and robertson It was Gordon Kaye a wellknown actor who was in hospital had a very serious motor accident he was in a very bad way he was in a hospital room and a journalist and photographer went into the hospital without authority went into his room and took photographs of him with flashguns going off very dangerous to his life a great infingement of privacy and that was the case Kaye against Robertson and in fact the judges at the Court Of Appeal found a Common Law method of getting him a remedy there was an injunction against publication of the photographs and of an article and the judges in the Court of Appeal, they did it by invoking the Common Law torte of injurious falsehood so the Common Law did protect his privacy But I say that his privacy should have been protected by a contract that Kaye had with the hospital I agree with this process of movement from status to contract Ofcourse thats so If you are a National Health patient you've got status you haven't got a contract By the way I'm not on the National Health Service I have to pay - I have a private doctor My doctor doesn't give my records to the National Health Service I pay him I have a contract with my doctor Kaye should have had a contract with the hospital and the remedy breach of contract the contract must imply either implicitly or explicitly 'no unauthorised entry into my hotel/into my hospital room' and then ofcourse the hospital would have an action in trespass against the journalists - they had no lawful authority onto hospital premises The Common Law can handle thse problems If the judges develop it In that case Lord Justice Clydewell said in the course f his judgement "The right of Privacy [which he thinks exists, I say it can't], the right of privacy has so long been disregarded here that it can only be recognised by the legislature". I think thats a most unfortunate statement The judges are leaving this to the legislature They want regulation They should be developing the Common Law YOu see the judges, this is an aside, the judges in the last 25 years have been very active in developing public law Publc Law has developed enormously, judicial review and so forth But they haven't developed private law the judges have fallen down in my opinion in the logical development of private law you see concepts are open ended and all these common law remedies i mentioned are concepts and they are openended concepts Copyright The literary work which has been protected by copyright lawfor 200 years or more - didn't know that the computer programme was going to be a literary work openended , these concepts can be developed, and i'm sorry to say the judges have not and i think that is the way to go thats really my theses here today Now I want to mention the Internet I want to make 2 points about the Internet I'm interested because everyone is interested in international global electronic digital networks. Most exciting . And ofcourse the communication of digital msgs by encryption on the INternet is a major historical advance in privacy weve head this morning about the practical purposes the mathematicL discovery of the Public Key Encryptor system coupled with engineering invention associated to that, are giving us the possibility of sending msgs between peoples anywhere in the world Quite cheap apparatus. With practically no way of intercepting or discovering the content of that msg and authenticating the identitiy of the sender or the receiver. Thats a major historical advance in privacy By the way, the history of the world can be summarised in one sentence - Its the history of increase in privacy Tribes didn't have privacy We are given more and more privacy and the Internet is a major advance in that and there are going to be people who are concerned about it and what i say is that we have to apply Common Law principles to that and what i say should be applied to the Internet is the commomlaw principle annunciated in the case of MT (very famous case), of MT against Carrington. The openended principle was established then. It was in the Kings Bench court 1765 Over 200 years ago, what the Kings Bench Court said was that a judicial warrant is necesary to pry into a subject s personal papers. you have to have suspicion of wrongdoing, valid suspicion of wrongdoing and then you have to have a judicial warrant then you can pry into the nature of the msg but not otherwise thats the principle of MT against Carrington Because the court said "For papers a re often the dearest property a man may have" but in the 21st century electronic communications are going to be the dearest property a man may have and i say, that principle, which is a common law principle, is the one to apply to interception of messages on global electronic networks My second point about the INTERNET People say that the Internet is a great challenge to the LAW Intellectual Property is ended because of the Internet Defamation 'everyone can defame everyone else because of the Internet' Absolutely false that. Ofcourse novel situations challenge the common law, they did since the common law started ever since the memory of man but the common law can cope with those changes The trouble with the Internet itself is that it is not a proprietary system You see the Internet consists of common law land. The Internet at the moment is an incohate feudal system Nobody owns the Internet No-one administers the Internet No-one manages the INTERNET You can't buy the Internet, you can't sell the Internet Propriety doesn't come into it Its common land In the old days if a man put his cow on common land ofcourse someone would come in the middle of the night and milk it. because its not a trespass to do it you can't apply legal principles in a framework of lawlessness thats the trouble with the Internet But we see the emergence of proprietary nets, intranet networks of networks and that will change the situation. You see in the middle ages when we had this feudal commonland, when the Lord of the manor gave all this common land to his surfs to put cows on it, he kept his land seperate from them this is what is happening at the moment We get the corporate intranets with their firewall to the commonland thats how they're protecting it theres no infringement of the Intranet thats too well-managed If there were, commonlaw principles would apply and there were the great Enclosure Acts of the later middle ages It was the privatisation of land We move from the feudal system to the capitalist sytem Land could be bought and sold for the first time and we had the common land and enclosure acts on the common land and land became privatised and thats is happening on the internet The Internet will emerge from proprietary networks, by the way. In the century that followed the Enclosure of common land agricultural productivity accelerated witihn a hundred years. A lot of trouble over the Enclosure Acts as you know, social upheaval, but in that hundred years aferwards, agricultural productivity increased by a factor of five or even maybe 10 and resulted in a great increase in population because they could be fed for the first time And i say that the emergence of proprietary digital global networks, where people can buy and sell and administer and manage, will solve the problems of the challenge of the Comon Law principles, and we shall see 10 years after that it won't take a hundred years. An enormous increase in international commerce on the Internet, we are waiting for that. I wouldn't put a book on the Internet but on a propietary network ofcourse i would be pleased to put a book on the Internet because i know that legal principles can be applied to that maintained and managed proprietary system. So now, chairman, i'm in a positio n to answer the question that is the subject of my tallk which is - engineering and law - are they compatible or contradictory ? In answer I want to quote Sir Francis Bacon the great Bacon who actually was a contemporary of Sir Edward Cook. He put Cook in the Tower - they were great enemies, both were great common lawyers though. By the way Bacon was a distinguished scientist and a distinguished common lawyer I think he understood the nature of law What he said, Bacon, was "Nature to be commanded must be obeyed" An Engineer is a creator, he creates structures, he creates things out of natural materials and materials derived from Nature An Engineer, to command his structures must obey nature The common law is this aggregate of commands based on nature They are commands. In order t o be effective the comman law commands must obey nature So ofcourse engineering and the common law are compatible, they are anchored in reality Engineering and regulation may not be compatible Clap If you have any specific questions for Brian Question from the audience : "If one of us had a personal tape recorder what would the position be then ?"