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.

[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.
That's 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.
That's 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 ?"