Privacy, freedom of speech, superinjunctions, etc.

You don’t need me to tell you that the issue of court injunctions preventing the media from publishing certain stories has been much discussed of late.  The discussion has been conducted in absurdly pompous and high-falutin’ terms.  You’d never think we were for the most part talking about the fact that some famous people have been doing things with their genitals, and that muck-raking scandal sheets want to titillate their readers with the details under the guise of moral condemnation.

I mean, really, the whole thing is depressing beyond words.  I just don’t care who’s shagging who, or where they’re doing it, or which activities they enjoy.  Why should I be the tinniest bit bothered even if [insert name of imaginary sportsman here] likes dressing up as Marie Antoinette and getting tied to a gold milking stool while a rent boy pretending to be a Parisian peasant rubs a whole packet of Mr Kipling’s French Fancies in his face?  To be honest, I’m only passingly interested in my own sexual history (although, to be fair, it doesn’t feature any revolutionary roleplay); the idea of being interested in someone else’s is just extraordinary.

That infuriatingly smug denunciation isn’t going to stop me writing about the subject, of course.  Hypocrisy and sexual scandals go hand-in-glove, after all…or glove-in—actually, let’s not go there.

There is an interesting discussion to be had about the idea of a right to privacy.  Personally, I’m a moderate fan of the idea, albeit with reservations.  I think there are any number of situations in which the right to freedom of expression ought to trump it, for example, and I’m also not at all sure that the mild embarrassment of having one’s sex life discussed in public necessarily requires a stringent legal remedy.  Is it really that big a deal?  If it was me, I might not be thrilled about my elderly relatives hearing about some of the things I’ve got up to, but I know for a fact that there are other potential breaches of my privacy that would bother me far more.  The publication of the notes from my time in therapy, for example – the most trivial aspect of that experience feels way more private to me than the most intimate details of my sex life.

But wherever we stand on the issue of privacy, I think most of us would agree that, if we are interested in protecting the privacy of UK citizens, the present system is a disaster.  For a start, it’s stupefyingly expensive.  Of course, when newspaper editors make this point they’re crying crocodile tears, given how gleefully they shred the privacy of people too poor to afford an injunction, but it’s a valid criticism for all that.  More to the point, it’s something that’s only available to the well-connected rich.  I mean, even if money was no object, would you know how to go about arranging an emergency high court hearing at 9pm on a Saturday night when you’ve just heard a Sunday tabloid is going to print a story about your private life?  I wouldn’t.  Terry Pratchett regularly has his Samuel Vimes character reflect on the fact that privilege originally meant ‘private law’; if ever there was a ‘private law’, it’s the right to privacy as enforced via high-court injunction.

A much better approach would be a separate privacy law which actually spells out how the right to privacy guaranteed in the Human Rights Act is to be enforced.  How would such a law work?  Well, I think the most important thing is that it would need to be retrospective – i.e., there would need to be penalties imposed afterwards for infringing someone’s privacy, not a right to gag the press ahead of time.

I know that’s problematic.  Max Moseley, amongst others, has made the point very powerfully that privacy can’t be re-established once it’s been violated.  But there has to be a presumption in favour of allowing publication, I think.  Without a presumption in favour of publication, the freedom of the press pretty much amounts to nothing.  Keep in mind that superinjunctions don’t always hide sexual activities – companies have used them (and may currently be using them – by definition, we wouldn’t know about it if they were) to hush up legitimate news stories that harm their image.  Various dodgy organisations and individuals already make routine use of libel laws to inhibit discussion of their dodgy methods and practices.  That’s bad enough, but at least libel is retrospective – the story’s already out there.  How much worse would it be if they got an injunction that prevented publication instead?

We really, really don’t want to arrive at a situation where judges are in control of what the public is allowed to know.  Even in an area as apparently personal as sexual relationships, it’s an extremely dangerous road to go down.  Take John Major and Edwina Currie for example.

Imagine the Human Rights Act had been in force when John Major was Prime Minister, and that Edwina Currie had decided to go public during his first year in office.  Would he have been able to take out an injunction preventing Ms Currie from publishing the details of their affair, on the grounds that he had a right to private and family life?  How would that have sat with Major’s talk of ‘Back to Basics’?  It’s pretty obvious that exposing a hypocritical politician is in the public interest, but of course Major always insisted, every time a sexual scandal rocked his government, that ‘Back to Basics’ wasn’t about sexual morality.  No doubt his lawyers would have put that argument to the judge deciding on the injunction.  So would it be right that a single high court judge – or a panel of three, if the decision was appealed – could have decided for the rest of us whether Major was guilty of hypocrisy, and thus whether knowledge of the affair was in the public interest?  Would it be a satisfactory outcome for democracy if information like that was published or withheld on the word of a single individual, or a small group of individuals?

This is why I say there has to be a presumption in favour of allowing publication, but, of course, this only works if the press behave responsibly.  It only works if editors and others have a clear understanding of the concept of the public interest, and make honourable and sincere decisions based upon it.  Needless to say, this is not what happens.  Instead, editors invoke the public interest defence on the flimsiest of grounds in order to justify publishing salacious material.  I think you could pretty much make a blanket assertion that knowing that a sportsman has had sex with a reality TV ‘star’ is not in the public interest.  In fact, with the exception of a person in a position of authority whose private behaviour contradicts their public statements, knowledge of a person’s sexual relationships is never going to be in the public interest.  Even if what s/he is doing is illegal, that’s a reason to bring it to the attention of the police, not to write an article about it.

This is why we need a privacy law, and one that has real teeth.  So I say let’s forget about the civil law approach: bringing prosecutions or seeking injunctions under civil law is something that only the wealthy can do.  Instead, let’s make it a criminal offence to infringe an individual’s privacy, with the single exception that doing so in the public interest is permissible.  Then, as with other serious criminal offences, let’s have a jury made up of randomly selected members of the public decide whether a particular story was in the public interest or not.  And if they decide no, then let’s make sure the court has the power to impose meaningful sanctions against the person who approved the story for publication.  Not just a fine that their employer can pay for them, or that they can take out insurance to cover.  Something that would actually focus an editor’s mind on the issue of the public interest: a five-year ban on writing/ editing for a professional publication, perhaps.  After all, in the internet era this wouldn’t constitute an infringement of their right to freedom of speech – they could always blog for free.

None of this would help the poor individual whose privacy had been violated, of course – though following a successful prosecution they could perhaps be granted the right to seek punitive damages.   But you know what?  After a couple of successful prosecutions I reckon the tabloid press would suddenly be a lot less keen on publishing stories about the sex lives of footballers, actors and formula one executives.  Apart from anything else, they’d start to run out of editors.

So far as I can see, this shouldn’t have a chilling effect on freedom of expression where it really matters.  If a newspaper is genuinely convinced that a story – even a sexual story – is in the public interest they can publish, without the threat of an injunction hanging over them; if their judgement is right, the jury will acquit.  Even if it turns out they were wrong, what’ve they lost?  They’re not out of pocket the way they are with an injunction or a libel prosecution.  Yes, the price of a misjudgement for an editor is quite high – loss of reputation, loss of earnings – but, then again, these are precisely the things that the person subject to an unjustified exposé has lost without good reason.  There’s a nice mirror-image quality there, the punishment matching the crime, and all that.

It’s still a shame we have to consider this, though.  All it would take for a privacy law to be dead in the water, after all, would be for the press to make a voluntary decision to behave responsibly.  If the press were as concerned about the ethics of their ‘noble profession’ as the high-flown rhetoric of the past few weeks suggests, the law simply wouldn’t be needed.  If tabloid editors actually believed in what they’ve been saying, the popular press would be full of analysis of the Arab Spring, not news about dicks, and no-one, but no-one, would be able to claim that their privacy had been wrongfully invaded.

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