The heated battle between privacy laws on one hand and freedom of the press on the other was the subject of last week’s Panorama. “The Death of Kiss and Tell” explored the notion that celebrities and public figures are turning to emergent privacy laws to suppress any stories that show them in a negative light.
The programme’s main case study was Max Mosley, last year alleged by News of the World to have participated in sado-masochistic orgies with prostitutes. Mosley argued that, as the story was not in the public interest, the papers should pay damages against him. As well as that, he is calling for criminal offences to be enacted in such cases, asking for jail time, on top of fines, for editors who flout the rules.
Unsurprisingly, the print media represented on the programme took a slightly different view, with Ian Hislop of Private Eye arguing that using privacy laws to seek injunctions about people’s private lives is a dangerous threat to the freedom of the press.
It’s a battle that’s bubbling away in circles both media and legal. Hugh Tomlinson, a QC with the firm Matrix, has warned that privacy laws are having an increasing impact on the way the tabloids operate: “We are gradually moving from a position where anything could be published unless it was forbidden, to the opposite: nothing about an identifiable individual can be published unless it can be justified.”
A case concerning privacy that’s been through the courts rather more recently is that of NightJack, a police blogger who won this year’s Orwell Prize. His posts gave an insider’s view of front-line policing, and included his views on social and political issues, as well as disguised anecdotes about cases he was working on.
After having heard rumours that the Times had uncovered his identity, NightJack went to court to prevent the paper revealing his name. The injunction was refused, and NightJack was outed by the paper after the judge ruled that blogging is “essentially a public rather than a private activity”. NightJack was subsequently disciplined by Lancashire Constabulary, the force he worked for, and the award-winning blog has been removed from its corner of the blogosphere.
At first glance, this case appears to be in stark contrast to that of Max Mosley: in Mosley’s case, journalists argue that privacy laws are encroaching upon the rights of media. In the case of NightJack, a paper’s right to print a story seems to outweigh an individual’s right to remain anonymous. However, when both cases are looked at a little more closely, the crux is the same: freedom of speech. In the first, it’s the media’s right to print stories that they believe are in the national interest. In the second, it’s an individual’s right to free speech, albeit in a medium that the world at large is still learning to deal with.
The judge presiding in both cases, Mr Justice Eady, has been previously lambasted from some corners of the press for the “imposition” of a privacy law. Following the NightJack case, there’s been more criticism from those who are deeming him an enemy of free speech.
Equally important to the debate is the consideration of whether an issue is genuinely in the public interest. The private sexual behaviour of consenting adults, whilst to some might be distasteful, probably isn’t something that we have a right to read about over our cornflakes. On the other hand, anything behaviour related to Nazism from a figure who heads up a major sporting body probably is. The everyday workings of a public service, funded by the taxpayer, could also conceivably be said to be something the public has a right to know.
Freedom of the press is a long-standing tradition in Britain, and one of which we should be rightly proud. So is freedom of speech. And whilst the European Convention on Human Rights does say that there’s a legitimate right to privacy, the debate is yet to be fully explored. But when it is, it’s something that needs to be tested in Parliament, not by individuals in the courts.
