Gagging on privacy

When the prime minister criticises judges, he tends to speak from his gut. The prospect of prisoners being given the vote by European judges makes him feel “physically sick”. And now, he is “little uneasy” about the rise of “a sort of privacy law without Parliament saying so“. 

David Cameron’s use of visceral language may reflect what many in the general public (as well as PR man Max Clifford) are feeling about the issue of wide-ranging injunctions granted by courts, seemingly all the time, to prevent salacious details of celebrities’ private lives being revealed. The latest involves a former big brother contestant’s alleged affair with a married Premier League footballer.

A less charitable interpretation is that by speaking in the language of instinct, the prime minister is avoiding a proper debate which would expose some of his arguments. For example, as has been said by others, it is not the case that judges have invented a privacy law. The Human Rights Act 1998, passed by Parliament, incorporated the European Convention on Human Rights into domestic law. This includes article 8, which provides:

Everyone has the right to respect for his private and family life, his home and his correspondence.

This is, in the most basic sense, a right to privacy. And it was passed by Parliament into law. Whenever it is cited in court in injunction cases, it is always balanced by judges against another right enshrined by the Convention, the right to freedom of expression under article 10.

Moreover, the Human Rights Act also has a specific provision which seeks to bolster the freedom of expression side of that balance. Section 12 provides

The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to

(a)the extent to which (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the public interest for the material to be published; (b)any relevant privacy code.

Section 12 was inserted as a result of press lobbying, and as Carl Gardner has pointed out, the then chairman of the Press Complaints Commission welcomed the amendment, saying that it meant “no privacy law sneaked in through the back door“. It should be noted that one of the courts’ tasks is to consider whether revealing details of a person’s private life – celebrity or not – is in the public interest. One of the problems for the media is that it is hard to convince a judge in the sober Royal Courts of Justice that a person’s marital affair is a matter of public concern.

That being said, not all cases are about celebrities: the courts have repeatedly prevented the government from keeping inconvenient information out of the public eye in the name of national security. And companies have also used the courts to prevent the public finding out about misbehaviour.

In any event, however much politicians and the press would like to blame unelected judges for a UK privacy law, it was unambiguously a creation of Parliament. And Parliament asked judges to administer it.

But proving that Cameron’s unease is more a case of buyer’s remorse than a legitimate complaint about pushy judges is not the end of the debate. There is a genuine legal issue as to whether judges have got the balance wrong between privacy and freedom of expression.

The focus is on privacy injunctions. These have been variously named super injunctions, which restrict on the media from revealing they exist, and hyper injunctions which prevent litigants talking to their MPs too.

The media circus which surrounds these injunctions tends to dwarf the scandalous but usually sad and parochial nature of the information being hidden. The media can string out such stories for days or weeks, simultaneously dropping in further tidbits of information whilst bashing unpopular judges for holding back the detail in the first place. Eventually the privacy dam is broken and the story washes away to be replaced by the next injunction.

But are there too many injunctions, and are they being too readily granted? This is a question which will hopefully be answered by Lord Neuberger’s working group on the topic, which is due to report after Easter. He has previously said that “Where justice is carried out in secret, away from public scrutiny, bad habits can develop. Even if they don’t develop, the impression may arise that they have done so.” But he may have changed his mind since this time last year.

Some argue that the supposedly massive increase in anonymity injunctions has been overstated. Inforrm have recently posted that “the number of “publication relevant” anonymised hearings is small and that there are very few privacy injunctions against the media directly“. Others, such as John Whittingdale on this morning’s Today programme, say that the statistics are unreliable due to the way they are collated by the Ministry of Justice. Media law blogger Judith Townend agrees that more raw information is needed.

The opposing sides in this argument are similar to those currently fighting for and against libel reform. The Libel Reform Campaign say that English libel law allows too many companies and individuals to silence their critics and suppresses freedom of speech. The campaign’s detractors, notably the Inforrm blog, say they have the focus wrong.

Then there is the European Court of Human Rights, which is soon to rule on whether Max Mosley, a former racing boss, should have been informed by the press of a story about his unusual sex life before it was published. A victory for Mosley would have very far reaching implications, and would probably lead to another storm in Parliament similar to the prisoner vote scandal. Mosely’s lawyer offers some conspiracy theories today on Inforrm as to what has caused the current campaign against privacy.

One point to emphasise about the campaigns is that the media is not always a neutral party: it has an interest in bolstering freedom of expression so that more can be printed. Media organisations are also sometimes parties to injunction cases. Reporting of this campaign should not always be taken at face value.

So, the prime minister’s unease is shared by some but not all. And his basic points, which he admits he needs “to do some more thinking about“, amount to a commonly held misunderstanding of the Human Rights Act and its clear right to privacy, which Parliament passed into law. In a neat parallel, the former lead singer of The Smiths has recently said he is “uneasy” about the Prime Minister being a fan of the band. But unlike Morrissey, a prime minister’s unease sometimes ends up as law. The days of the super injunction may be numbered.

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5 thoughts on “Gagging on privacy

  1. This is an interesting post, but I think you missed out one important point. Some of those who criticise the judges for judicial activism on this issue would accept that Parliament did enshrine a right to privacy, & a need to balance free speech & privacy in the HRA, but still argue that the judges have created such an overwhelming right to privacy, where one was not envisaged at the passing of the HRA. As you rightly point out, the PCC welcomed s12 when it was inserted into the Human Rights Bill, & one very plausible reading of s12 is that it is designed to stop the courts from doing exactly what they are doing right now, prioritising privacy over free speech. Whether the speech of those wishing to ‘kiss and tell’ is of value is something that society as a whole should determine, & many would see the judges resolving this problem as illegitimate, when really it should be Parliament that ought to set these boundaries.

    Of course this argument runs into immediate problems when one considers that Parliament has largely been loathe to interfere in anything concerning the HRA, beyond political rhetoric, but there is a strong underlying point: Parliament has legislated with s12, & the judges are, arguably, undermining the will of Parliament by developing the law in the way they are. It is disappointing that the ‘freedom loving Coalition’ has not seen fit to try to resolve this issue in the Defamation Bill.

  2. Thank you.

    I think the ‘freedom loving Coalition’ is divided on how the will of News International is being undermined.

  3. Hopefully, the presently ongoing Neuberger enquiry will result in some more light and less heat on this topic.
    It is obvious that Cameron is playing to his Eurosceptic backbenchers when he bashes anything European and Clifford is definitely not motivated by human rights but by rather more venal concerns.
    I could not care less about what one so called ‘celebrity’ is doing with some other self-styled ‘celebrity’. These days, I largely have absolutely no idea who these people are, as their activities are completely and utterly irrelevant to me.
    It is abundantly evident that the parasitic ‘celebrity’ carrion want to be able to extract large fees from the gutter press.
    Ordinarily, I would not care about these nonentities picking up silly amounts of money from media hacks but one potentially worrying outcome could be that the law of libel may be reconstructed in such a way as to make meaningful media investigation and exposure of really powerful individuals and corporations impossible.
    The one potential saviour in all of this is electronic media and the internet. This may eventually help to render all this clap trap talk of over-mighty judges irrelevant in time.

  4. While invasions of privacy might be “sad and parochial” in nature, the media and the law-makers seem too rarely to consider the long term and usually irreversible harm done by defamation/libel/slander.
    If indeed we are all created equal and if indeed we all have a right to privacy, the media needs to look afresh at how to make its stories compelling without ruining lives, life after life.
    Children of Fire is a small charity helping terribly burned children, that was defamed in 2006. It is taking a media giant to court in August 2011.
    We need people to understand the immense harm that was done to us and to many other charities by cavalier and careless journalism.
    Please support our Battle for Fair Press – support us on Twitter @ChildrenOfFire

  5. Regrettably. this is another one of “those stories” where all the focus is on the big fish while the majority remain largely unchecked and protected. The PCC say that in 2009 there were 700-odd complaints for breaches of the code (which were of merit). How many involve celebrities? Only 46 complaints remained unresolved as a consequence of litigation. How many of those were the subject of libel/defamation proceedings – 10? 20? This – small iceberg (of complainants) – is what resulted in a forum chaired by the MR (no less) to investigate whether a very small minority of claimants are using a perfectly legitimate application (prior-restraint) to delay disclosure before substantive hearings (when the prior restraint will of course be considered)? This is the creation of a range of mountains out of something less than a molehill (say an ant hill).

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