In 1991 US band Salt-n-Pepa reached number 2 in the UK charts with Let’s Talk About Sex. It is difficult to imagine now, 20 years on, why such an inoffensive and gently educational song generated huge controversy.
That difficulty highlights how much less prudish we are about sex now than we were then. Salt-n-Pepa talked about sex on the “radio and video shows“. Now the song would include Twitter, YouTube and Facebook too. In the post-internet age, sex is everywhere. So why are judges and politicians still making decisions about whose sex the public can or cannot talk about?
As has been endlessly repeated during the debate over privacy injunctions, through Section 12 of the Human Rights Act, Parliament has asked judges to decide when a person applies for a privacy injunction whether it is “in the public interest for the material to be published“.
And as many commentators have glibly reminded us, what the public is interested in is not the same as what is in the public interest. But this faintly paternalistic (and possibly nonsensical) phrase does not take us any further in deciding what kind of privacy law, if any, we want in the UK.
Whatever the press say, nobody is seriously considering scrapping the courts’ powers to keep people’s identities out of the public domain. That would be a bizarre move, given that celebrity injunctions represent only a tiny fraction of privacy rulings. They also apply to children in family proceedings, asylum seekers, rape victims. There is surely no public appetite for getting rid of those too.
What is now likely to be reformed is privacy injunctions relating to sexual affairs. The essential question is whether it is ever in the public interest to reveal them.
The differences in international approaches is revealing. In the United States, press freedom is enshrined in the Constitution but the right to privacy is not. It is therefore almost impossible to restrain publication of private sexual information in advance, citizens can sue a publication afterwards if they have got the story wrong. The UK has a similar approach, although in recent years and in particular following the Naomi Campbell case, courts have been keener to restrain the press.
In France, by contrast, politicians’ sexual affairs are generally hushed up; not by the courts by by the self-censoring press. Private indiscretions are not considered to be matters of public concern. As demonstrated by the survival of Italy’s Silvio Berlusconi despite the “Bunga-Bunga” incident, in Continental Europe affairs are often considered to be a sign of virility.
But the danger of this liberal approach has been highlighted by the high-profile case of Dominique Strauss-Kahn, the former-head of the International Monetary Fund who was arrested in New York last week on charges of attempting to rape a hotel maid. Before his fall from grace, his wife had said of his reputation for womanising:
I’m rather proud of it! It’s important for a politician to seduce. As long as he seduces me and I seduce him, that’s enough for me.
It is hard to imagine the partner of a UK or US politician saying that. But is the relaxed continental approach desirable? This question has become more important here since we incorporated the European Convention on Human Rights into our law. This means that the UK courts are obliged to take into account continental attitudes as expressed in judgments of the European Court of Human Rights. But as the Economist’s Charlemagne points out, politicians’ sexual affairs are not always a private matter:
A consensual affair between adults is usually private, barring obvious hypocrisy or some genuine public interest (such as national security). By contrast, attempted rape, or sexual violence, is a public crime. That sounds a straightforward line for a civilised country, and civilised press, to draw. Yet, in everyday political life, where affairs between powerful public figures and relatively powerless subordinates are uncomfortably common, and favours and threats exchanged between the sheets, that line is crossed too often.
Charlemagne asks rhetorically whether in Paris or Rome “a modest African immigrant has obtained a swift response from the police to her complaint of sexual assault”.
Sex and power are often intertwined, and it is artificial to separate out what should or should not be printed. In other words, let the public (or, fashionably, the “crowd”) decide what is or is not improper, not judges or politicians. As I argued about another scandal relating to footballer Wayne Rooney, it may be that censoring the press on sex has a chilling effect in relation to more important indiscretions, such as the phone-hacking affair.
This logic is often followed by the UK courts in any case. It is hard to imagine a serving politician who has lied about a sexual affair managing to hush it up through the courts. However, prominent public figures such as Fred Goodwin, the former Chief Executive of a publicly owned bank, have tried with some success. As most sex scandals demonstrate, the web of lies weaved to keep them secret are often more damaging and even incriminating than the affair itself.
Some would say that reporting a famous footballer’s indiscretions can never be in the public interest. Others argue that they are role models for children who peddle a family man image (whatever that means) so should be exposed for the philanderers they are. But the fact remains that the affairs of sports personalities often go beyond the personal, and involve sexual exploitation, professional celebrities selling their stories and even blackmail.
Today a Guardian editorial today that if the UK’s Press Complaints Commission had done more to protect celebrities’ private lives, the courts would not have felt the need to step in in the first place. This is probably wrong; it is hard to imagine the press, which have been willing to flout a court order which could lead to editors being imprisoned, obeying an interfering regulator. And whether we like it or not, through human rights law our courts are now more likely to follow the continental approach to the public interest.
So where does this leave privacy law? My suspicion is that the result of a government review will be the tweaking of section 12 of the Human Rights Act. This will provide a more substantial definition of the “public interest”, with the aim being that the simple affair of a footballer or politician and of course public corruption
will usually be reported, whereas cases involving vulnerable adults, children, or blackmail will remain anonymised. This may lead to clever lawyers finding ways to show a case involves graft or blackmail, and getting their injunctions in the end.
Ultimately, this will mean that judges will still decide whether we can talk about sex. Perhaps it is time to take the US approach and let the public decide for itself. Given the enormous pressure they have been under in recent weeks by Tweeters and MPs, our judges would probably be relieved.
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While agreeing with your comments on the likelihood of editors obeying the PCC, I find it hard to argue with Geoffery Robertson’s argument that the PCC’s definition of public interest has much to recommend it. Transposed into statute, it would go some way to reassuring the public – in a way the recent judgements have not.
I am puzzled by your comment that “…the simple affair of a footballer or politician will usually be reported, whereas cases involving public corruption, vulnerable adults, children, or blackmail will remain anonymised.”
(My emphasis)
Surely a definition of public interest which allows judges to anonymise judgements involving public corruption is a flawed one?
Thanks Matthew – you are right, public corruption sneaked into the wrong column! Corrected now.
Re the PCC code, I agree that this would be a sensible starting point for a statutory code.
A good write-up here Adam and I find myself broadly-speaking in agreement. A few days ago, I commented on on the excellent Marilyn Stowe blog about a letter from Geoffrey Robertson QC which appeared in The Times last week. I wrote:
—
There is often no true public interest in the revelation of extra-marital affairs.
However, like any “rule” – there must be exceptions.
An interesting suggestion was put by Geoffrey Robertson QC in The Times.
Parliament to legislate a new tort to enable victims to sue in open court for damages when intimate personal details have been published without justification. (He also suggested a jury hearing).
The “justification” could be based on the Press Complaints Commission code – i.e.
to reveal crime or serious impropriety
to expose hypocrisy
to reveal secrets that threaten threaten health/public safety
to reveal government or public service incompetence or misconduct
An example under the latter head might well have been the revelations relating to Mr Blunkett and the visa business.
Somewhere along the line, I suspect that, even under the law as it is rapidly developing, the scales balancing freedom of expression and right to private life will tip in favour of expression.
—-
If my last para. is right, then the Judges may not have got this as badly wrong as some suggest. The problem is when would the scales tip in favour of freedom of expression? Despite HRA 98 s.12, as things stand it seems to rarely do so when one is at the interim injunction stage. Of course, interim injunctions are often granted but the case never gets to a trial and the injunction can remain in place rather than being discharged. This makes Lord Neuberger’s point about the “return dates” all the more important.
Of course, there is massive public interest in the protection of vulnerable adults (e.g. Court of Protection cases) and children (e.g. care proceedings). There are statutory regimes for these. There is also public interest in how these courts operate and how they make their decisions. More could be done by the judiciary, the MoJ etc. to explain this. (I commend the move to publishing judgments albeit , for good reason, anonymised).
As for clever lawyers finding ways to show that a case involves graft or blackmail. Maybe they will but this is a question of evidence. Judges need to be very robust in probing such allegations. Those raising allegations falsely merely to get their injunction ought to be penalised severely and perhaps even lose their “shield”altogether.
The Americans have got it right.Free Speech means freedom to speak and should never be compromised,except for inciting others to violence or unless national security is involved.
Whether it is a sex scandal or babies taken from mothers at birth it is a disgrace that gags should be forced onto any individual or media outlet.
Public interest should not be a factor because it is subjective and no two people chosen at random are likely to agree on just what is and what is not in the public interest . Such a test therefore should be abandoned and we all should be free to use the voices we were born with !
I enjoyed the post but I’m a bit unclear on a few points:
1) You seem to be trying to have you cake and eat it with regards to vulnerable people etc. I’m not sure why you don’t think ‘the public’ should be allowed to decide on those people’s privacy too. The implication that having personal information published isn’t truly harm is, to my mind, fanciful.
2) You’re treating ‘let the public decide’ and ‘let the minority of the public who buy tabloid newspapers decide’ as interchangeable. Given that information is either public or it is not, it seems odd to say that this minority should have the casting vote and odder to say that they cast it in the name of the entire public.
3) Are you seriously claiming that the continental attitude to privacy lead directly to the -alleged- attack by DSK? It’s a particularly bold claim given that it happened in a country where DSK wouldn’t be protected by that attitude.
Because I know that superinjunctions exist, but I am not allowed to know the names of the people involved, how do I know if I am allowed to publish anything about anybody – there might be a superinjunction preventing it. So I’d better not publish anything about anybody.
Something that worries me is the way we all so readily agree that “hypocrisy” is a legitimate reason for invading privacy, yet we hardly examine what we mean by it.
I favour a narrow understanding of the concept, not necessarily quite as narrow, but along the lines of the way Lord Hope put in it the Naomi Campbell case (para. 82):
where a public figure chooses to make untrue pronouncements abut his or her private life, the press will normally be entitled to put the record straight.
I’d also include situations where for instance a public figure campaigns against something he claims is wrong for people to do, while he himself indulges in it.
But if on the other hand the concept is understood widely, it just becomes a charter for “outing” people. For instance, some people think it’s hypocritical for a Christian to be gay, but it ain’t necessarily so. If you’re not careful about this, then anyone with any sort of embarrassing private skeleton could legally have it exposed for expressing almost any moral opinion. Rousseau, for instance, could have been exposed just for writing about children’s education:
http://thescotsman.scotsman.com/features/The-pleasure-principle.4318994.jp
I think an aspect of direct personal self-contradiction is needed. I don’t think there’s hypocrisy until the person himself condemns, or takes an official position which necessarily implies that he condemns, what he himself does.