On the eve of Lord Justice Leveson’s inquiry into phone hacking and the ethics of journalism, the British Institute of Human Rights (BIHR) with 1 Crown Office Row hosted a roundtable discussion to examine how to reconcile the right to privacy with freedom of expression. Stephen Bowen, Director of BIHR and Philip Havers QC, 1COR’s Head of Chambers, led the discussion, which followed “Chatham House rules” so the report below is not attributed to specific attendees, although we can mention that a number of key figures in this debate were present, including Chris Bryant MP, Nuala Cosgrove (director of Ofcom), “Hacked off” political scientist Dr Evan Harris and philosopher and cross bencher Baroness Onora O’Neill. Journalist and law commentator Joshua Rozenberg chaired the discussion.
There has been so much steaming-off and ink-spilling on this issue that it is unimaginable that anyone can find anything new to say that might advance the arguments for and against a law on privacy; nevertheless this discussion moved apace with high quality contributions and fresh analyses that cast welcome new light on a very old debate.
The questions for the participants were formulated thus:
- Have both concepts of freedom of expression and privacy become reduced to freedom of the press and invasion of celebrities’ lives to the point that we have lost sight of their true meaning and value? How do we re-articulate these rights so their meaning is fully understood?
- If freedom of expression is to trump privacy in matters of “public interest”, do we know what the public interest is?
- Would a privacy law address the problem most effectively or is it best left to regulation?
- Can we give teeth to regulation without surrendering our hard won press freedom?
- Is the internet age an opportunity or a threat?
Freedom of Expression: Supporters and Sceptics
It was acknowledged at the outset that freedom of expression, even for its most ardent supporters, should not be regarded as some “super right” – it sweeps away tyrannies, yes, but also provokes genocide, such as the notorious role of Rwandan radio in calling for the massacre of hundreds of thousands of Tutsis in 1994. On that sombre note, somebody remarked that most of the people round the table represented freedom of expression pressure groups in one form or another; where, the speaker asked, were the campaigners for privacy? There are organisations out there, to be sure, but was their under-representation at this discussion symbolic of something wider? Whatever one says about Article 8 and its seemingly runaway role in immigration cases, as a pure privacy right it is very weak. Even a statute that seems to be dedicated to the subject of privacy – the Regulation of Investigatory Powers Act 2000 – nowhere expressly states that privacy should be protected. In general, society’s institutions are ranged around freedom of expression interests. This is most amply demonstrated by the Press Complaints Commission, whose repeated failure to keep the press in check is the cause of much lamentation and tooth-grinding. Should it be should be replaced by a statutory regulator, or at least a regulator underpinned by statutory responsibilities?
At least a statutory tort of privacy would have the legitimacy borne of being debated by elected representatives, was the view of some of the contributors. By putting privacy on a statutory basis we may be able to move on from the current posturing between “bad words” like “regulation” and “soft words” like “self-regulation”. Others argued that any legislation would end up being exactly like the Human Rights Act provisions because it will necessarily invoke the same balancing act. Codification of the existing factors that are taken into account by judges balancing freedom of expression against privacy would do no more than provide ground for further expensive litigation about what those factors mean. This freedom of expression/privacy conflict is being discussed against the background of serious tension between judges and politicians; at the end of the day, judges are always going to be asked to take a view of where the balance should lie, whether or not a statutory tort is introduced, particularly when it comes to defining what is in the “public interest”. Indeed the biggest difficulty here is that what we are sanctimonious about changes over time. We are no longer judgmental about homosexuality for example, and one day we will wonder why we expect judges to arbitrate over the morality or otherwise of marital infidelity.
One commentator pointed out that this “hysterical” debate about self-regulation versus self-regulation is not what really what this is really all about. We seem to have got stuck at this “irrelevant” stage (of which more later). Even if we get as far as a statutory tort, what we should be thinking about is how it is actually drafted; if it ends up being as lamentably obscure as the Data Protection Act 1998, we have advanced the debate not a jot further. The DPA is built on a completely “self-contradictory” definition of what constitutes personal information and has ended up being a licence for the commercial sector to run amok with our personal details whilst at the same time damaging the flow of real information.
The Rogue Newspapers
Freedom of expression is not the same as freedom of the press. It is an individual right that we should all be able to enjoy. The question we should be asking ourselves is how can we exercise our freedoms with such a powerful press overhanging us. One participant went so far as to suggest that we are deluding ourselves when we talk of a “free press”. Our press isn’t free at all. It’s only free to publish, and free not to publish compromising stories about its own – for example, who of us knows of a single tabloid journalist who has been caught with their hands in the till or up someone’s skirt? None of our tabloid reporters would survive today as an MP.
The extent to which papers, particularly those in the “Desmond group” (a reference to the Express proprietor’s self-imposed exclusion from the system of press self- regulation), flout the law with impunity is revealed by the sheer number of libel cases which are settled before court. If the law were in any way sufficient, or if the regulatory system were any good, we wouldn’t see this “group ritual of settlement” . It happens because newspapers simply cannot justify what they say in their publications, but they do have the wherewithal to get rid of the consequent libel actions.
The general feeling was that the “chilling effect” of libel and other laws was a form of special pleading and something of a distraction. The great superinjunction row for example was only a row because the papers made it so. The allegations in the material suppressed by these injunctions were incorrect. Why should people be made to feel that they cannot get injunctive relief against deliberate lies? It’s that injustice that politicians should attend to, not manufactured press rows. We all need a place to survive in an era of “enormous prurience and monumental judgmentalism”. And incidentally the threatened demise of effective conditional fee arrangements (CFAs) following the Jackson recommendations will mean that only the very rich will be able to claim judicial protection for their privacy. At least CFA’s, backed by “after the event” insurance, shielded people from paying the often astronomical costs of newspaper defendants if they lost. Without such funding arrangements the phone hacking business may never have come to light.
It may not necessarily mean we have to legislate, leading to the dreaded “state regulation” of the press. As one participant pointed out no other industry is allowed to self-regulate. The concept of freedom of expression carries with it responsibilities and self-regulation suggests this side of freedom of expression isn’t taken sufficiently seriously. There could be statutory underpinning for a regulatory body whose members are appointed by an independent appointments commission. That is not state appointment – unless one thinks all judges, for example, are state appointees. Statutory underpinning could have “measures of inclusion” designed to bring in relevant publications. Alternatively there could be voluntary self-regulation, with incentives for publications to join. It was pointed out that broadcasters find Ofcom regulation beneficial and amicable, and proffers significant reputational value.
It was also suggested that the PCC can become more independent by having a lay majority, including the Editors Code Committee comprising of lay members. The code would be owned and administered by the regulator. The PCC also needed a clear remit and ability to impose sanctions.
The Rogue Internet
It was pointed out that amidst all this mudslinging between the pro- and anti-regulation lobbies, we forget that technology now allows us all to be publishers. Given the proliferation of online commentary, can we imagine a single blogger being willing to sign up to a PCC-style regulatory body?
The answer to this is possibly that there is a real difference, even now, between press and internet journalism, or at least in the way it is received. The reason why we have to worry about newspapers, even at a time when their very existence is threatened by internet publishing, is that papers purport to tell the truth. Blogs and websites don’t have that presence – people are aware of the difference.
A tentative conclusion
The general view seemed to be that the Leveson Inquiry cannot bear the burden of expectation that has been placed on it – the very fact that it is a statutory inquiry rather than an ad hoc one means that Leveson LJ cannot canvass the broader questions that bear on press freedom and privacy, such as the justification defence in libel actions or the role of law officers in prosecuting contempt of court. Too many of these questions are outside his remit.
It is a massive problem which seems to be quite resistant to any sensible allocation of responsibility, via statute or otherwise. Wherever the blame lies – with the explosive growth of the celebrity culture and the ever more intrusive technology responding to it; the tendency of journalists to think and behave as if they are beyond the law; the intense pressure on newsrooms to get a story out that is already gone viral over the social networks; the fierce competition from online news sites and the consequent fall in advertising revenue; the spinelessness of politicians et cetera – the current position is unsustainable. If it does not come up with some workable formulation for enforcing press responsibility, Leveson’s inquiry will add no more than words to all previous inquiries, reports and White Papers on the subject, which have done nothing to prevent newspapers from making newsroom assessments about the trade-off between the commercial value and the potential legal costs of an intrusive story.
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The “chilling” effect of libel laws is more than special pleading by a prurient tabloid press. It prevents people from publishing important facts that are true, for example about gangsters, fraudsters and ineffective medical products. These people don’t even care if they lose their cases, because they know that people don’t want to have libel cases even if they are good cases. Look at Desmond v Bower, fought over a fairly trivial point in a book about someone else – Desmond lost but came out smiling because he knew was very happy because he knew that Bower would never get his book on Desmond published, however true and damning the facts about Desmond. Look at Singh v the Chiropracters. Look at BigPharma v the researchers. Look at Ukrainian gangsters silencing their critics.