Journalists do not have a divine right to invade privacy

Leading free speech expert Eric Barendt defends a British parliamentary report on privacy against criticisms by campaigning journalist John Kampfner.

Rather predictably the report of the joint committee of the House of Lords and House of Commons on privacy and injunctions was rubbished in the press as soon as it was published. The headline to a stinging attack on the report by John Kampfner in the Guardian(March 27 2012) screamed: “Tighter privacy laws would only serve the rich and powerful.” Kampfner concluded that the peers and MPs on the committee paid lip-service to freedom of expression, implying that privacy laws are largely used by politicians to hide public scandals which ought to be exposed by the media. In particular, he was concerned that one recommendation in the report might compel search engines to “delete – not only from their searches but from the internet itself – any material that is deemed to invade privacy”.

These criticisms are unfair. For a start the committee did not recommend, as the Guardian headline suggested, “tighter” or more draconian privacy laws. It considered that broadly the courts were striking the right balance between freedom of expression (and of the press) on the one hand, and privacy rights on the other. Both these rights are guaranteed by the European Convention on Human Rights, and are now incorporated into UK law by the Human Rights Act 1998. The courts, and other bodies, such as the former Press Complaints Commission, adjudicating privacy complaints, must determine on the basis of all the relevant facts whether privacy is more important in the circumstances than freedom of expression, or whether the latter trumps the individual’s privacy rights. Most privacy actions in the courts are brought by footballers and other celebrities, anxious to stop the publication of a story about their intimate sexual life, rather than by politicians and other public figures who take important social or economic decisions affecting all of us. But even politicians have, as the European Court of Human Rights has ruled, a right to some private life; it is not clear that there is a public interest in knowing that an MP is having, or has had, an affair with his secretary, unless there is some evidence that it is interfering with the ability to represent his or her constituents or affects attendance in the House of Commons.

It is certainly the case that the rich and powerful make greater use than the rest of us of privacy laws. But that is largely because the press and other media publish much more about their private life, particularly their sexual affairs, than they do about the life of ordinary citizens, which is generally of no interest at all to most readers and viewers. Further, only the wealthy can afford to bring actions in the courts, as the committee report itself acknowledges (para 136). That is itself no objection to privacy laws as such, any more than their prohibitive cost is an argument against the existence of the Ritz or Dorchester hotels. The solution is to reduce the costs of legal actions, or more realistically to ensure that members of the public – whose private life does sometimes attract the attention of the media – have access to other inexpensive tribunals to protect their privacy. In chapter five of its report, the committee made a number of sensible, albeit very tentative, recommendations for privacy protection by a reformed media regulator, including a proposal for alternative dispute resolution of privacy complaints (see paras 203-209), but these proposals for some reason were ignored in Kampfner’s critique of the report.

The real problem now is how privacy rights can be effectively enforced when it is so easy for them to be ignored by tweeters, bloggers, and – sadly, it must be added – by irresponsible parliamentarians (see chapter 6 of the report on the relationship between privacy and freedom of speech in parliament). The traditional mass media can be relied on generally to observe the terms of court injunctions, including those granted to preserve the anonymity of a claimant; they are advised by in-house and other lawyers, while editors, particularly those of the local and regional press, know that the infringement of personal privacy carries significant financial risks, as well as a loss of respect in the community they serve. We can have no such confidence that bloggers and tweeters will respect the law; indeed they may delight in infringing court orders, particularly if they are sceptical of the value of privacy.

The committee therefore made a number of recommendations to ensure that privacy rights are better protected, particularly in the online environment (see paras 91-119). One of them was to encourage Google and other search engines – and if necessary introduce legislation to compel them – to remove links to infringing websites, after an individual had obtained a clear court order that the material on the site infringed privacy rights. The evidence from Google was that even if it were technically possible to filter access to these websites, it would not be desirable for it in principle to monitor them (see paras 110-15). The committee was understandably critical of this position, for it showed reluctance, as Max Mosley argued, to help enforce court judgments. Co-operation from Google would not, as Kampfner suggests, remove the material from the infringing website itself, but would filter access to it, a different matter.

Two related fundamental beliefs probably underlie much media criticism of the joint committee’s report – which is generally rather cautious and conservative in its recommendations. First, it is too easy for journalists and other commentators to assume that everything they write is protected by the fundamental human (and legal) right to freedom of expression (or speech). It is not, though of course much of it is. It is far from clear that celebrity gossip or speculation, however accurate, about really intimate matters deserves the protection of a free speech clause. Secondly, privacy itself is undervalued or discredited, perhaps because it can easily be claimed in a wide range of contexts – for example, the right to have an abortion is treated in the USA as an aspect of personal privacy. But privacy is a fundamental right, because without it we would have no space, or effective opportunities, to develop our individual personality, or indeed sometimes to engage in conversation. Further, the development of any close friendship or intimacy requires privacy. The evisceration of privacy rights – an unintended consequence of much media argument in this area – would destroy the boundary between private and public life to the cost of all of us.

This article was republished on Eurozine.

Eric Barendt, Emeritus Professor of Law, UCL, is the author of the classic reference work Freedom of Speech (OUP) and an advisor to Free Speech Debate.

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  1. Privacy needs to be protected regardless of ones status in the community and journalists do not have the right to invade ones privacy by whatever means available under the guise of Freedom of Speech. You only need to look at the case involving News Corp hacking the phones of celebrities, dignitaries, royals and even victims of 9/11 to know that the lines are no only blurred but bordering on obliteration.

    News should be that which is deemed relevant to the populace. It should directly impact our lives or offer valuable information. It should be meaningful, and not be the loose facts or, in many cases, pure fiction that makes up todays tabloid papers.

    Does the public need, much less, have a right to know the inner workings of another’s personal life; I don’t think so. Sure, it may be interesting fodder for the morning coffee klatch or water cooler collective to discuss what celebrity, politician or sports figure is dating who, having an affair, dines at what restaurant or has bad breath, but is it really fair much less necessary. If you argue as public figures they give up the right to privacy, as has been done repeatedly, where does it stop. What in this digital age constitutes a “Public Figure”? If it is broadly defined as one whom the public can easily have knowledge of, then to one extent or another we are all becoming public figures. Would you like to have your life exposed and under the same scrutiny as a celebrity. Just because they have a job that puts them on film should it really mean they are no longer private citizens?

    If you have a blog with 50,000 followers are you now fair game, has your notoriety elevated you to the status of losing your right to privacy. What if you have 2,500 friends on Facebook or post a video on Youtube exposing yourself to millions of potential viewers are you then a public figure. I would hope that most would say this does not constitute de facto enrolment into such a class, but are the definitions clear enough. According to attorney Aaron Larson: A person can become an “involuntary public figure” as the result of publicity, even though that person did not want or invite the public attention. For example, people accused of high profile crimes may be unable to pursue actions for defamation even after their innocence is established…

    To protect the affluent as well as the masses is important. To level the playing field perhaps the reporter who has invaded ones privacy, should he be found in violation by a court, be compelled to not only pay the court costs of his victim but pay a preset fine for each occurrence. This may well be deterrent enough to cause the privacy invader to think twice before publishing their findings to the world.

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Free Speech Debate is a research project of the Dahrendorf Programme for the Study of Freedom at St Antony's College in the University of Oxford. www.freespeechdebate.ox.ac.uk

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