Freedom of speech and privacy

Professor Eric Barendt of University College London discusses the delicate balance between free speech and privacy.

Both freedom of speech and privacy are fundamental rights, which are equally recognised in the Universal Declaration of Human Rights, by international conventions such as the European Convention on Human Rights, and in many national constitutions. How do they relate to each other?

It is generally thought that these two rights must be in conflict with each other, and sometimes that is the case, most notably when a tabloid newspaper or a blogger wants to reveal something about a celebrity’s private life – particularly intimate details of her sex life – which she would prefer to keep to herself and a few friends. But quite often privacy is necessary for freedom of speech (or expression). Friends and lovers cannot communicate openly with each other, unless they are sure that their conversations will not be overheard and filed by the government or repeated in the mass media. Even political conversations may require privacy, as when civil servants and ministers, or coalition partners, discuss sensitive matters of policy; they may not want to disclose – at least for the time being – their conversations to the general public, and some courts, notably, the German Constitutional Court have held that they can be protected as a matter of privacy.

But how should conflicts between privacy and freedom of speech be resolved? The law cannot protect both rights when these conflicts arise – neither is absolutely protected. My view is that we have to ask what the value of the speech in the particular case is and compare it with the importance of the privacy, which would be sacrificed if freedom of speech is given priority over it. If the speech – say, an article in a newspaper or a blog – contributes to important political or social debate and does not intrude greatly on intimate details about an individual’s private life – say, it mentions in passing only her dietary preferences or what she wore at a dinner party – freedom of expression should win over privacy. But if the article reveals intimate details of a celebrity’s sexual life or medical history, privacy should win, because it is hard to see how such disclosure can contribute to an important public debate.

Of course, there are some very difficult issues in this area. How much privacy does a politician sacrifice when she enters public life? Suppose a tabloid paper reveals that she took drugs at university and justifies publication of that story with the argument that voters are entitled to know the moral record of someone who is standing for election as a member of parliament? On the other hand, can it be argued that even politicians are entitled to some privacy, because otherwise few people, except the crassly insensitive, will enter public life and further, few, if any of us, have an unimpeachable moral record? I think that even a degree of hypocrisy may be justified as an essential element of privacy; we are surely all entitled to say to strangers that, “We are in good health and spirits,” even though we have been told earlier that day that we have a serious illness or that our partner wants to end the relationship. Privacy gives everyone a right to control what information is divulged to whom.

The courts in England in the last few years have frequently given orders to the press not to publish stories of little public interest which infringe the personal privacy of celebrities, particularly those revealing the behaviour of footballers off the pitch. Then comes the hard question, whether these orders can be made effective against bloggers and tweeters who reveal the name of the footballer or details of his behaviour. Bloggers can claim individual freedom of expression and then the press can argue that the story is now in the public domain because it is all over the internet. Another hard question is whether resolution of these conflicts can be left to the courts or should be handled by some informal tribunal or body such as the UK Press Complaints Commission; it costs several thousand pounds to get a court order, well beyond the means of most people. But the existence of these difficult issues should not lead us to abandon privacy rights altogether, for without their effective protection much individual autonomy and intimacy would be lost.

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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    The difficulty with this discussion – in fact much of the discussion in this debate – is that freedom of speech tends to be treated as though it has a special status to which other rights are largely expected to accord.

    In reality, freedom of speech is an important right, but there are others, and sometimes they will come into conflict. It follows that the status and value of free speech can only be sensibly discussed if one has a general framework for resolving conflicts of rights.

    Reason tells us that there must either be a hierarchy of rights, with rules to resolve conflicts of rights of a similar order, or else all rights must be treated as being on the same plane, with our deciding conflicts of rights according to the circumstances of each case.

    The difficulty presented by the latter approach is that rights cease to have any real value because they are not guaranteed of enforcement. It is also a manifestly deficient argumet because not all rights are equal. For example, the right to have a state funded university education, or the right to drive a car are clearly not on the same level as the right to not have one’s life taken, or the right to free speech.

    In ‘Two Concepts of Liberty’ Isaiah Berlin wrote that:

    “The sense of privacy itself, of the area of personal relationships as something sacred in its own right, derives from a conception of freedom which, for all its religious roots, is scarcely older, in its developed state, than the Renaissance or the Reformation. Yet its decline would mark the death of a civilisation, of an entire moral outlook.”

    Sadly much of the discussion of free speech to be found here assumes that the right to privacy should be limited to accommodate a broader right of freedom of speech.

    Perhaps the converse approach might be preferred.

    If we believe that freedom of speech, and privacy (the freedom to be left alone) are on the same level, then perhaps privacy should, as a general rule, prevail.

    Berlin said as much when he argued that, “If the liberty of myself or my class or nation depends on the misery of a number of other human beings, the system which promotes this is unjust and immoral.”

    Surely the invasion of privacy, or the assault on individual dignity, which is implicit in many expansive conceptions of freedom of speech, can only result in the sort of misery Berlin feared.

    Surely to key to resolving conflicts of equal rights is to be found in the manner in which they are exercised. If one right is actively exercised (that is, in such a fashion as to intrude on the rights of others), and a conflicting right is passively exercised, we must surely favour the passively exercised right over the actively exercised right.

    The reasons for this are simple. A passively exercised right seeks to detract from none, to make no inroads on the liberty of others. It must be protected and preferred. Were we to do the contrary, then we would favour those who intrude on others, and we would ultimately pitch society into ceaseless conflict.

    If one accepts this, then it is not the nature of the subject which should determine the extent (or limits) of free speech.

    Perhaps we should look at other factors, such as whether we are truly dealing with the free advocacy of ideas, or merely an unfettered commentary on the lives of others.

  2. I agree but to some extent. You have considered privacy and freedom of speech in case related to public figures. They do not comprise the whole state. I do not deny that these things don’t happen with them, but the majority should be given the priority first.
    Points in which u have considered politicians should be given the privacy is considerable, but, I, explain it as,
    They are elected just to serve their public, who choose him so he can listen to everyone and take a mutual decision in favor of everyone. he do needs the privacy just for a fixed period of time , so he can glance upon the subject and come up with either a good result or some genuine option. Now the point is that whether we have the right to speak freely and put our ideas in public, or the law is just I black and white.
    Coming to the point of privacy. As our elders say that we live in a democratic state can put our ideas thinking and wish outside but that point should not create any problem for others. But critical cases are of public figures or so called celebrities , They do need the privacy but just in their personal life . Coming publically makes them the figure of public , they represent what public is, was or want to be ? So Privacy and freedom of speech, when considered in case of common people have a limit but when it is considered for public figure . After a certain time interval privacy should not be there. This is the ultimate base of many social problems which we are facing today. If privacy of public figures is made transparent then a lot of problems will be solved automatically.
    At the end, I would just like to summaries that privacy is limited for somebody’s personal life and when it comes to public , it should be made transparent along with freedom of speech.

  3. I sympathise with the views expressed here but recognise that once the cat is out of the bag it is out and cannot be put back. What is required is higher standards in those who have access to and control of sensitive personal information of people who are exposed to public scrutiny. It is true that nobody is perfect so a fitting reprisal for a person who decides to make public somebody else’s sensitive personal secrets might be to open up their private life to public scrutiny if it could be done. That should make people think twice before deciding what really is in the public interest should it not?

    The point about the cost of legal action is well known and true but is it justified? Taxpayers have already paid for Her Majesty’s Court Service. Why are they charged again for making use of it? Is that not double taxation? What happened to the noble aims of access to justice? Why are solicitors permitted to ask for payment before they have done any work? If they are paid for the time taken they are free to extend that as they will as I have witnessed in action. Is it not time to examine and review the justification for these things? Why are solicitors permitted to treat their clients as if they cannot be trusted to pay bills? What plumber gets paid before doing the work?

    What I suggest is missing is a moral compass as we have witnessed in the conduct of far too many members of what may be generally described as high society society receiving over generous payments from the public purse not to serve the public but deprive them of what is their due by corrupt practices, non disclosure of information they are entitled to receive but are refused it when requested. That is what the Freedom of Information Act was designed to rectify but more effort is being put into hiding information than disclosing it.

    What part has been played by the Established Church of this country in setting the example of proper moral conduct and standards in society. I suggest it has not and is part of the problem.

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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.

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