‘What gives a journalist the right to know whom you slept with last night?’ That was a question posed by my fellow panelist Clifford Longley to Gavin Millar QC on this week’s The Moral Maze which explored the limits of privacy and free speech. Millar avoided answering the question. But the answer is not as straightforward as many might imagine. Certainly a journalist has no ‘right’ to know with whom I slept. But (unless he uses illegal methods such as, say, hacking into my phone) neither do I have the ‘right’, in my view, to stop him finding out and gossiping about it, even in a national newspaper, however distasteful and embarrassing that may be for me.
Of course, I am pretty safe from lenses and mikes of News of the World hacks. Many politicians and celebrities clearly are not. The fact that newspapers, and newspaper readers, seem so obsessed by the sex lives, drinking habits, and party antics, of footballers and actors and pop stars reveals something unpleasant about our culture. But it doesn’t mean that such prurient interest should be a matter for the law. And therein lies one of the problems with the current debate about privacy: it confuses the recognition that something is odious or distasteful with the belief that therefore it should be censored.
There are certain forms of privacy that we should zealously guard. The state (or corporations, or newspapers or, indeed, individuals) should not be able to open my letters or read my emails or listen to my phone calls without my permission. Nor, without permission or a warrant, should anyone have the right to enter my home, or to search my person. Medical, financial and other confidential data should remain confidential. The private lives of minors should remain private.
Such forms of privacy have certainly become eroded in recent years. But these are not the kinds of privacy at the heart of the current debate. What has generated so much heat is not the physical invasion of privacy (leaving aside the phone hacking scandal which is a separate issue), but gossip about intimate or often embarrassing aspects of life that most people would wish to keep private: cases such as Jamie Theakston being caught with a prostitute; Naomi Campbell being photographed leaving a drug rehabilitation clinic; and most notoriously, the News of the World’s story about former FIA chief Max Mosley’s sado-masochistic orgy.
Such stories constitute little more than idle gossip and are often embarrassing, even distressing, to their subjects. But so long as such gossip has not been acquired through illegal means, through invasion of privacy in the first sense, and so long as it is not untrue, it should not be a matter for the law. This is not to say that such journalism should be deemed acceptable. It should not. Passing off gossip as news has helped lead, as Polly Toynbee pointed out almost a decade ago, to ‘everyone’s loss of civility’, to the undermining of ‘everyone’s sense of a discreet private space which should stay beyond the brazen megaphone of public exposure’. There is, however, a big difference between that which should be unacceptable and that which should be illegal. Just because something is legal does not make it morally or socially acceptable. Conversely, just because something is morally or socially unacceptable should not make it illegal.
Part of the trouble with the current privacy debate is that two distinct issues have become conflated. The first is the problem created by a culture in which gossip and tittle tattle is taken to be news, and in which the distinction between the public and the private has become eroded. The second is the issue of constraints on freedom of expression. We need to change that culture of news, and to shore up the distinction between the public and the private, but we cannot do so by constraining freedom of expression. The transformation of gossip into news has come about for a number of reasons, such as the emergence of the so-called ‘confessional culture’, in which people are happy to make public the most intimate aspects of their lives, the erosion of the political sphere, and the rise and rise of celebrity. The loss of intimacy and of the ‘sense of a discreet private space’, to which Polly Toynee called attention, has not been the consequence, then, simply of tabloid journalism but of much broader trends in society. Most of these are, in my eyes, retrograde developments and ones that need to be resisted, indeed rolled back. But they cannot be resisted or rolled back by constraining free speech in the name of privacy. Indeed to do so often erodes further the distinction between the public and the private.
In recent years, the courts have expanded the definition of privacy in such a way that, in the process ostensibly of protecting privacy, the distinction between the public and the private has become ever-more degraded. In the famous ‘Princess Caroline’ case, for instance, the European Court of Human Rights ruled that photographs of the Princess, which a German court had deemed acceptable since they had been taken in public places, had in fact violated her right to privacy and that, in its inimitable words, ‘a zone of interaction of a person with others, even in a public context… may fall within the scope of private life.’ In another case, the Court ruled that ‘a person’s reputation, even if that person is criticized in the form of a public debate, forms part of his or her personal identity and psychological integrity and therefore also falls within the scope of his or her “private life”’. The consequence of such rulings has been to make the distinction between the public and the private less and less clear.
Using the law to censor gossip does not necessarily protect privacy but it can undermine free speech and investigative journalism. Consider the contrast between France and America. In France there are very strict privacy codes. In America public figures have virtually no protection from invasion of privacy, prior restraint of stories is almost impossible to obtain and there is, in the First Amendment, constitutional protection of free speech. It would be hard to argue that those in the public eye are treated worse in America than in France. What is unquestionably the case is that the American media are far more robust in investigating stories and scandals than their French counterparts. When the investigative journalist Tom Bower wrote an unauthorized biography of Robert Maxwell, Maxwell tried and failed to prevent publication in Britain, despite this country’s notoriously broad libel laws. But he successfully sued Bower under France’s privacy laws. The real impact of privacy laws, in other words, is not on privacy but on investigative journalism.
Max Mosley was a witness on this week’s Moral Maze. He has been campaigning for the subject of any newspaper article or book to have the legal right to see the piece before it is published, and if necessary to try to obtain an injunction to prevent its publication. What this would amount to, though Mosley himself denies it, is a form of prior restraint that is tantamount to vetting. Mosley took his case to the European Court of Human Rights which last week ruled against him.
I suggested to Mosley on The Moral Maze that the contrast between France and America shows that the consequence of privacy laws is not to shore up the private sphere but to undermine investigative journalism. Mosley dismissed that as ‘nonsense’. The Bower case, he insisted, would happen only ’occasionally’ and that ‘no judge in England would have stopped him publishing’. The situation in America, he claimed, was different because US journalists, unlike British ones, ‘check their facts’. This suggests that the issue at stake is one of facts. But the whole point about privacy laws (especially of the kind that Mosley wants) is to restrain the publication of true stories if they are deemed to invade someone’s privacy. In many cases that may well be the civilized position to take. The trouble is, it is precisely such censorship of true stories upon which the rich and famous rely to evade scrutiny.
The danger is that privacy laws may come to replace libel cases as a means of silencing criticism. After a long campaign by free speech activists, the government, earlier this year, unveiled changes to Britain’s notorious libel laws, to reduce ‘libel tourism’ and the ability of the rich and famous, and of corporations, to use these laws to avoid challenge or criticism. The proposed reforms are inadequate but are certainly an improvement on the current state of affairs. At the very moment that Britain’s libel laws are being liberalized, however, its privacy law is being hardened. (I know Britain has no specific privacy law but Article 8 of the Human Rights Act which states that ‘everyone has the right to respect for his private and family, his home and his correspondence’ is being interpreted in an increasingly broad way). Max Mosley could have sued the News of the World for libel (its original story was partly wrong in its factual account) but chose to sue instead for invasion of privacy. Having fought so hard to push back the impact of libel laws, we should be careful not to lose that ground again to privacy laws.