FOR PRIVACY. AGAINST PRIVACY LAWS
May 23, 2011 § 1 Comment
In my previous posts on gossip and on l’affair dsk I made two main points with respect to privacy, injunctions and censorship. First, that privacy is a valued asset and a civilized society should know the distinction between the public sphere and the private realm. Second, that censorship and legal constraints on reporting are not useful ways of maintaining that distinction, either from a pragmatic point of view or as a matter of principle. I think that the farce over Twitter, the Sunday Herald, parliamentary privilege and the Premiership footballer (OK, Ryan Giggs) has validated both these points.
The entitlement to privacy is an essential quality of civilized life. This is as true of DSK, Fred the Shred and Ryan Giggs as it is of you and me. What footballers and bankers and politicians get up to in bed is a matter for them, their lovers and their friends and family. Public figures should be judged primarily on their public actions and principles, not by their bedroom antics and private predilections. Poking into intimate aspects of people’s lives and pretending that this constitutes ‘news’ degrades journalism, coarsens our culture, and potentially tears apart lives.
But the rise and rise of gossip cannot simply be laid at the door of the tabloids nor even of everyone’s fave hate media corporation. The New York Times recently showed how the promotion of gossip has become a cash machine. What drives the gossip machine, however, is not just profit but the cultural blurring of the line between the public and the private. Or, to put it another way, it is not so much that gossip is eroding the distinction between the public and the private, but rather that the erosion of that distinction has helped create a profitable market for gossip.
The spewing out of the private into the public is not just a tabloid but a much broader cultural phenomenon. From misery memoirs to former prime ministers telling us how they were an animal in bed, from serious journalists probing the drinking habits of politicians to Facebook users revealing to the world the most intimate aspects of their lives, from bedroom webcams to reality shows that trade on humiliating contestants – our culture is built on the blurring of the public and the private. There is, of course, a big difference between voluntarily offering up intimacies and such intimacies being made public against people’s wishes. Nevertheless, it is not so much that the tabloids have coarsened our culture. It is rather that an increasingly coarse culture has provided new opportunities for the tabloids – and not just for the tabloids.
But much as I despise both the coarsening of public life and the diminishing of private life, I reject censorship as a way of dealing with the problem. What we are faced with is a cultural problem that requires cultural solutions not legal restraints.
From a pragmatic point of view such legal restraints do not work. ‘Modern technology is totally out of control’, the lord chief justice Lord Judge claimed recently. What he meant was that in an age of social media and mobile technology judges like him are finding it almost impossible to restrict what the rest of us can read and view. And that is a good thing. Privacy laws and injunctions are not just pragmatically difficult to police. They also pose a serious threat to free speech. French privacy laws, for instance, have allowed people like Robert Maxwell successfully to sue investigative journalists like Tom Bower, author of an unauthorized biography that Maxwell wanted to suppress. They have helped create a look-the-other-way media culture that confuses privacy with the failure to put public figures under scrutiny. There is a real danger that privacy laws may come to replace libel cases as a means of silencing criticism. Having fought so hard to push back the impact of libel laws in Britain, free speech activists should be careful not to lose that ground again to privacy laws.
The real problem with this debate is the difficulty people have in accepting the possibility of being both for privacy and against privacy laws (and injunctions and other such legal constraints). When I suggested on Twitter that while Parliamentary privilege should be protected, and injunctions opposed, we should not pretend that exposing footballers’ sex lives is either a good use of such privilege or a heroic defence of free speech, I faced a torrent of abuse and criticism, from those who insisted that ‘It’s access to the truth that matters’ (as if I was arguing for anything different) to those who shouted ‘MUPPET!!! it’s not about what he’s done! It’s about laws for the rich & those in power!’
This, of course, is the nature of Twitter. It is also an expression of how difficult people find it to negotiate the terrain of privacy and free speech, to be able to defend both rather having to argue for the curtailment of one in the name of the other. Of how difficult it is to imagine changing social mores rather than imposing legal sanctions.
It is an expression, too, of how times have changed. Twenty five years ago Scottish newspapers, and parliamentary privilege, helped bust an injunction against the publication in England of Peter Wright’s Spycatcher. Today, too, injunction-busting has played a vital role in exposing the truth about important issues, such as Trafigura’s dumping of waste in the Ivory Coast. But it has also been turned into campaigns to expose footballers’ affairs and popstars’ drinking habits. In all these cases, important or trivial, I defend the right to free speech against legal restrictions. But I also regret the degradation of the kind of speech we have come to value.