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Privacy v Information: Who Has a Right to Know?

The UK has faced a barrage of information-related news recently, from how it is obtained, to how it is restricted, and how it affects individual rights of privacy and freedom of expression. When you come from a country such as Australia, with robust defamation laws, the intense media coverage by the British tabloid press of anyone in the public eye can be quite a shock. It is the scurrilous nature of much this information, the level of detail revealed, and the distortion of facts in salacious headlines that still surprises me, despite living here for more than seven years.

Recently we saw the re-emergence of the celebrity phone hacking scandal. In a story that first surfaced 5 years ago, the then royal editor of the News of the World, Clive Goodman, was sent to gaol for 4 months for using phone hacking to obtain news scoops. There is a good outline of the development of this tale in the Press Gazette , following the story of journalists obtaining exclusive stories, often through the illegal activity of hired private detectives listening in on the voice mail messages of well known celebrities. Early in April, extended investigation led to the arrest of 2 more News of the World journalists. After initial denials and fighting accusations in court, we saw the unusual sight of a backdown when News International decided to admit its liability and offered compensation to the aggrieved victims in some 24 cases. The first settlement was with Sienna Miller, for £100,000, on May 13. There are those who argue that News of the World journalists are not the only ones who have used this means of obtaining information. Phone hacking is clearly a breach of an individual’s privacy, and even in the UK this sort of snooping goes beyond the public’s right to know.

The next information related scandal is about the awarding of super injunctions by courts to suppress stories in the newspapers, and the right to privacy (or otherwise) of the individuals involved. Super injunctions capture the imagination because they are inevitably granted to the wealthy or to celebrities. They are handed down by judges to prevent the press from publishing names or details of people who may be otherwise exposed in the press for their behaviour. In April a decision was taken by a BBC journalist, Andrew Marr, to reveal that he had taken out a super injunction some years ago to prevent publication of a story of an affair. This seemed to be a pre-emptive strike when other names, (including some innocent people who had never taken out super injunctions) were published shortly afterwards on Twitter. The Prime Minister, David Cameron, weighed in on the matter and called for Parliament to provide clearer guidance to the courts when awarding gagging orders. 

There were several threads of argument both for and against the use of super injunctions:

  1. They lead to a two-tiered level of knowledge; the media all know who has taken out the super injunction, but the public do not.
  2. Often the celebrity will be protected, but the other party – an ‘ordinary’ person (perhaps a lover, or a prostitute) is often not protected, and can be named in the press.
  3. The injunction covers the printed press, but it cannot cover the internet, and tweets and blogs can name these people despite a super injunction.
  4. Parliament should make the laws relating to privacy, not the courts.
  5. The courts are interpreting the European law on human rights in a way that is protecting the rich who can afford to argue the case.
  6. Freedom of the press, the right to know and other aspects of civil liberties are being eroded by the courts imposing super injunctions.
  7. Foreign newspapers are not restricted by the super injunctions and often publish details suppressed in the British press.

A report into the use of super injunctions was published on 20 May, the results of an investigation by the Master of the Rolls, Justice Neuberger ; one recommendation is that the press be allowed to be in court to hear these matters, even if they can’t report the outcome. An interesting and evolving story is the request made by a footballer with a super injunction, who was named on Twitter, seeking details of the person who placed the post. The disclosure order was issued in the UK against the Californian based company, and whether Twitter pays attention and complies, will unfold during this week. 

In addition to the super injunctions issue, this week the European Court of Human Rights denied Max Mosley’s efforts to enforce greater restrictions on the press. This is hailed as a brake on ‘creeping privacy law’. The judgment, in Mosley v. the United Kingdom, stated that there had been no violation of Article 8 (right to protection of private and family life) of the European Convention on Human Rights in a story about his participation in a sordid, but not illegal, sado-masochistic party.

The role of the press in exposing the private peccadilloes of the politicians, etc, is very different in a country such as France, where the right to privacy of the individual is enshrined in the Code Civile. So no-one could report that a past President had a mistress, but everyone knew. Speculation about whether the wife of the current President is pregnant appears in the press in the UK, but not in the French press. But in the internet age, when Twitter and Wiki-leaks expose all sorts of hitherto secret or private information, how can any country expect to maintain restrictions on its printed press? And in the long run, should they even try? Are those who court fame, or power, fair game for the 24 hour news and gossip culture that has evolved over the past decade or two? If they wish to escape notoriety must they lead exemplary lives or just cop the consequences should they be caught out?

And finally, what about those who do not seek fame or power, but become celebrities by dint of their birth, or involvement in famous events? In this category I would place Prince William and his bride – a young couple who become the subject of information hounds potentially seeking to make a buck from intruding into every aspect of their lives. The royal couple successfully managed to control their special day, and their honeymoon, in a masterful way, beating the paparazzi at their own game. 

So when they could not provide an ‘exclusive’ on the Royal honeymoon, after Royal Wedding hysteria, (experienced not only in the UK, but throughout the world), the newspapers tried another tack. They turned to the issue of primogeniture, should the Duke and Duchess of Cambridge have a daughter as their first child. This became a matter of considerable speculation in the blogs and newspapers. It was mentioned by Nick Clegg, Deputy Prime Minister and leader of the Liberal Democrats, as an issue that might be pursued in Parliament. The 1701 Act of Settlement laid down the rules of who can be the monarch, so, no Catholics, and no daughters where there are brothers, can accede to the throne. So if you have no information to make a news story, speculate on a non-story instead. 

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Comments

  1. A thoughtful article on freedom of the press v. right of privacy. Highlighting the ongoing issues in England. The writer’s comparative comments (i.e., France and Australia) are right on point.