Bound but not Gagged
Stephen Loughrey
Published in:
Solicitors Journal: 18 November 2008
New Law Journal: 12 December 2008
A shortened version of the article was also published in The Lawyer: 24 November 2008
In his recent speech to the Society of Editors Conference, Paul Dacre, the Daily Mail editor and Associated Newspapers’ editor-in-chief, launched a stinging attack on what he considers the most dangerous threat to press freedom in many years, the imposition of law protecting an individual’s right to privacy. Mr Dacre, entreated his colleagues to “concentrate ….. on how inexorably, and insidiously, the British Press is having a privacy law imposed on it” and laid the blame for this perceived affront to freedom of expression squarely at the feet of one man, Mr Justice Eady, the senior High Court Judge who hears many of the libel and privacy cases in this country.
It is not yet three years since Lord Justice Sedley commented “that privacy – prominently but not solely private sexual activity, which sells so many newspapers – is something which our law does not yet adequately protect”. On carrying out a review of the tabloids on any given day, one could be forgiven for concluding that little has changed. However, there is no doubt that there has been a recalibration of the law since Lord Justice Sedley’s damning assessment. It is now riskier than ever before for a tabloid editor to run the staple of the trade - salacious “Kiss ‘N’ Tells”– stories which may be of interest to the public, but which are rarely in the public interest. Mr Dacre blames this development on one judge’s interpretation of the Human Rights Act (indeed, he even rails against the Act’s very existence, referring to it as “wretched”) and deduces that this new rights based jurisprudence will allow “the crooks, the liars, the cheats, the rich and the corrupt (to shelter) behind a law of privacy created by an unaccountable judge”.
Lovers of juicy scandal should not despair. Regardless of what you may have surmised after reading headlines such as “Freedom gets a spanking” in the wake of Max Mosley’s victory over the publishers of the News of The World, or on reading the views expressed by Mr Dacre in his speech to the Society of Editors on Sunday night, the lawyers have not spoiled your fun. Despite Fleet Street’s vocal protestations that one unaccountable judge running amok is placing undue weight on Article 8 of the European Convention on Human Rights (which guarantees the right to respect for private and family life) at the expense of Article 10 (which protects the right of freedom of expression) the reality (needless to say) is somewhat different. While there is no doubt that the law has developed rapidly, it has only moved to redress an obvious imbalance. It is simply not credible to argue that the law as it now stands, muzzles, or in any way inhibits the press from carrying out serious investigative journalism on issues of public concern. The current law simply recognises that the right to respect for private and family life is on an equal footing with the right to freedom of expression. Quite rightly, there is no presumption in favour of one over the other.
When deciding whether a legal right of privacy exists, the Court first asks whether there is a reasonable expectation of privacy. Assuming the court decides one exists, it then applies an “intense focus” to the competing interests of freedom of expression and right to respect for private and family life – in effect it conducts a balancing exercise. The court must decide to what extent, if any, it is necessary to qualify the right to freedom of expression in order to protect the right to respect for private and family life of the person affected. It is important to note that the qualification or restriction on the right to freedom of expression is only the minimum necessary to meet that purpose.
In his impassioned defence of the media’s right to name and shame those it deems have offended public standards of decency, Mr Dacre argues “Since time immemorial public shaming has been a vital element in defending the parameters of what are considered acceptable standards of social behaviour, helping ensure that citizens – rich and poor – adhere to them for the good of the greater community.” Mr Dacre strongly criticises Mr Justice Eady’s judgments for being “amoral” and concludes that “when it comes to morality, the law in Britain is now effectively neutral”.
Mr Dacre is right, well in one regard at least. The law is neutral, and that is exactly as it should be. Prurient moralising has no place in a court’s decision making process. In today’s society few would disagree that those engaged in sexual relationships with other consenting adults are entitled to a reasonable expectation that the details of those relationships will not be published to the world at large. It is not the role of the court to act as an arbiter of taste, decency or morality. Neither, many would argue, is it the media’s role to expose what it perceives to be digressions from standards of morality and decency. The irony of tabloid editors and journalists (particularly from the Daily Mail, with its destructive version of morality) considering themselves qualified to act as the arbiters of the nation’s moral standards, is too obvious to warrant further comment.
Although in the Mosley case Mr Justice Eady was at pains to point out that we should not try to extrapolate general principles from his findings, there is no question that a clear trend has developed in relation to the court’s treatment of stories relating to sexual conduct. In recent years the court has shown that it will recognise that there is an expectation of privacy in almost all types of sexual relationship; whether they be adulterous, sadomasochistic or even involving payment.
Having decided that there is a reasonable expectation of privacy the court must then decide whether the information is akin to “vapid tittle-tattle about the activities of footballers’ wives and girlfriends” as Baroness Hale described it in Jameel v Wall Street Journal Europe, or whether it genuinely invokes the public interest. In the latter regard, the Press Complaints Commission Code of Practice Committee (of which interestingly and perhaps worryingly, depending on your viewpoint, Mr Dacre is Chairman) defines the public interest very clearly as i) Detecting or exposing crime or serious impropriety ii) Protecting public health and safety iii) Preventing the public from being misled by an action or statement of an individual or organisation.
When viewed in this context, it can immediately be seen just how implausible it is when media defendants retrospectively attempt to categorise stories as matters of public interest when they are plainly anything but. (This approach was tried in Mosley, when the News of the World’s legal team, no doubt realising that the writing was on the wall, attempted to shoe horn the story into a matter of public interest by arguing that the sexual activities involved, constituted assaults under the Offences Against the Person Act and as crimes were therefore matters of public interest. Unsurprisingly this argument was given short shrift.)
Perhaps the real motivation for Mr Dacre’s attack on Mr Justice Eady is because he fears that this rapidly developing area of the law is as he puts it “undermining the ability of mass-circulation newspapers to sell newspapers in an ever more difficult market.”
However, he need not worry. The commercial incentive is so great that it will ensure that “Kiss ‘N’ Tell” type stories will continue to be published. It is just that editors will have to use a little more ingenuity and canniness to establish that the story is in the public interest before publishing it. This may involve justifying publication by establishing some sort of hypocrisy on the part of the subject of the story or it may involve some digging around to find some sort of rule-breaking by the subject. Indeed Mr Dacre’s own employer used this approach in the recent case of Lord Browne of Madingley v Associated Newspapers, where it argued that there was a public interest in disclosing the details of the former Chief Executive of BP’s homosexual relationship, because BP shareholders and the public had a right to know that BP resources and staff had been used for Lord Browne’s former partner’s benefit.
As in all areas of the law, when one loop-hole begins to close, those with an interest in circumventing it, will always find another way round.