the price of a free press

bergens tidende, 23 may 2011

The arrest on rape charges of former IMF chief Dominique Strauss-Kahn, and his public humiliation in a New York courtroom has unleashed two major debates. One is about the meaning of justice, the other about the nature of privacy.

The treatment meted out to DSK has generated considerable shock and, particularly in France, outrage. ‘Nothing’, the French philosopher, and leading public intellectual, Bernard-Henri Levy wrote, ‘permits the entire world to revel in the spectacle, this morning, of this handcuffed figure, his features blurred by 30 hours of detention and questioning, but still proud.’ Former Justice Minister Jacques Lang described DSK's treatment as a 'lynching' while another former justice minister Elisabeth Guigou said of the courtrrom images that they revealed 'a brutality, a violence... an incredible cruelty'.

This shock and outrage at DSK’s treatment derives partly from the discomfort of seeing the rich and powerful be given equal treatment before the law. If you and I had been arraigned for the crime DSK is alleged to have committed, and had been handcuffed, refused bail and incarcerated on Rikers Island, no one would have batted an eyelid. And certainly if a black man or a Latino, had been so charged, and so treated, it would have seemed entirely normal and acceptable. The social and political elite, however, thinks that it should be treated differently. ‘I hold it against the American judge who, by delivering him to the crowd of photo hounds, pretended to take him for a subject of justice like any other’, wrote BHL. Well, yes, that’s exactly what justice means: treating every defendant, irrespective of wealth, power or political connections, ‘like any other’.

The US justice system is deeply flawed and institutionally biased – witness the disproportionate numbers of African Americans in prison and on death row. And yet when it does treat a rich defendant in the same way as it might treat a poor one, there is shock and bafflement. For all our celebration of the idea of equal treatment before the law, there is a pervasive expectation of, and indeed demand for, unequal treatment.

The French response to DSK also throws light on the debate about privacy which is now taking place in many European countries. There is growing concern about the unacceptable intrusiveness of the tabloid press, and about what should be done to rein it in. Perhaps nowhere has this debate been more intense than in Britain where the tabloid newspapers are particularly intrusive and where there are increasing calls for the introduction of strict French-style privacy laws that make illegal any discussion of the private lives of public figures.

There is something deeply distasteful about the voyeuristic reveal-all culture of celebrity title tattle that dominates the media across much of the Western world. What passes for news these days is often little more than idle gossip that can be embarrassing, even distressing, to the subjects concerned. 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’. Against this background, French privacy laws seem like a recognition, important to any civilized society, of the distinction between the public and the private and an acceptance of the fact that public figures should be judged on their public deeds and principles, not necessarily by their personal affairs.

And yet, we should be wary of the calls for strict privacy legislation. What the French response to the DSK affair suggests is that a defence of ‘privacy’ can all too easily become a cloak for deference to authority and a failure to put public figures under scrutiny. It is true that the extra-marital affairs of DSK or of any other public figure are of no relevance except to the people involved. But it is equally true that privacy laws in France have helped create a culture in which the media has taken a ‘hand off’ attitude to public figures. The French media has not simply protected the privacy of the political elite. It has also shielded them from any serious journalistic examination.

We need to create a more civilized 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. Or, to put it another way, we should not confuse the recognition that something is distasteful with the belief that therefore it should be censored. There is 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. An open, robust press is the bedrock of a living democracy. The erosion of privacy is a cultural trend the reversal of which requires cultural changes not a gagging order from the state.

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. But the kinds of legal constraints on the reporting of gossip now being discussed are a different matter.

For a start, such legal constraints often help further erode 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. 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.

There is a 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 British 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. 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.

The British press is no champion of investigative reporting. It is not just too intrusive, but intrusive in the wrong areas. It confuses sex scandals with investigative journalism, and salaciousness with public interest. It is often strongly conformist in its attitudes, vicious and personal in its campaigning, and pursues a strident political agenda. Yet, given the choice, I would much prefer to live with the intrusive, trivializing British tabloids rather than with the deferential, hear-no-evil, see-no-evil, look-the-other-way attitude of much of the French press. Far better to have a nasty, abusive but potentially open press than a civilized media, constrained by laws, that has forgotten the role of independent journalism and has become the pliant creature of those in power.