‘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.
“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.”
On what basis would you defend, say, laws against public nudity and condemn laws for the protection of privacy?
Secondly, do you not think that your concerns over the stifling of Freedom of Speech could be avoided by careful application of Public Interest defence?
Thirdly, you raise an interesting point about the difference between France and America and state “It would be hard to argue that those in the public eye are treated worse in America than in France.”
Unfortunately, you offer nothing to back up this claim and I have to take you at your word. I know nothing of the subject but do remember that the existence of one President’s daughter was not published for many years. Nonetheless, if the claim is true how do you account for it?
The prohibition on public nudity is a social more deeply embedded in our culture, though getting less restrictive in recent decades. I’m not sure I’d want to call for the legalization of all public nudity (I’m as steeped in those social mores as anyone else) but, as I wrote in a piece on the burqa ban, I think that in most cases the law should not interfere in our choice of clothing.
There are forms of privacy that, as I wrote, we should zealously guard and should be legally protected. Gossip, though, is different. Certainly much of it is socially and morally distasteful. We should, nevertheless, be wary about legally constraining it because of the impact of such constraints upon free speech. It may seem that restraining someone’s ability to write about Max Mosley’s sex life, say, is no more problematic than restraining my ability to walk down the street naked. But in practice, as I pointed out, such laws can have a chilling effect on investigative journalism.
The idea of public interest is, I think, a useful standard for journalists by which they can determine where the line lies between news and gossip. It is, in other words, useful in making editorial decisions. As a legal tool it is more problematic. It suggests that legally acceptable speech should be defined primarily by the content of that speech. I have long argued that freedom of expression should be defended irrespective of content. When it comes to hate speech, for instance, the line should only be drawn at the point of direct incitement to violence or of imminent danger.
True, I did not develop the argument about the distinction between America and France – but then, it was a blog post, not a thesis. Perhaps I will return to the issue in a future post.
I find this post rather confused.
For example, your main argument for the legitimacy of privacy invading journalism is circular. So long as it is done in legal ways it is ok. But since the question is exactly what should be legal this is a weak basis for argument. Particularly when you later criticise the German courts for their interpretation of the law.
You seem to contradict yourself from one paragraph to the next. First you say, “There are certain forms of privacy that we should zealously guard…..Medical, financial and other confidential data should remain confidential.” Then you say that Naomi Campbell’s drug treatment is fair game. Surely that is medical?
Your public interest argument – your real concern it seems – is very poorly developed. Surely the ‘right to gossip’ is not at issue here. On the one hand, chasing celebrities with telephoto cameras and publishing the pictures for money doesn’t fit any normal idea of ‘gossip’. On the other hand a real public interest argument would focus on the public’s right to certain kinds of information about certain public figures even if it currently private. For example medical information about political leaders is obviously relevant to assessing their capacities (consider Mitterand’s secret cancer, Kennedy’s various secret debilitating problems, Nixon’s secret alcoholism, etc). On your analysis these would remain private.
I’m not sure who’s confused here. First, the distinction I was drawing was between the means someone might use to obtain information, and the information itself. If someone broke into my house to discover with whom I slept last night that would, and should, be illegal. Similarly, if they tapped my phone, or stole my medical files. On the other hand, if a journalist talked to whomever it was I had slept with and had published that information, it should not, in my view be a matter for the law. That does not mean, as I pointed out, that this constitutes a morally acceptable form of journalism. But there is a distinction between what should be morally or socially unacceptable and what should be legally unacceptable. Or, to put in another way, some problems we deal with legally, others morally, culturally and socially. You may disagree with me as to where we should draw the line and how to make that distinction. But that would be a different debate.
I did not, by the way, criticize the German courts over the ‘Princess Caroline’ case, I criticized the judgment of the European Court of Human Rights. As I pointed out, the German courts deemed the photos acceptable because they had been taken in public places. The ECHR declared them unacceptable because Caroline was not on official duty and therefore even though she was in a public place she was not really in a public place.
Second, there is a difference between taking a photo of Naomi Campbell coming out of rehab centre – that is, in a public place – and publishing, say, transcripts of her sessions inside.
Third, I did not talk about the ‘right to gossip’, a bizarre right indeed. I have talked many times of the right to free speech. I, like many people, am using the word ‘gossip’ to refer to journalistic information that I do not deem newsworthy. This distinction between news and gossip is a very old one. One of the most cited articles on that distinction is by Warren and Brandeis published in the Harvard Law Review in 1890 (and they incidentally, take a different view on this issue than I do).
And, finally, yes, I do think that issues such as Mitterrand’s cancer are, in the moral sense, a private matter.
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Your comment “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.” is interesting because, as I understand it, many of the rulings that shaped our libel laws and continue to shape our privacy laws come from a single judge, Mr Justice Eady. I accept the principle that courts interpret the laws set by Parliament, and I do not wish to criticise Mr Justice Eady. What I do criticise, however, is a system that allows a single judge to almost monopolise high-profile libel and privacy cases and so allows one judge to effectively develop a privacy law. There are many judges in England who no doubt have slightly different interpretations of the law – by sharing high-profile cases randomly amongst these judges we get better and more robust case law.
Parliament has just conducted a review of libel law, and is to set up a committee to look at privacy law. But perhaps neither of these reviews would have been necessary if the system did not allow a single judge to monopolise important cases.#