Opinion: Privacy rulings don’t jeopardise investigative reporting
24 November 2008
18 November 2008
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7 April 2010
20 July 2009
Daily Mail boss Paul Dacre accused Mr Justice Eady of imposing a privacy law on the UK’s press. As a former journalist, now solicitor, I believe Dacre is off on a frolic of his own.
In his recent headline-grabbing speech Daily Mail editor Paul Dacre launched a stinging attack on Mr Justice Eady, accusing him of clandestinely imposing a privacy law on the UK’s press. As a former journalist and now a solicitor, I believe it is Dacre who is off on a frolic of his own.
Less than three years ago Lord Justice Sedley stated that “privacy – prominently but not solely private sexual activity, which sells so many newspapers – is something which our law does not yet adequately protect”.
Anyone reading tabloid newspapers recently could be forgiven for concluding that little has changed. However, there is no doubt that there has been a recalibration of the law since Sedley LJ’s damning assessment.
Dacre blames this development on one judge’s interpretation of the “wretched” Human Rights Act, as he calls it, and claims that this new law allows “the crooks, the liars, the cheats, the rich and the corrupt [to shelter] behind a law of privacy created by an unaccountable judge”. If this is really his concern, he need not worry.
For despite Dacre’s claim that one unaccountable judge running amok favours the right to privacy at the expense of freedom of expression, the reality is somewhat different. The rapidly developing law has only moved to redress an obvious imbalance. It is simply not credible to argue that the law inhibits the press from carrying out serious investigative journalism on issues of public concern. The law simply recognises now that the right to respect for private and family life is on an equal footing with the right to freedom of expression.
When deciding whether a legal right of privacy exists, the courts first ask whether there is a reasonable expectation of privacy, and if there is they then apply an ‘intense focus’ to the competing interests of freedom of expression and privacy. The courts 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 the private and family life of the person affected. It is important to note that the qualification of 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, Dacre argues that “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”. Dacre strongly criticises Eady J’s judgments for being “amoral” and concludes that “when it comes to morality, the law in Britain is now effectively neutral”.
Dacre is right on this point. The law is neutral, but that is exactly as it should be. In today’s society few would disagree that those engaged in sexual relationships with other consenting adults are entitled to expect that the details of those relationships will not be published to the world at large. It is not the role of the courts to act as an arbiter of taste, decency or morality.
In his speech Dacre revealed what many believe to be his real motivation for attacking Eady J – namely, that privacy laws were “undermining the ability of mass-circulation newspapers to sell newspapers in an ever-more difficult market”.
However, this concern is misplaced. The commercial incentive will always ensure that stories revealing scandal will be published. It is just that editors will have to use a little more ingenuity to establish that the story is in the public interest before publishing it. This may involve justifying publication by establishing hypocrisy or rule-breaking by the subject. As in all areas of the law, when one loophole begins to close, those with an interest in circumventing it will always find another way round.