Privacy law: is Max Mosley right?
For those whose privacy is invaded, the phrase “Freedom of the Press” is no more compelling than “Freedom of the State”.
Both the Press and the State are capable of doing great good; the effective functioning of both is fundamental to a modern democratic society. However, the Press and the State are both also capable of intruding needlessly into the lives, communications, and personal space of private individuals.
But to take privacy seriously means not starting with the rights of the Press or the State, nor with the interests of the nosey neighbour, the presumptuous council official, or the tabloid reader. It means starting with the private individual, and working outwards to engage with those who wish to intrude into that individual’s private life.
At least, that is what one should do if privacy law is to be taken seriously, especially as we now have the Human Rights Act 1998, which (supposedly) incorporates Article 8 of the ECHR into English law.
However, it is arguable that modern English privacy law did not start with the Human Rights Act 1998 but instead on 13 February 1990, when two Sunday Sport reporters gained access to the hospital side room where the actor Gorden Kaye was recovering from serious head injuries.
The reporters purported to interview him, and took photographs with a flashlight, but Mr Kaye was in no fit state to be interviewed. The reporters refused to leave when asked by a nurse, and so they were ejected by security staff.
The Court found that there was nothing – nothing at all – they could do directly in respect of this invasion of privacy. Some say that the reaction against this predicament has informed the development of English privacy law ever since.
One could perhaps even “freeze frame” when the two reporters burst through that side room’s door on Ward G of Charing Cross hospital, and say that was the very moment the modern law of privacy was born.
However, that conclusion may be incorrect. For the development of the law of privacy since the taking effect of the Human Rights Act 1998 has actually done very little to directly protect the personal space of any individual, even in Mr Kaye’s position.
Indeed, in Wainwright the House of Lords held there was no tort of privacy in English law: requiring a person to undergo a strip search did not, as a matter of general principle, infringe any rights of that person.
And it remains the case that an invasion of privacy by itself is not actionable; an expectation of privacy does not by itself give one a right to privacy. The Courts have instead developed the equitable doctrine of confidentiality so as to also deal with a “misuse of private information”.
The intrusion which resulted in the private information being acquired in the first instance appears to still be beyond the grasp of the law of privacy.
So to return to our Sunday Sport reporters, one must “fast forward” on from their intrusion and ejection, and on to their filing of copy and the subsequent publication of their “exclusive” interview and photograph to get to the point where the current law of privacy would now bite. For it would only be at this point that the private information is “misused”.
But even in this limited way, does the emerging law of misuse of private information work in a satisfactory way from the point of view of those whose private space has been invaded?
Once the private information is made public there is nothing that the law can do to make that information private again.
It is beyond the power of any injunction; and damages are hardly a satisfactory remedy. A Court cannot even arrange for some possibly cathartic event – like the “vindications” supposedly meted out in defamation cases – to do justice in respect of the breach of an individual’s privacy rights.
If the law is to have any role in protecting privacy - and on this views do differ - then it must be able to prevent the misuse of private information before it occurs; and in respect of publications, this would mean the possibility of prior notification and restraint.
The individual whose privacy is about to be invaded by means of publication would be allowed an opportunity to get an injunction to prevent this happening.
In this respect, Max Mosley is seeking to use his well-known case to push the European Court of Human Rights towards ruling in favour of such notification; against him is an array of publishers and journalists fearing an undue limitation on the Freedom of the Press.
Their worry is that should prior notification become the norm, then the definition of private space would be expanded by claimant lawyers, and information which should be in the public domain will not be, simply because the rich and powerful will be able to block such publication in advance.
The challenge for those urging the development of privacy law towards prior notification is to address these serious concerns about how it will affect free expression.
But equally, the challenge for those resisting such a development is to explain how - if at all - the law is supposed to protect the privacy rights of individuals, for if it is really at the fiat of a newspaper editor, this surely means the law has no practical role at all.
At a time where there is legitimate concern as to the intrusive practices of tabloid journalists, a simple resort to the rousing phrase of the Freedom of the Press may not be enough to win over an objective observer, or a single European judge.
And so the questions are these: is Max Mosley wrong on prior notification and restraint? And, if so, does that mean that the law on the misuse of private information is to have no practical effect?
Allen Green is the author of the Jack of Kent blog
Readers' comments (8)
Sam Cook | 9-Mar-2010 12:50 pm
It seems that there should almost be a 'super-editor' (or judge etc) who the press are obliged submit stories to, this 'super-editor' then rules whether the information is public interest or not, in case of a refusal the person who the information relates to is then informed and may argue against the ruling.
This way the person's privacy is protected but they can't just dismiss anything to do with them.
All that being said I expect it will be very difficult to balance this properly and fairly.
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Kate | 9-Mar-2010 12:53 pm
Or can individuals' privacy and press freedom only be preserved by the law intervening at an earlier stage i.e. when private information is accessed, rather than at the point it is misused?
Taking your example of Gordon Kaye, wouldn't we want the law to recognize that his privacy was invaded as soon as those reporters went into his hospital room and took photos, whatever use they made or didn't make of them afterwards? I wonder if the difficulties you point out in applying the current law on privacy to any practical effect suggest that the law in this area is flawed.
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Nick Sharratt | 9-Mar-2010 3:11 pm
It seems to me that the reason there is no public outcry (and hence will) to curb the excesses of the press inflicting their harsh light of publicity on people is the pervasive atmosphere of celeb gossip and tittle-tattle which is often in partnership between the press and publicists.
We have been desensitized to pictures of scandalous revelations and of the most intimate nature (celebs getting out of cabs with photographera litterally in the gutter) that we no longer react to the outragousness of this behaviour and instead see the gossip and scandal as 'news' with some moral justification as a result.
The mores of society of shifted such that the focus of disdain is on the celebs 'revealing themselves' in public rather than the peeping Tom behaviour of the photographer, publisher and reader of such dross.
Because society now accepts such low behaviour without question, the 'press' feel able to apply the same approach even more invasively.
While there is a market for such stories there will be people willing to stoop low enough to give it to them. You won't change that with laws, that would just make the stories more tittilating and financially rewarding - see prohibition.
You're dealing with human instinct and desire for gossip as a social animal and while society accepts that such stories are acceptable, it will continue, and as it's always existed in some form throughout human history, chances are it will continue indefinately.
So, the law can only seek to mitigate it and will not prevent it. It's about shifting the market forces, so if the press were suitably financially impacted when they crossed a line (wherever that is drawn) then their behaviour could be curtailed.
So, where should that line be? IANAL and take the 'reasonable expectation of privacy' as where we are now and that would feel about right to me.
Could Max have a reasonable expectation of privacy? Definately (unless activities were illegal and revealed through legal actions), so IMHO the papers carrying the story should recieved fines comensurate with the likely sales that running the story gave them - say 10% of a runs revenue or similar, with a requirement to also publish an equal profile appology.
And if that doesn't work to stem the issue, then I guess we have to lean to live with it - hell is oter people after all, and their intrusion into ones life includes their gawking when you'd prefer they didn't.
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Ade MacLeod | 9-Mar-2010 5:54 pm
The problem with requiring prior notification in privacy cases is that it amounts to press regulation by the back door. Parliament has continually shied away from press regulation because, no matter how outrageously our papers behave, it is better for democracy to have a free press.
Gordon Kaye did succeed in applying Malicious Falsehood to the Sport's story. This did not allow an injunction protecting his privacy, but at least he had a legal remedy.
Nothing short of armed guards will stop intrusion by a determined, malicious hack. And if we are to start regulating bad journalists' behaviour then we must recognise that we may also inhibit good journalists' free speech.
Perhaps because of our robust libel laws, UK newspapers seem unusually willing to take on the courts. One can certainly envisage a requirement for prior notification being unenforceable with the British press.
In any event, who is to decide which information should be withheld and which made public? Allen Green asks whether the decision should be left to newspaper editors in their small Italian cars but I would ask whether judges are in a better postion to make the call.
Prior notification makes an injunction more likely, the advantage being that damage to the individual is prevented. The advantage of a claim after publication is that justice can be seen to be done. Prior notification would make that less likely and less common.
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Dave Weeden | 9-Mar-2010 7:12 pm
Could you explain "the Human Rights Act 1998, which (supposedly) incorporates Article 8 of the ECHR into English law" for us non-lawyers. Either it does or it doesn't. And you've tweeted about lawyers using 'For the avoidance of doubt' - how can there be doubt about whether a law references another law? Not a rhetorical question: I really want to understand this.
I liked the bits I could follow, though.
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Anonymous | 9-Mar-2010 11:47 pm
Ade Macleod, I think you are perhaps confusing two things: the questions of (i) whether the courts should have the power to restrain publication (they already have) and (ii) whether a newspaper should be obliged always to inform the subject.
Daily Mail editor Paul Dacre told the Select Committee that in "99 cases out of 100" a newspaper will contact the subject before publication. So the Mosley case is merely that they should also have to contact the remaining 1%.
This would certainly be enforceable as are many legal obligations which the tabloid press dislike. The same applies to excluding "determined, malicious hacks".
The problem with a claim after publication is precisely that justice is not seen to be done - the claimant may win his case but even the Supreme Court cannot make the matter private once again.
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Anonymous | 10-Mar-2010 3:55 pm
The problem with lawyers! It really wouldn't be that difficult to present a common sense definition that determines the balance between the right to privacy and public interest. The problem being that wealthy and powerful individuals will always make use of obfuscations and points of detail to circumvent the spirit of the law whilst remaining tenuously within the letter, as indeed will the media.
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Anonymous | 12-Mar-2010 3:54 pm
A fascinating piece, but ah, would that we were having this discussion in the REAL world, as opposed to the bizarre realm inhabited by lawyers and publishers.
@Nick, the reason there is not a public outcry about privacy is WHO WOULD PRINT IT???? (or broadcast it). No organisation which makes money out of running stories would even cover the debate in anything more than a cursory manner.
Kate is right, the real intrusion occurs when the newspaper reporters burst into the hospital room of a seriously injured man not when the vile editors who agreed they should commit such an affront to common human decency.
The law is no help in this. As Dave pointed out, Article 8 either applies or it doesn't, help us out here.
Libel law is the province of the rich, the only ones who can afford to take action when their little press games go wrong (as Paul Dacre didn't say, the press tends to leave alone those who don't want to play the game at all, and considers the rest as fair game).
The real problem occurs when the privacy of a real, non-celebrity, human being is invaded and when the press trample all over their lives, offering money, telling lies, cajoling, pressuring and generally being thoroughly reprehensible in pursuit of a story. Once done, they move onto the next story, but the victim often suffers for years.
In an ideal world we would have a free press, whereas what we actually have is a mainstream press owned by right-wing billionaires (thanks to Iain Banks for that one) and a BBC too caught up in the phoney world of scoop-journalism to follow the real stories to conclusion.
Public Interest is precisely what the tabloids deem it to be, using the spurious argument that the public wants to read it, therefore we print it. Er, I think you'll find that a LOT of the public wants to (and does) smoke cannabis and snort cocaine, but oddly enough that's illegal...
Lawyers - paid by the media magnates or the spoiled celebs - will fall on one side of a fake debate or the other, but the real debate is, alas, on the sidelines.
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