News is what someone somewhere doesn't want published. All the rest is advertising,” said newspaper baron Lord Northcliffe. But there are a lot of people out there who do not want the public to know their business and want the existing law extended as well as new, tough privacy legislation.
The curtailment of the principle of the freedom to publish is a high priority for many in Parliament, and even some in the press. The subject of particular criticism is the paparazzi, those photographers with telephoto lenses who shadow the lives of the rich and famous.
Pictures of the Duchess of York, Sarah Ferguson, and John Bryan, her financial adviser, frolicking by the poolside in the South of France may have entertained a large chunk of the tabloid-reading population a few years back but she successfully sued the photographer for substantial damages in France for breach of privacy.
In England the Duchess recently obtained a temporary injunction against the publishers of the book Fergie: Her Secret Life, written by her former friend Dr Allan Starkie. On the eve of the trial she gave up, discouraged by Mr Justice Astill's ruling that the Duchess had to pay £500,000 into court as security for Dr Starkie's costs, and the book publication went ahead. Her desire for privacy about her private life did not, however, dampen her enthusiasm for publishing her own memoirs. US publishers Simon & Schuster paid handsomely for the rights to her autobiography.
Diana, Princess of Wales, also used the law to strike back against her tormentors; she obtained an injunction against photographer Martin Stenning who was banned from going within 300 metres of her. The effectiveness of his possible counter-arguments to the court ban were, however, rather diminished by the fact that shortly afterwards he was jailed for 12 weeks for throwing a brick through the window of a car.
The Princess believes that she is acting not just for herself but for other paparazzi victims. According to her solicitor, Anthony Julius: “She hopes that as well as alleviating her own distress, this will highlight the destructive effect of persistent harassment on women's lives.”
The trials and tribulations of the victims of stalkers, whose privacy is invaded by members of the public rather than the press, received enormous prominence over the summer of 1996 and it seems that legislation will follow to offer more protection. In September restaurant manageress Margaret Bent wept when a jury found her stalker not guilty of GBH and affray. He had plagued her since 1992. The court heard how the stalker, Dennis Chambers, 37, had followed her home, hung around her restaurant and telephoned her up to 10 times a day. He even barricaded her into her office on two occasions. But the jury decided that Bent had not suffered serious psychiatric damage as opposed to “mere emotional distress”.
But new laws to prohibit such unsatisfactory behaviour could put constraints on the press pack when pursuing a breaking story, be it a “bonking bishop”, Parliamentarian's peccadillo, or a matter of real public interest and importance. Home Office Minister David Maclean's proposals to stop stalking include a new criminal offence of causing harassment, alarm and distress, whether or not this was intended. paparrazi beware!
There is further potential risk to the “right to know” from the expanding powers of the Data Protection Registrar. The chairman of the Newspaper Publishers Association, Sir Frank Rogers, fears that the Data Protection Registrar, Elizabeth France, “wants to be Britain's privacy commissioner”. This is because of her perceived interpretation of a new European directive which, for the first time, guarantees citizens “their right to privacy with respect to the processing of personal data”. The DPR is able to interpret and enforce generalised principles – such as “data shall be collected fairly” – with some fearing that those determinations could be enshrined in law unless challenged by the media and its advisers.
Should the European Union Data Protection directive (95/46/EC) be implemented in English law there is a risk that celebrities will be entitled to demand access to the databases of journalists and even biographers (some of whom sensibly choose to wait until the subject is safely dead before publishing), which would limit the sort of information it would be prudent for a journalist to amass. Authors of obituaries beware!
The worry is that a well intentioned allowance of access to personal details will eventually result in the public having less information upon which to form its judgements. And such restrictions could have surprising results. Universities are concerned that the directive will deprive them of the use of the confidential references upon which they rely to pitch their offers of places to students.
When, in 1998, the rules on data protection are introduced students can inspect their schools' references, which are presently exempt. Are students litigious? Law firm Martineau Johnson has about 60 educational institutions as clients and the education department's workload has soared by 500 per cent in four years. An ex-student recently received £30,000 damages after claiming that he was bullied at school. Headmasters beware!
Despite the passing of the new, more friendly, Defamation Act 1996 (much of which is not yet in force) the potential costs of libel actions remain another discouragement to the free flow of information.
Soon, perhaps, only those with access to the unregulated Internet will get to hear what “they” do not want us to know. News reporting may increasingly be muzzled by accountants fearful of spiralling legal costs and replaced by sanitised celebrity gossip, or the utterances of smooth publicists or cunning spin doctors.
If our access to news is to be restricted by well intentioned anti-stalking and anti-paparazzi laws, privacy commissioners, or subject to spin doctoring, we may no longer be able to rely upon the wisdom of 1930s journalist Claude Cockburn: “Never believe anything until it has been officially denied.” Important stories such as “cash for questions” in Parliament may no longer be published. Perhaps we had better all beware.