NEWSPAPER lawyers have warned that a new privacy law expected this month will lead to justice “behind closed doors”.
They say decisions on the strength of privacy claims and press defences of public interest are likely to be made by judges in chambers rather than juries in open court.
Problems for newspapers in future injunction hearings could force them to publish more risky stories first and air their public interest defence later in open court, rather than alert individuals in the stories by approaching them for comments, they say.
Arthur Wynn Davies, Daily Telegraph legal manager, says: “The courts are going to gag newspapers and stop them publishing the truth on the basis of what one judge thinks is in the public interest. It's going to be a system of law operating largely behind closed doors.”
He adds: “This is going to be a nightmare affecting the widest-possible range of media, even book publishers.”
Arthur Davidson QC, of 1 Pump Court and Fleet Street Lawyers Society chair, warns the definition of privacy is very “elastic” and so procedures could become more technical and cumbersome.
Newspaper Society senior lawyer Santha Rasaiah says: “Privacy law could be a very powerful tool of prior restraint. The industry is extremely concerned.”
Peter Preston, editor-in-chief of The Guardian and The Observer, says privacy laws cannot be introduced on a piecemeal basis but rather, should be accompanied by adoption of a Freedom of Information Act and the European Convention on Human Rights.
“This is secret law and secret prior restraint. I remain very interested to see what evidence the government will produce for going down that road, if they do,” he says.
Newspaper lawyers anticipate privacy proposals forming the backbone of a government White Paper, which the Department of National Heritage says will be published in the next few weeks.
The paper will draw on three 1993 sources: the Heritage Select Committee report on press intrusion, David Calcutt QC's Privacy Committee, and the Lord Chancellor's plans for reform.
Details of the White Paper are not yet known. However Jonathan Caplan QC, chair of the Bar Council's privacy working party, says the Government needs “a mechanism to severely hit newspaper proprietors in their pockets for gratuitous invasions of privacy – either some form of arbitration proceeding, tribunal or court”.
BILL'S MAIN PROPOSALS
Government reshuffles permitting, the White Paper on privacy law is planned for publication in the remaining weeks of this parliamentary session, in readiness for the Queen's Speech in November.
A Protection of Privacy Bill for England, Wales and Scotland, proposed by the Heritage Committee, is expected to be central to the White Paper.
Other possible proposals from that committee may include an extension to the public's right of access to information and legislation on the breach of confidence within the Bill.
Extension of legal aid was proposed for defamation and all privacy proceedings, as was replacing the Press Complaints Commission with a Press Commission and arming it with tougher powers to fine and award compensation, and a press ombudsman.
David Calcutt QC's proposals for criminal offences for intrusion and surveillance, which the Bar Council regarded as unfairly focusing on journalists and missing the proprietors, could be included. His proposed statutory complaints tribunal was widely criticised from all sides and is likely to be dropped.
Lord Mackay's proposals included the abolition of the Scott v Sampson rule preventing defendants from proving specific discreditable acts in mitigation of damages.