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