Post-Mosley, free speech is still the loser

Yesterday, the European Court of Human Rights (ECHR) delivered its verdict on a case brought before it by Max Mosley, former head of Formula 1 motor racing. Having found himself the subject of a tabloid exposé involving prostitutes and allegedly Nazi-style uniforms in 2008, Mosley had been demanding that, in accordance with the so-called right to privacy, the media should be legally forced to notify people in advance about any story due to be published in which they feature – a move that would probably lead to a surge in free-speech violating injunctions. So when the ECHR rejected Mosley’s case, my immediate response was one word: Good.

After all, who wants judges armed with injunctions deciding what we the public can read or talk about? Why shouldn’t a woman organising a kinky orgy with a Formula 1 chief tell people about it? If someone wants to let others know that they’ve had sex with a well-known actor, why should judges have the right to stop them? And what’s so bad in gossiping about an heiress-turned-Wikileaks campaigner who was wrongly said to have shagged a TV presenter? Having a good laugh about what other people allegedly get up to is not a crime.

So it is good that Mosley’s case has been chucked out. But let’s not get too carried away just yet. As we’ve recently become all too aware, British judges have been frequently serving injunctions, superinjunctions and hyperinjunctions for some time now – ruling against freedom of expression in the name of protecting an individual’s privacy. Breaching one of these injunctions could land you in prison for two years. Who needs the European courts to censor what we talk about when we’ve got our own High Court doing it anyway?

These injunctions do nothing to stop us gossiping. If anything, they make matters worse. But not, as Stephen Glover argues in the Daily Mail, because ‘rogues’ on the internet publish whatever they want regardless of both the truth and court bans. The technology here is irrelevant. Gossip and lies have always spread like wildfire. The phenomenon of ‘tittle-tattle’ was in existence long before the internet.

No, the real reason bans make gossip worse is that they excite our curiosity. The merest whiff of something so scandalous that it has to be kept secret is far more enticing than the actual scandal itself. Remember, it’s just people’s sex lives we’re talking about here – not state secrets. Nobody is really being harmed when we reveal the truth about people’s sex lives. If there’s any harm done, it was by the personal choices of those involved, not the act of talking or writing about it.

This is why preventing us from talking about a celebrity’s sexual shenanigans doesn’t really make sense. With state secrets we can accept that there are sometimes good reasons for keeping facts hidden, such as not wanting to start a Third World War or ensuring that Osama bin Laden gets shot dead without a hitch. But what are the good reasons for keeping people’s sexual infidelities secret? There is no great fallout from endless gossip about what married politician X got up to with secretary Y aside from some hurt feelings and a few red faces.

Moreover, in a liberal age, reputations are rarely damaged by an exposé of what so-and-so got up to in private. Look at former US president Bill Clinton. He had an affair with an intern, recounted in a staggering amount of detail, and his approval ratings actually went up. In the West we no longer live in an era where virginity is prized and adultery is considered abnormal and an automatic reason for job loss or marriage breakup. When married public figures are wrongly accused of having sex with somebody, few morally judge them. And plenty more just have a good laugh or turn the page. This is 2011, not 1811.

What is worrying, however, is when talk about sex lives is banned. In this sense, we do seem to be entering a new Victorian era, in which banter about others’ sex lives is treated as a special kind of talk that can only be conducted behind closed doors. It is as if we have to pretend we have nothing to say on the matter. This is perverse. Of course we do.

Even worse, by whipping us all into conversational line, delineating what we can and can’t talk about, judges infantalise us. Instead of being treated as the relaxed adults we actually are, we are given the role of little schoolboys who have to sneak peeps over high legal walls to know what’s going on. No wonder some of the 200million Twitter users snigger endlessly about this stuff. Who wouldn’t when the online round-robin rumour exchanges are akin to sticking up two fingers to the headmaster?

To cultivate a private sphere, we don’t need to ban talk about people’s private lives; we need to challenge cultural apathy and reinvigorate public life and ideals. We need to generate a vibrant, open culture in which other people’s sex lives are not taken so seriously that talk of them has to be banned.

Tessa Mayes is a writer and film director. She is the author of Restraint or Revelation? Free speech and privacy in a confessional age. See her website here.