Courting censorship

‘Privacy and the Media – the Developing Law’, a new booklet published by a group of UK barristers, presents itself as a practical guide to the current legal situation surrounding free speech and privacy.

In a foreword to the 144-page publication, Lord Justice Sedley states that legal ‘practitioners should help the courts…to tease out the principles to be applied to ever-new facts’.

But this booklet represents a more significant signpost to establishment thinking on free speech and privacy rights than its humble introduction makes out.

‘Privacy and the Media’ is authored by the Matrix Media and Information Group (1). This includes barristers from Matrix Chambers, a barristers’ chambers that specialises in human rights law and whose personnel includes Cherie Booth, wife of the UK prime minister; Hugh Tomlinson QC, co-author of The Law of Human Rights; Ben Emmerson QC, author of Human Rights Practice; and Rabinder Singh QC, author of The Future of Human Rights in the United Kingdom.

These influential lawyers argue for a new interpretation of the developing law on privacy and free speech. The authors wish to codify and clarify where privacy and free speech rights begin and end. In the words of the booklet’s editor: ‘We all share the view that the time has arrived when the common law must take a decisive step forward in defining the limits of a new tort of invasion of privacy.’ (2)

‘Privacy and the Media’ is the result of years of work by human rights lawyers interested in giving people more legal rights. These lawyers are advocates of the Human Rights Act (1998), and seek to clarify the law on the right to privacy (article 8) and the right to freedom of expression (article 10). They wish to push the law in the direction they claim it is heading in already.

In practice, however, their proposals to develop the law in the direction of a new tort (or civil wrong) would mean further censorship.

Technically, the Matrix Chambers’ proposals would mean that for the first time individuals could claim damages from other individuals if their privacy was invaded by what another person writes about them, under a specific tort of invasion of privacy. Damages for the tort of ‘breach of confidence’ can be claimed already. However, there is a legal technical problem with cases relating to privacy disputes brought to court as a breach of confidence.

The booklet illustrates this problem through the example of a person who takes a surreptitious photograph of another person in a hospital bed. Under the law of confidence, the patient would need to show that the photographer was under an agreed duty of confidence before bringing a case against him on the grounds of intrusion into privacy (as is the case between doctor and patient, for instance).

Clearly, on the face of it there is no such duty; the individuals don’t even know each other. But what the courts are tending to do is establish a ‘deemed’ obligation of confidence by the intruder anyway. For example, as the Court of Appeal noted in the 2002 case of the footballer who brought a case against a tabloid newspaper to stop details of his extra-marital affairs from being published, a duty of confidence arises in a situation where a person ‘knows or ought to know that the other person can reasonably expect his privacy to be protected’ (3).

‘Privacy and the Media’ claims that the courts should no longer rely on such ‘legal fictions’ – establishing a ‘deemed’ obligation where the parties do not know each other. Instead they propose that the courts recognise a specific tort of invasion of privacy because the courts are doing this in everything but name already. This new tort would confer a duty upon the person accused of privacy invasion not to invade the privacy of patients in hospital, for example.

Yet criminal laws already exist that could deal with this kind of situation. Inventing a new civil wrong on privacy invasion in cases involving physical intrusion on to private property, in the way the booklet proposes, seems scarcely necessary. Moreover, in making such proposals, the Matrix Media and Information Group is doing more than merely clarifying the law. It is arguing to change it, tipping the balance further away from freedom of speech.

In framing the definition of ‘freedom of speech’, the Matrix Media and Information Group betrays a one-sided attitude. It views free speech as an issue primarily of concern to the media, rather than a democratic right that is crucial for every person in society. Implicit in the booklet’s title is the notion that there is a conflict between the privacy of individuals and the free speech of the media. And in seeking to prevent the media from somehow abusing free speech, the main focus of the booklet is on new forms of regulation.

‘Privacy and the Media’ is littered with references to the importance the authors give to free speech rights. The chapter ‘Defences to invasion of privacy claims’ argues that free speech must have defences under a new tort, and that privacy rights are not clearly defined enough within case law or the law of confidence. Consequently, the authors argue that we need a new tort on privacy invasion that clearly defines privacy rights, and stipulates the defences allowed for free speech.

The legal defences for free speech proposed by Matrix lawyers are: ‘1. Public Domain; 2. Consent; 3. Public Interest; 4. Immunity; 5. Lawful Authority.’ (4). These categories would cover most reportage. But what about the speech that does not fall into these neat boxes – the contested speech, the grey areas? This is the difficulty with the privacy debate, and as is clear from the Matrix pamphlet, it cannot be resolved simply by creating legal defences to privacy claims.

The problem is a political one, deriving from the assumptions behind the need for a new privacy law. It is assumed today that people’s emotions need legal protection – that they need to be protected from offence and emotional distress. And it is assumed that privacy invasions cause distress, and that victims need compensation for this.

The Matrix Media and Information Group begins its booklet by referring to other countries which have an invasion of privacy law relating to publication of private information that is ‘unreasonable’ (5) and ‘offensive and objectionable’ (6), and relating to invasions of personal space causing somebody to be ‘psychologically overtaxed’ (7).

The Group also cites UK parliamentary bodies that, in the past, have considered how a new law could recognise invasions of privacy that included the publication of personal material that is ‘harmful or embarrassing’ (8). In July 1993, for example, a consultation paper by the Lord Chancellor defined an invasion of privacy in terms of its emotional impact where it caused ‘substantial distress, provided that such distress would also have been suffered by a person of ordinary sensibilities in the circumstances of the complainant’ (9).

Taking such definitions of harmful privacy invasion as its starting point, the Matrix Media and Information Group concludes that a new tort should be made up of three legal elements: ‘an intrusion; into a person’s private life; which is highly offensive to a reasonable person of ordinary sensibilities.’ (italics added) (10)

The Matrix Media and Information Group does not explain why free speech should be limited out of concern for somebody’s feelings. It assumes that this should be the case, on the basis that other countries have laws framed in this way, that UK politicians and lawyers have framed a proposed law in this way in the past, and that some people do find some speech about them offensive, and therefore need legal protection.

Yet just because the arguments for a privacy law have already moved in such a direction does not mean that the assumptions behind them are right. There are serious problems involved in restricting free speech on the grounds of offence, or emotional damage.

For one thing, speech is often offensive – indeed, sometimes that is the whole point. For example, following reports that the BBC wishes to vet all its reporters’ press articles pre-publication, John Simpson, the BBC’s world affairs editor, used his Sunday Telegraph column on 14 July 2002 to ask the rhetorical question: ‘What’s the point of writing a column, if it doesn’t make somebody wince?’ (11) Something is always likely to offend somebody somewhere. That doesn’t mean it should be banned.

The idea that privacy and free speech legislation should be developed to penalise what ‘a reasonable person of ordinary sensibilities’ believes is ‘highly offensive’ echoes the current English libel law. In libel cases, ‘in deciding what words mean for the purpose of defamation, the intention of the writer or speaker is largely irrelevant. The test is the effect on the ordinary reader, who is endowed for this purpose with considerable wisdom and knowledge of the way of the world’ (italics added) (12).

Unlike the libel laws, the privacy law proposals place the onus on the complainant to prove a privacy intrusion. But this nonetheless means that one individual’s sensibilities can determine what others can and cannot say, watch or read. Worse still, the fact that the published material is true is irrelevant to a privacy action. At least libel law is intended to prevent publication of a falsehood.

The authors of ‘Privacy and the Media’ acknowledge that the question of what somebody believes is offensive is open to interpretation. Yet they distinguish between ‘borderline’ cases of privacy intrusion and ‘highly offensive’ cases as if these delineations were obvious. For example, they claim that ‘the publication of a trivial item of personal information’ is a ‘borderline’ case. Yet what is ‘trivial’ to one person may be highly personal and meaningful to another. This is why it is difficult to offer clarity of any sort on privacy legislation relating to free speech, despite the numerous attempts by judges and lawyers to do so.

In arguing the case for a new tort based on protecting people’s emotions, the Matrix lawyers tip the ‘balance’ between the right to freedom of speech and the right to privacy, in favour of the latter. The pamphlet argues that neither right has ‘automatic’ priority over another and that the ‘balance will be struck differently in different types of case.’ (13) These proposals assume that judges are the best arbiters of what counts as allowable speech. But why should the courts decide when the ‘balance’ should be tipped against free speech at all? Why shouldn’t the decision about what should and should not be published be taken on the basis of editorial merit, rather than a concern not to offend?

The idea that a democratic society needs a free flow of information, without judicial interference, is not fully considered by the Matrix Media and Information Group. The lawyers’ narrow focus on clarifying the scope of privacy law (which can be used to limit free speech) and free speech law (to give the media guidelines on what they can or can’t publish or broadcast) comes from a fundamental misunderstanding of the meaning of free speech.

At first sight, it could appear that the authors of ‘Privacy and the Media’ are concerned with tightening up the law to make privacy cases more difficult to bring against the media. The Matrix Media and Information Group claims that, in clarifying the law, it wants to raise the legal threshold that complainants must use to prove they have suffered from an invasion of privacy.

Complainants could no longer rely on the existing vague definitions offered under the existing law (where case law has developed in a confusing fashion) to allow them to bring a case against a journalist on the off-chance that they might succeed. Rather, the complainant would have to show that the privacy invasion was ‘highly offensive’, and be satisfied that the defendant had no grounds for defence as stipulated under the new tort.

But free speech cannot be protected through setting clearly defined limits to what can or cannot be said – however generous those limits might seem. The right to free speech is either an inalienable right or it is no right at all. Free speech is so intimately connected to our thoughts and feelings that to limit off any area, however small, is to make all speech guarded, and unfree.

The authors of ‘Privacy and the Media’ have a final argument as to why free speech requires further codification in law – or, to put it another way, why privacy needs more legal protection from free speech. They write: ‘If a party to a private conversation is able to publicise its contents this, in turn, is likely to inhibit the freedom of expression of parties to private conversations.’ (14) This peculiar formulation presents limiting freedom of speech as a way of protecting it.

Of course, if you know somebody will repeat everything you say over the dinner table to the News of the World it will probably put you off the person, dinner, the News of the World, or all three. But in turning the issue of free speech and privacy into an issue of private discussions between people and the possibility that these might be made public by an eavesdropping media, this evades the key issue of free speech rights: namely, the role of the state.

The Matrix lawyers fail to address the crucial reasons why human rights law was intended to protect an individual’s right to privacy from the state rather than from another individual. Although they refer briefly to the importance (emphasised by the European and English courts) of free speech to a democracy, the appreciation of the disproportionate power of the state and the threat this poses to individual liberty is missing from their analysis. Instead, they talk about ‘modern conditions’ and ‘ever-new facts’ that somehow require a new law (rather than a non-legal solution) to allow individuals to stop the free speech of others.

It is worth going back to the original human rights law regarding privacy. In 1951, Western European nations signed the European Convention on Human Rights. Its aim was to protect individual rights such as freedom of expression or privacy from state interference following the experience of fascist regimes and the emergence of Communist regimes in Eastern Europe.

Article 10 on Freedom of Expression stated that: ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.’ Article 8 on the Right to Respect for Private and Family Life stated that: ‘Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right.’ (italics added) (15)

The Convention included situations when rights to free speech or privacy could be limited by the state, such as in the interests of national security. But the focus was on preserving individual freedom from state intrusion.

Today, however, as exemplified by ‘Privacy and the Media’, most of the focus of discussions on privacy rights tends to be to do with individuals (especially journalists) who invade the privacy of other individuals. The ‘modern conditions’ and ‘ever-new facts’ to which the Matrix lawyers refer really only reflect the growing acceptance that intrusions into individuals’ privacy by other individuals should be considered on a par with intrusions into private life by the state.

The way the Human Rights Act (HRA) of 1998 has been written, and the way judges are interpreting it, has led to a widening remit of the state’s control over free speech, in the name of protecting individuals’ privacy. And indeed, Matrix Chambers’ proposal of a tort for privacy invasion (as opposed to any other kind of law) reflects this growing emphasis on individuals. As one legal academic defines it: ‘A tort is a civil wrong in the sense that it is committed against an individual (which includes legal entities such as companies) rather than the state. The gist of tort law is that a person has certain interests which are protected by law.’ (16)

The booklet’s authors do make a distinction between intrusions of privacy by the state, and such intrusions by individuals. They mention that ‘it is important to distinguish between the right to be free from unwarranted state interference (what might be called “the human right to privacy”) and the private law tort of invasion of privacy. The latter has a much narrower range’ (17). Yet cases involving individuals (or the media) invading people’s privacy is taken as just another category (albeit an important one) alongside those to do with ‘public authorities’ – namely, the state.

Hugh Tomlinson QC, editor of ‘Privacy and The Media’, notes: ‘On the one hand, the centrality of freedom of expression to a democratic society has been properly and repeatedly emphasised in both Strasbourg and, more recently by the English Courts…. On the other hand, the increasing invasion of the private sphere by government and media has led to a strong trend of public opinion in favour of the protection of privacy.’ (18)

Lord Wakeham, former chairman of the Press Complaints Commission (PCC), is quoted as saying the ‘main concern is not whether we should protect individual privacy, but how?’ (19). Surely a better question, in terms of the law, is not whether we should protect individual privacy, but from whom?

Matrix Chambers’ Matrix Media and Information Group is attempting to chart the ‘developing law’ on privacy and free speech, and in doing so it touches on some very real dilemmas. Unfortunately, its solution to these dilemmas is in the sphere of law – and in charting the ‘developing law’, it proposes developing the law around greater restrictions upon free expression.

Even for lawyers, it does not always follow that developing the law is bound to be the best solution to political and cultural problems. To rely upon a legal framework in this way evades the more challenging responsibility of seeking non-legal solutions. It’s time for everybody to look at resolving new questions to do with free speech and privacy in the court of public opinion.

Tessa Mayes is a contributor to The Sunday Times and an investigative TV journalist. She is the author of Disclosure: Free Speech and Privacy After Diana (1998, The LIRE media group’).

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spiked-issue: Privacy

(1) See the Matrix chambers website

(2) ‘Privacy and the Media – the developing law’, Matrix Media and Information Group, (Matrix Chambers, 2002), p3

(3) ‘Privacy and the Media’, p8

(4) ‘Privacy and the Media’, p36

(5) Restatement of the Law of Torts, USA, ‘Privacy and the Media’, p12

(6) From tort of invasion of privacy in New Zealand common law, ‘Privacy and the Media’, p13

(7) German Constitutional Court, ‘Privacy and the Media’, p24

(8) ‘Protection of Privacy Bill’ proposal in the ‘Privacy and Media Intrusion’ report, National Heritage Committee of the House of Commons, ‘Privacy and the Media’, p13

(9) ‘Consultation Paper’, Lord Chancellor, July 1993, ‘Privacy and the Media’, p14

(10) ‘Privacy and the Media’, p14

(11) ‘The truth about me and BBC censors’, John Simpson, Sunday Telegraph 14 July 2002

(12) Media Law, Geoffrey Robertson QC and Andrew Nicol QC, Penguin Books, 1992, p49

(13) ‘Privacy and the Media’, p16

(14) ‘Privacy and the Media’, p17

(15) Quoted from European Human Rights Law, by Keir Starmer, Legal Action Group, 1999

(16) Law of Tort, John Cooke, Longman, Pearson Education Ltd, 2001, p3

(17) ‘Privacy and the Media’, p11

(18) ‘Privacy and the Media’, p2

(19) Lecture given by Lord Wakeham on 23 January 2002, ‘Privacy and the Media’, p2