Press freedom: it’s not trivial
Journalists should stand up for free speech - while questioning the media’s obsession with people's personal lives.
In April 2002, Lord Mostyn, leader of the UK House of Lords and a former senior judge, tried to calm fears that the guarantee of the right to privacy in the Human Rights Act is being used to undermine free speech (1).
‘If you look at decisions now, you will find that Article 10 [the clause that focuses on free speech] is firmly in the forefront of judicial thinking’, said Mostyn.
Free speech may well be in the minds of judges – and indeed, many judges in media cases stress how important free speech is. When then home secretary Jack Straw was arguing for the introduction of the Human Rights Act into British law (the Act was incorporated in 1998, and came into effect in 2000), he also expressed his support for free speech.
It seems that lords, MPs and judges are constantly banging on about free speech. But the more they assert their free speech credentials, the more hollow their pronouncements sound.
As recent cases show, free speech is being censored in the name of privacy under the Human Rights Act. This is not privacy legislation via the backdoor, but via the frontdoor – with the Human Rights Act being used to ‘balance’ competing rights, as intended all along.
In March 2002, two cases – Naomi Campbell v Mirror Group newspapers and A Premiership footballer v The Sunday People newspaper – showed the dangers of trying to balance a right to privacy with a right to free speech in the courtroom. In both cases, free speech lost out.
Such cases followed 18 months of legal and media wrangling after the introduction of the Human Rights Act in October 2000 (2). The Act contains a right to free expression (Article 10) and a right to ‘respect for private and family life’ (Article 8). After the act was brought in, many in the media adopted a wait-and-see approach to judicial interpretations of these ‘conflicting’ rights. But following recent court rulings, many journalists have found the outcomes confusing, claiming they have created more anxiety about legal restrictions on free speech.
In the case of Naomi Campbell v Mirror Group Newspapers, the supermodel won £3500 damages on 27 March 2002. The Mirror had relied on a source whose identity was unknown to journalists, but whom the court concluded must have been a fellow drug addict of Campbell’s or a member of her staff or entourage. This meant that the source and the newspaper had broken a duty of confidentiality – not by publishing the fact but the details of Campbell’s drug therapy.
Even though Campbell’s claim wasn’t for a breach of privacy, the court ruled that her privacy was protected under the law of confidence. For the first time, this law was expanded to take account of the right to privacy under the Human Rights Act. In addition, the court ruled that the Mirror had broken the Data Protection Act 1998, by collecting ‘personal data’ (in the form of surreptitiously taken photographs) on Campbell (3).
For anybody concerned about free speech, Campbell’s case is nothing to celebrate. Although the damages awarded against the Mirror were small, and it was shown that the newspaper had corrected lies Campbell had told about her drug addiction, her case established that:
a) a right to privacy within the law of confidence can be used to stop the publication of some details about a person’s private life if they originate from somebody in a confidential relationship with them;
b) surreptitious photography in a public street can be against the law.
By contrast, in the case of A Premiership footballer v The Sunday People newspaper, the Court of Appeal found in favour of free speech (4). On 11 March 2002, the Lord Chief Justice, Lord Woolf, argued that the courts should not ‘act as censors or arbiters of taste’, enabling the People to publish details of the footballer’s affairs with a lap dancer and a nursery nurse.
Yet although the People‘s case was hailed as a victory for free speech, it had some negative implications – namely, that the courts recognised a legal right of privacy that could override free speech. The phrase ‘a law of privacy’ may not have been used, but the court held that ‘where an individual is a public figure, he is entitled to have his privacy respected in the appropriate circumstances’.
Lord Woolf said: ‘Where the protection of privacy is justified…an action for breach of confidence now will…provide the necessary protection.’ As barrister Jon Holbrook wrote in The Times (London), this means that ‘the law of confidence was expanded so as to become a law of privacy in everything but name’ (5).
But the media have something else to worry about, as well as censorship. Free speech is important – but not everyone is interested in reading about the private lives of footballers, or the drug-taking antics of supermodels. There may be sympathy for journalists campaigning for free speech, but there are journalists who feel embarrassed that the kind of stories being defended are not particularly interesting or important.
Some journalists say that they will no longer support colleagues who are under threat of censorship because their stories are unnecessarily intrusive – agreeing with Lord Mostyn’s observation: ‘The press is sometimes its own worst enemy, with its over-concentration on trivia.’ (6)
The fact that public debate is increasingly concentrated on private life is problematic. The rise of personally orientated and confessional styles of journalism undermines broad-ranging and journalistic public debate – the foundation of a progressive, open democratic culture.
Perhaps alongside challenging any threats to free speech, we journalists should question why the media are so obsessed with trivia, tittle-tattle and private lives in the first place.
Tessa Mayes is a TV reporter and contributor to The Sunday Times. She is the author of Restraint or Revelation? Media freedom and privacy in a confessional age, forthcoming from spiked.
(1) Lords calm fears of press curbs, Guardian, 10 April 2002
(2) Human Rights Act: What the articles say, BBC News, 29 September, 2000
(3) ‘Law Update: Naomi Campbell v Mirror Group Newspapers’, Press Gazette, 5 April
(4) Footballer loses year-long fight for privacy, Guardian, 30 February 2002
(5) ‘Privacy law by the back door’, Jon Holbrook, The Times, 29 March 2002
(6) Lords calm fears of press curbs, Guardian, 10 April 2002
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