Interview: Julian Petley

Julian Petley was interviewed as part of the spiked-report Restraint or Revelation? Free speech and privacy in a confessional age.

It’s still too early to deliver a judgement on the workings of the Human Rights Act (HRA) but the principle of balancing Article 8 (on privacy) and Article 10 (on free speech) against one another is a good one. Article 10 does appear to be giving the would-be censorious pause for thought, which has to be a positive development. It really can’t be stressed too strongly that Article 10 finally does make the right to free speech, however qualified, a reality for the first time in the UK, instead of just a rhetorical flourish.

Without a doubt, the tabloid press, and sometimes the broadsheet press as well, is too intrusive into the lives of ordinary people – especially when there’s an ideological axe to grind, as in the case of refugees and asylum seekers, for example. Ordinary people have absolutely no recourse against this kind of intrusion and bullying, and Article 8 should be developed by the courts in order to provide them with such recourse. On the other hand, a right to privacy should not be allowed to hinder proper investigative journalism, where the notion of a public interest defence needs to be further developed and strengthened.

Much of the British press has an extremely unpleasant habit of picking on and bullying the weak and defenceless whilst leaving the strong well alone – all in the name of ‘press freedom’, or even, God help us, investigative journalism. This is partly because it is hedged in by restrictive laws which the rich and powerful know full well how to exploit to their best advantage (the most obvious being the libel laws, which need urgent and thoroughgoing reform).

But, more importantly, it’s also because our press is not, for the most part, a ‘Fourth Estate’; many journalists may indeed believe that it is the function of the press to act as a watchdog over the Establishment, and even try to put those beliefs into practice in their professional lives, but the fact remains that the newspapers for which they work are deeply enmeshed both in big business and in the ‘Westminster village’ – and are thus themselves an absolutely crucial part of the Establishment, part of the well-oiled British machinery for preserving the status quo.

Examples of where a proper ‘Fourth Estate’ press would have investigated in the public interest are so legion that it’s hard to know where to begin. However, they would certainly have to include the agricultural conditions which gave rise first to BSE and then foot and mouth – before the outbreaks themselves finally made these conditions ‘newsworthy’; the Aitken scandal (left largely to the Guardian, which was actually viciously attacked by certain newspaper for ‘pillorying’ him); city scandals (in which the Mirror, far from acting as an investigator, itself became deeply implicated); the ever-widening poverty gap; climate change – before widespread flooding in the UK forced it on to the agenda; Enron – before its problems became so acute that even the press could no longer ignore them; the likely consequences of rail privatisation – before these gave rise to chaos and loss of life, and so on, and on.

Whether the media should treat the privacy of celebrities and public figures differently from that of ordinary people is a more difficult question than it might at first sight seem. On the one hand, since they are public figures, their lives are inevitably more in the spotlight than those of ordinary people. Furthermore they do, in many instances, have the financial means to sue newspapers, and they also tend to have the nous and the contacts to know how to deflect and discourage unwelcome attentions.

Equally, such people are frequently happy to make use of the media when it suits them, so they are hardly in a strong position to complain if the media make use of them when it doesn’t suit them. On the other hand – what of public figures, such as Anna Ford, who don’t court publicity, yet still find their privacy invaded by the media? And can it seriously be claimed that all intrusive stories about or pictures of celebrities’ private lives are genuinely in the public interest – as opposed to the financial interest of those publishing them?

Who should draw the line? In the case of the press, most certainly not the Press Complaints Commission, which simply represents the interests of the newspapers that finance it as an insurance policy against statutory regulation, and, like its paymasters, has recently turned itself into an organ of propaganda directed against the Human Rights Act. This should certainly be wound up forthwith and replaced with a genuinely independent body. In the case of television, the current regulators (the BBC Governors, ITC and BSC) all pay close attention to privacy matters, and, on the whole, do so quite well. Ultimately, though, these questions will have to be fought out in the courts, which only asinine and constitutionally illiterate British newspapers, blinded as they are by self-interest, could regard as ‘legislation by the back door’.

As every first year law student knows, the British courts have a law-making as well as a law-enforcing function, as we are seeing in the various cases concerning privacy and freedom of expression in which the Human Rights Act has been invoked. So far the courts have mostly struck a reasonable balance between the two, but more cases are needed before a workable body of case law can be built up. Thankfully judges have changed a great deal for the better in recent years; one certainly would not have wanted to trust the average judge with the HRA even ten years ago!

However, judges still need to be made much more accountable to and representative of the population as a whole, and legal anomalies such as the law lords (both law makers and law interpreters) need to be cleared up, as does the equally anomalous job of the Lord Chancellor. Only then will the HRA be in safe hands.

Julian Petley is lecturer in media and communications at Brunel University, chair of the Campaign for Press and Broadcasting Freedom, an editorial board member of the British Journalism Review and trustee of The PressWise Trust.

Julian Petley responded to a questionnaire organised by the LIRE media group.