Privacy, free speech and the media: some conclusions
Part Nine of the spiked-report 'Restraint or Revelation? Free speech and privacy in a confessional age'.
Part Nine of the spiked-report ‘Restraint or Revelation? Free speech and privacy in a confessional age’.
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The reaction to our contemporary confessional culture has altered the meaning of free speech and privacy. The blurring of the distinction between the private and public realms of life is expressed as a confusion about how to legislate about, or otherwise codify, free speech in order to protect people’s feelings when they experience an invasion of their privacy.
The drive to present threats to our privacy as coming as much from other individuals as from state authorities has allowed the state to position itself as the benign protector of our rights. This limits our freedom to express ourselves, and our ability to defend our private lives from scrutiny by state institutions.
I have attempted to tease out the assumptions behind the new, modern interpretation of two rights that are said to require ‘balancing’, and to show how, in the process, both the freedom to speak and the freedom from state interference in the private sphere can be weakened.
Since Jack Straw, then Home Secretary, outlined his intention to make the European Convention on Human Rights (ECHR) enforceable in domestic law and ‘bring British rights home’, the notion of what a democratic right means has become more personal. Privacy means all things to all people these days. At worst privacy has become a code word for emotional ‘hurt’. This degrades the meaning of privacy, and inflates the power of words and images.
Individuals are presented as too emotionally sensitive to deal with unpleasant information that is placed in the public realm. Yet this is not generally the case. Insofar as people feel vulnerable to words and images, their perceptions are likely to be magnified by claims that all people need privacy rights to protect them from other people – especially, from journalists.
In the debate on free speech, a clear distinction needs to be made between two types of discussion – the quality and the regulation of speech. But today, low quality is often presented as a justification for speech regulation.
Supporting free speech means defending the right to speak independently from interference by public authorities, regardless of whether the speech can be seen as emotionally harmful, embarrassing, distressing or offensive to others. It does not mean that the content of what is spoken about is necessarily anything to celebrate. Speech may not be in the public interest – but nor should it be censored.
Despite regulators’ attempts to develop external restraints on people’s speech, these have not stopped the general rise of confessionalism and emotional reportage. Only by having the ability to develop in private what you want to say, and the freedom in public to say it, can public debate progress. For this we need freedom to express ourselves and communicate with each other.
The quality of public discourse can be improved: but this requires the absence of censorship, and the use of non-legal solutions. Freedom from state interference can be taken seriously without using privacy rights to censor what people say. Above all, freedom of speech should be valued in the way expressed by US Justice Benjamin N Cardozo in the early part of the twentieth century: as ‘the matrix, the indispensable condition, of nearly every other form of freedom.’ (1)
Those who seem so willing to restrict speech in the name of protecting ‘privacy rights’ should take these words to heart.
Summary of conclusions
- Censorship cannot change a confessional culture.
- Free speech cannot be defended on the basis of a right to know.
- The public interest is a useful journalistic standard.
- Emotional damage should not be used as a justification for censorship.
- Privacy should mean freedom from the state.
This is part nine of the spiked-report ‘Restraint or Revelation? Free speech and privacy in a confessional age’.
Part Ten: Contents and acknowledgements
Part One: Restraint or Revelation? Free speech and privacy in a confessional age
Part Two: Privacy vs free speech: two competing rights?
Part Three: A qualified right to free speech
Part Four: Free speech and trivia
Part Five: Free speech and the ‘right to know’
Part Six: Free speech and the public interest
Part Seven: The confusion over privacy
Part Eight: Privacy loses its meaning
(1) Justice Benjamin N. Cardozo, Palk v Connecticut, 302 US 319, 327 (1937) quoted in Hixson, Richard F (1987), Privacy in a Public Society – human rights in conflict, Oxford University Press, p60
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