The confusion over privacy

Part Seven of the spiked-report ‘Restraint or Revelation? Free speech and privacy in a confessional age’.

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• The right to privacy used to mean freedom from state interference. Now, it is taken to mean freedom from media discussion.
• Public figures can dictate the way that the media portrays them.
• Privacy today is defined in terms of emotional damage, and speech is regulated on the basis of its likelihood to cause offence.
• The elevation of hurt feelings characterises individuals as pathetic, and makes for an arbitrary standard of regulation.

The definition of privacy has changed

The acceptance of the idea that a right to free speech should be ‘balanced’ by a right to privacy is detrimental to free speech. It is also important to point out, however, the extent to which the term ‘privacy’ has become confused.

Privacy has become a catchall term, applied to a whole host of situations. The aim of this report is to clarify the way society’s understanding of privacy has changed, what is meant by ‘a privacy right’, and how the term is used today to censor speech.

From poets to lawmakers, privacy has long been held as a cherished need and right in a democracy. One seventeenth century English poet, John Milton, quotes a maxim of his time: ‘to the public good, Private respects must yield’. (1) In 1890, US authors Samuel D. Warren and Louis D Brandeis, partners in a Boston law firm, famously argued for the ‘right to be let alone’, in a seminal Harvard Law Review essay ‘The Right to Privacy’. (2) Privacy for the ‘free development of …personality’ has been established as a constitutional right in Germany since 1954. (3)

Western society’s historic commitment to privacy has been based on the freedom of individuals to conduct their personal lives free from interference by the state. Yet especially over the past few decades, the strength of this commitment has waned. We have witnessed increasing intervention by the authorities into people’s private lives. Furthermore, we have also witnessed calls for even more such intervention, often in the name of demanding protection.

At the present time, the personal matters that people conduct ‘behind closed doors’ are often seen as suspect, and in need of public scrutiny by politicians and state authorities. From the increase in police measures to detect and prevent domestic violence, to government plans to grant powers to Department of Health medical researchers to override patient confidentiality and demand that doctors hand over case notes, to the trend towards greater surveillance of children and their parents by health professionals, contemporary culture tends to accept the notion that the state should do more to protect individuals from harming each other in their private lives.

The same politicians who champion calls for people to be granted privacy rights against the media are quite willing to invade people’s privacy when it suits them.

This is why demands for privacy protection often seem confusing. There is a recognition that Article 8 on the right to privacy under the Human Rights Act is important to protect individuals’ privacy – but at the same time, there is growing support for the invasion of privacy by the state.

As many of the demands for privacy protection pertain to the media, this discussion tends to treat the media as a source of state power. It also reflects the way speech about private information and actions that invade privacy are confused and conflated. But should the media industry’s coverage of private life be equated with the surveillance of private life by the police, health authorities or councils?
The difference between the media and the state

Speaking at a public debate about privacy and the media in 2001, Mike Jempson, director of the media ethics organisation The PressWise Trust, emphasised the power of the press. ‘When the press does invade the privacy of ordinary people and gets things wrong, it has extraordinary consequences,’ he said. ‘It is right that we should be protected against them misusing their power.’ (4)

Jempson recounted the case of the homeless, disabled man who complained to the Press Complaints Commission (PCC) following a story in the Bristol Evening Post, describing him as ‘TAKING THE “P”’, which alleged that he was not entitled to a disability allowance. The man killed himself.

Lauren Booth, a columnist for the New Statesman and the half-sister of the prime minister’s wife Cherie Blair, described the effects of having her privacy invaded: ‘Years ago my dad [Tony Booth] was involved in a serious fire. The day after two men arrived at my door, rang my bell and said “Your father’s dead what do you think about that?” And, I gave an account, as an 11-year-old, in tears, of how devastated I was that my dad had died. Then they said, “He’s not really dead but tell us about his relationship with your mother.”’

Booth continued: ‘Whatever parts of your life you may open to magazines such as OK!, everyone has a right to a certain amount of privacy. When an interview with a magazine about your new home leads to gross intrusions from the press in to your personal life it’s akin to saying a rape victim was “asking for it” because she was wearing a short skirt.’ (5)

Journalists, like anyone, can lie and pry. National and international media organisations publish and broadcast information about people, amplifying its impact. Yet this is not an argument for censoring speech. In fact, it puts a powerful case for more speech: the ability to counter critics through public debate.

One noteworthy aspect of contemporary complaints about privacy invasion by the media is that they include complaints about coverage of activities that have taken place in a public space. Being photographed on a beach without your knowledge, or having images of your intimate meal-for-two published in the national media, can be upsetting. But does that mean that it should not be allowed?

The Press Complaints Commission’s Code of Practice (no. 3) defines private places as ‘public or private property where there is a reasonable expectation of privacy.’ [Italics added] This sets up an uncomfortable ambiguity about private and public space – implying that there is no safe ground for press coverage, and that if the subject of the coverage feels that they should have privacy, they should be deemed to be in a private space.

To fail to distinguish activities taken place in public space from those that take place in private spaces undermines both the notion of privacy, and the idea of public accountability. The idea that a public figure should be able to control coverage of their public activities amounts to a call for the press to act as a PR agency on his or her behalf.

Of course, it is understandable that public figures want to control their own PR. Michael Tugendhat QC, who represented Michael Douglas, Catherine Zeta Jones and OK! magazine in their case against Hello!, after Hello! published unofficial photographs of the couple’s wedding, has commented: ‘Although the wedding was on a grand scale, much of what the bride did was what any bride would do. She did not allow press photographers to be present at the celebrations but hired her own photographer. She selected the photos that she wanted reproduced. She did not want somebody she did not know taking poor quality and unflattering pictures and then publishing them to the world.’ (6)

Anyone who is interviewed by a journalist – especially if they’re talking about their private life – may want to control what is being said about them. As a general rule, they simply refuse to answer questions if they do not want the world to know their secrets.

According to Andrew Billen, a staff writer at the Times and the former Chief Features Interviewer at the Evening Standard, ‘I’ve never been convinced that there’s a particular definition of privacy, even in a dictionary definition let alone a law. Doing the kind of interviews I do, what is private or not is determined by the interviewee. It depends on what questions they’re willing to answer…There are people who regret saying things to me sometimes and I can understand that. In very minor instances people have rung up saying “Could you please take that out because that’s going to be very difficult for me.” Then I usually say, “Well if I take that out can I ask you about this or give me a bit more on that.” The purpose of my interview is not on the whole to make people’s lives worse by being interviewed by me.’ (7)

But exactly how far should interviewees’ control be allowed to extend? Demanding a right to privacy from the media is asking people to accept what others say at face value. It can mean ‘don’t publish details without my say so’, rather than ‘don’t publish any details about my private life at all.’ For those in positions of power, the use of selective and controlled revelations about their personal life to win influence cannot be underestimated.

For example Phil Craig, an independent TV producer and co-author of Diana: Story of a Princess, explained the Palace’s attempts at controlling the public image of their private life. ‘ITN did several fly-on-the-wall programmes about Charles and Diana although the royal family had just about total editorial control, retained the complete copyright and would not allow other people to use that material. For example, there is an absolute ban on the use of Charles’ interview with Jonathan Dimbleby, where he spoke about adultery – even though it’s been widely broadcast and written about in books,’ he said. However, the Palace does not always get its own way. As Craig says, the television series of Diana: Story of a Princess, broadcast on ITV in 2001, did use clips of that interview without permission. (8)
Privacy invasion as a code-word for ‘hurt’

A popular concern about privacy invasion by the media, and one that has gained momentum in recent years, is the extent to which this is said to cause emotional harm. But is it legitimate to restrict free speech on the basis of hurt feelings?

Naomi Campbell brought her 2002 case against the Mirror on the basis, not that the newspaper had printed lies, but that a story about her attendance at a drug rehabilitation clinic had hurt her feelings. As she said, ‘I felt shocked, angry, betrayed and violated.’ (9) After the court ruling, she claimed to have felt ‘raped’ by the newspaper’s coverage. (10)

But how can anyone know what somebody feels when they speak about or photograph them in a public street? That’s the trouble with feelings – they are irrational and highly personal. Not everybody reacts the same way to events or is sympathetic to another’s distress. Furthermore, even those who feel comfortable in the public spotlight one minute can find it daunting the next.

Kate Lawler, the winner of the third series of Channel 4’s reality TV Big Brother programme, claimed to feel uneasy about photographers chasing her everywhere once she had left the Big Brother house. Although Lawler had spent several weeks under 24-hour television surveillance and had exposed her (in Jade’s words) ‘kebab’ to the nation, she later told a Channel 4 special about her life after Big Brother what she thought of the photographers and journalists camped outside her home: ‘I don’t like it when they intrude on your private life.’ (11)

The increasing number of cases brought against the media on the basis of emotional damage seems to suggest that people are more vulnerable to the impact of words and images than ever before. But can this really be true? And what is the consequence of trying to regulate speech on the basis of avoiding hurt feelings?

One striking feature of the contemporary confessional culture is the extent to which plenty of people, like Kate Lawler, invite others to invade their own privacy. People have very different attitudes to media coverage – and as recent cases indicate, sometimes the same people hold different attitudes to different types of media coverage. Those who flaunt some aspects of their private life in the media react by claiming emotional hurt when other aspects of their lives are then exposed.

It cannot be assumed that everyone feels the same way about media intrusions upon their privacy. And because reactions to words and images are entirely subjective, attempts to use the argument of emotional damage as a legal yardstick to regulate speech result in an arbitrary approach to free speech and censorship.

Attempts to legislate on the basis of hurt feelings always yield unsatisfactory results. In the past, media and law reformers clearly recognised the problem of trying to define privacy in terms of people’s emotional reactions. Today, in other areas of law, the evaluation of emotional distress as a result of actions such as rude behaviour is considered difficult to evaluate, unless a person also suffered physical harm or a psychiatric illness.

As a Court of Appeal judge concluded in a case brought under the Protection from Harassment Act (1997), after an NHS Trust worker accused others of harassing her, ‘a catalogue of rudeness and unfriendliness, behaviour not to be expected of grown up colleagues in the workplace’ did not constitute behaviour so ‘calculated to infringe her legal right to personal safety.’ (12)

A different conclusion was reached by the Court of Appeal in the case of Esther Thomas v News Group International Newspapers Ltd. and Simon Hughes in 2001. Thomas brought a case against two police officers for racist jokes they allegedly made about a Somalian woman at a police station. The Sun published articles about this, referring to readers’ comments criticising Thomas, describing her as a ‘black’ police clerk and asking readers to send cheques to help one police officer pay a fine. Thomas sued the newspaper for harassment and invasion of privacy after they published her work address.

Under the act, ‘harassment’ refers to conduct that a ‘reasonable person…would think’ constitutes harassment of another. Thomas argued that she had been too distressed to return to work as a result of the articles and the hate mail she received. In their defence, the newspaper argued that to ensure journalists acted in a ‘reasonable’ fashion when exercising free speech ‘injects precisely the subjective element of “approval” which militates against a true “freedom”’. Lord Phillips, Master of the Rolls ruled on appeal that Esther Thomas had an arguable case that she had been harassed by the newspaper. Apparently, the articles were ‘foreseeably likely to stimulate a racist reaction on the part of their readers and [to] cause her distress’ (13).

When it comes to regulation of the media, trends suggest that today’s society is increasingly willing to treat people as psychologically vulnerable to words and images, rather than as capable of handling the exchange of ideas. This is clearly expressed in the tendency to censure speech on the grounds that it has caused, or is likely to cause, offence.
Regulating offence

In 1993 the National Heritage Committee considered how a new law of privacy could recognise invasions of privacy that included the publication of material that is ‘harmful or embarrassing’ (14). A consultation paper by the Lord Chancellor’s Department in July 1993 defined an invasion of privacy in terms of circumstances where it caused ‘substantial distress’. (15) In 2002, barristers from Matrix Chambers argued for a new tort (civil wrong) of privacy invasion that recognised wrong-doing where an intrusion in to a person’s private life was ‘highly offensive’ to a ‘person of ordinary sensibilities.’ [Italics added] (16)

Media and law reformers try to create a common, objective standard for privacy protection. If the basis of this standard relies on subjective impressions of the impact of free speech, the outcome can only be further confusion. Feelings of expectation, embarrassment, distress and emotional harm vary according to the individual. And this is particularly true in relation to offence.

Speech is often offensive – but sometimes, isn’t that 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 to ask the rhetorical question: ‘What’s the point of writing a column, if it doesn’t make somebody wince?’ (17)

The idea that privacy and free speech legislation should be developed to penalise what a person believes is ‘highly offensive’ to a ‘person of ordinary sensibilities’ 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] (18)

Unlike the libel laws, however, the privacy law proposals place the onus on the complainant to prove a privacy intrusion. Nonetheless this 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 the publication of a falsehood.

For example, Tom Bowyer, investigative journalist and Robert Maxwell’s biographer, spent years in the libel courts fighting for the right to publish his book exposing the nature of Maxwell’s business empire. On four occasions Maxwell tried to prevent the book’s publication through use of the British libel law. He ultimately failed.

In France, however, where there are tougher privacy laws, Maxwell successfully sued Bower. His hard-hitting investigative book about Maxwell’s business affairs was deemed to breach the privacy law for revealing correct details about Maxwell’s ailing health. (19)

The emotion-based arguments for privacy protection characterises individuals as weak, rather pathetic creatures, who cannot cope with harsh words or hurt feelings and need increasing protection by the authorities. This contrasts sharply with society’s prior notion of the robust individual, who needed liberty, and privacy from state surveillance. By accepting the new notion of the enfeebled individual, those who argue for people’s emotions to be protected by the state deliver a significant blow to liberty.

Compared to the regular and nationwide surveillance of private life by public authorities, a few unflattering photos and articles seem relatively harmless. It may not feel like that to the person – celebrity or non-celebrity – whose life story is on the front page. No doubt they do experience negative feelings and loss of control.

But it is important to put the power of the press into perspective in an age when words are considered emotionally hurtful. Whereas words and photos can undermine a person’s reputation, state invasions of privacy can deny whole sections of society freedom of expression and thought.

• Point four: Emotional damage should not be used as a justification for censorship.

This is part seven of the spiked-report ‘Restraint or Revelation? Free speech and privacy in a confessional age’.

Read on:

Part Eight: Privacy loses its meaning

Part Nine: Privacy, free speech and the media: some conclusions

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

(1) John Milton, English poet (1608-74), quoted in The Oxford Dictionary of Quotations, (Oxford, 1996)

(2) Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, (Vol. 4, Harvard Law Review 194, 1890)

(3) Constitutional Right in Germany quoted from ‘The development of privacy rights under the Human Rights Act 1998,’ Gavin Millar QC, Doughty Street Chambers Media Team, Privacy Seminar, 27 February 2002

(4) Mike Jempson, director of The PressWise Trust, in a speech given at a debate organised as part of the research for this report at the London School of Economics, 2001

(5)Lauren Booth, a columnist for the New Statesman, in a speech given at a debate organised as part of the research for this report at the Sugar Reef nightclub, 2001

(6) Michael Tugendhat QC, in a speech given at a debate organised as part of the research for this report at the London School of Economics, 2001

(7) Interview: Andrew Billen

(8) Interview: Phil Craig

(9) Outside court Naomi Campbell shuns the limelight. Inside, her life is laid bare, Guardian, 12 February 2002

(10) Naomi Campbell speaking on an ITV programme, quoted in What the papers say, Guardian, 28 March 2002

(11) Kate Lawlor, speaking on a Channel 4 programme about her life after Big Brother, ‘Big Brother Winner Show’, Channel 4, broadcast on 3 August 2002

(12) Minna Wong v Parkside Health NHS Trust, Court of Appeal, 2001. Quoted in Alternative Methods of Protecting Privacy, Anthony Hudson, Doughty Street Chambers Media Team, Privacy Seminar, 27 February 2002

(13) Case of Esther Thomas v News Group Newspapers Ltd. and Simon Hughes, Court of Appeal, 18 July 2001 [2001] EWCA Civ. 1233

(14) Protection of Privacy Bill proposal in the Privacy and Media Intrusion report, (National Heritage Committee of the House of Commons, 16 March 1993) quoted in Privacy and the Media – the developing law, Matrix Media and Information Group, (Matrix Chambers, 2002), p13

(15) Consultation Paper by the Lord Chancellor in July 1993, quoted in Privacy and the Media – the developing law, Matrix Media and Information Group, (Matrix Chambers, 2002,) p14

(16) Privacy and the Media – the developing law, Matrix Media and Information Group (Matrix Chambers, 2002), p15

(17) John Simpson, ‘The Truth about Me and the Censors’, Daily Telegraph, 14 July 2002

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

(19) Helen Searls, ‘The Rights and Wrongs of Privacy,’ LM magazine 104, October 1997