Cracking the whip against free speech

Last Thursday, the High Court in London awarded the boss of Formula One motor racing, Max Mosley, £60,000 in damages following the publication of lurid stories about him in a British Sunday newspaper, the News of the World (NOTW). Mr Justice Eady ruled that the newspaper had violated Mosley’s right to privacy when reporting on a sado-masochistic sex session and rejected the newspaper’s defence that Mosley’s conduct was a matter of public interest.

Here, two regular spiked writers debate the merits of the ruling. Barrister Barbara Hewson applauds the judgement, arguing that we have a right to a private life that should be protected in law. Below, journalist Tessa Mayes argues that the Mosley case represents the latest in a series of attacks on press freedom.

Sympathy for journalists’ right to free speech is not high today. Journalists writing about sex and gossip are widely regarded as ‘scum’. Journalists poke their noses into other people’s business and then tell everyone all about it, so no journalist expects to be liked 100 per cent of the time. But we should all have the right to say what we want, even if, as journalists, we write for tabloids about other people’s sex lives. The Mosley ruling represents an attack upon that freedom.

Britain promotes itself to the world as a country that is democratic, tolerant and free. However, we are witnessing the slow strangulation of free speech for all in favour of free speech for some. While some stories about people’s private life are ruled unacceptable for publication, other kinds of responsible, inoffensive or judicially defined free speech are championed. For instance, while judges in some cases proclaim the importance of free speech, plenty of others have used laws such as the law on confidence in the name of protecting privacy to limit the free speech of those reporting on it.

In the Mosley case, Mr Justice Eady has ruled that the story should never have been published. An orgy, in which prostitutes took part in sado-masochistic practices with a rich guy who helps run an international sports organisation, is not necessarily worth reading about, according to the judge. Eady specifically rejected allegations that the session had a Nazi theme. Eady is condemning journalists for invading privacy, which confuses two distinct acts. If anyone has betrayed an unofficial or official agreement of privacy with Mosley, then the breach of privacy is surely by the person who secretly recorded his behaviour at the scene and who told journalists about it rather than the journalists who reported their informant’s story.

Allowing anyone on our behalf to place limits on free speech denies us all the chance to decide what we should read about. Why should anyone decide for the public what counts as investigative journalism in the public interest and what is salacious gossip? It’s so difficult to define absolutely what is largely a matter of taste that judges often make opposing judgements on the same case, as they did in supermodel Naomi Campbell’s case against Mirror Newspapers. In that case, Campbell complained about the publication of photographs of her leaving drug addiction treatment in 2001. The Court of Appeal ruled that the Mirror story was justified, only for the decision to be overturned by a three-to-two majority in England’s highest court, the House of Lords, in 2004.

Eady’s ruling against a national newspaper has shocked some people who don’t normally argue publicly for free speech. For instance, Lord Carey, the former Archbishop of Canterbury, wrote a fairly admirable article in the NOTW yesterday, defending the newspaper’s right to publish. Carey argued that free speech had been ‘the first major victim’ of the ruling, calling it ‘a dangerous precedent’ (1).

Unfortunately, the right to free speech for all in the UK is not simply under attack in the occasional high-profile court case. Not only are various authorities from judges and politicians to art exhibition organisers and theatre owners continuing to clamp down on what should be said and heard, but free speech advocates are letting them get away with it by using weak arguments to advance free speech for all. There is a general consensus against unfettered free speech.

In the particular case of the freedom of the press, this consensus derives legal backing from the 1998 Human Rights Act. The Act was framed from the start so that a right to free speech is never guaranteed to win over other rights, however important we may think free speech is in a democracy. Article 10 on the right to freedom of expression can be curbed according to the Act ‘for the protection of the reputation or rights of others’ (among other qualifications) (2). Although Article 10 is said in section 12 of the Act to be important for the courts to ‘regard’, it also says the courts should pay ‘regard’ to ‘any privacy code’ (such as newspaper organisations’ own codes of practice). Furthermore, the courts are effectively developing UK human rights law so that Article 10 is ‘balanced’ with Article 8 on the right to respect for privacy and family life. So, when those advocating free speech warn of a privacy law against free speech coming in by the ‘back door’, they should be pointing out it was actually brought in though the front door by parliament itself – which is perhaps even more worrying.

As such, I disagree with Barbara Hewson that the Mosley case represents a victory for personal freedom. It is true that few people would ever want their sex lives to be made public. At a time when the state is happily invading our privacy routinely – there were 1,400 ‘spying’ operations per day last year by local councils, police and other officially sanctioned bodies (3) – a top-selling newspaper publishing information about a person’s private life seems like more of the same. Yet journalists are not the state. Unlike the authorities, the prime product of journalism is the expression of something somebody wants to say. If journalists don’t have a right to say what they want, then there is simply no right to free speech for anyone, just a privileged form of speech granted to those who are prepared to abide by the rules of what is deemed permissible.

It is worth pointing out that in cultural terms, the state, business and journalists, as well as politicians, charities and others who focus on private life, are all partly responsible for advancing an obsession with personal behaviour. This is why some of the points made by Mr Justice Eady and Barbara Hewson about our society’s voyeurism and seeming cruelty are compelling. In their different ways, those targeting people’s private lives have added to the idea that this area of life is fair game and have come up with all kinds of reasons why this is acceptable. For instance, this week’s NOTW comment page proclaimed that, ‘the News of the World is determined to fight for the right to publish what it believes to be legitimate and lawful and in YOUR public interest to KNOW’ (4).

However, the ‘right to know’ argument (frequently employed by journalists) is wrong-headed. We don’t, and shouldn’t have, a ‘right to know’ about people’s personal lives, even if some stories that refer to such matters are perfectly justifiable on other grounds. The state, and the politicians who run it, should be accountable to the public who have a right to know what powerful institutions do in their name. Individuals, however famous or obnoxious, are human beings with their own interests and sensibilities; individuals need to have a space to express themselves in a way they wouldn’t if they were in public.

This isn’t to say that such private life-obsessed speech should be censored and kept secret from the public. Or that controls by judges are the best way to enforce a cultural standard that private lives are off limits from public attention. Instead, those who focus on people’s private lives should take cultural responsibility for what they are doing and be prepared to argue it out in public. Those who don’t think such a focus is in the public interest should also take responsibility and speak out, too. This should be a cultural battle about what is appropriate for public discussion, not something decided by judges who pre-determine what may or may not be published.

What are the key lessons from the Max Mosley case? The most important point is that the principle of press freedom and free speech for all is as important as ever. Those who believe in this principle need to get better at winning the argument about why free speech matters. Private life is an important arena to defend from the harsh glare of social inspection and publicity, whether Nazi uniforms and prostitutes feature or not. But that defence has to be made in the context of an advanced cultural discussion of what public and private mean today, rather than being limited by an undemocratic, dehumanising, censorship war.

Tessa Mayes is a journalist, author and commentator on privacy and media issues. Email her here.

(1) Gag on press puts society in real peril, Lord Carey of Clifton, News of the World, 27 July 2008

(2) Human Rights Act summary, BBC News, 29 September 2000

(3) Snoopers spying on us 1,400 times a day, Daily Mail, 23 July 2008

(4) Call this justice?, News of the World, 27 July 2008