Privacy and free speech: there’s no contradiction

The actions of celebrities and journalists should be judged in the court of public opinion, not a court of law.

Tessa Mayes

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Topics Politics

It’s open season on anyone who trumpets free speech these days, especially if it involves the kind of radio prank, newspaper article, video clip, photograph, play or academic book that cause some people offence because they feel their privacy has been invaded.

A target for the most recent public roasting on this issue is Paul Dacre, editor-in-chief of Associated Newspapers (including the Daily Mail) and chair of the Press Complaints Commission’s editor’s code committee, who argues frequently in defence of free speech. In the latest round of verbal sparring, four senior barristers attacked Dacre, including one who caricatured his call for free speech confusingly as an argument that favoured ‘journalists being immune from the right to privacy’ (1). A lawyer writing in The Times (London) law pages last week argued editors such as Dacre displayed ‘arrogance’ (2).

All this followed Dacre’s recent speech at the British Society of Editors conference (3), where he commented on Max Mosley’s case earlier this year against the News of the World. The Sunday tabloid had published testimony from a prostitute that Mosley, president of the Fédération Internationale de l’Automobile (FIA) that oversees Formula One, had taken part in sado-masochistic (S&M) activity. The prostitute, referred to as ‘Woman E’ in the case, alleged the S&M party involved mocking the Jews and the ordering of a Nazi-style orgy, although the judge found no evidence of this (5). The paper also published video of the event, secretly filmed by Woman E, on its website. Dacre’s involvement in the story was that the Mail on Sunday had published an interview with Woman E after the trial (6).

In his speech, Dacre argued for the ‘freedom [of the press] to write about scandal’ and to make moral judgements about events. He condemned Mr Justice Eady as making ‘arrogant and amoral judgements’ (4).

While Dacre called Mosley’s activities ‘depraved’, Eady had dismissed them as ‘unconventional’. Arguing in favour of the freedom to express moral judgements, Dacre argued: ‘Justice Eady, with his awesome powers, has taken away our freedom of expression to make that choice.’ (In fact, the principle that public figures have a reasonable expectation of privacy from newspapers was established in the case of Naomi Campbell v Mirror Group newspapers in 2004 (7).) Dacre’s speech echoed comments in favour of free speech after the Mosley case made by Lord Carey, the Archbishop of Canterbury (8).

I’m with Dacre on this one. Newspaper editors have frequently spoken out against the use of privacy laws to undermine press freedom. While some newspapers have expressed a need to balance privacy and a free press, Tom Crone, News International’s legal manager, Graham Dudman, managing editor of the Sun (9), and Peter Preston, the former editor of the Guardian (10), supported Dacre’s principal stance on press freedom.

Yet this time round the reaction against the call for press freedom has been louder and more militant, including from within journalism itself. Peter Wilby, ex-editor of the New Statesman and Guardian media columnist, charged Dacre with ‘astonishing sophistry’ for arguing that scandal is vital to democracy otherwise newspapers such as the Daily Mail wouldn’t sell copies and therefore wouldn’t exist (11). For Polly Toynbee, a Guardian commentator, the arguments against the Mail’s editor got personal. Dacre is the nation’s ‘bully-in-chief’ with a ‘creepy mind’, dishing out ‘pain and praise’ and ‘stirring up hatred, anger, fear, paranoia and cynicism’ with relentless stories portraying Britain as a nation of crime and depravity, she wrote. Some of these points may be true, but press freedom must, in effect, include a ‘right to be prurient’ (12). Writing about scandal is not (to use Toynbee’s words) an ‘abuse’ of freedom; it is an example of exercising that freedom.

There is widespread condemnation of Dacre not simply because critics believe unfettered free speech goes too far, but also because journalists are seen framing people using agents provocateurs and then condemning the subject of the ‘sting’ soon after. In other words, calling for free speech without restraint (especially by a tabloid editor) seems to be a cynical call for newspapers to make money out of disguising the full truth of the story, how it came about and the underhand methods journalists use. Free speech, it seems, is not worth defending if it’s used irresponsibly by voyeuristic, investigative, tabloid news journalists who supply people with secret cameras and other paraphernalia in order to embarrass a public figure.

Two major issues are being confused: one, the issue of the relation between the right to free speech and the right to privacy; and two, the issue of right to free speech and journalists’ methods. Yet Dacre is still right to champion free speech on both counts.

Free speech should co-exist with privacy, not be degraded by it

Dacre criticised the ‘wretched’ 1998 Human Rights Act, a piece of legislation, he argued, that has been used to undermine freedom of speech through the development of a ‘right to privacy’. This argument was met with more attacks from the legal profession (13). Lord Lester, a senior Liberal Democrat peer and human rights lawyer, said Dacre’s argument was ‘completely misconceived’, arguing that the Act emphasises the importance of freedom of expression in section 12 (14).

This may be true, but section 12 does not guarantee the right to freedom of expression, it merely emphasises its importance. Why, in a democracy, should freedom be considered a privilege to be granted by a judge, rather than a right we ought to be able to demand? Not only this, but section 12 also says the courts should pay ‘regard’ to ‘any privacy code’ (such as newspaper organisations’ own codes of practice). Where does that leave any right to freedom of expression?

Lord Lester echoed many in the legal and political arenas when he said that society needs to offer a ‘fair balance’ to ‘free speech, personal privacy and reputation’. The idea that rights compete with each other allows judges such as Mr Justice Eady to pronounce that it was ‘not for journalists to undermine human rights’ (15) while still believing that they are upholding the importance of free expression.

What’s problematic about this ‘fair balance’ approach, however, is that it assumes freedom of speech should be limited in some privacy cases. In fact, contrary to this, the right to freedom of expression can and should co-exist with a right to privacy. The two rights don’t knock each other down if the original conception of these rights is adhered to – and argued for afresh today.
The European Convention for the Protection of Human Rights and Fundamental Freedoms was signed by Great Britain on 4 November 1950. In the convention, freedom of speech didn’t feature in considerations of privacy. It was intended to allow citizens to demand privacy from state interference – not from what others wrote or said about you, however intrusive or embarrassing (16). So Dacre is correct: it is the modern interpretation of the right to privacy that has watered down its meaning to become almost anything judges allow to be kept private.

At a time when we seem overloaded with coverage of the intimate affairs of public figures, it does seem to make sense to restrain speech to protect people’s privacy. How do you permanently try and stop the obsession with people’s sex lives and other activities in private places other than by legislating against it?

This approach not only undermines the right to free speech, but actually undermines people’s privacy in another way: the sense of privacy contained within the notion of free speech. To actually exercise free speech, people need privacy from outside control in order to decide what they think and want to say in private and then express those private thoughts freely in public. Suppressing expression by legislating against it won’t stop all private thoughts. Yet it will stifle the full development of such thoughts by strangling their deliberation in public.

Relying on the law to negotiate cultural values about what we discuss reveals a remarkable abrogation of responsibility by political elites. They have given up on waging a cultural battle to promote public values other than in relation to people’s private lives and instead rely on judges to do the work for them. What we condemn and why is a matter for public discussion, but this important dialogue is increasingly reduced to an argument made in court and decided by one man – a judge.

Journalism plays an important role in a democracy: to mediate information between the reporter and the public. Allowing judges to decide what we can or cannot read undermines this role. By censoring the media, the public are taken out of public debate, even around an issue as apparently trivial as the morality of a sports boss playing sex games.

Free speech should be judged differently to entrapment

It’s never been a more confusing time in the arena of free speech and privacy. Cultural value judgements about what is in the public interest, or what is a political right, have never been so fuzzy or confusing. Nobody wants to see an end to free speech. At the same time, do we really want to live in a culture where secret footage of private sex parties is aired for public consumption with no regard for privacy? (17)

In the News of the World case, it’s not just Mosley who must be accountable for his actions: Woman E and the newspaper should be subject to public judgement, too. Personally I think the journalists were reprehensible for targeting their secret filming resources at a public figure having fun in private. In these sexually liberal days, nobody cares about public figures’ private foibles apart from the fact that it makes good gossip. Max Mosley continues to be president of the FIA. Kate Moss (exposed in 2005 photographs allegedly taking cocaine) lost some modelling contracts and then won more new ones. Even Angus Deayton, the presenter of satirical TV panel show Have I Got News For You, who was exposed in 2002 for seeing a prostitute, has since made a successful television comeback.

Still, there are some journalists who think there is a public interest in exposing what they see as moral depravity. The point is that these kinds of stories are subject to the taste of individual journalists and media organisations (even if we disagree with their exposure as frontpage news rather than being dismissed as trivia). Ultimately, these stories and the people who produce them should be judged in the court of public opinion, not the High Court.

Yet the Mosley case has an additional twist. According to newspaper reports, the husband of one of the orgy participants contacted the News of the World first and their journalists suggested his wife film it with a secret camera supplied by the newspaper in exchange for £25,000 (18). The means to getting a story are different to the end, the dissemination of the story. Even illegal acts are sometimes justified in law when the story is in the public interest and journalists feel they can make a case (19). That said, I do not believe this justification applies to the Mosley case.

Acts of subterfuge and secret filming should be treated differently to the act of publishing, broadcasting and talking about events. In the first category are specific acts – some of which, such as intercepting people’s private phone calls, are illegal – that have to be assessed on the basis of the story’s public value. Otherwise immoral methods may sometimes be justified if an important truth is exposed. In the second category are acts to do with freedom of expression.

Although the distinction between the two categories was recognised by Mr Justice Eady (20), the News of the World was charged with breaching confidence. Yet unlike Woman E, they had no informal agreement to keep the S&M acts confidential with Mosley. The newspaper was also charged with the ‘unauthorised disclosure of personal information’, although it was not the newspaper that disclosed unauthorised information in the first instance. They merely published testimony from a witness who had authorised them to do so, and broadcast a film somebody else – the prostitute – had decided to film.

Frequently the two kinds of acts (in this case, secret filming and broadcast/publication) are confused and treated as one, especially where the person doing both kinds of acts are the same person. A journalist who secretly films a sex party, for instance, and then broadcasts and writes about it, is said to need to be stopped from publishing by those who actually abhor the invasion of privacy. Yet even if a journalist is doing both actions, it is the invasion of privacy that should be condemnatory rather than the act of publishing.

If anyone has betrayed Max Mosley’s privacy and breached his confidence it is the prostitute who carried out the secret filming and who gave the footage to a newspaper. Yes, the journalists were complicit in the set up – but they did not actually film it. That was the woman’s responsibility and she must take the blame and the punishment. As it happens, unsurprisingly, she now regrets doing this (21).

For free speech – and free ‘love’

It’s a little perplexing that a sense of humour about the orgy was lost in all these court proceedings. Even if Mosley had put on a Nazi stormtrooper’s jacket (which he didn’t) and goose-stepped in his Y-fronts shouting ‘Zeig heil!’ in between spankings, surely it is rather in keeping with the British tradition of mocking the Nazis?

While the News of the World published a serious story they considered to be a sex-and-Nazi-championing scandal involving a public figure whose grandfather (Oswald Mosley) led a British fascist party decades ago, the rest of us were laughing about it all. Having his peccadilloes exposed in public may have been deeply embarrassing for Mosley, but his antics were harmless.

Ultimately, however, this case represents censorship in the name of privacy. It was a voyeuristic story made possible by an untrustworthy S&M enthusiast egged on by some journalists. But none of it, not the publication of the story nor the orgy, should be verboten.

Tessa Mayes is a journalist, author and commentator on privacy and media issues. Email her here. To buy her spiked-report, Restraint or Revelation? free speech and privacy in a confessional age, click here.

Previously on spiked

Barbara Hewson argued that Mosley’s private life was none of our business while Tessa Mayes urged a defence of the press’ freedom of expression. She also looked at privacy in light of Paul McCartney’s divorce from Heather Mills. Elsewhere, she stood up for the right to photograph and write about public figures – including Prince William’s girlfriend. Josie Appleton asserted the importance of privacy, and Rob Killick explained why it’s important to have spaces that are free from the prying eyes of officialdom. Or read more at spiked issue Privacy.

(1) QCs defend Mr Justice Eady as newspapers accuse him of privacy law rulings, The Times, 11 November 2008

(2) No more sniggering, sleazy tales about the sex lives of celebrities, The Times, 20 November 2008

(3) Society of Editors: Paul Dacre’s speech in full, Press Gazette, 9 November 2008

(4) Cited in Max Mosley v News Group Newspapers Ltd, High Court judgement, 24 July 2008, paragraph 72

(5) My MI5 husband DID set up Max Mosley, admits whip-wielding dominatrix, Mail on Sunday, 3 August 2008

(6) Daily Mail chief Paul Dacre criticises BBC growth and privacy rulings, Daily Mail, 10 November 2008

(7) Cited in Max Mosley v News Group Newspapers Ltd, High Court judgement, 24 July 2008, paragraph 9

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

(9) QCs defend Mr Justice Eady as newspapers accuse him of privacy law rulings, The Times, 11 November 2008

(10) Tabloids must be free to offend, Guardian, 16 November 2008

(11) Dacre’s bellyache, Guardian, 10 November 2008

(12) Judge Dacre dispenses little justice from his bully pulpit, Guardian, 11 November 2008

(13) Lawyer’s riposte to Mail editor: this act protects everybody, Guardian, 11 November 2008 and QCs defend Mr Justice Eady as newspapers accuse him of privacy law rulings, The Times, 11 November 2008

(14) Human Rights Act 1998

(15) Cited in Max Mosley v News Group Newspapers Ltd, High Court judgement, 24 July 2008, paragraph 127

(16) See Restraint or Revelation: free speech and privacy in a confessional age, by Tessa Mayes, 2002, p.31

(17) Under covers reporting, Guardian, 28 March 2005

(18) Max Mosley v News Group Newspapers Ltd, High Court judgement, 24 July 2008

(19) See More news from the world, please, by Tessa Mayes

(20) Cited in Max Mosley v News Group Newspapers Ltd, High Court judgement, 24 July 2008, paragraph 17

(21) Unmasked: the vice girl who taped the orgy explains why she feels sorry for Mosley’s wife, Mail on Sunday, 26 July 2008

To enquire about republishing spiked’s content, a right to reply or to request a correction, please contact the managing editor, Viv Regan.

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