Free speech vs privacy? There’s only one winner

‘The public has a right to know the things that it needs to know.’

Speaking last night at a packed-to-the-rafters Index on Censorship event, ‘Injunctions are a necessary evil – privacy, free speech and a feral press’, Max Mosley, former head of Formula 1 motor racing, clearly did not think that his sex life, picturesque though it might be, was something the public needed to know about. Sat next to Mosley, Hugh Tomlinson QC was only too keen to agree. And well he might: Tomlinson’s most famous recent case involved the forlorn attempts of Manchester United footballer Ryan Giggs to keep his lusty liaisons out of public view. ‘Private infidelities’, Tomlinson concurred, ‘should only be disclosed when there is some justification for the disclosure’.

And for Mosley and Tomlinson, that is the problem. Too frequently there is too little justification for the privacy-flaunting revelations that constitute – to use one of last night’s laziest tropes – ‘tabloid’ news. It is a familiar argument. Stories of steamy bedroom romps, usually involving more than two people and complete with ghost-written ‘in their own words’ blow-by-blow accounts, do not enlighten us or expose some incredibly important wrongdoing. Such tales are merely titillation for the rest of us. That is why, as Mosley put it, both he and Tomlinson have ‘no problem with injunctions’. They are simply ‘necessary evils’ to stop the press from turning the private, perfectly legal behaviour of individuals into public entertainment. Mosley even violated polite liberal etiquette and defended the right to privacy of evil-banker-in-chief, Sir Fred Goodwin, whose adultery was outed in parliament earlier this year: ‘[A disclosure that was] no more in the public interest than if Fred Goodwin played a round of golf’, said Mosley.

Of course, this defence of injunctions, this defence of the judiciary’s right to stop certain stories from being published, always goes hand in hand with a nominal defence of the freedom of the press. It’s just that the ‘press must not abuse their power’ as Mosley puts it. Or, as Tomlinson argues, it is about ‘boundaries’, about knowing where the freedom to speak about an individual’s behaviour ends and the freedom to have a private life begins. This is not an easy thing to judge when it comes to specific cases, they argue, which is why we need the judiciary to do the judging for us.

And here we come to the legal thicket that only the most perspicacious among us, ie, judges, can cut through. It’s an onerous task and no mistake. You see, our bewigged betters have to balance what are two contradictory principles, two principles that, since the incorporation of the European Convention on Human Rights into British law in 1998, are seemingly equally compelling: freedom of speech and the right to privacy.

Weighing up the merits of both sides, the press on one, the privacy-shielding individual on the other, is no doubt difficult, especially when the law protects both. It might even vex those who are apparently the wisest members of society: judges.

But looked at in a different way, this public-vaulting, comprehension-defying contradiction is easily resolved. For the difficulty only exists from the perspective of the state and its judicial institutions. That is, one needs to stop seeing freedom in terms of the state. One needs to stop seeing freedom, reified in the form of human right – be it freedom of speech or a right to privacy – as things that the state provides and withdraws as it sees fit. Instead one needs to adopt the perspective of our freedom versus the state – our freedom to speak our minds, our freedom to speak truth to power. And we also need to have a bit more faith in our own powers of judgement, our ability, for example, to decide among ourselves whether so-and-so’s sex life is any of our business.

But that faith in our ability to exercise our freedom was in such short supply last night, with one exception: David Price QC, a lawyer whose most high-profile client is Imogen Thomas, the former beauty queen and Big Brother contestant who alleges she had an affair with Giggs. As he put it, the problem is that ‘Judges decide what you can and what you cannot read – that is censorship’. It is absurd, he continued, to have judges who ‘are unlikely to read the Daily Mail determining what the masses can and cannot read’. The people that should be making the judgments rather ‘are those buying the papers’.

The problem for Price was that so pervasive was the gentle contempt for the so-called masses at last night’s event, that many of his sorties against the power of the judiciary over our freedom were met by sniggers and guffaws. This contempt was rarely explicitly articulated; it operated by stealth and association. So when Mosley said that ‘if we don’t have the courts [making the decisions]’ then such judgements will be left to ‘tabloid enterprises’ – organisations that have carried out ‘systematic criminality’ – there was massive applause. Yet when people attack the tabloids, or, to use another favourite refrain from last night, ‘The Murdoch Empire’, what they are really attacking are tabloid readers and the willing dupes of The Murdoch Empire. Every round of applause for a dig at the tabloids and Murdoch was implicitly a self-congratulatory dig at the tabloid-consuming, Murdoch-seduced masses.

So popular was masses-bashing, that Mosley – a man far removed from the people – was coming across as an incredibly entertaining raconteur by the end of the night. ‘People that buy the News of the World do so because they have an inadequate sex life. I can’t think of any other reason for it’, he harrumphed to gales of laughter. But in that laughter, in the enjoyment of Mosley, there was a depressing dismissal of the freedom and judgment of those who don’t read the Guardian. That is, the people that read tabloids. The people don’t see The Murdoch Empire For The Evil That It Is. The people whose lives are so mundane, whose sex lives are so bland, that they can’t get enough of others’ peccadilloes on a Sunday morning.

If you don’t have faith in the powers of judgement of the wider population – the People – and trust only judges, you will never make a cogent case for freedom of speech.

Tim Black is senior writer for spiked.