A divine right?

4 May 2012
Only in en
In the UK, the use of "superinjunctions" to prevent media from publishing intimate details about the private lives of public figures has been widely condemned by free speech advocates, who see them as a privilege of the wealthy and inimical to the public interest. A recent parliamentary report has, however, endorsed the judgement of the British courts, even recommending that breaches of privacy by online media be "filtered". Leading free speech expert Eric Barendt defends the report against its critics.

Free speech debate

This article was first published in Free Speech Debate, a global, multilingual website based at the University of Oxford, UK, for the discussion of freedom of expression in the age of the Internet and mass migration.

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Rather predictably, the report of the joint committee of the House of Lords and House of Commons on privacy and injunctions was rubbished in the press as soon as it was published. The headline to a stinging attack on the report by John Kampfner in The Guardian (March 27 2012) screamed: “Tighter privacy laws would only serve the rich and powerful.” Kampfner concluded that the peers and MPs on the committee paid lip-service to freedom of expression, implying that privacy laws are largely used by politicians to hide public scandals which ought to be exposed by the media. In particular, he was concerned that one recommendation in the report might compel search engines to “delete — not only from their searches but from the internet itself — any material that is deemed to invade privacy”.


These criticisms are unfair. For a start the committee did not recommend, as the Guardian headline suggested, “tighter” or more draconian privacy laws. It considered that, broadly, the courts were striking the right balance between freedom of expression (and of the press) on the one hand, and privacy rights on the other. Both these rights are guaranteed by the European Convention on Human Rights, and are now incorporated into UK law by the Human Rights Act 1998. The courts, and other bodies, such as the former Press Complaints Commission, adjudicating privacy complaints, must determine on the basis of all the relevant facts whether privacy is more important in the circumstances than freedom of expression, or whether the latter trumps the individual’s privacy rights. Most privacy actions in the courts are brought by footballers and other celebrities, anxious to stop the publication of a story about their intimate sexual life, rather than by politicians and other public figures who take important social or economic decisions affecting all of us. But even politicians have, as the European Court of Human Rights has ruled, a right to some private life; it is not clear that there is a public interest in knowing that an MP is having, or has had, an affair with his secretary, unless there is some evidence that it is interfering with the ability to represent his or her constituents or affects attendance in the House of Commons.

It is certainly the case that the rich and powerful make greater use than the rest of us of privacy laws. But that is largely because the press and other media publish much more about their private life, particularly their sexual affairs, than they do about the life of ordinary citizens, which is generally of no interest at all to most readers and viewers. Further, only the wealthy can afford to bring actions in the courts, as the committee report itself acknowledges. That is itself no objection to privacy laws as such, any more than their prohibitive cost is an argument against the existence of the Ritz or Dorchester hotels. The solution is to reduce the costs of legal actions, or more realistically to ensure that members of the public — whose private life does sometimes attract the attention of the media — have access to other inexpensive tribunals to protect their privacy. In chapter five of its report, the committee made a number of sensible, albeit very tentative, recommendations for privacy protection by a reformed media regulator, including a proposal for alternative dispute resolution of privacy complaints, but these proposals for some reason were ignored in Kampfner’s critique of the report.

The real problem now is how privacy rights can be effectively enforced when it is so easy for them to be ignored by tweeters, bloggers, and — sadly, it must be added — by irresponsible parliamentarians. The traditional mass media can be relied on generally to observe the terms of court injunctions, including those granted to preserve the anonymity of a claimant; they are advised by in-house and other lawyers, while editors, particularly those of the local and regional press, know that the infringement of personal privacy carries significant financial risks, as well as a loss of respect in the community they serve. We can have no such confidence that bloggers and tweeters will respect the law; indeed they may delight in infringing court orders, particularly if they are sceptical of the value of privacy.

The committee therefore made a number of recommendations to ensure that privacy rights are better protected, particularly in the online environment. One of them was to encourage Google and other search engines — and if necessary introduce legislation to compel them — to remove links to infringing websites, after an individual had obtained a clear court order that the material on the site infringed privacy rights. The evidence from Google was that even if it were technically possible to filter access to these websites, it would not be desirable for it in principle to monitor them. The committee was understandably critical of this position, for it showed reluctance, as Max Mosley argued, to help enforce court judgments. Co-operation from Google would not, as Kampfner suggests, remove the material from the infringing website itself, but would filter access to it, a different matter.

Two related fundamental beliefs probably underlie much media criticism of the joint committee’s report — which is generally rather cautious and conservative in its recommendations. First, it is too easy for journalists and other commentators to assume that everything they write is protected by the fundamental human (and legal) right to freedom of expression (or speech). It is not, though of course much of it is. It is far from clear that celebrity gossip or speculation, however accurate, about really intimate matters deserves the protection of a free speech clause. Secondly, privacy itself is undervalued or discredited, perhaps because it can easily be claimed in a wide range of contexts — for example, the right to have an abortion is treated in the USA as an aspect of personal privacy. But privacy is a fundamental right, because without it we would have no space, or effective opportunities, to develop our individual personality, or indeed sometimes to engage in conversation. Further, the development of any close friendship or intimacy requires privacy. The evisceration of privacy rights — an unintended consequence of much media argument in this area — would destroy the boundary between private and public life to the cost of all of us.

Published 4 May 2012

Original in English
First published in Free Speech Debate, 19.04.2012

© Eric Barendt / Free Speech Debate / Eurozine