Opinion: “The Problem With Privacy?” – Gavin Bonnar

The current frenzied debate over the use of super-injunctions et al may be likened to the malign effect of the Tea Party movement across America and on the customary two-party tussle for political power over there. That movement is, on one view, dragging the entire political agenda off in one direction – a sharp lurch to the right – and yet, the same might be said in the UK with regard to the recent debate over super-injunctions – a debate presented either as one way of affording a useful remedy to those placed unfairly in the media spotlight or an undemocratic anti-free press increasing series of gagging orders thrown together by out of touch judges to protect a coterie of generally rich men who should have known better.

The facts do seem to point to the former presentation being the more accurate rather than the latter, and I think it is worth remembering that the media have a vested interest in how the argument plays out. Their profits are at stake here and they have become a group within a group behaving in a highly effective manner. In my view, the use of these super-injunctions has been disproportionately examined to death by the media and the argument skewed in a Tea Party-esque fashion so that the hype and near hysteria overshadows the truth. What began as a Red Top reaction to a rarely used remedy has infected the entire media machine. So much so that the real and important legal issues involving privacy and the indisputable right to freedom of expression are now in danger of being looked at askew.

That would be unfortunate and I think we must explore why this has happened and why the debate has become so raw, and continuous.

To follow on the analogy, if the Red Top tabloids are the Tea Party movement itself in this debate – and believe me, they are – then the Daily Mail is Sarah Palin. We must remember that no other nation on earth, including America, has the sort of nakedly salacious seemingly sex-mad mainstream tabloid press as we do here in Britain and Ireland. That is a discussion for another day, but that it affects our perception of the content of the full gamut of newspaper publication is surely indisputable and in a way which must undermine those ‘real’ newspapers – like the Guardian or the Telegraph for example. The fact that these broadsheets are so tolerant of the urgent needs of their diminutive cousins has always surprised me. Tabloids seem only, and depressingly, to want the tittle-tattle and the single sourced gossip and embarrassing exposures, and they misuse the principle of freedom of the press to get that.

It is clear a certain Premier League footballer did not expect to be at the centre of a media storm and a growing constitutional struggle when first he approached his media lawyers and sought their advice on how best to protect his – and perhaps more painfully – his family’s right to privacy following an ill-judged affair with a fellow Welsh woman. In the process though, I have come to understand that the real problem with privacy is this – it is a law without a proper home. Seen somehow as celebrity pretence or something created, made up, imagined by ardent judicial activism.

I say we must take this opportunity to either settle privacy into our domestic law and then stand up for it, or show it the door once and for all.

The Lords Judge and Neuberger received stiff criticism after their press conference following the publication of the report into super, and anonymised injunctions, and open justice. That criticism came swiftly and damningly from the representatives of the printed press. The only ‘chilling effect’ I saw was the distinct lack of other voices being properly heard, and if they were heard, they were generally heard through the distorting prism of the same press’s critical and editorialised eye. To corrupt the Fox News in America slogan – they did so in a manner that was neither Fair nor Balanced.

What is unarguable to me is that the media have gone on the attack because they view our perfectly legitimate law of privacy as having its roots in Europe, and in a European Convention of Human Rights sprung from another and more totalitarian era. One can at least understand why they claim it was incorporated into English law ‘by the back door’, through the Human Rights Act of 1998. And there is the root of the current problem. It should be good enough that the law of privacy developed perfectly properly and in the manner and for the reasons laid out in other postings to this blog. But it is not. It is somehow viewed with suspicion by our media and that line has been aggressively sold to the public, whose views are now skewed heavily in one direction. And the people are sovereign.

It would have been and still must be preferable then to vote through a Privacy Act wherein the exact parliamentary definition of privacy, in compliance with European requirements, is set out with the full skill of a draughtsman’s pen and then discussed, amended, tweaked and finally agreed upon by members of Parliament just like the one who so glaringly ignored the order of the court in releasing the name of Ryan Giggs and relying on the protection of his parliamentary privilege to do so.

That social media online requires even modest regulating is obvious to any reasonable person, yet is so often met with howls of indignation from the likes of I-only-eat-what-I-kill Zuckerberg and others, but it also seems tolerably clear by now that we are unhelpfully bumping into one and other, hitting one and other over the head, Punch and Judy style, with our own very different definitions of not just privacy but also the public interest in a way that does not serve the public well. We might indeed have differing ideas about when a person might reasonably expect to have a right to the former or forgo that right because of the overriding demands of the latter – yet what is clear after the last few weeks is we urgently require an examination of who it is we might seek to protect, why and in what circumstances. Capricious law is bad law.

One might think we should all know by now that the public interest does not mean what the public are interested in. Nor does it necessarily mean the publication of prurient information about a person – yes, even a famous person, or a married person, or a person who has commercial sponsors (although as I listened to the debate unfold I often heard it so alleged) then became matters of public interest. Well, if a person who ‘courts the media’ suddenly loses their Article 8 right to privacy and family life (as is also being alleged) then it is Parliament who should take away or curtail that right and provide people with an act which says so, clear and pure and simple. And if a person takes money for sponsorship and is later judged a hypocrite if he or she wants to conceal a private sexual indiscretion, then Parliament should clearly state when such a person loses their Article 8 rights or that the Article 10 right trumps their diluted right to privacy – but only in certain and very well-defined circumstances.

It is Parliament that should set out an exhaustive list of those occasions when one might choose to behave in a manner in modern society which so undermines those protections (prospectively) that an individual has then ‘forfeited their right to privacy’. To do so retrospectively and without clarity is unfair. And for the government to do nothing in the current circumstances is unfair, confusing and only feeds into the hands of those who want this matter examined in an emotive and even irrational manner.

So step up Mr Cameron. It really is no good the Prime Minister making unhelpful statements that only serve to fan the flames of injunctive confusion while failing to do exactly what a responsible executive should do and that is legislate on these matters of public need.

Yes, let’s have the debate happen where it needs to most, and the decisions on what-means-what must be for our elected representatives in the form of laws which we all must then follow – like it or not.

Gavin Bonnar LLB BL is a barrister, practising in Northern Ireland