The Press versus Privacy

Privacy has become a big issue in contemporary jurisprudence. The “right to privacy” is enshrined in the United Nations Declaration of Human Rights, and guaranteed by Article 8 of the European Convention on Human Rights. But Article 8 is balanced by Article 10, which guarantees “free expression of opinion.” So what right has priority when they conflict?

Under what circumstances, for example, is it right to curtail press freedom in order to protect the right to privacy, or vice versa? The same balance is being sought between the right of citizens to data privacy and government demands for access to personal information to fight crime, terrorism, and so on.

Freedom of speech is a fundamental democratic liberty. It is a necessary protection against abuses of power and cover-ups of wrongdoing by public officials. It was never more effectively displayed than in the Watergate investigation, which brought down Richard Nixon in 1974.

So it is no surprise that press freedom is the freedom that authoritarian governments are keenest to curtail. Indeed, provided they can sufficiently muzzle the media they can even allow (relatively) free elections, as in Putin’s Russia. With the press heavily shackled in large parts of the world, freedom of speech is still a worthy slogan.

But one can have too much press freedom. Over the years, the tabloid press has become increasingly intrusive, claiming the right not just to expose corruption and incompetence in high places, but to titillate readers with scandalous revelations about the private lives of the famous. What started off as entertaining gossip about royalty and film stars has burgeoned into a massive assault on privacy, with newspapers claiming that any attempt to keep them out of the bedroom is an assault on free speech.

The issue has just been tested in Britain’s High Court. In March, Britain’s leading scandal sheet, The News of the World published an “exclusive” front page story, under the headline “F1 BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS.” It told how Max Mosley, President of the Federation Internationale de l’Automobile (FIA, the body that oversees world motoring and racing) and son of the former British fascist leader, Sir Oswald Mosley, had, two days earlier, taken part in a sadomasochistic “orgy” with a “Nazi theme” in a private apartment in London. The story was accompanied by photographs taken clandestinely by one of the women in cooperation with the News of the World , which readers were invited to download from the paper’s Web site.

Max Mosley admitted participating in this (not illegal) happening, but sued the News of the World for breach of privacy; the newspaper argued that it was in the “public interest” that Mosley’s sexual activities be disclosed. The presiding judge, Mr. Justice Eady, rejected the newspaper’s defense, and awarded Max Mosley £60,000 ($115,000) compensation for the invasion of his privacy, the highest damages so far given for a complaint brought under Article 8.

There is a curious aspect to Eady’s judgment. He rejected the News of the World’s “public interest” defense, because he found no evidence that the sadomasochistic party had a “Nazi theme.” This implies that had there been a Nazi theme, it could have been legitimate to publish it, given Mosley’s position as FIA president. But surely the particular nature of Mosley’s private fantasies is irrelevant to the case. It is hard to see why I am less entitled to privacy because I am turned on by a Nazi uniform than I would be if I were excited by a pair of knickers.

What Eady’s judgment did accomplish was to highlight the crucial distinction, necessary for all clear thinking about privacy, between what interests the public and what is in the public interest. So how can this distinction be made effective?

France has a privacy law that explicitly defines both the scope of privacy and the circumstances in which the law applies. By contrast, in Britain it is left to judges to decide what the “right to privacy” means. There is a natural fear that specific legislation designed to protect privacy would muzzle legitimate press inquiries. At the same time, it is widely acknowledged (except by most editors and journalists) that a great deal of media intrusion is simply an abuse of press freedom, with the sole aim of boosting circulation by feeding public prurience.

A law that curtails the abuse of press power while protecting its freedom to expose the abuse of political power would be difficult, but not impossible, to frame. The essential principle is that the media should not be allowed to pander to the public’s prurience under cover of protecting the public interest.

What famous people – indeed ordinary people, too – do in private should be off limits to the media unless they give permission for those activities to be reported, photographed, or filmed. The only exceptions would be if a newspaper has reasonable grounds for believing that the individuals concerned are breaking the law, or that, even if they are not breaking the law, they are behaving in such a way as to render them unfit to perform the duties expected of them.

Thus, a pop star’s consumption of illegal drugs may be reported, but not his or her sexual habits (if they are legal). The private life of a politician may be revealed if it is expected to have consequences for the way the country is being governed; that of a top executive of a public company if it may affect the returns to shareholders.

This should be the only “public interest” defense available to a media outlet that is sued for invasion of privacy. The media might become a bit drearier, but public life would be far healthier.