Britain’s privacy law is a mess—and increasingly unsustainable
May 26th 2011
TAKE the common-law principles of fairness, add a European human-rights legislation, a lucrative tabloid trade in kiss-and-tell stories, an ineffective press, a touch of anger about secret justice and a technology that makes everyone into a publisher, and what do you get? The mess of Britain’s privacy laws.
The latest and most spectacular episode involves a married footballer, Ryan Giggs of Manchester United, who went to court to stop news organizations reporting on his alleged affair with a woman who, a judge said, may have been trying to blackmail him (she denies this). Mr Giggs gained the remedy he wanted, but not the result: his private life became a public scandal, with his name featuring in fans’ catcalls in the stadium, used as a catchphrase on talk-shows, broadcast by 75,000 Twitter users and ultimately, on May 23rd, mentioned in the House of Commons by a Liberal Democrat MP, John Hemming. David Cameron, said the situation was “unsustainable”. Few would disagree.
Britain, unlike France, does not have a formal privacy law. The European Convention of Human Rights, incorporated into national law in 1998, made things messier by adding two principles: a strong defense of freedom of speech, and a more qualified right to the “respect of private life”. For example, the courts ruled that the Daily Mirror was justified in 2001 in printing most parts of a story of a model, Naomi Campbell, visiting a drug-rehabilitation clinic (because it exposed her as a hypocrite), but not the accompanying pictures (which intruded on her privacy).
Punishing those who gratuitously destroy privacy is one thing—and features in legal systems all over the world. Penalties for those who identify rape victims, for example, are usually severe. The real problem comes when judges try to protect privacy by stopping newspapers from publishing it in the first place.
The argument is a strong one: that a breach of privacy causes irreversible harm. In libel cases, untruthful damage to a reputation can be restored by an apology and damages; but once embarrassing private information has been disclosed, it stays public, no matter how the leaker is punished. However, the practical difficulties of protecting court-ordered privacy are increasingly difficult.
And it does not stop a story—or perhaps exaggerated or incorrect versions of it—appearing on blogs, Twitter and Facebook. Tracing the identities of those who post such illicit material on social-networking sites, mostly based overseas, may prove impossible.
Once the news is out on the internet, Britain’s fiercely competitive tabloids become frenzied in their attempts to reveal the full story first. In Mr Giggs’s case, the big breach came when a Scottish paper, the Sunday Herald, ignored the injunction issued by the London court. This is a legal grey area: Scotland has its own legal system, and prudent lawyers usually make sure that they apply for an “interdict” there to match any injunction obtained elsewhere. Mr Giggs’s did not.
Diagnosing the problem is one thing, solving it is another. Mark Stephens, a media lawyer, argues that tabloid stories are soon forgotten if not accompanied by a legal struggle. “You take it on the chin and it’s tomorrow’s fish-and-chip paper,” he counsels (although betrayed spouses may not be so sanguine). In other words, treat privacy like libel, with penalties and remedies available only after publication.
Many, not just self-serving tabloids, fear that such a law would be twisted by the rich, powerful and well-lawyered to hide their wrongdoings. Yet the idea of the press taking Twitter as its benchmark of newsworthiness seems equally distasteful. Privacy law, like the lives it tries to protect, is a messy business.