The vested interests in the tabloid media are invoking fallacious arguments in promoting free speech ahead of privacy. The most common is some analogy of the ‘victimisation’ of consenting women by rich, famous men who are full in the knowledge that their actions can be veiled by an injunction. But the reason why it is predominantly the rich and famous who seek injunctions is not because they are the sole perpetrators of wrongdoings; it is because the costs of litigation exclude the majority, and it is only the famous that have their, otherwise, banal engagements embellished by the media. This argument therefore doesn’t address the morality of seeking injunctions.
The judiciary are set the task of balancing the conflicting human rights of free speech and a right to privacy. The central message from Lord Neuberger’s report on Friday was that free speech supersedes privacy either when an illicit activity has taken place, or if the matter is in the public interest. The Supreme Court make these judgments on a case-by-case basis. If an individual’s actions are legitimate and have no externalities then the public have no right to have exposure to them, unless they are collectively willing to engage in reciprocity, or in other words, they are willing to engage in a society with no privacy whatsoever.
Max Mosley is right. Whilst his actions with those women were far from orthodox, they were consented, perfectly legal and nobody’s business. But because his achievements have caught the public spotlight, it is inanely assumed that every trifle in his life is in the public interest. And though the classic retort claims that public figures should be scrutinised because of their elevated position – as if they were now sterile and inhuman, not every figure in public life wished its demands upon them. The late Princess Diana’s treatment by the media and her interview with Panorama in 1995 give weight to this notion. We should therefore assume that all famous people may not appreciate perpetual intrusion into their lives.
The central reason for the exposure of the idiosyncrasies of familiar people by the media is to provide entertainment. It is entertaining for some to find out that John Terry had transgressions with the girlfriend of a former team-mate, but the very same incident involving three members of the general public, unknown to the fourth person, would evoke indifference, not interest, in the fourth person. The same can be said about any personal issue or activity that someone may have or have done, which they’d prefer not to be shared with the world. So the moral debate should centre here: whether someone privy to an affair, vice or insecurity should have the responsibility to tattle. If society has said no, then it shouldn’t exhibit double standards by making spurious exceptions with criteria that clearly lie outside the accepted conditions of legality and public interest.
Of course, the consensus would be different, should the party privy to the information have loyalties to other parties and feels obliged to divulge. But this is acceptable because the social setting is more intimate, and the interested parties have a broader understanding of the demeanour and intentions of others, placing the incident in a context for which to make a better judgment. Tabloids feel obliged to their readers, and represent a macrocosm of the first case: documenting every move of an easy, recognisable prey and creating a distorted, caricatured and, therefore, untruthful context with the sole aim to profit through entertainment.
Lord Stoneham’s justification of using parliamentary privilege, allowing MPs or Lords to override court injunctions on free speech, to reveal Sir Fred Goodwin’s affair with an RBS colleague at the height of the banking collapse is contentious. To say that the affair blighted his judgment is completely irrelevant, because it’s an unverifiable claim and there are no meaningful lessons to be learned from it – except, maybe, the tautology that people in positions of power and responsibility are also subjected to the whims of human nature. One is not condoning Goodwin’s actions but merely removing them from the realm of perceived abnormality.
We should therefore welcome Lord Judge’s wider condemnation of the dissemination of defamations on the largely unregulated social networking platforms. In addition to declaiming that modern technology is ‘out of control’ in terms of restoring the balance between conflicting rights, he said: ‘ I am not giving up the possibility of people who, in effect, peddle lies about others using modern technology may one day be brought under control’. This is a slightly different issue, but both comments lie at the heart of the argument about using platforms to degrade people who have done nothing illegal and in the public interest. He was speaking in the context of influential Twitter users who promulgate information which for, whatever reason, should not be expressed with the intention either to mislead or to breach another person’s privacy. Lord Neuberger’s choice of words may have been improvable, but they encapsulate the need to rebalance the tradeoff between free speech and privacy, for however liberating the internet has been, liberation restricts privacy, and legislation needs to redress this. But in terms of the Supreme Court’s record on issuing injunctions and super-injunctions, it is getting the balance right.
