Should there be legal protection for privacy in the internet era?

Most of the current hysterical press coverage of privacy injunctions fails to acknowledge that technological changes are driving the formalisation of boundaries between public and private life. Without such acknowledgment we lack the context to decide if there should or should not be legal protection for privacy in the internet era and, if there should, how such protection could be framed.

Practical constraints on publishing private lives disappear

In the constrained media environment of the twentieth century there were practical limitations on the press’ ability to report on people’s private lives. There was, for example, only a limited amount of material the press could access – in terms of photographs, video, phone conversations. There were also practical constraints on what the papers could and could not publish. They were not able to publish video or audio, and they could only publish as much as could fit between the front and back pages of the print paper.

For the most part these practical constraints no longer exist. The press can access huge amounts of personal material themselves and through others. A reporter can legitimately find personal information published on the internet or source recorded audio / video from members of the public. Equally, a reporter can illegitimately access private material or illicitly record personal moments or private phone calls. The papers can then publish as much of this material as they like – in text, audio, or video. Or anyone else can publish this information, on a blog, on a social networking site, on twitter, on a wiki.

The removal of the practical constraints necessarily means that, if we want to protect private life and maintain private space, then these practical constraints have to be replaced with something else. Preferably this would be cultural constraints. In other words, people would recognise the line between public and private and respect that line.

Yet the press makes a living out of transgressing this line. Sometimes these transgressions are legitimate – to investigate stories of genuine public interest. Sometimes they are illegitimate – hacking into voice mail searching for gossip or breaking into personal email accounts to find out about possible football transfer deals.

Where cultural constraints do not constrain publication, people have sought legal constraints based on the European Convention on Human Rights (ECHR). These people are, in effect, saying “this is where I believe my private life begins and your right to publish ends”. It is natural that people should try to do this, and it is equally natural that journalists should question where this line should be and challenge it if it prevents public interest reporting. But it is absurd not to acknowledge the tensions between the two, as some of the papers are currently doing.

Sex and the circulation battles

The front line of the battle for legal protection of private life is sex. Sex sells. Sex between two celebrities sells even more. Therefore the idea that the sex lives of celebrities will be off limits to the press scares the living daylights out of the tabloids. It would destroy the business model that many of them have developed over the last few decades.

When they challenge the evolving privacy  law the tabloids are sometimes quite explicit about their commercial fears. Paul Dacre, the editor of the Daily Mail, was quite clear about this in his speech to the Society of Editors in 2008:

Put another way, if mass-circulation newspapers, which also devote considerable space to reporting and analysis of public affairs, don’t have the freedom to write about scandal, I doubt whether they will retain their mass circulations with the obvious worrying implications for the democratic process

Dacre’s directness is helpful, if rather frightening. But generally the press is much more coy about the importance of privacy intrusion to their sales. Instead, they argue that privacy injunctions are a ‘legal weapon to the wealthy seeking to hide their failings from the public’ and that the law is being used simply ‘to hush up the sordid secret of a star’ (from ‘TV star’s shame hushed up for ever‘). The public, the Mail asserts on an almost daily basis, has a right to know such secrets.

(Unfortunately there is not the space in this post to detail the hypocrisy of the Mail and certain other papers when they talk about the public’s ‘right to know’ given they daily deny the public the right to know about significant public interest issues such as phone hacking.)

Fundamental questions we have to answer

Most of us would blanche at the idea of such a commercial Faustian bargain. The proposition that certain publications should be given the freedom to intrude as much as they like into people’s personal lives so they can keep selling papers would not strike most people as a fair trade.

But there are tricky questions about privacy and the law that require subtle and informed debate. The first and most fundamental is whether there should be legal protection for private life. If we agree there should (and according to research most people do – see Stephen Whittle on ‘Privacy, probity and the public interest‘) then other questions immediately fall from this, such as:

  • Where should the line be drawn around private life?
  • What exceptions should be made (e.g. where a privacy injunction is sought to protect commercial interests as in the case of John Terry)?
  • How can we protect and preserve public interest reporting?
  • How can we prevent such a law being abused by the rich and powerful?
  • How can we ensure equal access to legal protection for privacy?

These are questions that need to be discussed openly and frankly. Questions that would benefit from proper Parliamentary debate, perhaps even extended consideration by a Select Committee inquiry.

Though the press should be wary of opening the Pandora’s box of Parliamentary debate with too much alacrity. Parliament legislates. If MPs and Lords inquire and debate privacy law there is a good chance they will then draft a bill. This bill may may well create more constraints than the current common law based on the ECHR.

Is privacy doomed anyway?

Still, no matter what the courts or Parliament does or says in these cases, it is increasingly unlikely that privacy injunctions will ever be particularly effective in the internet era. That is the irony of the current press outrage about privacy. The increasing scope of privacy injunctions is evidence not of their power but of their powerlessness. There is a certain absurdity to an injunction ‘against the world’ (‘contra mundum’) and the papers know it.

If people want to publish they can, and it is not then hard for the rest of us to search the internet and find who celebrity X and celebrity Y are. As David Aaronovitch wrote in The Times last week (paywalled):

‘It took me 15 minutes of googling to find out who the celebrity injunctors probably were. I got the actor through (believe it or not) a lower division football club’s fan site. The TV personality could be guessed through hints provided by Private Eye. The football player I discovered through sources I may not divulge’

But this does not negate the need for a well-informed debate. And, if the press genuinely care about the public’s right to know they should stop spluttering with outrage at the idea that people should want to keep aspects of their life private, and – if they agree there ought to be a line – start engaging about where that line ought to be.