We should think about privacy and the law, though God knows it’s hard to reach useful conclusions. The times we live in are loose-lipped, not to say slobbering; this is also a celebrity- loving age in which public image is conflated with earning power.
Individuals gaily invade their own privacy in social networks, interviews and memoirs, while less attractive revelations are quashed by court injunctions, and now superinjunctions (the kind when you’re not allowed to say that there’s something you’re not allowed to say).
The Times’s research shows that there are ever more gagging orders in force, generally won by celebrities and priapic sportsmen. Meanwhile, out on the lawless internet anonymous bloggers spread speculation, gossip and lies. And in riposte to it all a wonderfully (if unintentionally) funny new website called iCorrect permits its paying subscribers to deny reports at will. Thus Lord Linley exasperatedly informs us that no, his marriage is not in trouble, they weren’t glum after a wedding but just waiting for their car. Naomi Campbell says she has never expressed a view about where the Fifa World Cup should be held. Oh, and Bianca Jagger has never been on a date with Billy Joel.
Actually, for all its ludicrous self-importance, I applaud iCorrect. It is a better way to embarrass journalists than by clogging up the courts with trivia. Maybe media should be forced to put a prominent link to the site on any future mention of the individual, so that everyone identifies them as unreliable witnesses who write malicious, unkind junk.
But it is complicated. Leave aside, for the moment, the important and serious matter of our libel laws. Those need reform and we are half-promised it: organisations like Sense about Science and Index on Censorship fight to prevent the kind of well-funded corporate libel cases and injunctions that impede knowledge of things we really should know. These are matters such as the validity of alternative medicine, industrial threats to public health, or the dumping of European toxic waste in Africa. Professional, criminal, public health and financial matters should always be freely reportable, and judges intensely wary of granting any kind of injunction to commercial bodies.
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But individual privacy is a different, difficult, area and European human rights law confuses the issue. Previously all we had was the Calcutt Committee report of 1990, concluding with a certain woolliness that “in general, freedom of expression should take precedence over protection of privacy” but recommending “specific, targeted remedies” concerned with trespass and harassment (invasion of a sick actor’s hospital room had caused scandal).
There are two issues here: moral and legal. The difficult bit is how far to let them overlap, which it is tempting to do because the moral case is so gleefully ignored by scandal-hungry media which don’t give a damn about the boundary between private and public. To normal people it is actually a pretty clear line: things people say aloud in public, or to interviewers, are not private and may be repeated and mocked ad lib. Actions in public places — say, passionately embracing someone else’s spouse in a nightclub — are not private either. But home life is, however odd or irregular it may be, as long as it has no victim and nobody talks to the press. Drug abuse — because it does harm others through its criminal trade — is not private, but a visit to Narcotics Anonymous should be. Illness is private until willingly discussed by the invalid, and so are the details of private sorrow.
There is no moral value whatsoever in the tabloid theory that once somebody has mentioned their personal life or marriage in an interview or memoir, they lose for ever the right to keep anything to themselves. That is like saying that because you once had dental treatment, anybody may kick your teeth in.
Many stories printed about individuals, not just famous ones, constitute in morality (not law) a kind of mental trespass. Almost an assault. It is wrong to report them, just as it is wrong for people to publish “psychological” analyses of people they have not met (hard to forget that on the day the poor woman died being pursued by paparazzi, a newspaper banner in early editions still displayed a huge spread “Diana on the couch”.) But as Calcutt found, it is hard to legislate against nastiness without curbing important freedoms. Mark Oaten, the MP left profoundly embarrassed by reporting of his unusual but legal sex life, bravely concluded “however awful it may be, better to have a press that can expose MPs private lives because it means we have a free press ... it means we can expose corruption”. That does not, to the moral eye, make it right that they exposed his non-corrupt activities. Those were nobody’s business but his family’s. But he has a point.
Privacy injunctions can be used aggressively, too, and the law become a poodle of the powerful. Everyone owns their own experience and should have the right to relate it, but some of the most shocking, cynical injunctions are those brought by the grander half of an irregular couple, in order to silence the partner. One of the most notorious was the 1983 court order achieved by Lord Parkinson, which for years deprived the mother of this senior politician’s illegitimate child of any public voice. Sara Keays could not speak about her child’s health problems or achievements, or the fact that the father had no contact: the purdah imposed on them endured until the child’s majority, when the father’s vulnerable career was safely in the past.
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More recently, a senior media personality got a similar superinjunction about an illegitimate child apparently born of an affair: again, his privacy is protected while the mother’s freedom to tell her story (should she choose to) is compromised. Other celebrities have orders stopping their former wives from talking about their relationships, although such stories are surely their own, and if the ex-wife lied she could be sued. As to the “protection” of children, the custodial parent should always be the one to decide whether that is needed. Not the one who ran away, fearing for his image.
The whole area is a mess, not least because both sides behave badly. Weaselling celebrities and companies with their tame judges are doing something very wrong; but so are media who profit by revealing things that aren’t our business. For legal improvements we can campaign; but when it comes to journalism, alas, the only remedy is the market. If prurient gossip didn’t sell papers and draw mouse-clicks, it wouldn’t happen.