Monday, May 23, 2011

Privacy law is too important to be left to the judges

Some years ago I attended a day course on media law. It was taught by a former journalist who had later taken a law degree, and what a remember most from the day is his stories of the various scams he used to get up to as a young reporter. In the days when you had to phone your copy in, the ability to extract free calls from a public phone was a useful way of making those expenses go further.
But he did cover the basics of libel, parliamentary privilege and qualified privilege, and something else he said has stayed with me. It was that the judges were clearly determined to create a new tort of privacy and that we should keep an eye on how this developed through case law.

How right he was.

At the heart of the current farce over the law on privacy lies this  judicial activism. Privacy law has been developed through judgments in the courts and not through debate in Parliament or wider society.

For many on the left, who reason that the public is irredeemably conservative in its social views, this has been rather attractive. Battles they dare not fight or could not win at Westminster could be fought instead in more patrician European institutions.

Certainly, a despair of ever winning in Britain again was one of the reason for Labour's embrace of the European ideal under Neil Kinnock.

Add to this despair amongst politicians the instinctive arrogance of the legal profession and you have a powerful and toxic brew.

I am a Liberal and am instinctively in favour of free debate, whether in the press or on Twitter. I find the demand to prove a "public interest" before something can be published absurd. It is those who favour censorship who should be forced to show it is in the public interest.

Finally, we are told that blackmail is an important element in the case that has caused all the trouble. But blackmail is a serious criminal offence. If there is convincing evidence that someone has committed blackmail then he or she should be arrested and charge.

It should not be possible to raise the spectre of blackmail, gain an injunction and then leave the matter hanging in the air for ever after. You would not allow it with murder: why allow it with blackmail.

All of which is a way of saying that I fully support John Hemming's actions in the Commons today.

6 comments:

Anonymous said...

At the heart of the current farce over the law on privacy lies this judicial activism. Privacy law has been developed through judgments in the courts and not through debate in Parliament or wider society.

Rubbish, save insofar as all law is developed in the courts, that being what courts are in part for.

Hansard, 3rd Nov 1997 records a lengthy House of Lords debate covering precisely this subject. See in particular the comments of Lord Lester of Herne Hill

(including much on the public interest balance - it is worth remembering that only today it was said in court that in the matter over which Hemming sounded off no one has ever sought to pretend there is any public interest).

There were frequent debates from then until the Act was passed.
An exchange between William Hague and Tony Blair on precisely the subject of judge-made privacy law can be found in the House of Commons debates for 11th February 1998, a week later there was an exchange between Brian Mawhinney and Jack Straw, and so on and so forth ad nauseam

Parliament then passed an act which says what it says. The courts now interpret it.

morungos said...

This is not about free debate. It is about using people's private lives to sell newspapers. Taking your argument, people's phone numbers should be freely available, maybe you even feel it is right to publish their home addresses. If you don't care about public interest, where do you draw the line?

Sorry, no, people must have a right to privacy.

The right to read sleaze doesn't override that.

Jonathan said...

Anonymous: If the most recent reference you can come up with dates from 1998 then you are making my case for me.

Jennie said...

Jonathan: you do talk rot sometimes. Unelected judges wouldn't HAVE to use case law to "make up law" (which, by the way, has been going on since time immemorial and is one of the fabled three arms of legitimate government ANYWAY) if parliament would pull it's bloody finger out and legislate. They were talking about how we needed a privacy act when I was doing my initial degree in the mid nineties, and we still haven't got one. If parliament doesn't want judges to fill in the gaps between legislation when people have disputes they should bloody well legislate. You can't blame the judges for parliament's lack of will to handle the hot potato.

Dan Falchikov said...

The issue is surely the conflation of public interest and journalistic prurience.

It's time for John Hemming to use his Parliamentary privilege to expose those in public life for whom there is actually legitimate public interest in finding out what they are covering up - like Tory MPs:

http://livingonwords.blogspot.com/2011/05/so-its-giggs.html

niklassmith said...

Finally, we are told that blackmail is an important element in the case that has caused all the trouble. But blackmail is a serious criminal offence. If there is convincing evidence that someone has committed blackmail then he or she should be arrested and charge.

It should not be possible to raise the spectre of blackmail, gain an injunction and then leave the matter hanging in the air for ever after. You would not allow it with murder: why allow it with blackmail.

All of which is a way of saying that I fully support John Hemming's actions in the Commons today.


The injunction is an interim injunction, as it says in the judgement: http://www.bailii.org/ew/cases/EWHC/QB/2011/1232.html

Furthermore, Eady says in paragraph 38 that he will discuss with counsel whether there is a need for a speedy trial to adjudicate what Ms Thomas can be allowed to publish. It's very clear that the matter will not "hang in the air for ever after".

And you've given the CPS very little time to investigate the possibility of blackmail! Given them a chance.