Judges and MPs must heed media's fears about privacy law 'by back door'

Roy Greenslade
12.11.08

AT FACE value, it is difficult to find much to disagree with in the good intentions enshrined in Article 8 of the European Convention on Human Rights (ECHR). Brief and to the point, there are just two clauses. The first one states that "everyone has the right to respect for his private and family life, his home and his correspondence". Who could disagree with that? The second declares that "there shall be no interference by a public authority with the exercise of this right" except when upholding the law and when "necessary in a democratic society".

The problem, as with all laws, is how they are interpreted. This is especially true in the case of privacy because it has to be weighed in the balance against Article 10 of the ECHR, which provides "everyone" with "the right to freedom of expression". In other words, a right exercised not only by individuals but also by the press.

If this sounds like a law lecture, then I apologise. But it's important to keep those basics in mind as I explore some of the criticisms raised at the weekend by Paul Dacre, editor of the Daily Mail and editor-in-chief of Associated Newspapers, publisher of this newspaper.

In a single speech to the Society of Editors' conference, he has managed to win more headlines and secure more radio and television airtime than ever before about the contentious subject of privacy versus press freedom. Every BBC news bulletin on Monday featured his attack. Yet this is a debate long overdue.

Before the ECHR was incorporated into British law by Parliament in 1998, I was one of several commentators who wrote about a privacy law being smuggled in through the back door. Our concerns were quietly waved aside. We were told we were being alarmist. We need not fear Article 8 because it was so well-meaning, so reasonable, so sensible.

There had evidently been discreet discussions between newspaper representatives, such as the Press Complaints Commission, and members of the judiciary in which it was generally agreed that there was no threat to journalism. So the protests were muted at the time, and the years moved on without there appearing to be much of a problem. There were odd landmark moments, notably the action by the model, Naomi Campbell, against the Daily Mirror, which ended up in 2004 with the House of Lords deciding in her favour.

But that turned largely on the paper publishing a picture of her attending a Narcotics Anonymous meeting, rather than merely reporting the fact. Though it did set a precedent of sorts, it did not seem earth-shattering.

However, it did convince some papers facing privacy actions from celebrities to settle a couple of actions before they ever reached court.

The first major alarm came with the action brought by a little-known Canadian folk singer, Loreena McKennitt, against her former friend, Niema Ash, who had written a book about the breakdown of their friendship. McKennitt did not argue that the book's contents were untrue, only that by writing them Ash had intruded on her privacy.

I read the book, interviewed Ash at length, read the court documents and formed the opinion that the judgment by Mr Justice Eady in favour of McKennitt was wrong. After the ruling in April last year, I wrote that "McKennitt's landmark victory creates unprecedented legal protection for the privacy of famous people". However, I also rationalised that, down the years, I have often disagreed with judges over individual judgments. Who hasn't? Anyway, the McKennitt ruling did not appear to inhibit papers from running kiss-and-tell stories, as had been suggested, so it passed without appearing to disturb editors over much.

Then came this year's Max Mosley case against the News of the World, in which he argued that the paper's covertly filmed revelations of his sado-masochistic session with five prostitutes infringed his right to privacy. This time around, I agreed with Eady's judgment. The News of the World mounted a poor defence, failing to advance any public interest justification beyond the belief that its job is to expose acts of depravity. Dacre wholeheartedly agrees with that view, and I do not.

We will have to agree to disagree on that specific judgment. That difference of opinion does not blind me to the fact that his substantive critique of the operation of the privacy law - for that is what it is, in essence - demands renewed attention by our legislators.

I am less worried about the sexual frolics of individuals than I am by the State's increasing intrusion into our private lives, through its fetish for gathering, and then losing, all manner of our personal details. That may seem like another matter but it is the concern we journalists raise all the time, and the mention in the ECHR of "public authority" reminds us of its intention to protect individuals from the state.

We cannot, of course, tinker with the ECHR. We either have it in full, or not at all. What can be reviewed, however, is the practice, the interpretation, and the way the judiciary has allowed one High Court judge, David Eady, to deal with every major case involving newspapers, whether they are sued for libel or intrusion into privacy.

It is true, as four top defamation QCs said in Eady's defence in a letter to yesterday's Times, that his rulings can be appealed - at a cost, of course. It is also true that a single judge provides consistency. That is beside the point though.

What editors, and book publishers, require is a sense of confidence and trust. Dacre's timely speech reminds us, 10 years after the event, that too few people showed enough concern or understanding when concerns were first raised about the opening of that back door. Now it is wide open and needs reconsideration.