17.05.2011 - Angus McBride
Cases like the McCanns show the base motives really driving the press assault on privacy laws
The primary attack – taken up by politicians and others – is that privacy law is in effect judicially created and so undemocratic. Aside from the fact that, under our common law system, judges have (for hundreds of years) had a significant role in the development of the law, the right to privacy is contained in statute. Article 8 of the Human Rights Act provides for a right to privacy; article 10 for a right to freedom of expression. Judges have looked at these competing rights and reached the sensible conclusion that a breach of an individual's right to privacy by publication of private information is acceptable where there is a public interest. It is difficult to argue that this is not a good test.
It is said that only the rich and famous have access to the law. But it is generally the rich and famous that are of interest to the prurient press, so are more likely to require the protection of the courts. And is there really a public interest in the private lives of footballers or entertainers? What right do we have to pry behind their bedroom doors?
In any case, is not the real scandal that ordinary members of the public without access to football-sized wage packets do not have protection against the power of the press? Legal aid should be available to those without the means to hire expensive lawyers.
So, the argument continues, not only are privacy laws created by judges out of touch with society, and in the interests of the rich and famous, but the law is in any case unenforceable: in the internet age, privacy is dead. This approach is deeply worrying and essentially accepts that the internet cannot be policed. The same argument would in effect end the right to trial by jury. If we were to state that juries could no longer decide on an individual's guilt or innocence before a court because of speculation on the internet, all principles of justice would break down.
Clearly the internet cannot remain completely unfettered, and indeed it is not. The Twitter publication of people who it is claimed took out superinjunctions was hailed by some as being in the cause of freedom of the press, but it is a contempt of court.
The fact is, the press has not earned the right to unfettered freedom of expression. I am reminded reading Kate McCann's deeply moving book that on their return from Portugal, having been declared suspects in their daughter's disappearance, Gerry and Kate McCann asked me to visit newspaper editors to explain that there was no truth in any of the allegations made in the more scurrilous parts of the Portuguese press, and that the material was the product of vindictive leaks. I explained to each editor that uncorroborated evidence from a sniffer dog and inconclusive DNA (which could have been attributable to any member of the family) found in the boot of a hire car driven by the McCanns created not even a prima facie case.
It is fair to say that a number of the editors listened carefully and subsequent reporting reflected the fact that they understood that to report the allegations would be immoral, scurrilous and damaging to the efforts to find Madeleine McCann.
Others, however, listened coldly and made it quite clear that commercial pressures trumped completely the rights of these two tragic parents and their daughter. I was told that this "whodunnit" mystery was one of the biggest stories in years ("alongside Lord Lucan and Shergar") and that the truth of what had taken place was not going to get in the way of that line of reporting because that is what the public wanted, as evidenced by sales increases. Bile-infested internet comment on the McCanns was fuelled by this early reporting, and continues to this day.
The vilification of John Terry over an alleged relationship that was no one's business, the appalling coverage of the first arrest in the recent murder investigation in Bristol (and indeed many other early-investigation situations when the clamour for information means contempt rules are broken), and many more examples give the lie to the fact that this campaign has a high moral calling based around freedom of speech.
There should be no illusions. The press campaign against privacy laws is a campaign for power without responsibility, and to publish on the basis that the public interest is what the public are interested in. If the campaign succeeds then all our lives are fair game.