The freedom of the media in Britain has been suffering erosion over the past
few months, some of it from politicians, some from the courts, and some of it
self-inflicted. On Friday January 19, at the end of a tiring Parliamentary
week, a private member’s bill, the Freedom of Information (Amendment)
Bill, slipped through the Commons on the nod for its second reading. Its
apparent purpose is to prevent MPs’ letters to constituents being released to
the public. What it would actually do is exempt Parliament from the
provisions of the Freedom of Information Act.

Few private members’ bills make much progress, because government
whips can kill them simply by objecting and, regularly, object they do. In this
case they stayed silent, leading to the suspicion that members of this
Government, and some of its supporters, would like to see the FoI
(Amendment) Bill become law. In September last year the BJR pointed out
an attempt by Lord Falconer, the Constitutional Affairs Secretary, to reduce
the number of requests made under it, and urged that FoI should be both
protected and strengthened. Yet now, unless the Government shows its
commitment to the Act by contesting all inhibiting attempts to amend it,
MPs will give themselves a shelter in which they can hide from the media and
block what they consider to be intrusive publicity. Information providing
what they consider helpful – ie flattering – publicity will, of course, still be
freely available.

Meanwhile, in the courts, celebrities wanting to keep their private lives
private have won a series of decisions. For an allegedly high-profile figure in
sport – it’s not exactly a towering profile; members of the public without
comprehensive sporting knowledge may never have heard of him – there was
an order preventing him from being more closely identified, even by the
husband with whose wife he had an affair. The husband, anxious to blow the
whistle of revenge, apparently has no rights to do so through the media.

For Prince Charles, the Appeal Court upheld a High Court ruling that the
Mail on Sunday had infringed his confidentiality and copyright by publishing
parts of his 1997 diary, which he had circulated to friends and in which he
described Chinese leaders as “appalling old waxworks” during the handover
of Hong Kong. And for Canadian folk singer Loreena McKennitt, the Appeal
Court also upheld a judgment banning publication of a biography by a
former friend. Ms McKennitt was obviously disturbed that parts of the book
did not show her in the gentle light in which she prefers constantly to bathe.

The general surprise and considerable disconcertment among
journalists at some of these decisions was expressed by Paul Dacre, editor of
the Daily Mail, in his Hugh Cudlipp Lecture at the London College of
Communication in January. “Had you told me 36 years ago that a cuckolded
husband didn’t have the right to speak about his wife’s adultery, that a paper
would be banned from referring to royal indiscretions contained in a roundrobin
journal distributed to scores of people, and that the media cannot
reveal the identity of a Labour ex-Education Minister who sends her child to
private school – three issues that have come up recently on the privacy front
– I would have simply disbelieved you,” he said. In Dacre’s opinion, and the
BJR finds it hard not to agree: “Britain’s judges, whose dislike of much of the
media should not be underestimated, are itching to bring in a Privacy Law by
the back door.”

The judges would argue that they were simply applying the ancient
English law of confidence while finding the necessary balance between two
articles of the European Convention on Human Rights: articles 8, the right
to respect for privacy, and 10, freedom of expression. Journalists would
contend that freedom of expression is suffering because of the way the courts
are operating. In the case of Ruth Kelly, the Minister referred to in Dacre’s
lecture, the published story in which she was named resulted in a complaint
to the Press Complaints Commission, the creation of which in 1991 provided
a new self-regulatory framework and enabled newspapers to dodge a
proposed Protection of Privacy Bill.

Lawyers for Kate Middleton, girlfriend of Prince William, also wrote to
the PCC, and paparazzi pressure was eased for her as a result when
publications backed away. Now, following the jailing of News of the World
reporter Clive Goodman – and the resignation of editor Andy Coulson – the
PCC is slamming the stable door at the paper with a well-publicised flourish,
and writing to the editors of national and regional newspapers and
magazines to find out “the extent of internal controls aimed at preventing
intrusive fishing expeditions” – such as the “tapping” of mobile telephones.
The Commission also wants to know what is being done to instil
understanding of both the Code of Practice and the law in this area, and also
of journalistic public interest exemptions. Good luck to them – and let us
hope that the media are able to fight their corner in successfully resisting
both legislation and judge-made law on privacy with better ammunition than
Goodman’s scoops about such trivia as Prince William’s injured knee.

There may be an indication of the way the heads of the judiciary are
thinking in what one of the Law Lords, Baroness Hale, said in October: “The
public only have a right to be told if two conditions are fulfilled. First, there
must be a real public interest in communicating and receiving the
information. This is, as we all know, very different from saying that it is
information that interests the public – the most vapid tittle-tattle about the
activities of footballers’ wives and girlfriends interests large sections of the
public but no one could claim any real public interest in our being told all
about it.”

For “footballers’ wives and girlfriends”, read anyone in the public eye
who wants that eye to be blinded whenever an unwelcome spotlight is trained
upon nefarious, ill-judged or plain stupid activity in which they may be
engaged. Those intent on curtailing media freedom are not gathering quietly
to sneak in through the back door. Watch out for a sledgehammer.