Having eyed each other with their traditional distrust in the growing
conflict between freedom of speech and personal privacy, the media and the
law are on the verge of a struggle which could end in the collapse of self-regulation.
Since 2000, the Human Rights Act (HRA) has given British
people what most of the European Union’s citizens already had: a legal right
to free speech. It also handed them a legal right to privacy. Rather than
attempt to reconcile the two competing Articles at source, the framers of
the legislation are allowing them to fight it out and have appointed the
courts to referee.
Article 8, the Right to Respect for Private and Family Life, states: “Everyone has the right to respect for his private and family life, his home and his correspondence.” Article 10, the Right to Freedom of Expression, states: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
Judges have the task, when hearing cases in which the two Articles come into conflict, of “balancing” them. As the two concepts are weighed in the scales of justice, the media is particularly vulnerable. There has never been anything so fundamental or forceful in English or Scottish law to protect press freedom as the United States has in the First Amendment’s stout declaration that no law can be made “abridging the freedom of speech or of the press”. Lacking this guarantee, the British media itself has often been reluctant to take on the powerful, though it is hardly alone in that.
German newspapers, for example, seemed indifferent to the marital status of Chancellor Gerhard Schröder until the Mail on Sunday published a story about it, the sort of story that papers run in the slow news period around Christmas. Mail on Sunday readers may have been indifferent to it as well, but on the Monday morning some German papers picked it up: it may have been a slow news day in Germany, too. The interesting part of the episode was the Chancellor’s ill-advised attempt to make a German injunction stick in Britain, with the predictable result.
But the incident took journalists with long memories back to the days when British popular papers kept correspondents in Paris and Rome primarily on the off-chance that the local press might publish a story about the British Royal Family. In that event the correspondent could file in shocked tones a piece denouncing the filthy foreigners for having the temerity to print, for example, an undoubtedly fabricated but nonetheless deeply offensive tissue of lies linking the names of that paragon, Princess Margaret, and the gallant but, sadly, divorced Group Captain Peter Townsend.
On the face of it, it was nobody’s business but the couple’s own: yet the State was deeply interested in it, presumably on behalf of its citizens (or, to be more accurate, subjects), whose pretty little heads, containing very small brains, need not be troubled with such private matters. But the subjects showed an unseemly curiosity about the romance, perhaps recalling that only a few years earlier they had been kept similarly in the dark about the then King and Mrs Simpson, a matter which the State would like to have settled behind closed doors, with the details revealed to the public only in papers unsealed under the 30-year, 40-year or possibly 1,000- year rule. The public’s interest in what its sovereign got up to in private was legitimate in the case of Edward VIII and his eventual wife, as was proven by the late revelation that Hitler regarded them as friends, a fact officially concealed for a couple of generations.
There have been and will continue to be many occasions when public interest, high-minded and respectable, coincides exactly with the muchdeplored prurient inquisitiveness of the ill-informed public. Press disclosures about their private lives crippled the political careers of David Mellor and Tim Yeo because they contradicted John Major’s “back to basics” policy on family values, and Major himself would have been crippled, too, if Edwina Currie had been less discreet at the time. The question is: Which was poking its collective nose into private matters – the press or the Government?
Politicians, in any case, have been re-classified as celebrities, so that Jeremy Paxman found it natural to ask Charles Kennedy a question which had nothing to do with policy but everything to do with whisky. And they have been eager to exploit, when it suits them, the glamorous new status they and their families enjoy.
Mrs Blair’s tearful speech about her son’s flat was a contrast to her early hours as the Prime Minister’s wife, when she somehow found herself opening the door of No. 10 to receive a bouquet. Historians examining the photographs in the future will wonder why none of the newspapers which published them decried the unprecedented laxness which removed the whole of Downing Street’s usually-assiduous security staff from the entrance hall just before the caller arrived, so that the Premier’s lady was left alone to accept the delivery. They will search in vain for her husband’s denunciation of the paparazzi.
Discussions of privacy, or the ownership of an inviolable existence inside an Englishman’s castle or in a social gathering, used to include the phase “behind closed doors”, which now has a sinister ring. Such arguments used to emphasise the incursions of the State, and the need to protect the individual from power. (“The lost issue,” John Pilger wrote in his 1992 Distant Voices, “is the need to protect the public from the State, not the press.”) Now the media is cast in the role of villain, and the powerful, including the embodiments of the State itself, are able to portray themselves as victims. Meanwhile the very notion of privacy has been compromised so badly by the cult of celebrity – in which the media and its subject matter are equal participants – that private lives have become articles of commerce. Everything from birth to marriage (or the absence of it) to death is for sale if the price is right.
In spite of assurances by Jack Straw, then the Home Secretary, that a privacy law would not enter Britain by the back door with the HRA, the courts have already shown they can handle privacy cases by including them in the law of confidentiality. That would be the British, or at any rate the English, way: to let the common law take care of the problem, avoiding the need for a Bill which would be at least a nuisance in Parliament, though politicians might welcome a privacy statute in their heart of hearts, as their equivalents have done elsewhere. The weakness of the media case against a privacy law is that they have consistently spent their time on sex scandals instead of on corruption, fraud and theft. But they may never get the chance to change the direction of their disclosures if they face the hurdle of a legal framework.
The most obvious instrument to fight off the impending curtailment of freedom is the Press Complaints Commission. But there are doubts about whether it is strong enough, or sufficiently robust. If it cannot, it will be put out of a job, because codes of conduct will have been supplanted by a legal framework. The PCC’s director, Guy Black, interviewed in this issue by Mary Riddell, believes the Culture, Media and Sport Select Committee inquiry into privacy and media intrusion, under the chairmanship of Gerald Kaufman, will demand measures that would, if implemented, kill off self-regulation and, by extension, a free press. Its aim, Black suspects, is to make the PCC accountable to the new broadcasting super-regulator, Ofcom.
As well as the Kaufman committee, there are being set up some unofficial “commissions” anxious to examine and report on the probity of the press, which can be expected to take their tone from the academics and politicians who will largely populate them. The ranks of the opposition are swelling as the chastisement of the media becomes a British pastime second only to watching Big Brother in terms of the masochistic pleasure to be obtained from ritual humiliation.
The legal threat to the media industry is so great that it can produce a credible response only by creating a body of its own, perhaps under the umbrella of the PCC, which would examine standards, set new ones and devise a mechanism for enforcing them, so beating the politicians and lawyers to the punch. “There are times when the signals are at red,” says Guy Black. “They are now.” The industry needs to move quickly to get its retaliation in first.