Privacy and the media: time to hammer it out?

Paul Dacre might have chosen a better time to make what may come to be seen as a landmark speech on media privacy law in a year when some sections of the British Press have trodden all over the privacy of the McCann family for instance.
His remarks to the Society of Editors focus primarily on a case taken Mr Justice Eady, formerly David Eady a libel lawyer who worked for several tabloid newspapers; Mosley v News Group Newspapers Ltd. Dacre’s argument is that “the British press is having a privacy law imposed on it” by a single activist judge:

“This law is not coming from parliament. No, that would smack of democracy, but from the arrogant and amoral judgments, words I use very deliberately, of one man.”

Charlie Beckett, director of the POLIS think tank agrees:

…there needs to be a proper public debate. Government doesn’t want to be seen either to be limited media freedom or failing to protect the citizen’s right to privacy. But the fact that one judge seems to be making all the law on this is surely not the way to proceed.

The Press Complaints Commission, of which Dacre is Chair, succeeded the old Press Council back in 1990 at the recommendation of the Calcott committee. At the time there was some discussion as to whether or not the commission should have regulartory teeth.

A 1993 review of the self-regulation regime under the PCC was highly critical and recommended the instigation of a statutory complaints procedure. Two years later a Government when a White Paper on Privacy and Media Intrusion appeared it rejected all recommendations for statutory regulation and for a new tort of invasion of privacy.

One critic, Professor Eric Barendt, described the formulation of the paper as “government by correspondence, rather than a government of principle”.

Then when the Human Rights Act 1998 came in effect in 2000, and this previously unregulated sector began slowly to be reeled in by the actions of a single Judge. Article 8, which governs privacy, is one of the most laconic and open of the Act:

(1) Everyone has the right for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The ensuing vacuum has been filled by the courts, and the particular activism of Mr Justice Eady. There is no doubt that press freedom is under constant assault. Ministers are currently under pressure to scrap D Notices in favour of legislation that “prevents news outlets from reporting stories deemed by the Government to be against the interests of national security”.

But one of the reasons why the libel laws in the UK remain so ludicrously tight is that there has neither been the politicial will, nor the commericial appetite amongst the wider media to return to first principles to bring in stable legislation that would ensure (so far as is ever going to be possible) a proper balance between fredom of speech and the rights of the individual.

Ironically it’s the very unregulated nature of the press that’s left it open to judicial challenge. And yet until there is, it is hard to see how this problem is going to go away (or get resolved) any time soon…