I recently wrote on these pages criticising celebrity injunctions taken out to gag English newspapers, even when the stories were freely reported in other countries.
The expensive celebrity game reminded me, I wrote, of the Spycatcher farce and the series of trials during which Margaret Thatcher tried to prevent British newspapers from publishing extracts from Peter Wright’s MI5 memoir, despite the book being freely obtainable outside England.
I argued that our courts should not be used to keep secret what is, effectively, freely available, and I predicted that our courts would not allow celebrity injunctions to be upheld.
I was a bad prophet. Last week, our Supreme Court decided (by four votes to one) that a certain celebrity injunction should be maintained against the Sun on Sunday, overturning the (three-judge) Court of Appeal’s decision to set it aside. The Supreme Court gave the appellant, his partner and their young children protection, pending trial,preventing his identification following a three-way sexual encounter.
Lawyer explains how privacy injunctions workPlay!01:50
In his ruling, Lord Mance referred to me as having put the matter well in my book Five Ideas to Fight For, quoting me thus: “News is a business and not only a profession. Commercial pressures push papers to publish salacious gossip and invasive stories.
It is essential to ensure that those pressures do not drive newspapers to violate proper standards of journalism.” But he quoted me out of context. These words were written about the need for effective press self-regulation and were certainly not a plea for gagging orders.
The Spycatcher case concerned serious matters of government secrecy, not what celebrities get up to in their own bedrooms. Last week, the Supreme Court attempted to draw a nuanced distinction between breaches of confidence and invasion of private life, treating freedom of expression and privacy as of equal weight.
This is a distinction difficult to work with and, in my view, it is the wrong approach, especially if the information someone is trying to suppress is no longer secret in any real sense. As Lord Bingham said in the Spycatcher case, he would not “seek to emulate the 15th-century pope who issued a papal bull against Halley’s Comet”.
When Parliament made the Human Rights Act in 1998, the press feared that the Act would become the source of a privacy law. They lobbied for an escape clause. The Blair government refused and instead included Section 12 which requires the courts to have “particular regard” to the importance of the European Convention right to freedom of expression when deciding whether to stop the press from publishing.
Free expression is not absolute and should not always trump privacy, but injunctions preventing publication should be exceptional and ordered only where the need is clearly established. That is what Section 12 was intended to mean but it is not how our courts have interpreted it. And that is why we are seeing this worrying increase in celebrity privacy injunctions encouraged by the Supreme Court.
The issues are tricky, though, because publication on the internet and social media undermines the ability of national courts and laws to protect the public interest in privacy, reputation, a fair trial, official secrecy, and so on, against abuse. But we need to do this without (as an American judge once wrote) “burning down the house to roast the pig”. While the Supreme Court sought to balance these competing interests, its judgment raises as many questions as it answers.
And it is understandable that our great newspapers are worried about what effect it will have on their ability to report without restraint.
The President of the Supreme Court, Lord Neuberger, recognised that the ruling was controversial and said that “if
Parliament takes the view that the courts have not adapted the law to fit current realities, then, of course, it can change the law, for instance by amending section 12 of the 1998 Act”.
The opportunity to do so is there, since the Lord Chancellor, Michael Gove (former journalist and wily political operator), is soon to consult the public about a newfangled Bill of Rights, including asking whether freedom of expression needs stronger protection.
But can we trust our politicians to do a better job? Isn’t it a better approach to rely on Sir Alan Moses and Ipso to enforce the editors’ privacy code of practice robustly?
The judges should be involved only where there is a really pressing social need. Using the courts to rule on freely available celebrity tittle-tattle abuses our hard-fought freedoms and leaves the judges and the law looking foolish and diminished.
Source: ANTHONY LESTER