ARTICLE 8 OF the European Convention on Human Rights asserts that “everyone has the right to respect for his private and family life”, and in Britain and Ireland the law of privacy is very much a creature of the convention, now incorporated in our law, and of its enforcer, Strasbourg’s European Court of Human Rights (ECHR).
In the absence of privacy legislation from dilatory parliaments, Strasbourg has been busy expanding and setting the limits to such rights. On Tuesday, in a welcome move, it ruled against a demand by ex-Formula One boss Max Mosley that newspapers should be required to notify subjects of exposés ahead of time to allow them to get injunctions to block publication. “Although punitive fines and criminal sanctions could be effective in encouraging prenotification,” the ECHR argues rightly, such a requirement “would have a chilling effect on journalism, even political and investigative reporting, both of which attract a high level of protection under the convention.”
The ruling comes as privacy assumes centre stage in London in the wake of exposure of widespread celebrity phone-tapping by the News of the World. This week the Daily Telegraph was also reprimanded by the Press Complaints Commission over covertly taping Lib Dem ministers, and the subjects of a string of super-injunctions were exposed illegally by an anonymous Tweeter.
The cases reflect distinctive features of the British media scene, not least the seemingly unrestrainable prurience of the tabloid press and the reality of protection only for the very rich, but also the international challenge of controlling the Internet short of unacceptable Chinese-like measures. The super-injunctions in particular have prompted more talk of the need for parliament rather than the courts to shape the law in this area.
As popular as a privacy law would probably be among politicians and the public – though cynics counter that the tabloids’ public also revels in the lack of such protection – there are real problems involved in agreeing how to formulate a legal distinction between “public interest” journalism and “public curiosity” journalism. Sometimes the two overlap and merge, making the banning of the latter fraught with danger.
The problem is that the baby gets thrown out with the bathwater, and that the chilling effect on public service journalism that the court warns of, already stymied by outrageously extravagant defamation awards, will choke the genuine investigation of malfeasance in high or rich places.