The furore over the privacy of a famous footballer has thrown into the spotlight the thorny issue of press freedom and the right to privacy.
I have always opposed international bureaucracies deciding policies which ought to be set by national parliaments. We have a long tradition in this country of the clear separation of powers between parliament, which makes laws and the courts, which independently implement those laws. When the courts start to interpret laws in a way that neither parliament nor the public intended, then parliament must give greater clarity to judges.
On the face of it, that is what is happening in these cases relating to so called “super-injunctions” lodged by the rich and famous to protect their privacy. In the absence of clear political guidance, the courts have made what are termed “public policy decisions” and decided for themselves how to interpret the very vague principles that are set down by the European Court. That is usually a recipe for a bit of a mix up, so the orders that the courts have set down have been difficult to enforce because they didn’t stem from clearly thought through laws.
That said, this is a problem that has been brewing for a long time. The reason the courts have been pulled in to this area in the first place is that parliament has consistently ducked the challenge of trying to create a stronger framework of expectations around our media. There is an accepted principle that one person’s right to privacy must be balanced against the right to freedom of speech. The agreed test is that if it is in the “public interest” that a piece of information be published, then freedom of speech trumps the right to privacy.
The trouble is that, over the years, some of our national newspapers who want to boost their circulation have confused things that are “in the public interest” (ie for the common good) with things that are simply “an interesting read for the public” and sex sells certain newspapers. The boundaries have been gradually pushed further and further as newspapers fight off falling circulations. Meanwhile, politicians have never felt it a good time to address the issue and face up to the brewing problem because no government or party in opposition wants to face an angry backlash from newspaper editors who guard the status quo with zeal. So things have been allowed to drift along.
The current clash between the media, the courts and parliament will probably force greater clarity. The answer probably lies in toughening up the current voluntary code that newspapers work to so that it is clearer, more independent and with tougher sanctions for breaches but where there is a clearer test of what is in the public interest and an unambiguous defence of freedom of speech.