The injunctions granted to Colin Montgomerie and three England footballers in recent weeks have been greeted with the now familiar wailing and gnashing of teeth by various sections of the media, venting their outrage at what they perceive to be the imposition of judge-made privacy law by stealth. They claim this is having a “chilling effect” on investigative journalism and the reporting of matters of public interest. There are a number of flaws with such arguments.
It is a truism that what interests the public does not necessarily engage the public interest. Newspapers’ desire to publish stories about the sexual exploits of sportsmen is prurient and is dictated by their own commercial interests. Is the sordid trade of salacious bedroom exposure really the basis upon which to found an argument about press rights? Be that as it may, it has not stopped some suggesting that the law as it now stands could have censored serious pieces of investigative journalism, for example by allowing MPs to block the Daily Telegraph’s series on their expenses. It could not, because unlike the recent ‘stories’, the Daily Telegraph’s genuinely involved the public interest.
Despite what many members of the media would have their readers believe, there have been but a handful of contested privacy actions since the House of Lords decision in Naomi Campbell in 2004. That is because there are so few stories where there is any hope of a public interest defence.
The suggestion that privacy law has been introduced through the backdoor by arrogant and unaccountable judges is also unsustainable. Leaving aside the fact that such ad hominem tactics contribute nothing whatsoever to the debate, the thesis itself is misconceived. It is not judge-made law. When dealing with competing Convention rights such as Article 8 (right to private life) and Article 10 (freedom of expression), the judiciary is giving effect to the Human Rights Act passed by Parliament. They consider whether there is a reasonable expectation of privacy, on the particular facts. If they decide there is, they carry out a balancing exercise to decide whether there is nonetheless an overriding public interest in according priority to someone else’s freedom of speech.
It is difficult therefore to arrive at any conclusion other than that the recent press outrage is both misconceived and misdirected. The only “chilling effect” caused by the development of our privacy law is upon those who make their money from the “kiss and tell” business, and anyone reading the recent spate of articles on the exploits of Peter Crouch and Wayne Rooney could be forgiven for wondering whether it has even had much impact there.
Stevie Loughrey is a solicitor at law firm Carter-Ruck, which specialises in privacy, slander and defamation, as well as other areas of media, entertainment and international law. This post originally appeared on the Journalism.co.uk site and is reproduced with permission and thanks