There is something surreal about the fact that recent attempts to assert privacy rights should occupy the front page of the Daily Mail for two days in a row. There should be nothing to report, and it is exactly this that the Mail thinks their readers should know about. The Times makes the point in its page 3 by littering its piece with thick black redactions, imploring its readers to share in its frustration that the names behind the ink cannot be revealed. It is an effective trick.
The Telegraph, the unlikely but enthusiastic champion of the tabloid kiss-n-tell agenda, similarly sensationalises the recent injunctions which, it tells us, prevent publication “even on the internet”. Opinion pieces and even cartoons litter today’s newspapers inviting our shock at these outrageous new “gagging” orders. Max Clifford is widely quoted (where do we start with the irony of his observations?) and even the Prime-Minister tells us he is “uneasy” about the use of injunctions.
To say that there is an agenda is perhaps stating the obvious. Turkeys don’t vote for Christmas and newspapers will not applaud laws that restrain their businesses. But is there a co-ordinated agenda; and if so why now? In the interest of balance it is worth stating that the Court of Appeal judgment in EKT v News Group Newspapers Ltd on Tuesday ([2011] EWCA Civ 439) is of some importance. As Edward Craven observed in his post on this blog the judgment of Ward LJ does establish that in privacy injunction applications particular weight must be given to evidence of the impact publication will have on children. This issue was addressed by the Court of Appeal in Murray but Ward LJ in EKT goes further and it is proper that this should be covered in the media. That being said, is it really of great surprise that the Court should place the welfare of a child over a sex exposé?
And then came yesterday’s applications including OPQ ([2011] EWHC 1059 (QB)). A “straightforward and blatant blackmail case” Eady J tells us, involving photos, threats and evidence of mental health risks arising from publication. Is this really something that warrants the sensational and front page deployment of the now familiar privacy-bashing phrases “draconian secrecy rulings” by “judge-made law” for the “rich and famous”? It is a sobering thought that our media are so anxious to allow publications in the circumstances described in OPQ. If Eady had condoned the blackmail and allowed publication he really would have been “amoral” as the Daily Mail like to allege. Lord Justice Ward may be mopping his brow having been replaced in the firing line by the long suffering Eady but both must lament the affront to common-sense that characterise the coverage of their attempts to fulfil their obligations.
So why then the fuss? – let’s speculate.
Phone-hacking: Privacy intrusion on an extravagant scale has been revealed at the News of the World. Other newspapers certainly dabbled, at the very least, even if the standard was being set in Wapping. Public enquiries, select committee hearings and statutory regulation have all been called-for. What better than a furore against the development of privacy law to deflate calls for more stringent regulation? Mr Cameron appears receptive to their pleas; widespread criminality is apparently no proof that the press can’t be entrusted with our privacy.
Strasbourg: Yes, those dreadful continentals are plotting once more. Judgment is expected shortly in Mosley’s application which, if successful, would require the Government to implement a mechanism requiring newspapers to contact its subject if it intends to publish his or her private information. Mosley’s efforts will be in vain if UK judges approach the privacy applications that would follow from the notification requirement in the way the Daily Mail would deem appropriate. They may have to contact the OPQs and EKTs but they would be better checking into the Priory than seeking an injunction.
These conspiracy theories may be fanciful but the media have an encouraging track record of seeing through their agendas. Libel reform was championed week after week by the Sunday Times in articles of highly questionable legal merit. Their patience paid off and the Defamation Bill is one of the consequences. Where the privacy campaign takes us, who knows, but footballers and judges alike had better prepare for rough ride in the meantime.
Dominic Crossley is a partner at Collyer Bristow LLP. He acts for Max Mosley on application to the European Court of Human Rights.
We will watch Europe with interest for useful legal precedents. In South Africa it is legal to record someone without their knowledge or consent, so long as the other half of the conversation knows they are being recorded and that person consents. This leads people to push conversations into preconceived directions and to incite people to say things that will ultimately harm them. While being a major invasion of privacy, it is also entrapment. But few have the finances to battle such injustice. So Children of Fire has begun its Battle for Fair Press. Support us please and DM via Twitter @ChildrenOfFire