The courts have described confidential information as an ice cube; give it to the person who has no refrigerator or who refuses to keep it in one and by the time of the trial, all you have left is a pool of water. This is the justification for a pre-publication injunction in privacy cases where one is rarely available in defamation: publish a libel and be damned later in damages if you defame in the process, because the victim can be ultimately vindicated by a jury verdict and a damages award; but if you unseal the perishable commodity of confidential information, no amount of damages will seal the packet again and the private information is spoiled for good.
What Mr Mosley’s application to Strasbourg sought to achieve, was at least to allow he and others in his situation to get to the table so that, once informed that their private peccadilloes and confidential concerns risked exposure, they might have the opportunity to petition the court for injunctive relief. During this short period of quarantine, the subject of the proposed publication would at least have the opportunity to ask the court to hold the ring pending consideration by the court of the respective positions of the subject and the would-be publisher. Without this quarantine period, the court has no opportunity to decide whether the story is a toxic danger, likely to do the subject significant harm, or whether there was a greater good in its exposure; rather, perhaps like the traditional on-screen baddy and evil genius, the newspaper editor has the power unilaterally, to decide whether and when he will release his potion, or poison, on the world.
Of course, the newspaper editor does not seek to do harm to the public; it is for the good of the public that he opens the privacy seal, seeking to educate and inform, to engage and entertain (and to sell a few newspapers in the process). But should this be a decision for him alone, to weigh the public interest and to decide whether, notwithstanding the risk for the individual, the greater good lies in publication?
It is without doubt that free speech is an essential commodity for a thriving democracy. But freedom to speak carries with it responsibilities and there should be no freedom to publish misinformation that rubbishes the reputations of individuals or private and confidential information for which there is no public interest or other justification. But the lofty ideals of free speech can be used as a shield behind which the less worthy imperatives of commercialism are hid. And the judgement of the European Court judges seems to given them a green light so to do, blurring the lines of the public interest / interest of the public debate, even further;
‘The Court, like the Parliamentary Assembly, recognises that the private lives of those in the public eye have become a highly lucrative commodity for certain sectors of the media. The publication of news about such persons contributes to the variety of information available to the public and, although generally for the purposes of entertainment rather than education, undoubtedly benefits from the protection of Article 10.’
So while celebrity cellulite and footballers’ fumbles may be of interest to the public they appear to be nudging towards gaining their own respectability as part of the public interest. It would be a matter of regret and shame, surely, if this judgment were abused to justify the wilder excesses of Fleet Street from prying into and publicising details of private lives where there is no justification for doing so, save an insatiable appetite for titillation and a commercial imperative in serving it up to the public.
This judgment has not been handed down in a vacuum. At present, there is a strong media and political wind behind changes to our media laws, with a new Defamation Act in consultation stage; with various vociferous complaints about the evils of privacy injunctions being shouted from the rooftops of the redtops and in Parliament by politicians; and with bloggers and Tweeters tweaking their noses at our judges, by breaching court orders across the blogosphere. The latter risks not only a steady creep of a melted confidential ice cube across the Internet, but indeed the opening of the floodgates with information published across the world at the touch of a button. In such circumstances, with perhaps little redress against an anonymous, impecunious bed-sit blogger, we cannot allow the privacy claimant to be left as the boy with his finger in the damn, trying to hold back the flood of information (or misinformation) with his injunction soggily dripping in his hand, as powerlessly as King Canute.
On being immersed in a celebrity-obsessed culture, we have perhaps forgotten that those who we watch on the silver screen and read about in glossy magazines are human beings, and that others who might be cannon fodder for the media – divorcing couples, victims of crimes, businessmen and women, philanthropists – are real, live people. We do not need the privacy pendulum to be swing altogether in their favour, but we must ensure that we do not allow them to become trampled in headlong pursuit for the heady heights of Free Speech.
The decision for the United Kingdom in Mosley will be applauded by the media for its good sense and vital protection of free speech. This success however, will only be a success for society as a whole if the media does not abuse the trust which the European Court has placed in it to act responsibly and in accordance with the PCC Code. Will the tabloids change their ways and now only publish private information where there is a significant public interest to do so? Or will it see this instead as an opportunity to continue to serve its own economic interests with scant regard for the private lives of members of the public in the process.
The proof of the pudding will be in the publication eating, and we wait to read whether the media now has more lead in its newly sharpened pencil, poised perhaps for the next expose.