In 1991 US band Salt-n-Pepa reached number 2 in the UK charts with Let’s Talk About Sex. It is difficult to imagine now, 20 years on, why such an inoffensive and gently educational song generated huge controversy.
That difficulty highlights how much less prudish we are about sex now than we were then. Salt-n-Pepa talked about sex on the “radio and video shows“. Now the song would include Twitter, YouTube and Facebook too. In the post-internet age, sex is everywhere. So why are judges and politicians still making decisions about whose sex the public can or cannot talk about?
As has been endlessly repeated during the debate over privacy injunctions, through Section 12 of the Human Rights Act, Parliament has asked judges to decide when a person applies for a privacy injunction whether it is “in the public interest for the material to be published“.
And as many commentators have glibly reminded us, what the public is interested in is not the same as what is in the public interest. But this faintly paternalistic (and possibly nonsensical) phrase does not take us any further in deciding what kind of privacy law, if any, we want in the UK.
Whatever the press say, nobody is seriously considering scrapping the courts’ powers to keep people’s identities out of the public domain. That would be a bizarre move, given that celebrity injunctions represent only a tiny fraction of privacy rulings. They also apply to children in family proceedings, asylum seekers, rape victims. There is surely no public appetite for getting rid of those too.
What is now likely to be reformed is privacy injunctions relating to sexual affairs. The essential question is whether it is ever in the public interest to reveal them.
The differences in international approaches is revealing. In the United States, press freedom is enshrined in the Constitution but the right to privacy is not. It is therefore almost impossible to restrain publication of private sexual information in advance, citizens can sue a publication afterwards if they have got the story wrong. The UK has a similar approach, although in recent years and in particular following the Naomi Campbell case, courts have been keener to restrain the press.
In France, by contrast, politicians’ sexual affairs are generally hushed up; not by the courts by by the self-censoring press. Private indiscretions are not considered to be matters of public concern. As demonstrated by the survival of Italy’s Silvio Berlusconi despite the “Bunga-Bunga” incident, in Continental Europe affairs are often considered to be a sign of virility.
But the danger of this liberal approach has been highlighted by the high-profile case of Dominique Strauss-Kahn, the former-head of the International Monetary Fund who was arrested in New York last week on charges of attempting to rape a hotel maid. Before his fall from grace, his wife had said of his reputation for womanising:
I’m rather proud of it! It’s important for a politician to seduce. As long as he seduces me and I seduce him, that’s enough for me.
It is hard to imagine the partner of a UK or US politician saying that. But is the relaxed continental approach desirable? This question has become more important here since we incorporated the European Convention on Human Rights into our law. This means that the UK courts are obliged to take into account continental attitudes as expressed in judgments of the European Court of Human Rights. But as the Economist’s Charlemagne points out, politicians’ sexual affairs are not always a private matter:
A consensual affair between adults is usually private, barring obvious hypocrisy or some genuine public interest (such as national security). By contrast, attempted rape, or sexual violence, is a public crime. That sounds a straightforward line for a civilised country, and civilised press, to draw. Yet, in everyday political life, where affairs between powerful public figures and relatively powerless subordinates are uncomfortably common, and favours and threats exchanged between the sheets, that line is crossed too often.
Charlemagne asks rhetorically whether in Paris or Rome “a modest African immigrant has obtained a swift response from the police to her complaint of sexual assault”.
Sex and power are often intertwined, and it is artificial to separate out what should or should not be printed. In other words, let the public (or, fashionably, the “crowd”) decide what is or is not improper, not judges or politicians. As I argued about another scandal relating to footballer Wayne Rooney, it may be that censoring the press on sex has a chilling effect in relation to more important indiscretions, such as the phone-hacking affair.
This logic is often followed by the UK courts in any case. It is hard to imagine a serving politician who has lied about a sexual affair managing to hush it up through the courts. However, prominent public figures such as Fred Goodwin, the former Chief Executive of a publicly owned bank, have tried with some success. As most sex scandals demonstrate, the web of lies weaved to keep them secret are often more damaging and even incriminating than the affair itself.
Some would say that reporting a famous footballer’s indiscretions can never be in the public interest. Others argue that they are role models for children who peddle a family man image (whatever that means) so should be exposed for the philanderers they are. But the fact remains that the affairs of sports personalities often go beyond the personal, and involve sexual exploitation, professional celebrities selling their stories and even blackmail.
Today a Guardian editorial today that if the UK’s Press Complaints Commission had done more to protect celebrities’ private lives, the courts would not have felt the need to step in in the first place. This is probably wrong; it is hard to imagine the press, which have been willing to flout a court order which could lead to editors being imprisoned, obeying an interfering regulator. And whether we like it or not, through human rights law our courts are now more likely to follow the continental approach to the public interest.
So where does this leave privacy law? My suspicion is that the result of a government review will be the tweaking of section 12 of the Human Rights Act. This will provide a more substantial definition of the “public interest”, with the aim being that the simple affair of a footballer or politician and of course public corruption
will usually be reported, whereas cases involving vulnerable adults, children, or blackmail will remain anonymised. This may lead to clever lawyers finding ways to show a case involves graft or blackmail, and getting their injunctions in the end.
Ultimately, this will mean that judges will still decide whether we can talk about sex. Perhaps it is time to take the US approach and let the public decide for itself. Given the enormous pressure they have been under in recent weeks by Tweeters and MPs, our judges would probably be relieved.
This post originally appeared on the UK Human Rights Blog and is reproduced with permission and thanks.