Men in gowns are no match for nerds with wifi connections. But we have the balance about right. Where is the line between privacy and free speech and who should mark it? Lawyers will declaim according to which cow they’re milking, and the views of our media emperors might easily strip their own courtiers of clothes. So the question is whether there is a value here beyond self-interest; most Times readers, after all, are never likely to become the cooked meat in other people’s breakfasts.
Yet this is deeply personal and, in an electrifying Facebook world, it could actually happen to anyone. After all, the stories we read are commonplace: a love affair, a foolish e-mail or a broken home — you don’t have to be famous to become a painful viral joke. You can be sneered at all over the world for nothing worse than terminal embarrassment. It’s an ugly game of stick the tail on a risible donkey; if not this story, then that one, if not me, then you. We can’t pretend that people have no taste for trash and we can’t pretend that WikiLeaks and Twitter come at no cost.
So how far do we want our media to mimic a school playground, where weakness collides with cruelty, and often to nasty effect — and how far should we regulate a game of piggy in the middle, when one side has all the keyboards, where weaklings are targeted as often as beasts?
Journalists proclaiming the sanctity of their trade might reflect that few rights are absolute, and certainly not privacy or free speech: you can’t scream “Fire!” in a crowded theatre and you can’t escape scrutiny if you’re a minister in love with a rent boy. You can’t be a prime minister in secret. This doesn’t mean we should lock up our throats; it simply acknowledges the civilising power of discretion and the risks that come in the wake of a world without boundaries.
But what are we to do when gossip goes viral? Perhaps not very much, since it is here, in the endless blathering ether, that the traditional processes of law appear most demented. How do you serve a writ on a virus and how did all of this happen so suddenly? How come we were looking away? We gaze in surprise to discover that clever men in gowns are no match at all for a generation of nerds in a tap-tap nightmare of bedsits.
Yet there is no doubt that Britain’s newspapers remain among the most vibrant in the world. Love them or hate them, they are often maddeningly brilliant products and they have the thoroughly annoying merit of being less and less deferential.
Of course, contrary to our own debased view of ourselves, lack of deference is a grand British tradition and one not to be lightly dismissed: modern tabloid nips at the Windsors, for example, look as tame as a kennel of poodles compared with their raucous 18th-century masters, most of whose work would be completely and commendably unprintable in a family newspaper. And it is here, as we consider what we could lose, that the answer might lie. Privacy and free expression may frequently conflict, but they have to be balanced somewhere. So let’s invent a statute that says free speech should be given the highest deference in a democratic society, but that nevertheless, human dignity, including the dignity of the person whose privacy is being mocked, deserves to be part of the equation. And let’s make that statute say that when there is a dispute between these rights, an independent court should decide, weighing the two, and determining that, in the end, if it’s in the public interest, the freedom to publish shall prevail because that’s what makes our speech free instead of just cheap.
But guess what — that’s the law already. Those damning the judges and calling for a privacy statute, placing fond faith in Westminster’s fabled drafting, should be more careful what they wish for — it may be that what we have is the best we’re going to get in a chaotic world of competing designs and interests. Judgments will ebb and flow but that’s hardly surprising when both the law and our morals are alive and very kicking.
In the end, it seems, free speech is at the heart of everything worthwhile: it’s impossible to imagine ourselves without voices. Perhaps all the grief and debasement accompanying unbound expression, like a burgeoning witches’ cacophony, is the price we should happily pay for the liberation that’s built on human words. For my part, I’m with the Americans: it’s not called the First Amendment for nothing.
Ken Macdonald, QC, practises at Matrix Chambers and is a Liberal Democrat peer. He was Director of Public Prosecutions, 2003-2008 .
This article was originally published in the “Times” Comment section and is reproduced with permission and thanks.