The tabloids advance two main arguments for invading privacy to reveal someone’s sex life. The first is that their victim is a role model who must be exposed if he has not behaved impeccably. The second is that it’s their job to expose hypocrites who mislead the public by saying one thing and doing another. Both arguments are flawed.
The role model argument is hopeless. A famous sportsman is undoubtedly a role model when practising his sport. You would not want a famous footballer to foul consistently lest other, lesser footballers followed his example. But he’s not a role model in his sex life. Sex is not the reason for his fame nor the reason he’s admired. It’s irrelevant to his “role” which is playing football.
But it gets worse. If someone famous is greatly admired, others may be inclined to copy him. So if our famous sportsman is doing something he shouldn’t, the last thing you want to do is expose this lest those who admire him follow his example. Far from it being in the public interest to expose a role model’s private misbehaviour, it may actually be in the public interest to conceal it.
Hypocrisy, or misleading the public, is slightly more complex. However it is not enough to say that if someone misleads the public he should ipso facto be exposed. The public is misled all the time. It ranges from the harmless (a magician for example), through the potentially harmful, (public relations, “spin”, salesmanship) to the downright criminal (the con man).
The rational approach is to ask if the public has been misled to its detriment. If a famous sportsman is selling something to the public on the basis of a false image he may be obtaining money wrongfully and perhaps should be exposed. But if he represents himself as a family man when in fact he’s a serial adulterer, it does not necessarily follow that he’s taking advantage of the public.
It seems unlikely that football fans would no longer pay to watch a player or buy replicas of his shirt if they knew he had cheated on his wife. Likewise, a captain of a football team would not necessarily command less respect among his teammates if they knew he had not been faithful to his partner. So before allowing his adultery to be exposed, a rational court would want evidence that members of the public had been misled to their detriment, or at least that he was less able to fulfill his public role as a result of his conduct.
The hypocrisy argument is not always flawed. If a person relies on a false image to obtain something from the public, for example an adulterous politician seeking votes based on family values, they should be exposed. But in the vast majority of sex cases involving footballers and celebrities, this does not apply.
It is often forgotten (and always forgotten by the tabloids) that invasion of privacy is very serious. It can be a matter of life or death. On more than one occasion it has led to suicide. It can cause great distress to the individual and even more to his (innocent) family. It is as bad, if not worse, than the sanctions available to the criminal courts.
The right to privacy should not be swept aside for the mere amusement of the tabloid reader. To impose what can be a terrible penalty on an individual or his family can be justified if it is necessary in order to serve some real and serious public need but not for trivial reasons supported by flawed and self-serving arguments.
If only one side of a debate is heard, there is always a danger that opinion will move too much in one direction. In the debate about privacy, the voice of the media is overwhelmingly more powerful than a few individuals and lawyers on the other side. The tabloids, with no little help from the broadsheets, have introduced two flawed arguments. It is worrying that there are signs these arguments may be finding favour with the courts.
Max Mosley is a former President of the FIA and outspoken voice on privacy issues.
Agreed, although I do believe that the decision in Ferdinand vs. MGM Ltd. is sound. It does not seem unreasonable to invoke the rationale underlying the “role-model” or “hypocrisy” argument in that particular case. It probably was not necessary to invoke or even use those value-laden terms though.
Ferdinand deliberately claimed that he wanted to change his life at a certain point and become a “family man” (whatever that may mean) – a failure by his own (and publicly announced) standards. Nobody has imposed these standards on him and therefore held him to account by someone else’s standards of what it allegedly means to be a role model in some respect. Ferdinand is or was not a simple a footballer either. He wanted something more, viz, at least try to meet quite common expectations (eg, those of Fabio Capello to name but one) of what it takes to be captain of the English squad. He is not Gary ‘Who’ Flitcroft, is he?
It may not be decisive whether or not this actually makes Mr Ferdinand a “role model” or “hypocrite”. On the basis of those facts, however, his claim for privacy bore little merit. The most embarrassing detail revealed about him in Nicol J’s judgement probably was that he simply texted “wot chattin about” back to his distressed mistress on one occasion. It cannot be the end of the matter that all this had nothing to do with football in a narrow sense. This, it seems reasonable to suggest, might be too narrow in its focus.
Both privacy and freedom of speech are first and foremost individual rights. Freedom of speech claims, for instance, arguably cannot be judged by reference to the somewhat murky public interest alone. The same goes for the proposition that “misleading the public” may only justify an interference with privacy rights if “the public has been misled to its detriment”. Given that there is little merit in someone’s privacy claim, lesser forms of “hypocrisy” should suffice. An individual’s right to freedom of speech does not wholly depend on whether something is detrimental to the public (whatever that may entail). In my view, this is not what being endowed with individual rights is all about. This holds true for both privacy and freedom of speech. In this respect, swift references to the “public’s detriment” may be just as useful as appeals to “role models” with regard to privacy claims.
There’s a bit of confusion, perhaps, in Martin Heite’s last two paragraphs. It is certainly true that freedom of speech “does not wholly depend on whether something is detrimental to the public”, as he says, and also true that freedom of speech cannot be judged simply by reference to public interest.
But here we are talking about breaching someone’s privacy. If we accept that a person’s privacy should not be invaded without good reason, surely the breach can be justified (Art.10 v Art.8) only if there is some genuine public interest? Is not the question: do the public actually need to know this?
Even if one has little sympathy for the individual (or his claim to privacy has “little merit”) his privacy should not be invaded gratuitously. A breach of privacy should not take place for the fun of it. This is quite different from suggesting that freedom of speech itself depends on the public interest.
The man and woman in the street only cares about tittle-tattle now – loving to see other people’s idols fall and, of course, celebrities and people in positions of power being dragged down to their level.
The demise of the News Of The World has seen a fall in these stories, although celebrities will have you believe that they are behaving themselves now!