Privacy protection: have the courts been led astray? – Gideon Benaim

It’s about time someone stopped pussyfooting around and told it like it is. So here goes: the courts have been led down the garden path when it comes to protecting privacy, and for various reasons people like me were frequently not able or keen to speak out, either because of client confidentiality or because of the respect which we undoubtedly had and have towards the courts and judiciary, and the tough decisions they have to make.

But as Lord Justice Leveson finalises his report the time is right to speak out or risk a watered down privacy law not fit for a modern world. We will all share in the responsibility if we continue to keep schtum.

Discussion about injunctions was largely absent from the inquiry. Everyone was no doubt bored of hearing about them following the injunction spring, but, the absence was probably because it was thought that the issue of injunctions had been satisfactorily addressed by the Master of the Rolls report on superinjunctions [pdf].

In reality the procedure and law set out in that report, while well intentioned, isn’t quite fit for purpose. That is because it legitimises the fuelling of publicity which in turn creates irreversible intrusion and mischief. It removes the ability to retain the very thing the injunction is supposed to protect, namely privacy. The report favours the granting of anonymity injunctions but not superinjunctions (other than in exceptional circumstances, for extremely limited periods of time).

However anonymity is the very thing that it won’t achieve if the courts and parties do what the report tells them to do. For allowing the publication of the fact that an injunction has been granted, together with basic facts about the specific case (facts which often go well beyond what can really be described as basic) creates publicity and hysteria about who the person seeking the injunction is, and also encourages online speculation fuelled by those in the know (probably started by mischievous journalists). Not to mention that all of these things actually increase the costs massively.

It is important to understand that the courts are required to give practical protection to privacy rights, but, if we are being totally honest currently they are not. They are still trying to appease the tabloids but they shouldn’t because the tabloids have been disingenuous and have skilfully manoeuvred the process and law into a position where in many cases it isn’t fit for purpose.

With all the talk of protecting privacy rights during the inquiry many have forgotten a fundamental fact, which is that only practical pre-publication protection can do it properly. This requires both injunctions and advance notification of a story. Post-publication remedies such as monetary damages are not much use to the person whose privacy rights have been invaded, other than to provide (often minor) financial compensation for the wrong.

Let’s go back just a couple of years: injunctions worked because none of the papers could drum up a furore about yet another rich or famous person having obtained an injunction. Why? Because they couldn’t even mention it existed. That’s an important fact to remember, and that is why the tabloids wanted the position changed.

Even if there was online speculation it was minimal and lacked credibility. It is the hysteria created by the media which leads to the speculation and mass interest online, and, to the outing or even false outing of individuals.

Without blanket media coverage of the existence of an injunction there will be less speculation and no credibility given to the rumours online. I would go so far as saying online rumours get online in the first place because someone from the journalist’s camp leaked it.

Now, before those who have hijacked for their own purposes the freedom of expression lobby’s legitimate concerns about censorship get all hot and bothered, we are only talking here about restricting publication of the fact of an injunction where a court has found there to be no, or insufficient, public interest to justify intrusion into a private life. That seems a pretty reasonable prospect to me.

Just because someone was the national team captain, or the national team manager, did we really need to know alleged details about their private lives which would otherwise be prohibited if they weren’t in the national team?

I believe not and I know that there are a great number of people out there who agree with me. I accept that some people like reading about such goings on, but that doesn’t justify such intrusions into the lives of not only the person who seeks an injunction, but importantly the members of their family.

I argue that in all cases the family is worse off by public exposure of private information and ridicule in the press. Ask the majority of family members who it has happened to and I would expect that even if they hadn’t known about the allegations beforehand they would almost unanimously have preferred them not to have been disclosed in the press.

Did we really need to see Harry’s bum in order to discuss whether or not his security team should also have nannying in its job description? Of course we didn’t. And it’s clear that many people agree with me despite the conditioning the tabloids have put them through over the last few years. Why else would so many have complained to the Press Complaints Commission?

Also, isn’t there something particularly wrong and distasteful about kiss-and-tells and similar types of arrangement with the tabloids? By this I mean the payment of money to someone (usually an unknown) for a story about something private which is only of interest to the tabloid because it relates to a well-known person. This, I argue, should rarely, unless there is a particularly strong and legitimate public interest argument, be afforded much weight by the courts.

It seems obvious, to me at least, that the only true protection against invasions of privacy can be found pre-publication. After the private information has entered into the public domain it can rarely be made private again. No amount of compensation will make it private again. Once you accept that premise, which I argue is the only logical one to make, then it must be the function of the court to provide real and practical protection, not something half-baked that doesn’t do what it says on the tin.

The courts must act now. Lord Justice Leveson should not ignore or avoid the issue of pre-publication protection, your MPs must not be allowed to give in to the press when it comes to crunch time, and serious media publishers must not let the lowest common denominators in the press distort and dictate policy. We should all accept that the path we have recently started down is the wrong one because we were expertly manoeuvred down it by a few self-interested and powerful tabloids who were out of control, wanted rid of privacy law completely, and probably thought they were above the law if all else failed. We have seen what such unfettered power can lead to, so we must do something to curtail it.

So what I am arguing is for the media to give timely prior notification to the individuals concerned of an intended story containing private information, and also for an injunction system which doesn’t permit mischief by encouraging publicity. Don’t call it a superinjunction if it has become such a dirty phrase, simply call it an injunction, for that is all it would truly be. What exists now is something that can work, but only when the tabloids want it to work, so we have to find a workable solution which provides safeguards for legitimate freedom of expression which is truly in the public interest, while keeping what should be private actually private.

Gideon Benaim is a partner at Michael Simkins LLP and specialises in reputation protection

This post originally appeared in Guardian Law and is reproduced with permission and thanks