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The best books on Privacy

recommended by Mike Dodd

The Press Association's legal advisor argues that the definition of privacy in Britain is being redefined by judges on a seemingly ad hoc basis. Discusses privacy issues and reviews the best books on the subject

Interview by Cal Flyn, Deputy Editor

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Recently I’ve read many comment pieces warning how difficult the burgeoning privacy law in this country will make journalism in the future. When you were creating the book list you said that it was difficult to give a definitive answer on this question because the law is expanding so quickly.

Yes, the problem is that only book that you might call accessible to the general reader – anybody who’s just interested in finding out what its all about – is Joshua Rosenberg’s book. The others are rather heavy and complex, either legal or academic tomes. The other difficulty is – a common problem with law books – someone may well come out with a decision tomorrow that promptly overrides it all. Privacy law is changing very rapidly in this country at the moment. There aren’t actually many cases, but every time there is there’s a new approach to it.

Sure. So how does English law deal with matters of privacy now?

Its not called privacy law as such, but rather ‘misuse of private information’. It’s all based on Article 8 of the European Conventional of Human Rights, as interpreted by the Court of Strasbourg.

And the problem for journalists is the trade-off with another human right, the freedom of expression.

The problem is the balance that is being struck by our courts and how it’s changing our laws. It is changing our law in a way that has not been considered by parliament.

Are there positives of having judge-made law, as opposed to statute? Isn’t it is more flexible?

Well you could argue that, judge-made law develops according to changing situations.

Say, for example, it used to be the law that a man could not be convicted of raping his wife. This dated back to lord-knows-when, 16th or 17th century, when the view was taken that by marrying the man she consented to sexual intercourse whenever he wanted. A rather peculiar view.

That decision was later overturned by the House of Lords who said: Well no, current social mores have changed and it’s quite possible for a woman to say no to her husband. So judge-made law is good in its way, but one of the reasons Parliament never introduced privacy law was the sheer difficulty with trying to define what is private.

The result is that the definition is being drawn up by judges as they go along and one of the big complaints is that a great deal of the law is being developed by a single judge.

This is Mr Justice Eady?

Yes. He tends to have a large number of these cases, but it has to be said – as a large number of lawyers have said in his defence – what he is actually doing is applying established principles as laid down by the European Courts of Human Rights.

The question is, is the European Courts of Human Rights correct in their decisions? What they are saying is that unless you’re writing about something political – political speech is the most important of all – everything else gets a considerably lower rating.

For example, the decision on the Princess of Monaco, Princess Caroline case. They’ve said that although in some cases Princess Caroline may be a celebrity cause she’s a princess, she doesn’t normally carry out royal duties and therefore has the right to be treated like everybody else. I thought that was quite odd as she wants to go around being called “Princess Caroline”. If she wanted to be called “Caroline Smith” I don’t think anyone would care, but you can’t be one thing, then another and then pick – at least I don’t think you should.

But that the decision that was made by the European Court of Human Rights: that effectively celebrities on the street can declare that they’re not celebrities and you have to leave them alone. You don’t know if you can take pictures or not.

There was a case earlier this month concerning a doctor who was involved with the Inland Revenue about what she could claim against from her income tax, expenses for going on conferences, educational courses, things that helped her do her job better and so forth. Now she actually won her argument with the Inland Revenue about the taxes and expenses and all the rest of it, but afterwards this doctor goes back, contacts the judge and says: ‘I’d like you to anonymise the judgment please, as I don’t want people knowing my personal affairs.’

In retrospect?

Yes. His answer was, ‘That’s not going to work.’ And the reason was that all the hearings had been in public.

Effectively it was unworkable. But it was a new matter that her matters had been dealt with in court and although the information might be public it was not necessary to identify the people involved. Had she won her case, everyone would be saying that they are entitled not to be identified in the courts to this that and the other.

We’ve had it in criminal cases already. For example, there was a case that went to the Court of Appeal with five judges – normally there’s only three. It was a case in which a judge had made an anonymity order prohibiting the media from identifying a man, who had admitted to indecent photographs and pornographic photographs of children, because he had two little girls.

The pictures weren’t of the girls, they just happened to be his daughters. But the judge decided that their privacy overrode the right of the media to report who’s in court and who’s being convicted of crimes.

Well obviously this could be a huge problem for the freedom of the press.

There’s a crossing of the wires, right? In the old days if you were going to run a story on the Duke of X or the Earl of Y doing something with a bunch of girls in a nightclub or whatever else, the only way he could stop it was to go get an injunction from the High Court. But he could only do it if he could prove they didn’t have a chance of winning if he sued them.

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It’s a rule known as Prior Restraint. If the newspaper says that they’re going to prove what they say is true they can publish it; and if they’re wrong they’ll pay damages, possibly related damages too. Now, they say ‘a newspaper wants to misuse my private information’ and they will almost invariably get the injunction because if they don’t get the injunction and the story is out, the damage is done.

They say in defamation law your reputation can be restored because you get damages and public vindication, whereas in privacy law once the information is out in the public domain, you can’t put it back.

What is happening is that people are using privacy as a way of stopping stories from getting published.

But don’t judges look at the a trade-off between freedom of expression and the public interest in the story? Is it really in the public interest to print details of the private life of celebrities?

Well you can ask that, but lets put it this way: Everybody says the press shouldn’t report on that sort of thing. This is why everybody reads the Times and the Telegraph, because we’re all high-minded individuals. [Laughs.]

The serious papers don’t have the highest circulations. Which ones do? The ones that publish the stuff that people want to read! Like it or lump it, they want to read about it. There are a lot of celebrities who’ve made their living by achieving status as a celebrity. That’s how they’ve done it; that’s how they’ve made a lot of money.

Could this then be the end of an industry? Gossip magazines, paparazzi?

You might think that’s a good or a bad thing.

The recommended Panorama episode is entitled “The End of Kiss and Tell.” But does privacy law have wider implications for investigative journalism?

It might do! It depends. You see, a lot of it hinges on the Max Mosley case and there are a number of practical difficulties with that. Suppose you had, take a completely hypothetical example, a minister for families and it turns out that he’d been going to brothels or something. Does that affect the way he does his job? Can he argue that the way he conducts his private life doesn’t impinge on the way he does his job? Should he be given an injunction to stop the newspaper from publishing that? Is it public interest?

Now according to the European Court of Human Rights is that the highest level of free speech is speech about politics and politicians. When you mix the politics, politicians and the man’s personal life then it’s going to start coming back down the line. The problem is that courts in this country seem to be saying that personal life will outlive the media’s right to free speech.

Andrew Caldecott [QC] made a very good point at a conference I attended. He said: the problem with the European Court of Human Rights in the Princess Caroline case is that they either ignored or discarded a lots of the arguments put forward by the German government. In many ways, Princess Caroline is something of a role model for people just as footballers are role models or even people who go on reality TV shows are role models.

What he was saying was that people don’t only want to read worthy newspapers about politics and politicians, they want to read about the other people that come into their lives. We’ve got all these ways of communicating, of sending information – think about it the Internet today. The news of Michael Jackson’s death went round the world faster over the internet than through any other medium. Given the amount of all this information sloshing about, you can’t just say it should be protected as private.

You can’t say, as the European Courts says – at least I don’t think you can or should – that people, despite having actively encouraged the degree of publicity they receive, should then ask for protection whenever they decide that they want it. It’s usually when something unpleasant about them is written that they want protection.

But surely privacy law goes both ways. I mean, wouldn’t journalists be incensed if public authorities were trying to find out details of their private lives?

You look at what this government is doing, and what the European Union wants to do! Every phone call is being logged. Every email you send is being logged; they know whom you’re sending it to, they know when you’re sending it and where you’re sending it from. All your mobile calls are logged, all your landline calls, all your internet calls are being logged.

The government wants a huge great identity database with all sorts of DNA, photographs, fingerprints all this kind of stuff. They’re already doing it to us. I live in a small town in Surrey and I can’t walk about town without being filmed by at least two cameras. I go into my local pub and there are CCTV cameras. I go into the local shops and I can see my bald head shining on the CCTV camera. We are being spied on all the time and nobody’s noticed it.

Is that not exactly how celebrities must feel about the press? If you’re allowed to be angry about the government spying on us, why aren’t they entitled to feel angry about the paparazzi spying on them?

There’s only one problem. If I was, for example, Sienna Miller, I don’t think it would be unreasonable to suggest that in some ways Ms. Miller has asked for a degree of the publicity she’s received. I’m not quite sure that she can complain that there’s been an invasion of her privacy.

So if you want to bring the public eye upon yourself you should be prepared for it?

Well, there are a number of well-known celebrities who are not in the paparazzi pages all the time.

If someone like Jordan wants to go to a nightclub and have far too much to drink, that’s her business. If she wants to throw up on somebody’s front that’s her business as well. It’s not the sort of thing I want to write about, but it’s not to say that people aren’t interested in reading about what people like Jordan get up to or what people like Sienna Miller get up to.

If you think about people doing these things in the public eye, going around courting publicity which so many of them actively do, you have to remember – as Mr. Justice Munby warned a couple in a case not long ago – “publicity and public identification is a two edged sword”. It might backfire. I don’t think anybody ever learns this.

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The problem is that if you have a free press, there comes with it a certain discomfort.

If you look at the overall quality of the British press, I think it’s actually very high. Yes, there are people who get it wrong, but how many stories do you read everyday in where you think, “they have no right to publish that”? How many stories do people read, really, where they think, ‘they shouldn’t have published that?”

I think it was Voltaire who said: “I might not agree with what you say, but I’ll fight to the death for your right to say it.” The trouble is that we want a free press but only ‘our kind’ of free press and you can’t have that. You can only let the press get on with it and hope that they have a certain amount of integrity, self-respect and so on and so forth and that they are prepared to give that to other people. And once in a while you will get people getting it wrong

Interview by Cal Flyn, Deputy Editor

July 8, 2009

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Mike Dodd

Mike Dodd

Mike Dodd is a lawyer and journalist and currently works as a specialist legal advisor for the The Press Association.  He is the editor of Media Lawyer and also teachs media law to trainee reporters, production journalists, newsdesk staff and picture editors.

Mike Dodd

Mike Dodd

Mike Dodd is a lawyer and journalist and currently works as a specialist legal advisor for the The Press Association.  He is the editor of Media Lawyer and also teachs media law to trainee reporters, production journalists, newsdesk staff and picture editors.