|My local: the William Cobbett, Farnham (pic: me)|
I don't care about sex scandals, but any privacy right must be considered in the context of other equally important rights.
Only by considering the new reality given the information-rich culture of today, together with lessons from history about important democratic safeguards; can we start to consider how to address the privacy concerns of today.
Any new protection for personal privacy needs also to take into account the global nature of the internet.
The press is still the main tool for oversight and transparency of parliament. However distasteful privacy intrusions are, I find the thought of any statutory control over the press even more worrying than much of the invasive reporting we're seeing.
Any state oversight of the press would need to work within article 11(2) of the European Charter of Fundamental Rights:
"The freedom and pluralism of the media shall be respected"I would argue any system that requires mandatory membership of news organisations - or bloggers - would threaten the pluralism of the media (ie a control over who can and can't report on news). Any state-mandated rules for journalists would threaten the freedom.
Presciently, given the internet, it might drive some UK-focussed news organisations overseas, peddling tips and tittle-tattle with UK journalists under the counter; for most systems of prohibition lead to a black market to service the demand.
As far as injunctions themselves are concerned, they're just a privacy sticking plaster for a small select group. As the Attorney General Dominic Grieve confirmed in parliament, orders granted in the England and Wales High Court normally only apply to those resident or with interests in England and Wales. US-based Forbes magazine and the Scottish Sunday Herald were both able to report freely. UK readers were able to get the news on the internet.
A hearing this morning highlighted the extent to which lawyers representing "CTB" wished to go to pursue alleged leaks of information subject to injunction from co-defendant News Group Newspapers:
- The order sought on the Claimant's behalf was that NGN should:
a) conduct a search of its email system including any backup servers;
b) disclose all emails located as a result of that search sent by Kelvin MacKenzie to any external email address during the period 14 April 2011 to 13 May 2011 which refer to the Claimant or tend in any way to identify the Claimant;
c) disclose any other emails located as a result of that search sent by anyone employed by the First Defendant to any external email address during the period 14 April 2011 to 13 May 2011 which refer to the Claimant or tend in any way to identify the Claimant;
d) disclose the recipient email address of any emails disclosed pursuant to (b) and (c) above;
e) disclose any other documents including SMS text messages created by Kelvin MacKenzie between 14 April 2011 and 13 May 2011 which refer to the Claimant or tend in any way to identify the Claimant;
f) disclose any other documents including SMS text messages created by anyone employed by the First Defendant between 14 April 2011 and 13 May 2011 which refer to the Claimant or tend in any way to identify the Claimant;
g) disclose each and every recipient of any document disclosed pursuant to (e) and (f) above.
This is not the only irony. I've been informed of reports of two separate instances where lawyers acting on behalf of claimants in privacy cases are alleged to have requested - or be about to request - information from internet service providers to unmask anonymous users of internet messaging services in relation to allegations that they've posted messages that breach the privacy of their clients.
Is the privacy of one person really worth these reported attempts to unmask internet users for the online equivalent of pub gossip?
As a relatively ordinary guy, I'd say my right to post anonymously on discussion forums was at least equal to a footballer's rights to shag with impunity.
And all this without any real clarity or understanding what we mean by privacy.
Parliament and Hansard
And what upsets me just a teeny bit more than all the above is journalists claiming they might not have a right to report on parliament in all cases.
Whether or not you agree with John Hemming MP's one-man war on injunctions (I have mixed feelings, celebrity sex scandal wasn't a worthy choice, he perhaps didn't have time to consider all sides of the argument) we can't do anything to prejudice the free reporting of parliament.
Yes the independence of the judiciary is a vitally important facet of democracy. But I don't feel too uncomfortable with my elected representative having some power of oversight over information our unelected judges decide to suppress. Especially since parliament is accountable to both the house itself, and ultimately to the people.
I suspect MPs who consistently abuse their rights of privilege could face the wrath of his or her fellow MPs, in one way or another.
But when it comes to reporting on whatever our MPs have said in parliament I believe journalists have a duty to report it. Not raise the question over whether they could technically be liable for a libel or face criminal contempt proceedings; or wonder about waiting for Hansard, the official record of parliament, to be published.
That's not how transparency and oversight of democracy works, and is a disgrace to the roots of Hansard, as what today is the official record of parliament has its roots in a series of renegade publications, whose contributors and editors flouted the law to publish.
In 1771 Lord Mayor Brass Crosby faced the Tower of London for refusing to punish a printer named Miller who had published reports on the then-secretive proceedings of parliament. Crosby himself was eventually let off after no judge would try him, but these men stood up for what they believed in, for the ultimate good of democracy through transparency and accountability.
Only by pushing the boundaries did the law shift, and this reminds me of how the injunction system in Norway was reformed - disobedience by one editor who successfully fought criminal sanctions.
Following this victory, William Cobbett (a famous son of Farnham, see above picture) started publishing transcripts of parliamentary debates. Cobbett sold his publication to Thomas Curson Hansard, whose name survives today.
If wasn't until 1909 that Hansard became the official record of the proceedings of parliament. And even now it's widely seen as an important democratic right that any member of the public can turn up and, space permitting, watch and record the proceedings of parliament.
Public scrutiny ensures that Hansard remains a true record, and is not subverted in the interests of parliament or anyone else. Thousands of people watched the debate this afternoon - if John Hemming's words do not appear in Hansard as spoken we have a far greater concern to deal with.