When protection of privacy and rights of the press collide

Mon, Apr 16, 2012, 01:00

LEGAL OPINION:MARK TWAIN once said: “There are laws to protect the freedom of the press’s speech, but none that are worth anything to protect the people from the press.”

While it is generally recognised that privacy is a fundamental human right, a more difficult question is whether that right can be diluted by an individual’s conduct. What are the human rights of a politician who espouses family values to the electorate while carrying on an illicit affair? Does a newspaper have the right to publish such details, however sordid? What of the minor celebrity who co-ordinates shopping trips in the company of her children with paparazzi, in order that her carefully managed image will be splashed across the tabloid press? Does she have the right to subsequently object to unauthorised photographs being taken in a public place without her consent or connivance?

Possibly the broader question to be answered is whether our apparently insatiable appetite for celebrity and gossip has eroded our respect for the fundamental right to privacy, and this in turn has to be balanced against the role of the press in exposing corruption and hypocrisy in society. These questions represent only a few examples of conflicting issues and interests that require careful balancing in accordance with an individual’s rights under Article 8 of the European Convention of Human Rights and the Article 10 rights of the press generally.

The daily dramas emerging from the Leveson Inquiry in the UK have brought the issue of press regulation to the public’s attention. With fallout over the hacking of the mobile phone of murdered schoolgirl Milly Dowler likely to continue for some time, with arrests and further disclosures on an almost weekly basis, the thorny issue of press regulation remains at the front of the agenda.

The general view is that the UK Press Complaints Commission had failed abysmally in its objective of controlling the greater excesses of the tabloid press in particular. Many suggested alternatives have been put on the table, from government, the legal profession, various interest groups and the press themselves, with suggestions ranging from a model based on the Press Ombudsman we have here in Ireland to more complex structures. However, the effectiveness of any new body will depend very much on the sanctions made available, and on the identity of those who will be given the task of adjudicating and implementing them.

Many people, including myself, hold that only statutory regulation will be sufficient to ensure public confidence. What is required is an effective regulator that will operate in an impartial and independent manner, and, equally importantly, will be seen to do so.

The high cost of litigation and sometimes controversial remedies proposed by the courts, such as the “super injunction” (prohibiting information on the existence of an injunction), have been the subject of many column inches in the press. However, the first step in avoiding or reducing legal costs has to be the provision of an alternative in the form of a regulator with bite, or another form of adjudication that will produce vindication and, just as importantly, act as a deterrent to publication in the first place, and before the “privacy horse has bolted”.

Another question is whether there is an acceptable level of collateral damage to an individual’s privacy which has to be tolerated to afford the press the freedom to uncover the genuine miscreants in our society.

Today’s headlines are no longer tomorrow’s fish and chip wrappers. With the internet, any story in print or digital form will be quickly disseminated, tagged and repeated worldwide. One of the most difficult balances for any editor is between the right of the public to be told a story and the often conflicting rights relating to the individual’s privacy.

As a lawyer acting for defamed individuals and defendant newspapers, I believe investigative journalism should be protected where possible, but ask whether statutory regulation would in fact protect rather than stifle genuine investigative reporting.

Paul Tweed’s ‘Privacy and Libel Law: The Clash with Press Freedom’ is published by Bloomsbury on April 16th