No redress against invasion of privacy by the press

 

ABOUT six weeks ago I wheeled my baby daughter along a London street, oblivious that I was being spied upon by a photographer working for Dr Tony O'Reilly. It was a Saturday afternoon and I had just left a conference at the Hammersmith and Fulham Irish Centre, which I had attended in a private capacity as a member of the audience. My daughter's mother, a well known singer, was there also as a member of the audience. We left the conference early because I had a plane to catch. It now appears that a photographer using a zoom lens took a number of pictures of us as we walked along having left the centre, that he or she followed us as we went to a nearby cafe and that, from a position somewhere across the street, again photographed us as we drank tea and fed our baby daughter. With the possible exception of our daughter, who is not yet in a position to say, none of us noticed anybody with a camera in our vicinity.

Some three weeks later, these photographs were reproduced in the Irish edition of the Star newspaper, which is part of Dr O'Reilly's Irish empire. One of the photographs took up much space on page one, and others were used as part of a double page spread in the centre of the newspaper. The accompanying article was typical of the kind of drivel we have come to expect from the tabloid press. The photographs, however, represented a gross invasion of my privacy, and that of my daughter and her mother. That we are unable to walk along a street without being spied upon is bad enough, but that the fruits of such spying can be plastered all over a newspaper is monstrous and obscene.

There is no redress either in this society or in Britain for those suffering such invasions of privacy. My only protection, as of now, is my own growing watchfulness based on the knowledge that by virtue of simply walking down the street with my daughter, I may inadvertently be the cause of making Dr Tony O'Reilly an even wealthier man than he is already.

This incident gives a minor insight into the urgency which attaches to last week's report of the Law Reform Commission. Asserting that privacy is a human right, the commission recommended the introduction of legislation to protect against invasion of privacy and surreptitious surveillance or bugging. It also said journalists should be subject to such laws, which might include a ban on taking pictures or video recordings of people without their express or implied consent and the publication of such images in public media.

We live in an age when sections of the media feed more and more on the private lives not just of the famous but of hitherto anonymous citizens, exploiting their pain and secrets not out of any concern or the public interest, but because the public can be made interested. And so I welcome this report, both as a citizen and a journalist, and hope it begins a debate which may lead to some relief from the kind of outrages I have described.

It sometimes seems that, as a journalist, I am expected to concur, or at least remain silent, when there is a vested interest at stake belonging either to the profession of journalism or to the newspaper industry. But journalists are citizens too, which is why I wish to dissent from the stance taken by my trade union, the National Union of Journalists, which has opposed the introduction of privacy legislation. I believe that such laws threaten only bad journalism.

I also disagree with the conclusions of the recent Commission on the Newspaper Industry (heavily weighted, incidentally, with representatives of that industry) on this issue. The commission's report concluded that, under the Irish Constitution, the freedom of the press is equivalent to the right to privacy and that neither can be considered absolute. It argued an invasion of privacy may be justified where the person involved holds public office, deals with public affairs, follows a public career, or has sought or obtained publicity for their activities". This implies that simply by being well known, one has forfeited the right to privacy. Even if the attraction of publicity has been involuntary, one is still fair game. I fail to see how this can be other than a charter for even more outrageous invasions than we have yet witnessed.

BUT it gets worse. "In the case of a child," the report went on, "an invasion of privacy would appear to be justified" if it were capable of contributing to the protection or well being of that child or other children, or is inextricably involved with the justifiable invasion of the privacy of an adult (my italics)". The first part of this has some merit on the basis of the occasional need to defend a greater good. But the second part is an obscenity for what it says is that the children of people who have attracted the voyeuristic attentions of newspapers are also fair game and have no right to privacy, once they can be placed, so to speak, in the frame.

This self serving twaddle was probably based on the judgment of one Lord Denning in the 1977 case of Woodward v Hutchins, in which Tom Jones, Englebert Humperdink and Gilbert O'Sullivan sought an interlocutory injunction to prevent their former PR agent, Chris Hutchins, publishing information about their private lives in newspaper articles. Lifting an interim injunction on publication, Lord Denning said: "There was no doubt whatever that the pop group (sic) sought publicity, which would create a favourable image among those who supported their performances; and Mr Hutchins had been engaged to produce or help produce that favourable image to the public. If a group like the present sought publicity which was to their advantage, they could not complain if a servant or employee was persuaded that there was another side to that image, for it was in the public interest that it should be made known."

It is worth remembering, however, that this case dealt with breach of confidence, rather than privacy, and that, because the hearing was to consider an injunction, the matter was decided on "the balance of convenience" rather than the "balance of probabilities" which would have applied in a full trial. In other words, the judgment placed greater emphasis on the freedom of the press than on the right to privacy, a position which would be unlikely to survive a constitutional action in this country.

Such precedents are not definitive, and in any case were hardly intended to justify the kind of journalism to which the Irish market is increasingly subject. We urgently require legislation, and should not settle either for self regulation or a toothless body like the Press Complaints Commission in Britain, which is in effect subsidised by a virtually untouchable industry seeking to protect itself from inconvenient legislation.

A disturbing pattern is emerging whereby the press demands special freedoms to investigate wrongdoing in society, and then stands idly by as these latitudes are employed to perpetrate even greater outrages than those it promised to expose. Until the media industry as a whole stands up to its own rogue elements, it has poor grounds for complaining when the public flings the same curses at all media houses.