Viewpoint: I've got news for you, Sir David

IF THE leaks are reliable, Sir David Calcutt QC's second report on privacy and the press recommends a statutory tribunal to replace the system of self-regulation operated for the past two years by the Press Complaints Commission. The new body would have powers to fine newspapers, to stop them publishing stories by injunction and to dictate corrections to inaccurate articles. Sir David apparently has also recommended, as in his first report, the creation of criminal offences to cover invasion of privacy, electronic bugging and taking photographs on private property for journalistic purposes.

The press is united in its hostility to these proposals. That, perhaps, is predictable, though no more so than the sympathy for them expressed by some prominent politicians who would be protected by strong privacy laws. The press is right to protest against these proposals, particularly the suggestion for a statutory tribunal with power to fine, and issue injunctions against, newspapers and magazines.

It would be better to admit at the outset that there is a strong argument for a privacy law. The right to privacy is protected in the United States, France and Germany, and guaranteed by Article 8 of the European Convention on Human Rights. But in these countries, and under the terms of the convention, the right to freedom of expression and press freedom also are legally protected.

Under the Calcutt proposals (as reported), the tribunal would have jurisdiction to protect privacy and also to order the correction of factual inaccuracies. It is not clear if it would also be required to take into account freedom of speech, a right that must always be balanced against the individual's interest in privacy and accuracy. Any new law should allow the newspaper to argue that it is right to publish the story in the public interest. Moreover, this defence should be very broadly drafted because too much precision would mean a real danger that the defence would not apply and a story of public importance would be suppressed.

At least three features of the leaked proposals are extremely disturbing. The first is that the tribunal would have power to protect privacy by granting injunctions. That would stop stories ever seeing the light of day. Perhaps under the law, the press might be able to argue against an injunction on the ground that its story would be of real public interest. In practice, the procedure would amount to a real deterrent to investigative journalism. More than 200 years ago the great jurist Sir William Blackstone defined freedom of the press as the absence of 'previous restraints upon publications'. It would be deplorable if we were now to have a less free press than we did at the end of the 18th century.

Second, the Calcutt proposals apparently contemplate that newspapers should be fined for privacy invasions. The implication is that the law would create a number of press offences. In other countries invasion of privacy is a civil wrong. It is for the individual concerned to bring an action, which, if successful, would compensate him or her with damages. That is a much better solution than that favoured by Sir David.

What is monstrous about the Calcutt proposals is that they would institute a special tribunal for the press. Why should newspapers and magazines be subject to a regime of injunctions and fines, administered by a tribunal specifically appointed to deal with them? Books, films, plays and the broadcasting media presumably would be immune from this jurisdiction, even though they may invade privacy in the same way.

Radio and television are admittedly subject to the controversial Broadcasting Complaints Commission. That body can investigate complaints of unfair treatment or an infringement of privacy. But it cannot impose fines or stop broadcasts before they are transmitted. The individual has no remedy at all under our law if his or her privacy is infringed in a book or film. It would be bizarre for the law to stop the serialisation of a book in a newspaper because it infringed someone's privacy, when that person could not stop publication of the book itself.

Sir David should not take the blame for these inconsistencies. They are largely a result of the unfortunate tendency of government to examine branches of the media in isolation. He was only asked to look at the press, and in particular to see if self-regulation by the Press Complaints Commission had shown itself to be effective. He may have been right to conclude that it was not up to the job. Its decisions, particularly in the area of privacy, were sometimes poorly reasoned. Nevertheless, it would be better to give it an extended lease of life, with perhaps some suggestions for tightening up its code and strengthening the lay element in its composition.

A general privacy law enforceable through the ordinary courts would also be infinitely preferable to the nightmare conjured up for us by Sir David. A court would have to balance privacy rights and the individual's interest in accurate information against the freedom of the press. These days British judges show more awareness of that freedom than they used to, as they increasingly take account of the European Convention.

Admittedly, legal aid would have to be provided to enable ordinary people to sue to protect their privacy. But politicians and other public figures should finance their privacy actions, as they do libel proceedings. The Calcutt solution, it seems, would enable the rich to stifle the press at minimal cost to themselves, but perhaps inflict great damage on our freedom of speech.

The author is Goodman Professor of Media Law at University College London.

News
Susan Sarandon described David Bowie as
peopleSusan Sarandon reveals more on her David Bowie romance
Sport
sportDidier Drogba returns to Chelsea on one-year deal
News
people
Arts and Entertainment
Christian Grey cradles Ana in the Fifty Shades of Grey film
filmFifty Shades of Grey trailer provokes moral outrage in US
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebookA unique anthology of reporting and analysis of a crucial period of history
Sport
Louis van Gaal would have been impressed with Darren Fletcher’s performance against LA Galaxy during Manchester United’s 7-0 victory
football
Voices
The new dawn heralded by George Osborne has yet to rise
voicesJames Moore: As the Tories rub their hands together, the average voter will be asking why they're not getting a piece of the action
Sport
Dejan Lovren celebrates scoring for Southampton although the goal was later credited to Adam Lallana
sport
News
newsComedy club forced to apologise as maggots eating a dead pigeon fall out of air-conditioning
Arts and Entertainment
Jo Brand says she's mellowed a lot
tvJo Brand says shows encourage people to laugh at the vulnerable
Life and Style
People may feel that they're procrastinating by watching TV in the evening
life
Sport
Rhys Williams
commonwealth games
News
Isis fighters travel in a vehicle as they take part in a military parade along the streets of Syria's northern Raqqa province
i100
Arts and Entertainment
Southern charm: Nicolas Cage and Tye Sheridan in ‘Joe’
filmReview: Actor delivers astonishing performance in low budget drama
Life and Style
fashionLatex dresses hit the catwalk to raise awareness for HIV and Aids
Travel
travel
Independent
Travel Shop
the manor
Up to 70% off luxury travel
on city breaks Find out more
santorini
Up to 70% off luxury travel
on chic beach resorts Find out more
sardina foodie
Up to 70% off luxury travel
on country retreats Find out more
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs Media

Data Scientist

competitive: Progressive Recruitment: A data analytics are currently looking t...

Web / Digital Analyst - SiteCatalyst or Google Analytics

competitive: Progressive Recruitment: My client who are a leading publisher in...

Campaign Manager

competitive: Progressive Recruitment: A leading marketing agency is currently ...

BI Analyst

competitive: Progressive Recruitment: A leading marketing agency in Central Lo...

Day In a Page

Backhanders, bribery and abuses of power have soared in China as economy surges

Bribery and abuses of power soar in China

The bribery is fuelled by the surge in China's economy but the rules of corruption are subtle and unspoken, finds Evan Osnos, as he learns the dark arts from a master
Commonwealth Games 2014: Highland terriers stole the show at the opening ceremony

Highland terriers steal the show at opening ceremony

Gillian Orr explores why a dog loved by film stars and presidents is finally having its day
German art world rocked as artists use renowned fat sculpture to distil schnapps

Brewing the fat from artwork angers widow of sculptor

Part of Joseph Beuys' 1982 sculpture 'Fettecke' used to distil schnapps
BBC's The Secret History of Our Streets reveals a fascinating window into Britain's past

BBC takes viewers back down memory lane

The Secret History of Our Streets, which returns with three films looking at Scottish streets, is the inverse of Benefits Street - delivering warmth instead of cynicism
Joe, film review: Nicolas Cage delivers an astonishing performance in low budget drama

Nicolas Cage shines in low-budget drama Joe

Cage plays an ex-con in David Gordon Green's independent drama, which has been adapted from a novel by Larry Brown
How to make your own gourmet ice lollies, granitas, slushy cocktails and frozen yoghurt

Make your own ice lollies and frozen yoghurt

Think outside the cool box for this summer's tempting frozen treats
Ford Fiesta is UK's most popular car of all-time, with sales topping 4.1 million since 1976

Fiesta is UK's most popular car of all-time

Sales have topped 4.1 million since 1976. To celebrate this milestone, four Independent writers recall their Fiestas with pride
10 best reed diffusers

Heaven scent: 10 best reed diffusers

Keep your rooms smelling summery and fresh with one of these subtle but distinctive home fragrances that’ll last you months
Commonwealth Games 2014: Female boxers set to compete for first time

Female boxers set to compete at Commonwealth Games for first time

There’s no favourites and with no headguards anything could happen
Five things we’ve learned so far about Manchester United under Louis van Gaal

Five things we’ve learned so far about United under Van Gaal

It’s impossible to avoid the impression that the Dutch manager is playing to the gallery a little
Screwing your way to the top? Good for Lana Del Rey for helping kill that myth

Screwing your way to the top?

Good for Lana Del Rey for helping kill that myth, says Grace Dent
Will the young Britons fighting in Syria be allowed to return home and resume their lives?

Will Britons fighting in Syria be able to resume their lives?

Tony Blair's Terrorism Act 2006 has made it an offence to take part in military action abroad with a "political, ideological, religious or racial motive"
Beyoncé poses as Rosie the Riveter, the wartime poster girl who became a feminist pin-up

Beyoncé poses as Rosie the Riveter

The wartime poster girl became the ultimate American symbol of female empowerment
The quest to find the perfect pair of earphones: Are custom, 3D printed earbuds the solution?

The quest to find the perfect pair of earphones

Earphones don't fit properly, offer mediocre audio quality and can even be painful. So the quest to design the perfect pair is music to Seth Stevenson's ears
US Army's shooting star: Lt-Col Steven Cole is the man Hollywood calls when it wants to borrow a tank or check a military uniform

Meet the US Army's shooting star

Lt-Col Steven Cole is the man Hollywood calls when it wants to borrow a tank or check a military uniform