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.

Start your day with The Independent, sign up for daily news emails
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksA year of political gossip, levity and intrigue from the sharpest pen in Westminster
Arts and Entertainment
Kara Tointon and Jeremy Piven star in Mr Selfridge
tvActress Kara Tointon on what to expect from Series 3
Voices
Winston Churchill, then prime minister, outside No 10 in June 1943
voicesA C Benson called him 'a horrid little fellow', George Orwell would have shot him, but what a giant he seems now, says DJ Taylor
News
i100
Sport
footballBrighton vs Arsenal match report
Arts and Entertainment
Benedict Cumberbatch has spoken about the lack of opportunities for black British actors in the UK
film
News
Latest stories from i100
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

Sauce Recruitment: Programme Sales Executive - Independent Distributor

£25000 - £28000 per annum + circa 28K + 20% bonus opportunity: Sauce Recruitme...

SThree: Talent Acquisition Consultant

£20000 - £25000 per annum + OTE £45K: SThree: Are you an ambitious, money mot...

Guru Careers: Investment Writer / Stock Picker

Competitive (DOE): Guru Careers: A freelance Investment Writer / Stock Picker ...

Guru Careers: PPC Account Executive / Paid Search Executive

£20 - 24K + Benefits: Guru Careers: An enthusiastic PPC Account / Paid Search ...

Day In a Page

Iraq invasion 2003: The bloody warnings six wise men gave to Tony Blair as he prepared to launch poorly planned campaign

What the six wise men told Tony Blair

Months before the invasion of Iraq in 2003, experts sought to warn the PM about his plans. Here, four of them recall that day
25 years of The Independent on Sunday: The stories, the writers and the changes over the last quarter of a century

25 years of The Independent on Sunday

The stories, the writers and the changes over the last quarter of a century
Homeless Veterans appeal: 'Really caring is a dangerous emotion in this kind of work'

Homeless Veterans appeal

As head of The Soldiers' Charity, Martin Rutledge has to temper compassion with realism. He tells Chris Green how his Army career prepared him
Wu-Tang Clan and The Sexual Objects offer fans a chance to own the only copies of their latest albums

Smash hit go under the hammer

It's nice to pick up a new record once in a while, but the purchasers of two latest releases can go a step further - by buying the only copy
Geeks who rocked the world: Documentary looks back at origins of the computer-games industry

The geeks who rocked the world

A new documentary looks back at origins of the computer-games industry
Belle & Sebastian interview: Stuart Murdoch reveals how the band is taking a new direction

Belle & Sebastian is taking a new direction

Twenty years ago, Belle & Sebastian was a fey indie band from Glasgow. It still is – except today, as prime mover Stuart Murdoch admits, it has a global cult following, from Hollywood to South Korea
America: Land of the free, home of the political dynasty

America: Land of the free, home of the political dynasty

These days in the US things are pretty much stuck where they are, both in politics and society at large, says Rupert Cornwell
A graphic history of US civil rights – in comic book form

A graphic history of US civil rights – in comic book form

A veteran of the Fifties campaigns is inspiring a new generation of activists
Winston Churchill: the enigma of a British hero

Winston Churchill: the enigma of a British hero

A C Benson called him 'a horrid little fellow', George Orwell would have shot him, but what a giant he seems now, says DJ Taylor
Growing mussels: Precious freshwater shellfish are thriving in a unique green project

Growing mussels

Precious freshwater shellfish are thriving in a unique green project
Diana Krall: The jazz singer on being friends with Elton John, outer space and skiing in Dubai

Diana Krall interview

The jazz singer on being friends with Elton John, outer space and skiing in Dubai
Pinstriped for action: A glimpse of what the very rich man will be wearing this winter

Pinstriped for action

A glimpse of what the very rich man will be wearing this winter
Russell T Davies & Ben Cook: 'Our friendship flourished online. You can share some very revelatory moments at four in the morning…'

Russell T Davies & Ben Cook: How we met

'Our friendship flourished online. You can share some very revelatory moments at four in the morning…'
Bill Granger recipes: Our chef serves up his favourite Japanese dishes

Bill Granger's Japanese recipes

Stock up on mirin, soy and miso and you have the makings of everyday Japanese cuisine
Michael Calvin: How we need more Eric Cantonas to knock some sense into us

Michael Calvin's Last Word

How we need more Eric Cantonas to knock some sense into us