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.Reuse content