Privacy law fails the test of history: John Torode finds some echoes from the past in the Calcutt proposals on curbing the press

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The Independent Online
IN 1970, the Wilson government appointed the first official inquiry (the Younger Committee) into privacy and the law. I was among its members. We reported in 1972 to the then Home Secretary, Reginald Maudling, and the Lord Chancellor, Lord Hailsham, advising against the creation of a general statutory right to privacy.

Instead, most of us concluded 'the best way to ensure regard for privacy is to provide specific and effective sanctions against clearly defined activities which unreasonably frustrate the individual in his search for privacy'. This is the rule which guided the subsequent, largely unsuccessful search for legal remedies.

The Calcutt report recommends the creation of three new criminal offences. The first is a beefed-up but selective version of the civil law of trespass which would apply only to the media. The second would outlaw the bugging of telephones and other forms of surreptitious surveillance undertaken with a view to publication. The third would forbid photographing or recording the voice of a person on private property without consent, and with a view to publication. Injunctions could be sought to forbid the publication of such material.

Had Calcutt's proposals been enacted a decade ago they would have influenced a few of the more notorious scandals. But not many. Calcutt would have rendered unlawful the legally uncertain activities of those who intercepted the Mellor/de Sancha calls and assorted royal car-phone conversations. They would certainly have made publication unlawful.

Calcutt's proposals would not necessarily have stopped the publication of photographs of the Duchess of York sunbathing topless on private property - because the pictures were taken abroad, outside the jurisdiction of a UK court. But an injunction forbidding publication might have been obtainable. The proposals would have had no impact on leaked information concerning Norman Lamont's Access card.

In any case, these were atypical examples of invasions of privacy. In recent years 'kiss and tell' sex scandals have been more usual. For example, the News of the World ran long interviews with a prostitute who described in detail the sexual practices enjoyed by John Golding, a trade union leader, who was forced from office.

Similarly, Major Ronald Ferguson lost his job as secretary to an exclusive polo club when it was revealed that he had visited a dubious massage parlour. Sir Ralph Halpern's affair with a model was recounted by her in a Sunday paper. Mike Gatting was sacked as England's cricket captain after a barmaid kissed and told. Calcutt would have been irrelevant to these breaches of privacy.

Finally, the public is particularly concerned by 'doorstepping' and by persistent and insensitive intrusions into the private grief of the victims (or the relatives of victims) of crimes or disasters such as King's Cross, Zeebrugge and Hillsborough. Yet (provided only that the doorstepping was in the street and not on the garden path) nothing in Calcutt would interfere with such practices.

Sir David's recommendations are Draconian yet fail to embrace the sort of cases which most distress the public.

Letters, page 15

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