The Mellor Affair: French have a word for it - irrelevant

PRIVACY is not on John Major's agenda, Downing Street made clear last week. Although the Prime Minister still had an open mind on the issue, he was not contemplating legislation because of the 'great practical difficulties' in framing a Bill to stop newspapers invading people's lives.

A day earlier, the Press Complaints Commission - the newspaper-funded regulatory body, which opposes statutory controls - had been singing the same tune. The courts would not be able to walk the delicate line between privacy and freedom, it said. A law not only would be impractical but also destroy 'the essential basis of freedom of expression and democratic political procedures'.

Not surprisingly, the editors of tabloids and broasheets, already beset by a host of repressive laws preventing freedom of publication and information, agreed.

But lawyers and MPs who have studied the issue, warned the press that this meeting of minds between Downing Street and Fleet Street was intellectually untenable. Geoffrey Robertson QC, the country's leading expert on media law, said: 'The past week has seen Fleet Street editors, high and low, being party to a conspiracy to prejudice the public against a Bill which threatens their interests. Of course, a privacy law is desirable: privacy is a fundamental human right acknowledged by every international human rights treaty. And, of course, it's perfectly practicable.'

He pointed out that the newspapers had already been given a workable definition of privacy in the Press Complaints Commission's code of practice. An intrusion into private life without the subject's consent is prohibited by the code, except when it would expose crime, anti-social behaviour, threats to health and safety or the misleading of the public.

'What the newspapers are really saying is that it is practicable to define privacy so long as it is done by an impotent body paid for by press proprietors,' Mr Robertson said, 'but that privacy suddenly becomes an unworkable concept as soon as anyone suggests that it be handed over to independent judges and juries.'

Clive Soley, Labour MP for Hammersmith, may have an outside chance of introducing legislation. His private member's Bill on the press will come before the Commons for a second reading in January. The measure, whose main aim is to impose a duty on newspapers to report news accurately, is at present ill-defined. But it could lead to a privacy law by the back door, because it proposes to make the PCC a statutory body answerable to Parliament. Such a move may make the voluntary PCC code legally enforcable.

To Mr Robertson, this would be the worst of all worlds: 'a committee of Lord Rees-Moggs deciding what the public should read', is how he described it.

It is more than likely that the Soley Bill will fail. Since 1979, any private member's proposal that lacks government support has been judged to be a candidate for oblivion. But Mr Soley argues that, since the election, all bets are off. 'The Government has a majority of just 20, and I'm getting a lot of Tory support,' he said.

It works in France and Germany. How it would work in Britain? Like everything else in the law, it depends on definitions. Three recent cases provide some clues.

David Mellor. Even British lawyers who fervently support a privacy Bill, believe that no politician would be able to argue to a jury that an invasion of his or her privacy was unjustified. All the privacy Bills which have been proposed in Britain, have included a public-interest defence, they point out, which is assumed to allow the exposure of hypocrisy. But the claims are not compelling.

In any case, the People could publish its story last Sunday only because it had obtained taped conversations. The editor needed them because of the high standard of proof the English libel courts demand. However, he might not have been allowed to obtain the tapes in France and Germany, where making a recording or taking a photograph in a private place is illegal.

Paddy Ashdown. His case strengthens the view that the publication of information about a politician's personal life should be unlawful. The most likely definition any law would use is one drawn up by the Calcutt Committee, which said that personal information - that which a 'reasonable person' would expect an individual to be able to keep to himself - should be protected. There should be a public-interest defence, it added, allowing a story that cast doubt on an individual's suitability for office, to be published.

If this definition had been enshrined in law before the election, Mr Ashdown would have had a good case. His affair had been dead for five years at the time it was revealed. Details were obtained after a break-in at his solicitor's office.

Gorden Kaye. The star of the television comedy 'Allo 'Allo was the victim of what the Court of Appeal described as a 'monstrous invasion of privacy'. But the judges went on to say that there was very little they could do to help him. Reporters from the Sunday Sport had gone into the hospital where he was recovering from brain surgery, photographed him and recorded his rambling conversations. Mr Kaye would have had a remedy in the courts under all variants of a privacy law.

In France and other European countries, the Sunday Sport would have faced criminal charges. Even in the United States, home of constitutionally protected free speech, celebrities have the right to control the use of their names and personalities.

Whether a privacy law would help ordinary people is open to doubt. Unless privacy actions were legally aided - highly unlikely in the present financial climate - the vast majority of members of the public who have their lives turned upside down by the press, would not be able to afford to go to court. Privacy, like libel, would largely be a law for the rich.

The great test bed for how privacy law works in practice is France, where information about a citizen's family, personal and sexual life is protected. The law is mostly used by celebrities against photographers. Lawyers for the Duchess of Windsor stopped pictures of her, sitting in a bath-chair in her garden, from being published during her lifetime. Prince Rainier of Monaco has also had frequent recourse to the law to protect his children's privacy.

French politicians certainly need all the help the courts can give them. Michel Rocard, when he was Prime Minister of France, commented on the exposure of Gary Hart - the US presidential candidate who was forced to resign after a liaison was unearthed - by saying: 'If we were to eliminate everyone who smoked pot as a student or had an extra-marital afair, there would be nobody left in the French cabinet.'

The French people do not seem to care about the restrictions. While they may be mildly amused by others' sexual adventures, they are not really very interested. The French press does not complain either. Mr Rocard, now the Socialist presidential contender, recently divorced his wife Michele and left her for another woman. When he offered an interview to Le Monde, the newspaper said the story was an irrelevance.

(Photographs omitted)