Over the years MPs and lawyers have become increasingly in favour of such legislation. Six Private Members' Bills on privacy were introduced in Parliament between 1961 and 1989. The only one to get beyond a second reading was the 1989 Bill sponsored by John Browne, the then member for Winchester with a keen interest in more privacy for public figures. It was only withdrawn after ministers made threats about the media drinking in the Last Chance Saloon and set in motion what became the Calcutt committee on 'privacy and related matters'.
When Lord Mancroft introduced his 1961 Bill, the then Conservative Lord Chancellor opposed it on the grounds that the 'public interest' defence for invading someone's privacy would either be so strong as to undermine privacy, or so weak as to restrict legitimate investigation by the press, or so uncertain that it would effectively put the courts into the position of being press censors. Last year, when the present Lord Chancellor produced a consultation paper on his proposed privacy law, these seemingly substantial objections were brushed aside without argument.
In the face of this fast-growing lawyer/politician consensus in favour of a privacy law, the counter-arguments have so far been divided and weak. The written press, it seems, is capable of mounting an effective lobby against VAT on newspapers and magazines. When it comes to media freedom, however, the response has had significantly less time and money devoted to it.
It is not an easy or popular point that has to be made. Like the House of Commons Heritage Committee last year, most people would subscribe in some abstract way to the proposition: 'There cannot be a free society without a free press.' But most people, again like the Heritage Committee, then pass quickly from the abstract to the concrete and claim that something needs to be done to curb press freedom in the interests of individual privacy.
The 'something must be done' school grasped eagerly at the Kaye (whose hospital room was invaded by journalists from Sunday Sport), Princess Diana and Milligan cases, pointing out that the proposed privacy law would not have been of the slightest practical help to any of them. By all accounts the Government, having dithered over a draft White Paper since last summer, is now about to come out in favour of privacy legislation.
There are three questions which those in favour of privacy legislation have failed to answer. First, why do we suddenly need a new generic privacy law at all? There are already about 50 laws under which individual privacy is protected. They include the 1984 Data Protection, the 1974 Rehabilitation of Offenders and the 1982 Contempt of Court Acts, which reflected changed views on whether names, addresses and past histories should be disclosed.
This process of protecting privacy in specific identified areas will, and should, continue. New legislation might cover the unauthorised use of long-distance technology to obtain recordings or pictures, the sale of bugging devices, or aspects of harassment by reporters. But privacy does not only, or even mainly, concern the media. It has to do with landlords and neighbours, students and teachers, patients and doctors, salesmen, noise and other environmental intrusion, industrial espionage, private detectives, credit rating and much else.
Sir David Calcutt's second report on the press last year could scarcely have been more critical of press self-regulation, but on the issue of privacy legislation, he said: 'A tort of infringement of privacy . . . would plainly have to cover the whole media. And, perhaps more significantly, it would have to cover a wide range of human and technological activity. I doubt whether this has been fully taken into account by those who presently advocate (it).'
The second basic question concerns private citizens. The proposed law might be of some comfort to the ordinary person if legal aid were to be available; the Heritage Committee indeed linked its privacy proposal to legal aid. But the Lord Chancellor, with the Treasury at his shoulder, has already made it clear that pigs will fly first. Without legal aid, a new privacy law would have all the defects of the present regime for libel, which may from time to time provide the general public with some expensive fun, but does little or nothing for the cause of justice.
The most basic question of all, however, concerns the freedom of the press in a functioning democracy. In other countries the balance between an individual's 'right to be let alone' and the public's right to discover information via the media is settled in the context of a constitution or press and broadcasting statute. Britain, having no written constitution, is unusual in therefore having no entrenched right to freedom of speech or of the media.
A privacy law of the kind being proposed would have the effect of incorporating into British law Article 8 of the European Convention on Human Rights, which gives everyone the right of respect to their private and family life, home and correspondence. But the European Convention also has its balance Article 10, which guarantees the right to freedom of expression and, therefore, of the media. To pass one part of the Convention into British law without the other would decisively shift the point around which these conflicting rights are reconciled.
At one point in his consultation paper, the Lord Chancellor showed an understanding that privacy is a complex subject: 'Sometimes, like Greta Garbo, we want to be alone; sometimes, like Mae West, we do not.'
But this shift of perception was not allowed to influence the general prejudice in favour of a measure which, if enacted in its presently suggested form, will provide a small number of lawyers with substantial pickings, public figures and the rich with a shield for the darker side of their activities and no real comfort to the ordinary citizen, while at the same time substantially reducing the ability of the media to investigate in the public interest.
The author is Professor of Journalism at City University.
An 'alternative White Paper' - Media Freedom and Media Regulation - is being launched this week by the Association of British Editors, the Guild of Editors and the International Press Institute.
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