Restrain the press or free it? As Leveson publishes his report, there is a middle way: a privacy law with a public interest built into it

The founder of The Independent on what regulation of the press should look like

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If there is the need of a middle way for government ministers to follow in their response to the report from the Leveson Inquiry into press standards, I have a proposal to make. It deals with the crucial problem, which is invasions of privacy where there is no public interest, yet it does not involve Government regulation. It draws on ideas that have been debated many times during the past but never taken up. These provide a role for the courts in establishing what is or is not proper conduct by newspapers.

It is important to understand the nature of a free press, such as we currently possess. It does not imply an absence of law. The press is liable to be punished, for instance, if it publishes material that would prejudice a fair trial in a court of law. The relevant statute is the Contempt of Court Act 1981.

If a newspaper revealed the codes used by Britain’s nuclear submarines, to take another example, there is no doubt that an action would be brought under the Official Secrets Act 1989. Likewise individuals who believe that their reputation has been unfairly damaged by newspaper comments may resort to the courts to seek damages. And there is other legislation that editors must keep in mind.

Prior restraint?

So what we have is a free press under the law. The mark of an unfree press, on the other hand, is that the Government can, by one means or another, exercise prior restraint – that is, restraint before publication. I should know. As President of the British Board of Film Classification some years ago, I was responsible for a system that relied totally upon prior restraint.

Films could not be exhibited until they had received a classification, whether “18”, “15”, “12A”, “PG” or “U”. Sometimes cuts were ordered. But that was films, and this is newspapers. So far as the latter are concerned, when I was editor I was once rung up by the Attorney-General of the day and told that The Independent’s coverage of Saudi Arabia was likely to damage Britain’s commercial interests and that I should stop it. That was an attempt at prior restraint, but there was no mechanism to enforce it. I took no action.

Nonetheless, we should remember the Attorney-General who telephoned me, a bog-standard politician, and watch carefully to see whether what is proposed today would supply the missing mechanism and permit the Government to get itself into a position where it would be able to censor press coverage in advance of publication. I would march in the streets with banner aloft to protest against that.

Until now –and long may it continue – newspaper editors have worked to the rough and ready rule of “publish and be damned!”. This was the immortal retort of the Duke of Wellington when told that a courtesan threatened to publish his letters. Publish and be damned means that when a newspaper’s coverage appears likely to fall within the ambit of one of the laws that bears upon the press, the editor makes up his or her own mind whether to proceed. The editor knows the relevant law, remembers past cases and has legal advice.

There is a judgement to be made. It is a decision that is proper for an editor to make. If he or she is wrong, then the court can fine the publication or even, in very rare and incredibly serious cases, set a term of imprisonment for the editor.

This is the context in which I propose adding a privacy law with a public interest defence to the legislation that an editor must bear in mind. This additional law would not permit the government of the day to exercise prior restraint, no more than the pieces of legislation I mention above do so. It would still be publish and be damned.

There have been innumerable proposals during the past 50 years, together with draft acts of Parliament, for the protection of personal privacy to be added to the statute book. But each time ministers have recoiled. The Younger Committee, which sat in 1972, tried to define privacy but decided that it could not satisfactorily be done. It particularly disapproved of those definitions that went very wide, equating the right to privacy with the right to be left alone. The Committee also commented that it did not receive many examples of intrusion, but that would hardly be the case today.

Privacy defined

The Calcutt Committee (1990) also concluded that the case for a statutory tort or law of infringement of privacy had not been made. But that opinion was expressed more than 20 years ago, before the development of a celebrity culture that extends far more widely than the stars of stage and screen.

Is it really so difficult to define privacy? Surely it is “the state of being free from public attention”? In French law, it is defined as the “intimacy of private life”. And generally it is equally clear whether there is a public interest.

Within six months of Dominique Strauss-Kahn becoming managing director of the IMF, he started a brief affair with a woman staff member, Piroska Nagy. When it became known, an inquiry was launched. Ms Nagy regretted what had happened and said: “I fear that this man has a problem that makes him an inappropriate person for the direction of an institution where many women work under his orders.” That is a pure example of where there is a public interest in full media coverage.

Nonetheless, a privacy law with a public interest qualification would give rise to hard cases. The courts would sometimes be called upon to decide where the balance lay. I presume cases would be heard in the Queen’s Bench division of the High Court, where personal injury and libel and slander cases are heard. Indeed, I hope a sort of unofficial media court would develop.

The dichotomy between self-regulation on the one hand and government regulation on the other is false. The desirable balance to be struck is a middle way between self-regulation and the laws of the land as they impact on the press. It is perfectly reasonable to examine this division of responsibility from time to time. I argue that, as far as privacy is concerned, in the light of all that has happened, the courts should now start to play a role.

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