Dominic Lawson: In the Twitter era, privacy is finished

The Facebook generation are infinitely less sympathetic than the average High Court judge

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As the late Frankie Howerd didn't quite say: Twitter ye not. Or at least, don't use the Twitter networking website to out sundry sportsmen and showbusiness types who have taken out so-called super-injunctions banning all public mention of their extramarital affairs. The person who posted these names on his Twitter account yesterday – whether inaccurately or not – is clearly in contempt of court, and therefore liable to a substantial fine.

If this newspaper had published a piece by a journalist naming those names, then it, rather than the writer, would have borne the brunt of any subsequent costs and proceedings. Not so the executives of Twitter, apparently. It warns anyone joining its online forum that "you may use the Services only in compliance with ... all applicable local, state, national, and international laws, rules and regulations". But you're on your own in the dock, delinquent Tweeters: the owners of the website go on to assert that "we may not monitor ... the Content posted via the Services and we cannot take responsibility for such Content". When Stanley Baldwin eighty years ago attacked the proprietors of the Daily Mail and the Daily Express for seeking "power without responsibility – the prerogative of the harlot throughout the ages" he cannot have envisaged a day when a publisher would so explicitly broadcast its lack of responsibility for whatever appeared under its banner.

Naturally Twitter, and such other internet service providers as Google and Facebook, are not like newspapers in seeking directly to influence public opinion; more to the point, their whole business model rests on the fact that they don't control what their users post. Not only would this destroy the freedom and spontaneity their users relish; pre-moderation would require the employment of thousands of lawyers around the clock.

Still more to the point, the whole idea of super-injunctions designed to protect privacy is diametrically opposed to the ethos of the Facebook generation, who are infinitely less sympathetic than the average High Court judge to the notion that there are some limits to the amount of personal details that should be made publicly available. Those judges, it should be said, are not imposing such limits on publishers purely on a whim, or out of a class-based desire to protect "the establishment" from the exposure of its wrongdoing. It is not establishment figures who have been the most assiduous seekers of super-injunctions (so far as we know) but footballers, a group of people who might be very welcome at Chinawhite nightclub in Soho, but would never be admitted to White's Club in St James's.

No, the judges have just been trying to interpret the law as it stands; and since the Human Rights Act of 1998 incorporated the European Convention of Human Rights into UK law, that has included a legal right to privacy. Article 8 of the HRA declares that "Everybody has a right to respect for his private and family life, his home and his correspondence." When arguing against a claim under Article 8, newspapers can claim their own rights under Article 10 of the Act which declares that "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information." Unfortunately for the media, however, the second paragraph of Article 10 stipulates that this right "carries with it duties and responsibilities ... as are necessary for the protection of the reputation or rights of others." I suspect it is this clause which has influenced judges to side more with those seeking super-injunctions (that is, injunctions which forbid even the mention of the fact that they exist) than with the sort of newspapers whose bread and butter has long been the exposure of the sexual indiscretions of those in the public eye.

Ever sensitive to the requirements of newspaper editors (not to mention the need to capture the headlines himself) David Cameron last month declared himself "uneasy" at the way judges had been developing a form of privacy law; he added that Parliament should have its say and MPs, rather than the judiciary, should decide the balance between the right to privacy and the freedom of the press. This was most disingenuous of the Prime Minister. First, it was Parliament which passed the Human Rights Act. It was not imposed by the judiciary. Second, whatever new legislation may be proposed to supplant it would presumably incorporate some rights to a private life as well as freedom of expression; and thereafter it would remain the role of judges to arbitrate a balance between the two requirements. No parliamentary draftsman could draw up a law which would obviate the need for judicial interpretation.

It is already the case that a newspaper can persuade a judge not to grant an injunction, if the story it wishes to publish is "in the public interest". In this regard, the privacy law is, however, more onerous than that covering defamation. In the latter case, it is not necessary to prove the public interest: truth is an absolute defence. In privacy cases, the problem for the subject of the story is precisely that it is true. Unfortunately for those seeking clarity, the notion of the "public interest" is, at best, highly subjective.

Judges, though, have been clear that under no definition can it automatically be said to be in the public interest to reveal that footballer X has been paying for sex with a prostitute – and I think they are right in that, at least. However, the editor of the Daily Mail, Paul Dacre, made a notable contribution to this debate in 2008, when he suggested that "public shaming has always been a vital element in defending the parameters of what are considered acceptable standards of behaviour". This is as close as anyone has come to a general public interest defence of what we might collectively term "kiss and tell" stories.

No judge would ever dare to say it, but there is in fact a diametrically opposed public interest defence for not printing such stories, one which would be more easily understood by the Victorians – or even Stanley Baldwin in the 1930s; it is that revelations of sexual infidelity by public figures have the effect of making readers more likely to emulate such behaviour than to shun it. After all, the people whom the press have in their sights are what we now call "role models". So if Premiership footballers are exposed as being sexually incontinent in their private lives, those young men who admire them, far from shunning the players, will instead be more likely to emulate such behaviour. In other words, the sanitised public image of the clean-living sports star – as portrayed in the pages of such heroically uncritical publications as Hello! – is more socially useful in its subliminal influence than the scoop which exposes his hypocrisy.

For better or for worse, such an approach is no longer sustainable. Thanks to the internet and the mobile phone camera we are now in a world of complete transparency. Whatever the judges do, privacy has had its day. None of us is safe.



d.lawson@independent.co.uk

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