John Kampfner: Let battle commence over privacy

John Terry’s is only the latest attempt to suppress free speech for financial reasons

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This was the week that the legal establishment bit back. For three months since Index on Censorship published its Libel Reform campaign in coalition with like-minded organisations, we've had pretty much an open field.

The evidence we have brought to bear has been compelling. Libel tourism – in which dodgy foreign oligarchs and sheikhs use our indulgent courts to sue NGOs, authors and scientists – has been such a blight on Britain's reputation that the US Congress is pushing through legislation seeking to protect American citizens from our courts. What greater humiliation could our closest ally inflict on our judicial system?

The Justice Secretary, Jack Straw has expressed his determination to introduce significant changes in coming weeks and months. The two areas most ripe for change are likely to be stronger direction to judges not to take on cases of libel tourism, or at least to set the bar far higher for a plaintiff to argue that, even though they do not live in the UK, their reputation here has been irrevocably damaged. The other is costs. The idea of no-win, or conditional fee agreements, was designed to increase access to justice for the impecunious. In a classic case of unintended consequences, it has instead allowed the rich and powerful to string along defamation writs, in the full knowledge that small organisations do not have the strength or the cash flow to sustain a defence. This has led to a plethora of people settling out of court, even where their case is watertight.

It was, therefore, a matter of time before the backlash would begin. It has taken three forms: large and avaricious legal companies increasingly alarmed that key sources of revenue might be endangered; senior lawyers and judges who, whatever their personal positions, do not like to be put on the spot by upstarts from the third sector, and individuals who have done well out of the existing system.

Max Mosley's interview on BBC Radio 4's Today programme this week was, I admit, compelling listening. The Formula One racing boss, who won £60,000 in damages from the News of the World after it alleged he had been involved in a "Nazi orgy", said individuals should have a "right to notification" before any allegations are printed about them, "so that if you wish you can go to a judge and if you can convince the judge he'd stop publication".

Mosley's case brought together the adjacent issues of libel, privacy and injunctions. The broader issue is enshrined in Article 8 of the Human Rights Act. Most advocates of constitutional modernisation and civil liberties were delighted with the incorporation of the European convention into UK law a decade ago.

Yet again a well-intentioned measure has been traduced in the practice. The act has enabled a considerable shift in the balance between the right to know and the right to privacy – that privacy being accorded predominantly to the rich and powerful.

The right of all individuals to a private life that is entirely private is compelling. What has happened, however, is that changes have taken place through arbitrary interpretations from a small number of judges. What is the definition of a private life? Is there any link between activities in the home and in the workplace? These are all important questions, but the debate has not been held.

Hence, in a characteristically British way, law has been made on the hoof. The sudden thirst for privacy has breathed new life into the injunction and the pernicious super-injunction. There may be the odd case for not only preventing publication but also preventing reporting of such a ban, such as when it might endanger life or cause serious damage to children.

Instead the injunction has become a catch-all device simply to stop the media from reporting facts that might embarrass companies or individuals. John Terry, who was yesterday stripped of his captaincy of the English football team after revelations of an affair with the ex-girl friend of a team mate, is only the latest and most ill-advised attempt to suppress free expression for reasons of purely individual reputation and commercial interest.

The least reported but most bizarre intervention of the week came from Lord Hoffman, a recently retired law lord of impeccable liberal credentials. In a lecture striking for its defensiveness and its Little Englander appeals, Hoffman took umbrage at a report last year by the UN Human Rights Committee that attacked English libel law as chilling free speech not just in the UK but around the world.

Hoffman suggested that Rachel Ehrenfeld, whose case shed light on libel tourism, had been in league with US neoconservatives. He dismissed the legislation that has been passed by a number of US states and is going through Congress as seeking to enshrine American legal hegemony. He saw no particular problem with the state of English libel law and insisted that the right for anyone to be able to use any country's courts to sue for defamation should not be challenged.

Meanwhile, two academics, Professor Alastair Mullis of the University of East Anglia and Dr Andrew Scott of the London School of Economics, have, to the evident pleasure of Britain's more avaricious law firms, published a document styled as a "rejoinder to the clamour for the reform of defamation". They argue that while they are not averse to the idea of a review, critiques such as ours have been too broad and the proposed reforms are too sweeping and indiscriminate.

The battle has now been joined. The forces of reaction, those who are hostile to the very idea of a First Amendment defending free speech, have entered the fray. They are lobbying hard senior figures in the Labour and Conservative parties.

The issue of libel reform, the questioning not of the principle but the application of privacy law and super-injunctions, is not about journalistic self-interest or the right of tabloids to pry. These measures have chilled NGOs from reporting torture carried out in dictatorships; they have stopped authors in their tracks from unearthing inconvenient truths; they have prevented scientists from conducting robust research. It is no wonder that so many vested interests are resistant to change.

John Kampfner is chief executive of Index on Censorship and 'Freedom for Sale'

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