John Kampfner: Rights that are too important to be decided on by judges

Advocates of free expression should not see privacy as inimical to that cause. Nor should they excuse shoddy journalistic practice
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The Independent Online

Why is it that the Left seems to pick strange bedfellows when it debates liberty? Or, to put it another way, what do some in the liberal commentariat have in common with bankers and footballers?

The issue that is dividing polite, and impolite society, is the right to privacy. The battle is being fought in the courts, on Twitter and on the floor of the Commons and the Lords.At stake is the jurisdiction of parliament and judiciary and the relationship between articles 8 and 10 of the European Convention, incorporated into UK law.

Two further areas, however, have been less explored: the role of class and age in the battle for the right to know. In the villains' corner are tabloid editors, publicity-seeking MPs and obsessive tweeters. On the side of decency are judges and lawyers who, it is said, are interpreting a difficult body of law in the best way they can.

In this acrimonious climate, both sides tend to minimise the areas where mainstream opinion converges. Everyone, surely, agrees that privacy is a human right to be challenged only in exceptional circumstances. These might include egregious hypocrisy and those who display their private lives in public for commercial gain. A more contentious caveat would be those who play a leadership role in society; defining that, though, is extremely difficult.

Advocates for free expression should not see privacy as inimical to that cause. Nor should they excuse shoddy journalistic practice. At Index on Censorship we have railed against the weaknesses of the Press Complaints Commission, denouncing phone hacking and the others examples of tabloid crimes and misdemeanours. Free expression is about investigation, about challenging power, and not about prurience or hounding the vulnerable. Yet, what has been so alarming in recent years is the extent to which many in the British establishment, particularly on the liberal-left, see free speech as an easily expendable right.

On many occasions in recent years I have felt sullied in defending the person whose views I find obnoxious, such as the right of the BNP leader, Nick Griffin, to appear on the BBC's Question Time programme. Yet offence seems to have become a national pastime. If in doubt, censor or issue a writ or demand an apology.

It is as if we have all elevated offence as a universal human right. I recall being told by a theatre manager from the Midlands how he has a panel of local worthies whom he consults ahead of any production. All complaints, ahead of time, are taken with utmost seriousness. All of this is well intentioned, as was the thinking behind legislation outlawing religious and racial hatred. Yet underlying this is an assumption that people cannot be trusted. We need filters and rules to tell us what we should say and what we should know. If we fail to clamp down hard we will succumb to mob rule.

Everyone is entitled to privacy, just as they are entitled to a reputation. The question is not of principle but of balance. When the Libel Reform coalition started its work in November 2009, neither of the two main parties saw the UK's defamation culture as a problem. Yet, all the evidence pointed to a body of law that was skewed towards the rich and powerful. London had become a town called sue, where those with influence and money – often foreigners – used our courts to intimidate charities, scientists and others for having the temerity to challenge them. While much remains to be done to toughen the legislation, the recently published draft defamation bill was a decent first stab at reasserting the rights of investigative journalism and honest opinion.

Why is free speech so hard for some to bear? The problem is that it is not an outcome; it is a process. A truly liberal society gives illiberal people a voice. It is about allowing people of all opinions to air them without fear or favour. That is the spirit of the First Amendment to the United States Constitution that so many in the UK find so hard to countenance. They would rather focus on the areas where free speech should be curbed.

Liberal-minded folk would rather read The Independent than a grubby red top. Who can blame them? The distaste for the media magnates who own them is intense. Yet, at this point rational argument is dispensed with and that old adage of "my enemy's enemy" is adopted. Thus who at the mercy of the tabloids is deemed worthy of defending? Why, multi-millionaire footballers, Sir Fred Goodwin and others such as Max Mosley. Mosley's attempt to enshrine into law a requirement to prior notification by newspapers was rightly and roundly thrown out by the European court. If Goodwin's alleged affair with a co-worker while presiding over one of the greatest bank failures in financial history was not a matter of public interest, I don't know what is.

It was wrong of John Hemming, the Liberal Democrat MP, to use parliamentary privilege to bring the Ryan Giggs injunction into the public domain. The law should not be flouted, even where it is found wanting.

It was curious to note that it was mainly Labour MPs who attacked Hemming and the Lib Dem peer Lord Stoneham who "outed" the Goodwin case in the upper house. They might have focused their ire elsewhere. The anger felt towards Goodwin and his ilk reflects a broader public perception about a parallel network of justice for the rich and powerful. Tax avoidance schemes fall into this picture.

What is needed is a review into privacy and free expression, one that is drawn far more broadly than the mix of MPs and peers announced by the Prime Minister. What exactly constitutes privacy? What is the boundary of the public sphere? And, amid the worrying rise in super-injunctions, in what instances should these measures be used?

It is surely not good enough to say we should leave it to the judges. Their interpretations of the Human Rights Act have shifted considerably over the years, assuming an increasing disdain for free expression. Perhaps in an ideal middle-class and middle-aged world, in which everyone minds their Ps and Qs, due deference might be shown. The problem is the world is not like that. Liberals should stop trying to control free speech, and learn how better to channel and defend it.

John Kampfner is Chief Executive of Index on Censorship and author of 'Freedom for Sale'