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

Share
Related Topics

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'

twitter@johnkampfner

React Now

Latest stories from i100
Have you tried new the Independent Digital Edition apps?
SPONSORED FEATURES
iJobs Job Widget
iJobs General

Recruitment Genius: Clinical Lead / RGN

£40000 - £42000 per annum: Recruitment Genius: This is an exciting opportunity...

Recruitment Genius: IT Sales Consultant

£35000 - £40000 per annum: Recruitment Genius: This IT support company has a n...

Recruitment Genius: Works Engineer

Negotiable: Recruitment Genius: A works engineer is required in a progressive ...

Recruitment Genius: Trainee Hire Manager - Tool Hire

£21000 - £25000 per annum: Recruitment Genius: Our client is seeking someone w...

Day In a Page

Read Next
 

I don't blame parents who move to get their child into a good school

Chris Blackhurst
William Hague, addresses delegates at the Conservative party conference for the last time in his political career in Birmingham  

It’s only natural for politicians like William Hague to end up as journalists

Simon Kelner
Isis profits from destruction of antiquities by selling relics to dealers - and then blowing up the buildings they come from to conceal the evidence of looting

How Isis profits from destruction of antiquities

Robert Fisk on the terrorist group's manipulation of the market to increase the price of artefacts
Labour leadership: Andy Burnham urges Jeremy Corbyn voters to think again in last-minute plea

'If we lose touch we’ll end up with two decades of the Tories'

In an exclusive interview, Andy Burnham urges Jeremy Corbyn voters to think again in last-minute plea
Tunisia fears its Arab Spring could be reversed as the new regime becomes as intolerant of dissent as its predecessor

The Arab Spring reversed

Tunisian protesters fear that a new law will whitewash corrupt businessmen and officials, but they are finding that the new regime is becoming as intolerant of dissent as its predecessor
King Arthur: Legendary figure was real and lived most of his life in Strathclyde, academic claims

Academic claims King Arthur was real - and reveals where he lived

Dr Andrew Breeze says the legendary figure did exist – but was a general, not a king
Earth has 'lost more than half its trees' since humans first started cutting them down

Axe-wielding Man fells half the world’s trees – leaving us just 422 each

However, the number of trees may be eight times higher than previously thought
Theme parks continue to draw in thrill-seekers despite the risks - so why are we so addicted?

Why are we addicted to theme parks?

Now that Banksy has unveiled his own dystopian version, Christopher Beanland considers the ups and downs of our endless quest for amusement
Tourism in Iran: The country will soon be opening up again after years of isolation

Iran is opening up again to tourists

After years of isolation, Iran is reopening its embassies abroad. Soon, there'll be the chance for the adventurous to holiday there
10 best PS4 games

10 best PS4 games

Can’t wait for the new round of blockbusters due out this autumn? We played through last year’s offering
Transfer window: Ten things we learnt

Ten things we learnt from the transfer window

Record-breaking spending shows FFP restraint no longer applies
Migrant crisis: UN official Philippe Douste-Blazy reveals the harrowing sights he encountered among refugees arriving on Lampedusa

‘Can we really just turn away?’

Dead bodies, men drowning, women miscarrying – a senior UN figure on the horrors he has witnessed among migrants arriving on Lampedusa, and urges politicians not to underestimate our caring nature
Nine of Syria and Iraq's 10 world heritage sites are in danger as Isis ravages centuries of history

Nine of Syria and Iraq's 10 world heritage sites are in danger...

... and not just because of Isis vandalism
Girl on a Plane: An exclusive extract of the novelisation inspired by the 1970 Palestinian fighters hijack

Girl on a Plane

An exclusive extract of the novelisation inspired by the 1970 Palestinian fighters hijack
Why Frederick Forsyth's spying days could spell disaster for today's journalists

Why Frederick Forsyth's spying days could spell disaster for today's journalists

The author of 'The Day of the Jackal' has revealed he spied for MI6 while a foreign correspondent
Markus Persson: If being that rich is so bad, why not just give it all away?

That's a bit rich

The billionaire inventor of computer game Minecraft says he is bored, lonely and isolated by his vast wealth. If it’s that bad, says Simon Kelner, why not just give it all away?
Euro 2016: Chris Coleman on course to end half a century of hurt for Wales

Coleman on course to end half a century of hurt for Wales

Wales last qualified for major tournament in 1958 but after several near misses the current crop can book place at Euro 2016 and end all the indifference