Paul Vallely: The judges have bottled their chance to protect privacy

'Neither market forces nor self-regulation has proved an effective check on the intrusive press'
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The Independent Online

The public has a right to know that "a soccer star cheated on his wife with a lap-dancer and a blonde nanny", so The Sun informed its readers yesterday, neatly summarising this week's landmark privacy ruling by three appeal court judges led by the Lord Chief Justice, Lord Woolf. The important word here, it should be pointed out, is 'blonde'. You can work that out by playing a reverse version of the parlour game of Consequences and methodically doing a bit of word substitution.

For example, change "soccer star" – or millionaire soccer ace, as another account preferred – to "bus-driver" and the story loses not just quite a bit of its zip, if you'll pardon the pun, but also an implicit understanding that this is the kind of person that readers have the right to know about. Drop "lap-dancer" and insert "librarian" in its place and you strip away not just the titillation of exotic costumery but also a whole layer of implicit moral judgement. But is anything lost if you remove 'blonde" and discover that the nanny was in fact a brunette?

Neil Wallis, the editor of The Sunday People, which was fighting against an injunction to prevent it from naming the footballer, will no doubt be keen to defend the blonde connection. "The point of fundamental importance," he said, giving those outside the court the benefit of his legal understanding, "is that, if it is of interest to the public, you can pretty much take the view that it is in the public interest."

In the past it was a legal commonplace that "the public interest" was a good deal more than a synonym for "the kind of tat which sells tabloid newspapers", much as "the common good" is a far more profound concept than "what is best for most people".

In line with that, there was, perhaps, nothing that unexpected about remarks from Lord Woolf that "the existence of a free press is in itself desirable and so any interference with it has to be justified". Nor will many eyebrows be raised at his carefully weighed suggestion that a public figure is entitled to a private life, but must expect his or her actions to be more closely scrutinised by the media than those of lesser mortals.

What is perhaps more surprising is his caveat that "even trivial facts relating to a public figure can be of great interest to readers". Which brings us back to the blonde.

It has to be said that the case which provoked all these philosophical considerations is a pretty unextraordinary one. We are not in the extravagantly overindulgent world of Footballers' Wives here. Instead, it's a seamy story about a seducer's lies and how champagne, flowers and Valentine's cards bought dirty weekends and sessions of bonking in borrowed flats, with only a stuffed toy tiger to add the vaguest of exotic tabloid touches.

This is not to say that private conduct doesn't have public consequences. But when a judge says "footballers are role models for young people and undesirable behaviour on their part can set an unfortunate example," I tend to think more of thugs like the Leeds United stars Lee Bowyer and Jonathan Woodgate, whose city-centre drinking spree ended with an Asian youth being savagely beaten by a marauding gang.

Not that I am defending our unnameable adulterer's behaviour. But the argument that a man who will lie to his wife will lie to the nation has clearly lost purchase in modern public life. Even Bill Clinton survived that one. An adulterer's wife may well have the right to know about his deceits but not necessarily the rest of us.

The point of fundamental importance, as a Sunday People editorial might put it, is something very different. What the Court of Appeal had before it – in what was effectively a balancing of Article 8 (the right to privacy) and Article 10 (the right to freedom of expression) in the new Human Rights Act – was the opportunity to begin the shaping of a new UK privacy law. In the event the judges bottled out. The courts could not act as censors or arbiters of taste, they insisted. That was the job of newspaper readers and the Press Complaints Commission.

The sad truth is that neither market forces nor self-regulation has provided an effective check on the intrusive excesses of the press here, even if it is deeply treacherous for a journalist to say so. Judges are far better placed to do that job, and if that means building a piecemeal body of case-law to determine when details are salacious, prurient and unnecessary that seems the lesser of evils.

Such a law might become an adulterer's charter. But Lord Woolf's alternative – "if newspapers do not publish information which the public is interested in, there will be fewer newspapers published – which will not be in the public interest" – amounts to a licence to print almost anything. The result, as circulation wars provoke a continued downward spiral in standards, could ultimately be far more pernicious. And it won't just be the blonde who suffers.

p.vallely@independent.co.uk

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