Steve Richards: A privacy law may be the lesser evil

Of course I want to know all about the stars and their affairs, but I do not see why I should have the right to know
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The Independent Online

Phew... what a sizzling, stormy sensation! There is no more multi-layered drama in the land than the one being played out over super-injunctions. Even the title of the censorious weapon hints at the confused, woolly arguments deployed with deceptive assertiveness. The adjective "super" conveys a tabloid sense of exaggerated urgency in its battle to prevent a reckless tabloid culture from prevailing. This is a super, sizzling saga with tears and a single laugh.

The symmetry of the finer detail is darkly comical. The over-excited, hypocritically pious reporting of the super-injunctions provides a partial justification for those who originally sought to hide behind legal cover in the first place. What an outrage, much of the media cries, that the public are denied their right to know about which footballer has been dating a talentless celebrity from Big Brother. Parts of the media have done their bit in the crusade for indiscriminate freedom of information by hacking phones. Now they are on the side of freedom once more in demanding the right to make the lives of the rich and famous hellish. Who can blame the rich and famous for seeking a shield from the destructive glare?

The justification for kicking Andrew Marr around for a week or two was that he had taken out a super-injunction when, as a journalist, he was a seeker of truths. But Marr has never lectured on family values or stood for public office on this basis. Perhaps he was wrong to use internet rumours as a basis for asking Gordon Brown about his medical regime, with the implication that the then Prime Minister was bonkers and taking a wild chemical brew to address the madness. But a rare aberration is not a cause for days of salacious reporting that highlighted vividly why someone in Marr's position might wish to take out an injunction in the first place.

In claiming to represent "the people" against the protective self-serving "elite", some argue that if the "Westminster village" knows about the oscillations of a private life the rest of the country should know too. I do not see why such a leap should be made. Much of the country takes little interest in the mountain of publicly available information surfacing from the Westminster village, information that has a direct impact on their lives. Their right to know about who is having an affair with whom should not be automatic, simply because word has reached political journalists. Journalistic knowledge as a criteria for global revelation seems a little one-sided even if the dodgy principle of total openness is applied. What about those having affairs without the knowledge of journalists? Why should they get away with it?

Revelations on Twitter and blogs make an already complicated issue more complex, but not decisively so. Rumours and gossip erupt on the internet around the clock. They are part of the noisy, raucous, revolution that transforms the way we are communicating with each other. To survive, newspapers and publicly-funded broadcasters need distinction. Part of the distinctiveness must be the hosting of a different type of party to the wilder ones on the internet. On Twitter there is an army of names outed in relation to super-injunctions. Some of them are wrong. The medium is recognised as one where rumour is mainstream and therefore carries less weight than when newspapers and broadcasters pile in too.

In essence the debate comes down to conflicting freedoms, as is often the case when liberalism is evoked as a determining theme. Liberalism is the most flexible of terms. Virtually everyone, from left to right, describes themselves as liberal. In this case noble concerns about freedom do not get us very far because different sides seek contradictory forms of liberation. Should the media have the freedom to report the private life of someone who happens to be a well-paid footballer, or should sporting celebrities who make no claims of moral purity have the freedom to protect their families from what can be life-wrecking intrusion?

The question is similar to the one applied in advance of the smoking ban. Should smokers have the freedom to have a cigarette in public places or should non-smokers have the freedom to enjoy a drink without inhaling the fumes of those lighting up nearby? Only the anarchic libertarian would argue in favour of the smokers' freedom now. Most hail the freedom to avoid the dingy stench of the cancerous fumes. The ban was a liberal innovation.

And yet in this saga, the super-injunctions are obviously flawed. The issue is rarely about censorship but exclusivity, accountability and practical application. They are available only to the wealthy, in a dance with non-elected judges who must rule in an area where precision is almost impossible. A tenant on a council estate, trapped in a media storm, would not be able to afford a super-injunction, not that he or she would attract much media interest for an affair. Judges should not be the sole arbiters of the right to know. The super-injunction is becoming a silly instrument, in which the use is becoming the story and a vehicle towards the original salacious affair.

I want to know all about the stars and their affairs, but I do not see why I should have the right to know. The decisive principle should not be about the freedom to sell more newspapers to satisfy my curiosity about what people get up to away from their dazzling vocations.

The current seething debate, largely between journalists and their "victims", fills a political void. No argument has been publicly asserted and won, as there was in relation the smoking ban. Instead super-injunctions compete with the defiant anarchy of some tweeters, and newspapers navigate awkwardly between the two.

At the very least Parliament must have an argument and reach some conclusions. A senior government insider, with well-developed liberal instincts, put the case to me yesterday for leaving things more or less as they are. Judges are obliged to rule on whether reporting is in the public interest already. He does not believe we have the right to know about the private life of a footballer, but obviously a politician who says one thing and does another has no right to be protected from media scrutiny. No such protection is on offer.

Other ministers contemplate a privacy law. If we are witnessing the death of the injunction through stealthy exposure, and there is no more fatal blow, some review is required to protect the freedom of the media to report what is in the public interest and the freedom of the famous to some limited privacy. Currently we are in the bizarre situation where those seeking anonymity through the injunction are becoming more famous as a result of wanting to hide. A privacy law, while limited in its practical impact, would at least have been preceded by political debate, a missing ingredient. We need such a debate. Ultimately judges would still decide on the occasional collision of freedoms, but at least their verdicts would follow a more publicly realised route map.

In spite of the strong case for such navigation, it will not happen. Politicians are terrified of the media and will fear reprisals. Look at the muted responses of the leaderships to the phone-hacking revelations. If you happen to be a successful footballer or broadcaster, the only form of protection will be to avoid meeting alluring members of the opposite sex, who you may or may not have bumped into in the Big Brother house.