Few will object to any new law that outlaws trespass, bugging or the taking of photographs on private property without consent. A new tort preventing molestation or harassment would probably be widely welcomed. However, in its recent consultation paper, the Lord Chancellor's Department has gone much further and proposed that virtually any revelation of a private kind which causes 'substantial distress' should be actionable.
This may seem just and unobjectionable, until one begins to explore the implications for responsible biographers and historians. The truth often hurts and may arguably cause 'substantial distress', but that is surely no reason to give an automatic right to start legal proceedings. I suggest that if there is to be a new general law protecting privacy, the test to be satisfied by an aggrieved individual needs to be a good deal tougher.
A defence that publication was 'in the public interest' would help to reduce the threat to freedom of expression. But the consultation paper looks at the 'public interest' very narrowly (for example, the prevention of crime or the correction of a misleading statement) rather than whether the disclosure was reasonable in the context of publication which, taken as whole, was 'in the public interest'.
MARK LE FANU
The Society of Authors
9 NovemberReuse content