This panel discussion was hosted by Weber Shandwick and 25 Bedford Row Barrister Chambers on 8th June 2011. The speakers were Graham Atkins (Atkins Thomson), John Cooper QC (25 Bedford Row), Jo Glanville (Index on Censorship) and Joshua Rozenberg (journalist and legal commentator).
Are we sleepwalking into a privacy law?
The resounding response from the panel was no. John Cooper referenced Judge Cooley’s famous phrase from 1888 – “the right to be let alone” – explaining that we are experiencing a natural development in the law, and that courts are simply interpreting the “parameters and frictions” between articles 8 and 10, along with section 12, of the Human Rights Act. Joshua Rozenberg added that in all likelihood, we will not see the creation of a statutory tort of privacy.
The debate settled around the familiar territory of celebrities and media intrusion. Cooper called for the media-initiated debate over injunctions to be examined, asking if the issue really lies in secrecy and curbing freedom of expression or whether injunctions vital to protect individuals from harassment and exposure. Rozenberg agreed that there is more to privacy than secrecy, pointing out that the Ryan Giggs injunction is currently being upheld to protect the footballer from harassment. The value of reputation was also acknowledged – are celebrities who claim privacy is required to protect family members really protecting other interests? Rozenberg pointed out that individuals appearing in criminal trials are generally not entitled to anonymity, leaving family members open to scrutiny.
Cooper dismissed a strict distinction between public figures and civilians in terms of privacy and publicity, saying: “You have to take your celebrity as you find them.” He added that there are degrees of celebrity, and how an individual has fed parts of their personal life into the public domain should be taken into account, and often is, by judges. Graham Atkins called into question the “frenzy from an increasingly frustrated media” over celebrity injunctions, saying that the day-to-day private lives of civilians aren’t going to sell papers in the same way.
Atkins blamed the media for starting the ball rolling with outing injunctions. This was picked up by Rozenberg with reference to a flurry of innuendo-laden articles in the press pointing readers to Twitter. It was suggested by more than one of the panel that journalists may be directly involved in setting up the injunction-busting Twitter accounts – pure speculation of course. The Spartacus effect – the safety in numbers for Twitter users publishing celebrity injunctions – was touched on by Rozenberg, who reminded us that the law applies here, and no one can assume they are safe in cyberspace (I lesson I will take with me, having been picked out by Mr Rozenberg for tweeting the seminar).
Rozenberg also questioned how judges will be influenced by public debate, and if the apparent public disdain for injunctions would push judicial decisions slightly more towards freedom of expression. Jo Glanville, who called privacy the “number one issue” in freedom of expression debates, pointed out that judges sometimes do get it wrong when balancing public interest and the need for prior restraint – suggesting that remedy for privacy invasions might become more appropriate (Max Mosley might take issue with that one). She criticised judges for denying the impact of online publication as the distinction between this and traditional media is becoming increasingly blurred, adding that privacy law is at the centre of a collision between HRA aided-development and global internet revolutions.
If I can offer a tentative conclusion to the panel’s discussion, we might not be sleepwalking into a privacy law in the UK, but have reached a significant turning point. The multiple topics touched on by the panel demonstrate that privacy is a concept that includes many legal and cultural sub-concepts, and that any legal development must try to take these all into account.