Hackgate and Coulson: privacy law comes closer

Just as it would be hard to explain why some fires start slow and some blaze immediately, predicting which stories will catch on and be replayed and expanded and which don’t is not an exact science. Some stories spread, well, like wildfire and others splutter and crackle without really catching and then, suddenly, woomph…they’re fully alight.

So it has been with the allegations of widespread phone-tapping at the News of the World. A story has entered the nation’s saloon bar and water cooler conversation when it provides the joke for a Matt’s daily cartoon.

Because Andy Coulson, the NoW’s editor at the relevant time, is now the Prime Minister’s spokesman, much of the coverage has been fitted to one of the iron templates of political reporting: will he stay or will he be forced to resign?

This isn’t exactly a distraction, but it isn’t quite the big long-term issue either. For all the diligence of the reporters of The Guardian and New York Times who have been driving this story, the single widest revelation of phone interception (and “blagging” confidential information) commissioned by journalists came the Information Commissioner in 2006 and derived from discoveries made during a police investigation into a private detective, Operation Motorman (see para 27 here). The staff of the News of the World may yet be revealed to have done more phone “screwing” than any other paper; but they were hardly alone.

So when the phone-hacking story caught light this week, there was a lot of accumulated combustible material. Public attitudes are often more decisively changed by long, slow accumulations of evidence that something is badly amiss than by sudden dramas. We’re going to find at the end that the News of the World’s men have shifted the balance of public opinion yet further in favour of legal change.

What we’re looking at now is a powerful momentum for a new privacy law. The Justice Minister, Tom McNally, recently said that the government wants to clear up judge-made law on privacy (“super-injunctions” whose existence can’t even be referred to and suchlike) in the same legislation that revises defamation law. In the light of what’s happened over phone-tapping, wider restrictions than that will be in play.

Whatever the ramifications of the phone-tapping story for Coulson, Scotland Yard or anyone else, the issue at the heart of it is privacy. Under what conditions can someone enforce their right to keep something private when someone else wants to disclose it? (And in the digital era, that someone may be a journalist but may not). Most people would agree that hacking into someone’s voicemail for news or entertainment isn’t right.

After that it gets more complicated. I used to believe that any new privacy law would end up in unjustifiable restrictions on press freedom. But that was before judges began organising their own remedy to what they saw as gaps in the statute book. I now think that there is no alternative to a full-dress debate on a new legal formula balancing the right to keep the genuinely private private against the claim of the public interest in disclosure.

That public interest claim has been stretched pretty thin by red-top papers over the past decade or two. Needless to say, no new balance will satisfy many people. Elected politicians don’t get much protection in my new dispensation. The claim to be exposing “hypocrisy” shouldn’t be sufficient to justify any invasion of privacy but the suggestion of misuse of funds or position should. That would leave the stories about David Blunkett, Peter Mandelson or William Hague, to name only three, as publishable.

Can any lawyers solve these riddles? We’re going to be debating them soon, like it or not.


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1 comment

  1. George

    Thanks for a very perceptive and well argued post. I hadn’t made the connection with the privacy debate before.

    If we did get a privacy law, would this reduce the volume of media coverage of so-called celebrities? And if it did, would this clear some space for meaningful coverage of the rather more serious issues with which we are confronted?

    Or in other words, might the media stop talking down to its audience, and instead rediscover the virtues of Reith’s ‘inform, educate and entertain’ philosphy?