Sober up, injunction flouters and tweeters

High excitement in the House of Commons yesterday as a Liberal MP named the Manchester United footballer Ryan Giggs as the man behind a privacy injunction and most news media promptly followed suit. In an attempt to get out from under an increasingly confused row about privacy law, the government announced an inquiry by a joint committee from both houses of parliament.

Here’s my attempt to keep the issues which matter in view and in perspective.

  • Let’s not get too grandiloquent about one footballer’s name being published. John Hemming, the MP who named Giggs, was quoted this morning by Metro comparing and contrasting Britain with Burma. As an act of civil disobedience, naming under parliamentary privilege a footballer who is alleged to have had an affair isn’t quite up there with, say, standing in front of a row of tanks just after the massacre in Tiananmen Square.
  • Privacy law is out of date, working imperfectly and needs repair (£). But it hasn’t fallen apart. Injunctions still stand and can be enforced, even if not completely. The naming of Giggs is a puncture, not a car crash.
  • Unless you take the position that there should be no private information whatever, the law will do what it can to restrict the publication of some information. In a plural open society, the default should be towards disclosure and restrictions held to a minimum. New media means that protection of privacy won’t be watertight. For example I’d say that information in individual medical records, about attempts at blackmail and information involving children are examples of the kind of information which might reasonably be restricted in the absence of a counter-argument based on public interest.
  • The interplay of public interest disclosure and legitimate privacy ought to be the hinge this debate. The joint parliamentary committee announced yesterday sounds unexciting and may yet prove to be a damp squib. But it could lay the groundwork for a better way of resolving the two interests at play, particularly by insisting on keeping the debate centered on the public interest. It’s an elusive, abused and anything but easily-agreed idea. But it’s unavoidable.
  • Several players in the injunction-bypassing game don’t want the discussion to turn on public interest definitions and defences. A few voices genuinely believe, on grounds of libertarian principle, that freedom to publish should be as little restricted as possible. Red-top papers want to return to the free bargaining market for celebrity disclosure, unhampered by solicitors with injunctions. The editor-in-chief of the Daily Mail was at least frank a few years ago when he told an audience that if newspapers couldn’t go on inquiring into private lives and shaming people for their misbehaviour, “I doubt whether they will retain their mass circulations with the obvious worrying implications for the democratic process”. This is honest, but as a defence of intrusion it won’t wash.

Update 26/5/11: Good analysis here of Sweden’s privacy set-up from The Economist columnist Bagehot, aka David Rennie.



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