PUBLIC INTEREST V.
PRIVATE RIGHT
The media: Paul Johnson
argues that privacy must be protected by law
WE are at the beginning of an era in which Parliament, in response to public demand, is setting about the reform of the media. Two broadcasting Bills, one of modest size, the second enormous, are already in the pipeline; and this will be only the beginning, since technology is now moving so fast legislators will be panting behind to catch up. Newspapers must not think they are going to escape the reforming mood. Widespread dissatisfaction with the con- duct of the press, at every level of society and among supporters of all parties, is already reflected in attempts by backbench MPs to bring forward their own Bills. Last week it was Ann Clwyd's Right of Reply Bill; this week William Cash's Privacy Bill. The fact that such measures make little or no progress is irrelevant. They are closely watched by ministers as tests of political opinion.
Right of reply is likely to feature in any new Act of Parliament dealing with the media. It will not achieve as much as its advocates expect, or be as difficult to handle as its newspaper opponents fear. It works perfectly well in some countries but really makes little difference. Nevertheless Parliament should enact it to show willing. Far more important is the privacy issue. The Attorney-General is rightly taking a keen interest in this one, and no doubt will be prepared to put proposals to the Cabinet the moment it considers a suffi- cient head of steam has built up among the public. That may come quite soon.
Why the growing concern over privacy? The reasons are twofold. The Press Coun- cil, which dates from an earlier spasm of reform, has clearly failed. The public is making increasing use of it, faute de mieux, but no longer believes the council's censure is an effective deterrent. Equally, it has lost the respect of editors, on account of its inconsistency and political bias, and most of them now despise it. The council is thus no check on privacy-invasion. The second reason is that, to an increasing extent, the quality papers have been adopting the practices and standards of the tabloids in this area. Of course the tabloids are the worst offenders, with the News of the World in the van, the Sunday People, the Sun and the Sunday Mirror not far behind. But most of the posh papers now join in the game, if only intermittently.
There was, for instance, the prolonged harassment of the Thatcher family by the Observer, imitated (if only briefly) by the Sunday Times, which went so far as to 'tap' Denis Thatcher's bank account. Then there was the Guardian columnist asking David Alton MP whether he was a homosexual, simply because she did not agree with his Abortion Bill; a generation ago a Guardian editor would have cut both question and reply without hesitation, as unacceptable journalism. I used to think that the Telegraph papers, at least, were above this kind of intrusion, and the Daily Telegraph, so far as I know, still has an unspotted record. By only this week the Sunday Telegraph ran an intrusive splash about so-called 'slave labour' from the Philippines, gratuitously and manifestly unfairly pillorying a well-known writer who had employed a Filipino servant 15 years ago. A photograph and lustful smear- headline was spread right across the top of its front page.
Invading the privacy of prominent peo- ple raises the tricky question of the public interest. Insisting on the public's right to know everything can, paradoxically, dam- age the public interest. We see this in the present American presidential election, where over-concentration on the private and financial lives of the candidates has so far crowded out any serious discussion of the political issues. One reason why Parlia- ment has been slow to enact a privacy law has been the difficulty in defining where public interest ends and private right be- gins. Two recent cases involving the tab- loids illustrate the point. One concerned `revelations' by a prostitute about a senior trade union official. I do not see how it can plausibly be argued that the public needs to be told about such private and legal trans- actions. Quite the contrary. It is surely very much against the public interest that a newspaper, to boost circulation, should conspire with a prostitute to betray her clients simply because they are prominent men. In addition, is not the newspaper coming close to living off her immoral earnings? The Attorney-General might look into this case.
A far more difficult recent example concerned a judge who felt obliged to resign after a tabloid 'exposed' his homosexual relationship with a young man. This was a particularly nasty case because an earlier attempt had been made to blackmail the judge. He had resisted it, and the effect of the newspaper's interven- tion was to strengthen the arm of the blackmailer. On the other hand, the judge's behaviour seems to have been highly indiscreet for a man in his position, and there is even the suggestion that he may, at some stage, have broken the law.
Without knowing all the facts of the case, it is difficult to decide whether there was any justification for the newspaper's intrusion; indeed, even with the facts available, it might be hard to decide whether public interest should take precedence over pri- vate right in this instance.
But then that is precisely the kind of knotty problem a jury is ideally placed to resolve. The court process unravels the facts. The presiding judge explains the law. The jury gives its verdict. No body is better composed to settle the precedency of public and private right in such a case than a dozen randomly selected, ordinary men and women. Indeed I think any privacy law should be framed to ensure wide discretion to the jury as to what constitutes inviolable privacy in a particular instance, just as it does in a libel action.
Editors may grumble that the law of libel gives rise to great uncertainties. But it is precisely the uncertainty which forces them to err on the side of discretion in the exercise of their considerable power. What applies to libel should also be made to apply to privacy. In case of doubt, the individual should be left alone. In the absence of a privacy law, the present situation is exactly the opposite. All doubt- ful cases are resolved in favour of disclo- sure, leading to great human suffering and the corruption of readers by titillating their baser instincts.
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