Privacy law “through the back door”

by Carl Gardner on August 12, 2010

I’m baffled by the prevalence of the belief among journalists that judges are bringing in a privacy law “by the back door”. It’s the phrase the Telegraph uses when reporting the fact that the golfer and Ryder Cup captain Colin Montgomerie has obtained an injunction (or in newspaper language, a “gagging order”) to prevent a newspaper publishing a story about his private life. Roy Greenslade also picks up on the phrase in his Guardian media blog.

The reason I’m baffled is that the article 8 Convention right guaranteeing respect for private life was brought into our law in the full light of day through the large front door of the Houses of Parliament, in the Human Rights Act 1998. Newspaper editors were perfectly aware of it at the time – as proven by the fact that the press persuaded the government to insert what is now section 12, precisely to give them special protection from prior restraint in privacy cases. The then chairman of the Press Complaints Commission Lord Wakeham welcomed that amendment, saying that it meant

no privacy law sneaked in through the back door

in the now familiar phrase.

I think what many supporters of free speech are missing is just how friendly to the press recent privacy judgments actually are. I’ve already written several times about Mosley v News Group Newspapers. Also interesting is the John Terry case in which Tugendhat J refused an injunction even in the absence of any apparent public interest in publication, where newspapers had not been given notice and so were unable to claim one. He also drew attention (paras. 70-73) to Eady J’s suggestion in Mosley that the judgment of responsible journalists may be of considerable weight in determining what publication is in the public interest.

That Colin Montgomerie’s case should strike yet more back-door privacy fear (orsothuroidioto-phobia?) into anyone’s heart is odd, since it’s difficult to imagine what public interest there could be in knowing anything about Colin Montgomerie’s private life. If there is one, the newspaper will be able to put it before the court so that the injunction can be lifted. For serious media, there really is no problem: if there’s a reason the public should know about someone’s private misbehaviour, the Human Rights Act won’t stop you publishing.

I think the press’s knee-jerk opposition to article 8 really just reflects what the European Court of Rights, citing a Council of Europe resolution in Von Hannover v Germany, called (para. 67)

the “one-sided interpretation of the right to freedom of expression” by certain media which attempt to justify an infringement of the rights protected by Article 8 of the Convention by claiming that “their readers are entitled to know everything about public figures”.

{ 8 comments… read them below or add one }

1 Alex August 12, 2010 at 23:01

Good post, but its not entirely clear to me why privacy operates (or should operate) pre-publication rather than post-publication.

2 Carl Gardner August 13, 2010 at 15:38

Thanks, Alex.

I prefer the idea of post-publication restraint to prior restraint, too. But I wouldn’t operate a rule that says there should be no prior restraint. Sometimes prior restraint is the only effective remedy for a wrong – for instance in Max Mosley’s case, his going to law after the fact was essentially pointless as his privacy was thoroughly breached in any case, and the amount of damages he got was no real deterrent to the News of the World doing the same thing again.

I think s12 of the Human Rights Act strikes quite a good balance in raising the threshold for prior restraint as compared with standard injunctions, but allowing prior restraint in appropriate cases.

I also think a prior restraint procedure can actually be better for the media, in a way, counter-intuitive though it seems. I think the biggest threat to press freedom in recent times has come not from the article 8 Convention right at all, but from megabucks libel litigation of the sort we had when newspapers were sued for large sums for calling people gay or boring. Having to make a big payout can close a publication completely: only big media corporations can enjoy the freedom to take risks when the law is governed by the post-publication remedy of damages (unless, that is, the level of damages awarded is so low as to be dissuasive). Much better to take the money out of the equation entirely. I think there’s quite a good case in both privacy and libel cases for damages to be abolished as a remedy (perhaps only retaining punitive damages in “flagrant breach” cases).

In libel, the remedy could be something like public retraction and apology covering the entire front page (in a newspaper) on a day of the libelee’s choosing; in a privacy case, prior restraint is the only sensible remedy, so I think an idea like Max Mosley’s (you have to warn someone if you’re going to run something interfering with his or her privacy) is quite a good one. You might award punitive damages for failing to go through that stage, or for publishing anyway even if ordered not to.

I’d also stop awards of costs, too – so that newspapers would not be at risk from defending themselves.

I envisage a culture in which newspapers can, at negligible cost, get advance clearance for “privacy” stories – and that then is the end of the matter, without risk of post-publication litigation. I think that might well lead to a better and freer press.

If you’re committed to the “prior restraint bad, post-publication disputes good” model then what I’ve suggested sounds awful. But newspapers aren’t free to publish, say, violently racist rants every day. It’s not because of “prior restraint” in the formal sense, but a culture of prior self-restraint has emerged because the legal sanctions in place have had the effect of creating that culture, in which newspapers’ own lawyers and journalists’ internalised sense of what’s acceptable is what prevents racist rants. I’d love it if we could achieve the same with privacy. But at the moment, newspapers have a long way to go to get there (as the Montgomerie case shows), which is why something external may be needed to prevent unjustified invasions of privacy.

I don’t think it’s rocket science or complex philosophy to tell a plainly justified case (Iris Robinson, say) from a blatantly unjustified one (Colin Montgomerie, unless there’s some unobvious public interest angle beyond his mere celebrity). What’s really needed is for the media to accept and “get” this – then external restraint wouldn’t be needed. There are some borderline cases and I’d be happy for the law to back responsible journalists in those cases, as both Eady J and Tugendhat J are suggesting. The real question is: are British tabloid journalists responsible?

3 Alex August 14, 2010 at 04:16

You’re absolutely right that there needs to be a radical culture change in Fleet Street (not just on privacy matters of course). However, I have a strong allergic reaction to prior restraint. It’s by no means the most intolerable restriction on free speech, but I’m not keen on the thought of someone (whether an individual or big media conglomerate) having to ask permission before expressing themselves. Now Mosley’s idea isn’t terrible, but I’d rather see the press not invade someone’s privacy in the first place because of what might happen after publication. I suggest damages could be awarded in proportion to revenues i.e. bigger corporations have to pay out more.

Still, we could do Mosley’s idea, worst things have been done, but whatever your views, I do think that Parliament needs to look at privacy law to provide some clarity on the matter.

I agree with you on libel though.

4 Joseph K. August 16, 2010 at 10:39

Far more interesting than Eady J and his often inconsistent (Compare McKennitt and John) pro celebrity stance; for a potential privacy law is the ECtHR’s treatment of photographs. This recent ruling if applied outside of its narrow facts (the Court seemed to make general ruling) has wide ranging implications for the press.
Reklos v Greece [2009] E.M.L.R. 16
At H10 “A person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one’s image is thus one of the essential components of personal development and presupposes the right to control the use of that image.”
And at Paragraph 40.
“A person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one’s image is thus one of the essential components of personal development and presupposes the right to control the use of that image. Whilst in most cases the right to control such use involves the possibility for an individual to refuse publication of his or her image, it also covers the individual’s right to object to the recording, conservation and reproduction of the image by another person. As a person’s image is one of the characteristics attached to his or her personality, its effective protection presupposes, …obtaining the consent of the person concerned at the time the picture is taken and not simply if and when it is published. Otherwise an essential attribute of personality would be retained in the hands of a third party and the person concerned would have no control over any subsequent use of the image.”

5 Carl Gardner August 18, 2010 at 11:44

Alex, I’m not really suggesting the media should “ask permission” to publish, but that they should have a means of inoculating themselves in advance from any risk of subsequent litigation – merely by giving notice of intended publication. I have some sympathy with your instinctive rejection of anything like prior restraint – but isn’t your defensive prior self-restraint, induced by the chilling fear of draconian post-publication sanctions, actually more limiting of free speech?

The more I think about this, the less wedded I become to the “prior restraint bad… ” way of thinking.

6 Carl Gardner August 18, 2010 at 12:13


Thanks for drawing my attention to Reklos. Here’s the judgment.

I agree: some of that reasoning has an extreme “image rights” sound to it, and if widely generalised that would put photography in even more danger than it is now, when the police routinely and unlawfully restrict it. I’ve written elsewhere about what I call “cameraphobia”, and I don’t like it.

But perhaps Reklos is restricted to its own facts. It wasn’t about a photograph taken in public but about deliberately gaining access to an otherwise restricted place where the baby was receiving medical care in order to take its photograph – and purely in order to sell it. I’m not sure even my feelings about the right to take photographs in public (which are strong) extend to feeling there’s a “right” to do that.

I think the case about J.K. Rowling’s child is interesting, too. Like the court in that case, I’d draw a clear distinction between what I think are very different things.

First, there’s taking photographs in the street or in any other reasonably accessible place, either general scenes or “candid” photographs of people including children, and whether or not for publication or payment. I’d worry if human rights law restricted that – but I don’t think the court was suggesting it did.

Second, there is actively targeting a particular child and stalking it in order to take photographs of it and identify it in a publication, without any public interest (which there might be if, say, David Cameron and Hillary Clinton had a secret love child). I do think that kind of surveillance is a real human rights problem – much more so than the CCTV so many people get het up about. If human rights law prevents that sort of tabloid “Stasi circus”, then fine, as far as I’m concerned. I was especially angered by the stalking of Miriam Clegg during the election campaign. I don’t think photography has anything to fear from restricting that kind of thing. Paparazzo photography does, I accept.

I think if the law keeps this distinction clear, there’s no problem. I’d take the same approach with CCTV. It merely looks at people who are visible in the street anyway – I see nothing intrusive of privacy in that. But if you were to train CCTV cameras on a particular person and follow them around, streaming the video to all the world, naming them person and commenting on what they were up to, where they shopped and so on … I do think that’d be a privacy issue.

7 Joseph K. August 18, 2010 at 13:27

HI Carl, thanks for the reply, although I agree that Reklos was decided on narrow facts (I have read the case), the Courts ruling appears to go further than necessary in protecting the child’s privacy. In particular the ruling that the photographer had to surrender the negatives and the general pronouncement about the rights to control ones image. The Court seemed more concerned with the lack of consent rather than the invasion of the sterile unit (echoes of Kaye). Given the mission creep that the domestic courts have allowed when protecting privacy, I think this may be given a wider application. In a few years we have gone from Campbell, with Baroness Hale stating that Naomi Campbell would not be protected while buying milk. To Murray where a child was protected while going to a Café.
As the courts have always treated photographs as separate from the reporting of a story that is in the public interest (or indeed interests the public) I am not sire for how long the press could publish a picture of Cameron and Clinton’s lovechild (a horrific thought, but it did make me chuckle) Although they could obviously report the existence of said horror.

8 Jane P March 14, 2019 at 18:15

Hi Carl, do you know where Lord Wakeham made the comment welcoming section 12? Thanks

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