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 (orsothuro–idioto-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”.