‘Injunctions are a necessary evil’ – Privacy, free speech and a feral press.’ Public debate at the London School of Economics

One of the most salient issues to have emerged in the press in recent weeks, that of injunctions, was recently fought out at the London School of Economics. The panel, chaired by Jo Glanville, editor of Index on Censorship, consisted of two expert media lawyers, who represent the opposing clients in the CTB v News Group Newspapers case: In the blue corner was David Price QC, a legal expert on defamation and privacy matters and who represents Big Brother contestant Imogen Thomas, and in the red corner, Hugh Tomlinson QC, who represents Ryan Giggs. Tomlinson was joined by the former president of Formula One, Max Mosley, who won a privacy case three years ago against the News of the World and is currently trying to change the law so that prior notification becomes a legal requirement, and Price was joined by Guardian and Mail on Sunday columnist Suzanne Moore, who famously resigned from the New Statesman after Alistair Campbell was invited as guest editor (which to my mind rather quickly put into question her credibility as a proponent of freedom of expression, stifling as Campbell’s editorship might have been). Whilst it was clear that neither of the proponents of the two powerful and contradictory principles, freedom of speech and right to privacy, would throw in the towel without a good fight, what did emerge was a discussion on the power struggle between the judiciary, the legislature and the media, and when the debate went ring-side, a disturbing disregard for the judgment and freedom of those who read tabloids.

Mosley began by broadly stating that privacy is a fundamental right, and if this is accepted, it follows that injunctions are a necessity. England’s privacy regime, Mosley claimed, is ‘a negation of the rule of law’, as without prior notification there is no proper remedy for a breach of privacy. For Tomlinson the issue was one of justification, and he claimed that none exists for exposing the salacious shenanigans of figures such as Giggs and Mosley. Tomlinson argued that the boundaries of public interest are fairly clear cut, for example, exposing crime, or financial wrong, yet the sexual misconduct of people’s private lives is no business other than their own. Even the extra-curricular activities of Fred Goodwin, which many would think of as being rightly subject to public scrutiny considering the large amounts of taxpayer’s money he was in charge of, appeared a grey area for Tomlinson and Mosley. Mosley candidly retorted that what Goodwin was doing was ‘no different from playing a round of golf’, which, whilst attracting gratifying guffaws from the audience, seemed bizarre; Mosley unwittingly appeared to advocate that more information about Goodwin’s affairs was required in order to satisfy the public interest justification; ‘Goodwin could have been going on for an hour or two a week with no influence whatsoever on the decisions he was making, or it could have been something going on morning, noon and night in the boardroom.’

Certainly one of the core challenges of the evening was the question of who should decide what is in the public interest. Glanville challenged Tomlinson’s assertion that the boundaries over public interest and privacy are clear cut, highlighting a recent judgment stating that newspapers should report cases that give the public the opportunity to discuss

moral standards in public life. This resonated with Moore’s assertion that society’s perception of morality changes from generation to generation. This saw brief reconciliation between the two sides, as Tomlinson had earlier argued that Parliament should produce a privacy law, which would carry with it democratic assent. Moore argued that the reason why the efficacy of the law has been brought into question in light of widespread Twitter dissonance was due to the public’s disgust at Giggs’ behaviour, suggesting that freedom of expression involves allowing the general public to enter the morality debate. Yet this would strike some as a bit idealistic. Can we really claim, as Price was, that we need to hear about the misconduct of others to guide us in our own moral enlightenment? It seems a bit far-fetched to suggest we all sit around reading the Daily Mail in order to discuss the changing nature of morality.

Price castigated a paternalistic judiciary unlikely to read the tabloids or see any merit in their appeal, dictating to the masses their own inherent value system. This raised the question of whether we expect the judiciary to make judgments that are moral, or that simply obey the law as laid down by Parliament. There are certainly examples of cases where the judiciary have overstepped the limits of their jurisdiction to produce ‘moral’ judgments, such as the infamous 1962 case of Shaw v. DPP, in which the defendant was found guilty of conspiring ‘to corrupt public morals’ by publishing a pamphlet containing the services of prostitutes; an offence with no legislative basis and which was completely unprecedented. Lord Tucker declared ‘there remains in the courts of law a residual power to … conserve … the moral welfare of the state … it is their duty to guard against attacks which may be the more insidious because they are novel and unprepared for.’ Whilst this decision may seem slightly ominous, the case of R v R (rape – marital exemption) in 1991 finally abolished the 250 year old rule that no crime of marital rape existed. Lord Keith insisted that it was not the creation of a new offence, but the removal of a repugnant common law fiction, which should be universally applauded. Yet allowing the judiciary to make judgments on adultery, which is of course entirely legal, does seem dubious. Mosley’s joke about the judge in his case branding him capable of ‘unimaginable depravity’ – Mosley breezily questioning what the judge would have defined as imaginable or ordinary depravity – did make the point that if something is private and legal, there is a powerful argument for leaving it that way, out of the hands of the dubious ‘moral’ reasoning of the judiciary or the media who often overstep the limits of their jurisdiction.

For all Price’s efforts to warn of the perils of censorship, his arguments were lost on the audience, who, perhaps in light of the emergence of hacking atrocities perpetuated by the News of the World, aligned themselves with Mosley’s heated rant against tabloid editors. Whether or not it was the particular make-up of the LSE audience, or whether it was due to recent developments, it was startling how palpable the feeling of disgust in the room was for the tabloids, not for Mosley’s arguably perverse antics. It displayed true hypocrisy from the audience, who lapped up Mosley’s every brag and boast about his sex-life, yet seemed appalled that anyone could so much as touch a tabloid paper. One audience member even offered, rather obnoxiously and on behalf of the entire audience, his sympathy for Mosley’s predicament, making the tasteless joke that he felt sure no one had been hurt by his actions. This predictably gained more delighted glee from the audience, yet seemed in poor taste considering Mosley’s family had presumably undergone quite significant emotional distress. It appeared that interest about others’ sex-lives is common to all; both those attending legal debates at the LSE and readers of the Daily Mail.

Price tried to resuscitate his argument, but towards the end of the debate Mosley had the audience eating out of the palm of his hand with a rather potent mix of tabloid-bashing and crude jokes. ‘People that buy the News of the World do so because they have an inadequate sex life. I can’t think of any other reason for it’. Whilst this was met with a round of laughter, it seemed that Price’s more subtle arguments were once again drowned out and replaced by a rather depressing indictment on tabloid readers who do not read the Guardian religiously, and put into question their freedom of expression and capacity for judgment. Nevertheless, Price continued to valiantly argue that strong privacy laws equate to self-censorship, as too high a personal risk would be involved in attempting to find the evidence to show public interest exists. This would have a ‘chilling effect’ on freedom of expression, and a feral press with disrespect for authority would always be preferable to a supine one. He gained support from Dame Ann Leslie, a foreign correspondent sitting in the audience, who rejected the idea that the press should be more heavily regulated, retorting passionately to Mosley; ‘I have worked in over 70 countries. I have seen what happens when the press is being controlled, even if it is not controlled by law … the consequences of offending not just the government, but powerful and rich people, are appalling.’ Unfortunately, Price rather undid quite a lot of his good work by carelessly suggesting that as a society we might have to start regulating our behaviour if we do not wish to see our private lives splashed across the media. Tomlinson quickly barked that it was that sort of argument employed by the secret police in some countries to justify invasions into people’s privacy. It was a throw-away comment from Price which rather dented his argument.

Whilst it initially appeared that the debate would predictably get stuck in a stalemate between the principles of privacy and freedom of expression, it was alarming to see Mosley emerge as champion. It felt like the right to privacy would trump freedom of expression whenever a charismatic speaker skilfully transformed his sexual misconduct into one long, egotistical boast. Had Giggs been invited instead of Mosley it seemed doubtful that the debate would have had quite the same outcome. Moore’s assertion that injunctions simply do not work, and Price’s warnings of the perils of censorship once the hour and a half session was up, had long been left trailing in the dust and steam of Mosley’s ‘fast cars and loose women’ rhetoric, that sadly has still not lost its appeal.

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