The Screws no more – how dumb does that privacy 'debate' look now?

'Muck raking' is often public interest

The problem is: one man's muck-raking is another man's public-interest journalism.

To a large pharmaceutical company a journalist asking awkward questions about their products is a muck-raker. To a polluter like BP, a journalist asking questions about oil slicks is a muck-raker, and so on.

And, I would guess that some law firms see questions about falling PEP, or their rogue partners, as not public interest but rather sensational muck-raking to boost the revenues of the legal press.

Obviously, phone hacking is illegal and bad, but we have to be very careful about this lurch to castigate the press. There are many who would only be too pleased to see journalism curtailed - or curtail itself.

Lewis Carroll -08 Jul 2011 | 12:13

No to privacy laws

The judiciary's increasing willingness to develop privacy laws that weaken and threaten freedom of expression and information is worrying. This country needs a robust press and the state should have no role in determining what is or isn't in the 'public interest'.

I recommend the editor reads Andrew Gilligan's commentary in today's Telegraph: http://www.telegraph.co.uk/journalists/andrew-gilligan/8624221/Phone-hacking-scandal-enemies-of-free-press-are-circling.html

My previous blog post (apologies for lack of paragraphs) is also relevant: http://jonathanlea.com/the-case-against-privacy-injunctions

Jonathan Lea -08 Jul 2011 | 14:03

There is need for constant vigilance regarding judicial over-reach, no question about that. But freedom of expression is not an absolute right and it never was. I would argue that it’s time for Parliament to properly debate a privacy law and let’s have the issue out. I also said in the piece that we need stronger protections for serious reporting – so I’m not arguing in favour of curtailing journalists (it would be odd if I was as I’ve been one for 15 years). Abuses of power should be countered where they happen. That should apply even if those at fault are the same people that sometimes hold others to account. I’ve read Gilligan’s thing. I didn’t feel it was convincing - he’s too close to the subject personally to write with conviction on the topic.

Alex Novarese -08 Jul 2011 | 14:44

Straw man argument

These two issues do not occupy squarely the same ground and do not share the same basis for concern. Indeed, that privacy 'debate' (why the inverted commas in the title?) was not "dumb" at all. The thoughts expressed by the first two comments on this article, before your reply/further comment, are nearer the mark on this.

Commentor -11 Jul 2011 | 09:03

In what way do they not occupy the same ground? They are both about media ethics, the law, intrusion and use of private information in questionable circumstances for questionable reasons. So I’d say they do occupy the same space. If you want to give me an argument, then produce one. You’ve just made a baseless assertion with nothing to support it.

Alex Novarese -11 Jul 2011 | 11:32

Privacy is not new

The right to privacy is not new. It was enshrined in the European Convention when we signed it. The only difference that the HRA made was to make it directly enforceable in a court of first instance in this jurisdiction rather than a litigant having to exhaust their remedies in this jurisdiction to be allowed to appeal a point of Convention law to the ECHR. The reason that the case law has developed since 2000 is that this is the first opportunity that the courts in this country have has the opportunity to interpret and apply the Convention to the laws of this jurisdiction.

As to press regulation, why do we accept that the broadcast media should be regulated, by a reasonably effective regulator in the form of Ofcom, but that when the press tell us that being regulated would stifle press freedom and freedom of speech, we accept what they say? It is clearly self serving, partial and biased and there has been no encouragement of a free and open debate, and when that has been attempted the "press" have demonised the people proposing regulation.

I do not want to see the press being regulated by Parliament, that cannot be healthy for democracy, but why is there a difference in principle between the broadcast media being regulated by an independent regulator and the press being similarly regulated? The answer is that there is none, save that the press would like us to believe that there is to protect their freedom to push the envelope as far as they can get away with, and that cannot be healthy for our society or democracy either.

Senior Associate -12 Jul 2011 | 11:16

Reply

I was being specific with "squarely". Sure, these issues concern media and the law etc., but that is so general as to be a pretty meaningless comparison.

My point is that I do not think that the privacy 'debate' looks "dumb" at all because of the NoW affair. If this is not your implication, what is the title of this article trying to suggest? Why was the 'debate' "dumb"?

Being more specific, the NoW affair was simply criminal behaviour, wrong in every respect. For me, the injunctions matter is essentially about the scope of reporting freedom regarding information properly obtained. This is not the same as the commission of an illegal act, press-related or otherwise, in which case there is no debate: the actions are clearly prohibited behaviour and the reporting sanctionable - there is no boundary to test here. The NoW relates to the means of obtaining information, rather than the issue of whether information legally obtained should be published at all as a matter of propriety.

Questionable circumstances and questionable reasons regarding injunctions and information people would simply prefer not to have published (see Lewis Carroll above) are essentially subjective interpretations: almost everybody would draw the line in a different place and to many there would be no questionability. Phone hacking is a crime (except for a few well-defined exceptions), whoever the perpetrator. No questionability.

Lewis Carroll draws essentially the same distinctions in his comment above, and I do not think that his comment was a baseless assertion. Neither was mine. A small comment box does not much permit a full explanation of one's position, and my comment was just that. I think we can all agree that there is far more mileage in all of these matters than this publication permits.

Commentor -12 Jul 2011 | 11:45

To commentator - I didn’t say they are both concerned with ‘media and the law’, I said they are both concerned with ‘media ethics, the law, intrusion and use of private information in questionable circumstances for questionable reasons’, which is a good deal more specific. If you don’t see a link between the general issue of media ethics and the conduct of the tabloid press on one hand and Hackgate on the other – and I’m certainly not the first to make that connection - then we’ll have to agree to disagree. If media ethics are shown to be so lacking in one respect then that clearly speaks to the press’s credibility when in another respect it argues: “Trust us because we’re honourable watchdogs protecting your interests.”

Was I calling the debate dumb? Absolutely. I think many people have been hugely naive about how sections of the press behave – it wasn’t an implication, I was saying it flat out.

You refer to information being properly obtained – on what basis do you make that determination? Having researched several articles in this area, it become apparent, in my personal view, that some stories that related to injunctions have been obtained in circumstances that could be charitably described as grey areas, so I don’t take that as a given. It is also the case that in a number of the injunction hearings, the media didn’t even bother putting forward public interest arguments to support why non-disclosure orders should be set aside. Overall, I suppose I’m arguing that it’s time for some real scrutiny of the conduct of sections of the print media, which seems entirely healthy. Where you appear to see isolated acts of cleanly-defined criminal activity, I see wider cultural concerns that are at the least worthy of further investigation, even if it ultimately gives the news trade a clean bill of health. But taking it on trust? Forget that.

Alex Novarese -12 Jul 2011 | 13:20

Reply 2

The "etc." in Reply above was intended to cover all of the ideas you mention without reciting them all again. Sure, there is, loosely speaking, a link. But I do not draw the comparison as tightly between these issues as you do. To me the title implied that somehow the NotW affair diminished/rendered "dumb" the injunctions/privacy debate. I do not perceive that – in particular that debate was far from confined to tabloid press conduct (Guardian-Trafigura, notable among others) – and did not think it 'dumb' at the time. For me, that debate is much wider in privacy/information terms than to be centred on media behaviour and media ethics, although necessarily it touches them significantly. So on this we may have to agree to disagree.

Regarding information properly obtained, I, too, have read widely on this and in my personal view I did not get any significant impression that the information across the breadth of cases taken as a whole had been improperly obtained. So long as there is news reporting, there will probably always be methods that somebody finds distasteful (again, Lewis Carroll above more or less hits the same note). But Hackgate was just criminal activity.

That a press organisation was the culprit in Hackgate leads on to your conclusion. I think we can also agree that the press cannot simply be taken on trust, I am with you on this. As with many other spheres, self-regulation works only if those with the power and responsibility can be trusted to exercise that power properly, and are manifestly seen to exercise that power properly. Perhaps our lines are just drawn somewhat differently in that I do not see Hackgate as a question of interpretation of scope of news investigation, rather as criminal activity, wrong whoever the regulator, and the outcome may not have been different if there had been a different or stricter regulator: this was conscious and concealed wrong-doing. I see the injunctions/privacy debate as being much more complicated, and its further discussion will certainly need to be far from "dumb", however we both perceive that.

Commentor -13 Jul 2011 | 11:30

I think the injunction in Trafigura related to legal privilege and confidential documents, not mis-use of private information. Very few reasonable people would criticise The Guardian’s conduct in that case (I certainly don’t) as that clearly was a matter of public interest.
There is also surely huge cross-over between the issues of criminal activity and broader matters regarding self-regulation and media ethics. Indeed, the inquiry that has just been announced has explicitly made that connection by choosing to cover both areas within one process.
The debate about privacy law is also inextricably linked to media standards and the effectiveness of self regulation (again, I’m hardly the first person to make that connection). If you have high standards, there little need for protection for private information.
Coming back to privacy injunctions – how do feel about cases where there are indications that an individual has been the target of blackmail with regard to the publication of sensitive material?

Alex Novarese -13 Jul 2011 | 16:40

Reply 3

Alex: thanks for your further thoughts.

This is all as interesting as it is complicated.

I would consider and reply to the additional matters you mention and the question you ask.

But the confines of the comment box are not really well-suited to this and the serious and proper exploration of a wide-ranging topic.

This may perhaps be better suited to further discussion over a pint some time.

Have a good weekend.

Commentor -15 Jul 2011 | 18:24