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Copyright material – 9780230301870 Contents Table of Cases vii Table of Legislation xv Editors and Contributors xix Preface by Mark Stephens xxiii Part I The Legal, Ethical and Editorial Landscape 1 Privacy: A Judicial Perspective 3 David Eady 2 The Rights of Journalism and the Needs of Audiences 35 Onora O’Neill 3 Why We Write: Three Magic Words – ‘The Public Interest’ 46 Alan Rusbridger Part II The Practitioner’s View – Protecting Free Expression and Curbing Abuses 4 The Ultimate Balancing Test 63 Pia Sarma 5 Privacy Protection – Luxury Goods or Essential Commodity? 78 Amber Melville-Brown 6 ‘People are so much more interesting than things’: Protecting Free Expression 104 Gavin Millar QC 7 ‘You say tomato …’: A Comparison of English and US Privacy Law Principles 128 Robert Balin and Yuli Takatsuki Part III Confronting Current and Future Challenges 8 Privacy and Free Expression: Competing or Complementary Rights? 151 Michael Harris and Kirsty Hughes 9 The Internet as a Lens: Concepts of Privacy in Online Spaces 167 Jeffrey Hermes Index 193 v Copyright material – 9780230301870 PART I The Legal, Ethical and Editorial Landscape Copyright material – 9780230301870 Copyright material – 9780230301870 1 Privacy: A Judicial Perspective David Eady Introduction: the wider context Towards the end of the 20th century, there developed in most of the ‘west- ern’ democracies a concern to protect personal privacy and, if possible, by means of enforceable legal remedies. There were a number of factors under- lying this general trend, some driven by technological developments in the handling and dissemination of information, others by more elusive social or moral considerations. There were naturally worries about the need to limit state intrusion into the lives of citizens and to safeguard the informa- tion nowadays inevitably generated in the course of conducting those lives in a complex and closely regulated society. Information obviously needs to be gathered for legitimate social purposes, such as the accurate collection of taxes and the production of statistics to facilitate planning for the future. Equally plainly, however, there need to be limits imposed so as to minimise the control of Big Brother and excessive intervention by government, whether national, regional or local. Hence the balancing measures to be found in such legislation as the Data Protection Act 1998 and the Freedom of Information Act 2000 in the United Kingdom. Few would disagree in a modern democracy that a balance needs to be struck between the interests of the individual and those of government, or that the flow of information between them should move in both directions. More controversial, however, though none the less persistent, has been the gradual recognition that individual privacy sometimes needs to be protected also from the fourth estate. The opposing interests of government and the governed are relatively easy to identify, but the various roles of the media give rise to a more complex set of relationships. In some of its mani- festations, the media can wield greater power than government in influenc- ing public opinion. Yet the attitudes of individual citizens towards the print 3 Copyright material – 9780230301870 4 Media Law and Ethics in the 21st Century media, in particular, tend to be more ambivalent: they depend to a large extent upon which of the press’s particular functions is being considered at the time. The privacy debate: who runs it? The influence of those who communicate through the media, some of them well known and others hardly at all, is undoubted, but in most cases not in any way tempered by the accountability which is supposed to coun- terbalance the exercise of power by, for example, civil servants and politi- cians. This is reflected in the old mantra of ‘power without responsibility’. The proposition is usually rebutted by newspaper editors or proprietors by reference to market forces. Readers are supposed to reflect any disapproval by transferring allegiance to other media outlets. There is little evidence that this happens on a regular basis, although of course there is the notori- ous example of the decline in sales of the Sun newspaper following its coverage of the Hillsborough disaster in 1989.1 The persuasive power of the media can be such as to render a genuinely free choice extremely difficult. That is not to suggest that readers or viewers are en masse stupid, undiscrim- inating or unintelligent, but for most of us the time available for scanning and comparing the media treatment of a current news story is strictly limited. Sometimes it will vary between media outlets, and sometimes not. One can only make a critical judgment on the information available. For most consumers, that means the information the media chooses to give them, presented as the media chooses to present it. Readers are sometimes ‘groomed’ to take a certain view of a particular person or of some topical issue; this would appear to accord with the view expressed by Mr Tony Blair in his evidence before the Leveson Inquiry on 28 May 2012. Hence the diffi- culty for ‘ordinary’ readers in making an objective judgement about, for example, Kate and Gerry McCann (whose three-year-old daughter Madeleine was abducted while the family were on holiday in Portugal) or 1 The Hillsborough disaster occurred on 15 April 1989 at the Hillsborough Stadium in Sheffield, England, during the FA Cup semi-final match between Liverpool and Nottingham Forest football clubs. Dangerous overcrowding occurred outside the ground, resulting in an order for an exit gate to be opened. The ensuing influx of supporters caused crushing, resulting in the deaths of 96 people and injuries to 766 others. Four days after the disaster, the Sun, a British red-top tabloid newspaper, used ‘THE TRUTH’ as the front page headline, followed by three sub-headlines: ‘Some fans picked pockets of victims’, ‘Some fans urinated on the brave cops’ and ‘Some fans beat up PC giving kiss of life’. The newspaper was boycotted by most newsagents in Liverpool and many readers cancelled orders and refused to buy it from newsagents. Despite the allegations being proved to be false and the paper, and its editor, making a number of apologies over the years, sales of the Sun remain poor on Merseyside and a boycott is still practised. Copyright material – 9780230301870 Privacy: A Judicial Perspective 5 Christopher Jefferies (arrested by police who falsely suspected him of the murder of Joanna Yeates in Bristol) following the barrage of propaganda generated in the tabloids (which were eventually brought to account in highly publicised litigation). The power of the media means that it is often seen by the public as a friend, even though that friendship may sometimes be abused, and we are accordingly reluctant to see restrictions imposed upon it. Similarly, the power of the press means that politicians have long been reluctant to incur the displeasure of proprietors and editors – unless and until the tables are turned as they were, quite exceptionally, in the case of News International in 2011. On 17 May 2012, Mr Kelvin Mackenzie offered on the BBC’s Question Time a convenient summary of the position as he saw it: ‘Blair arse- licked the Murdoch press. Cameron saw that and said “We should do the same.” Then the music stopped.’ Then some politicians began to see possi- ble mileage in a degree of media regulation. That may prove, however, to be no more than a temporary blip. One might perhaps have expected that people would see the advantages of protecting individuals against the media, just as they readily understand the need, at least in general terms, to shield their fellow citizens against the state. When it comes to the media, however, the lines are drawn far less clearly. So much depends on how the arguments are presented – in the media. The coverage of the debate on privacy versus freedom of speech may have been a little one-sided. It has so often been explained by reference to its ‘watchdog’ role (i.e. as a ‘watchdog’ on behalf of the people). Thus, the media is generally presented as being ‘on guard’, representing the people, against a rather ill-defined class known as ‘the rich and powerful’. It is obvious that not all rich people are powerful – indeed very few are in modern Britain. Nor are powerful people always rich. The terms are linked, however, in the case of the privacy debate because it is important to convey to the general public that privacy is not about protecting ‘ordinary’ individuals at all, but about sheltering people who are either to be envied (‘rich’) or guarded against (as ‘powerful’). It thus becomes possible for the media to convey the message that the protection of privacy is a device for covering up misconduct. As it was put by one journalist during the Leveson Inquiry, ‘privacy is for paedo[phile]s’.2 This has been a constant theme down the years whenever the privacy debate returns to the public agenda. It is the standard line of most media proprietors. It is necessary, on the other hand, to allow for a degree of cynicism. I have occasionally recalled what seemed to me, with hindsight, to have been 2 Evidence of Paul McMullan, 29 November 2011, available at www.levesoninquiry. org.uk/evidence/. Copyright material – 9780230301870 6 Media Law and Ethics in the 21st Century the ultimate tongue in cheek. I observed Robert Maxwell giving his evidence to the Calcutt Committee on Privacy and Related Matters during the course of its evidence gathering in 1989–1990, when he began in his most oracular mode: ‘Mr Chairman, if you introduce a law of privacy, many a rogue will go undetected’. Of course, the reason why Maxwell went unde- tected for so many years was nothing to do with a law of privacy.

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