On the evening of 13 July 2001, as Beijing held a press conference in Moscow to celebrate securing the 2008 Olympics, they had an unexpected visi­tor: François Carrard, the Swiss lawyer who was executive director of the International Olympic Committee (IOC). Normally on such occasions the IOC keeps its distance and lets the victorious city have its moment in the sun. But Carrard felt he had to address the media on the human rights issue.

In the lead-up to the vote, Beijing’s rivals, in particular Toronto and Paris, had made much of China’s human rights record. As the members gathered, some 50 protesters assembled outside chanting “Free Tibet”. The Russian police, some wearing riot gear, broke up the protest and six people were seen being taken away in a waiting bus after demonstrators tried to unfurl three banners on the Moscow River embankment, opposite the World Trade Centre where the IOC was meeting. There were reports of 12 arrests.

The IOC had so far refused to discuss human rights, arguing that it was only concerned with making a decision about sport. Nor was the issue addressed by the Evaluation Commission that visited the bid cities and whose assessment formed the basis of the IOC members’ decision. The report of the commission was crucial as, following the revelation of the 1998 Salt Lake City corruption scandal in which IOC members were accused of taking bribes, they were subsequently barred from visiting bid cities. Just before the vote for the 2008 Games, Hein Verbruggen, the Dutch chairman of the Evaluation Commission, summarised to his fellow members the various potential risk factors of the bidding cities. But he did not mention human rights.

Beijing did face a question on human rights during its presentation. But this was delivered in such a roundabout way that only seasoned IOC observers could have understood it. Roland Baar, a rower from Germany, raised the ethical issue of playing beach volleyball in Tiananmen Square. Beijing had proposed this idea, but it had been shelved after objections from the Evaluation Commission that it was not a suitable venue. Baar was so circumspect that he did not even utter the words “Tiananmen Square”, lest it offend the Chinese.

But now Carrard felt free to talk about human rights. At the press conference, apologising profusely for intervening at the Chinese party, he revealed, “On human rights we had two choices — a decision we close the door and that is a hugely respectable decision. The other way is to bet on openness. We bet that in seven years’ time the interactions, the progress and the development will be such that human rights can be improved.”

Beijing Olympics: China’s coming-out party

Long before the Beijing Olympics was staged it was clear that this was an impossible bet, and in the end Jacque Rogge, who was elected president of the IOC a few days after the vote in Moscow, made it clear that it was no busi­ness of the committee to monitor China’s moral development. Indeed, Rogge confessed that the IOC neither had the power nor the ability to do anything on human rights. The result: China rode out the protests that accompanied the Games, in particular the ones that marked the torch relay. China, as it had always planned, used the Games to show they could take the Olympics, a western invention, and do it better. By the end of it, IOC members were applauding the Games as China’s giant coming-out party and declaring the bar had been raised to such an extent that other countries would struggle to match it. All talk of human rights and opening up the country had vanished.

The fact was that the Games went to Beijing not because the Olympic movement thought it could change China, but because of wider geopolitical considerations. The overwhelming view of IOC members was that the Games had to go to the most populous country in the world. China had been a good Olympic member. Whatever its human rights record, there was no Olympic reason to refuse the bid. There was also a fear that Beijing, having failed in 1993 when it lost to Sydney by two votes, might walk out of the Olympics if China did not succeed this time.

There was a dominant view in the Olympic movement that, with the collapse of the Soviet Union, a strong China was needed to balance the all-powerful Americans. Ivan Slavkov, the IOC member from Bulgaria — later expelled from the movement in 2005 when he was caught by an undercover reporter saying he would take bribes in exchange for votes — said at the time: “We need China to act as a check on the US. The US is the only superpower. It dominates everything, including the Olympics and the medal tables. China is coming up fast and, by giving the Games to them, we can make sure they develop in the right direction.”

The legacy of the 1936 Berlin Olympics

The IOC’s dance round the issue of human rights over the decades illustrates a wider problem for all sports organisations faced with such ethical concerns. The classic example of this was the 1936 Berlin Olympics. The award of the Games to Berlin was intended to symbolise the re-admis­sion of a peaceful, democratic Germany to the family of nations after the horrors of the First World War. By a supreme irony, the Games have gone down in history as a triumph of Nazi propaganda. As the official Olympic-Zeitung proudly asked on 19 August 1936: “Do we have to point out that the great victor at the Olympic Games is Adolf Hitler?”

The 1936 Olympics, which left us the legacy of the torch relay, offers a template for the use of sport for ulterior purposes with its extraordinary mixture of opportunism, improvisation and attention to detail in the Nazi preparations for the Games. But Hitler could not have fulfilled his agenda to show how normal his regime was if leaders of international sport had not played into his hands, with their willingness to believe dishonest public assurances and to accept gestures and symbols rather than look at reality.

Since then, sports leaders have often looked the other way when major sporting events are held against a background of state violence, in countries whose repressive regimes seek to present themselves as open societies to the outside world. The list includes rebel South African cricket tours of the apartheid era, financed by tax concessions by the white regime, the 1968 Mexico Olympics, the Ali-Foreman fight in 1974 in a Zaire ruled by the brutal and corrupt despot Mobutu Sese Seko, and the 1978 World Cup in Argentina, organised by a junta which, even then, was embarking on a massive programme of killing people opposed to the regime.

Back in 1851, when Prince Albert wished to advertise the might of Queen Victoria’s realm he held a Great Exhibition — essentially a trade fair displaying the works of industry of all nations. There was culture in the form of Charlotte Bronte, Lewis Carroll and George Eliot, but no sport.

Sport, morality and character

Today, sporting events have come to replace trade expos as a symbol of national success. Nelson Mandela used the power of sport, particularly rugby, to woo the whites, and felt that the rainbow nation had arrived when in 2010 it became the first African country to stage the football World Cup. In Copenhagen in 2009, President Lula of Brazil shed tears after Rio won the right to stage the 2016 Olympics. “Everybody talks of Brazil as the country of tomorrow,” he said. “Here in Copenhagen tomorrow has arrived.” His pleasure was all the greater as Rio had beaten Barack Obama’s Chicago, despite the fact that the most powerful man in the world made a personal plea to the IOC.

But the problem for sport is that, unlike expos, it carries a moral dimension. It is interesting to note that Beijing’s rivals made much of this distinction. Claude Bébéar, president of the Paris bid, made it clear he would have no problems with a Chinese city hosting an expo, but not the Olympics. Giving China the Games, he argued, would indicate moral approval for the regime.

The idea that sport had universal significance emerged only in the 19th century as the rules for modern sports were being formulated. In his fictional novel Tom Brown’s Schooldays, Thomas Hughes presented his headmaster at Rugby, Thomas Arnold, as a sporting guru. His message, said Hughes, was that sport could reach out beyond the playing fields more effectively than any other form of human activity. Indeed, sport could shape society for the greater good.

The headmaster of Hughes’s book was an invention — the real life Arnold had no interest in sport. But the idea proved so powerful that it seduced a French baron, Pierre de Coubertin, who came to Rugby to worship at Arnold’s shrine and used his principles to revive the Olympics, setting it a high politi­cal goal. As he put it:

It is clear the telegraph, railways, the telephone, the passionate research in science, congresses and exhibitions have done more for peace than any treaty or diplomatic convention. Well, I hope that athletics will do even more … let us export runners and fencers; there is a freetrade of the future, and on the day when it is introduced within the walls of old Europe the cause of peace would have received a new and mighty stay.

Modern sport is essentially the marriage of Hughes’s big idea in the private realm – that sport develops character — with Coubertin’s big idea in the public realm — that sport can transmit values within and between nations through regular international competition.

Bahrain and Formula One

The problem arises when sport collides with political reality, as it did in the wake of the Arab spring. As millions rose up in the Arab world last year to challenge and even change their despotic rulers, in Bahrain the desire for freedom came into conflict with modern sport. In the picturesque words of the Daily Mail’s Martin Samuel, the result of “little brown people” wanting freedom meant “the next thing you know is there is one less place for rich white guys to race cars”.

Formula One’s first Grand Prix of the season was due to take place in Bahrain in March, just weeks after the kingdom had been engulfed by protesters demanding more freedom. There had been highly publicised protests at the main Pearl Roundabout in the financial district of Manama with some 31 protesters killed. Armoured cars, including Saudi troops and forces from Qatar and UAE, had rolled into the kingdom to restore order. How could a sports event take place in such a climate? And where was the moral compass of sport in even thinking it could?

The race was the dream of Crown Prince Sheikh Salman bin Hamad bin Isa al Khalifa, who had made it clear that money was no object in bringing one of the most high profile world events to his desert kingdom. The Bahrain government funded the race. The Sakhir circuit, where the Grand Prix had been run since 2004, had cost some £92m. The F1 organisers had been paid £24.6m to allow Bahrain to organise the opening race of the 2010 season, and this had risen by 60 per cent for the 2011 race. The protesters knew how dear the race was to the Crown Prince and that if they wanted to wring political concessions from him, they had to hit at his beloved sport.

However, the F1 organisers of the race did not seem to understand the moral questions involved. Neither FIA, the governing body, nor Bernie Ecclestone — the F1 rights holder — wanted to put their heads above the parapet. Their reluctance, it was assumed, was due to the fear that if they cancelled the race they would stand to lose £37m in rights fees.

In the end, the Crown Prince himself decided the race had to be put back, hoping it could be held later in the year. His wish appeared to have been granted when, following an FIA inspection team visit, FIA’s World Council unanimously agreed that the Bahrain Grand Prix would now be held on 30 October. The decision provoked outrage from human rights activists and race fans. Many argued that for all the talk of high values, sport was more bothered about Mammon and ended up conspiring with despots.

The FIA’s judgement was further called into question when details of the inspection report emerged. Over a two-day trip, the FIA had met the minister of culture and tourism, the minister of the interior, had had lunch with the board that runs the Grand Prix, met circuit personnel and visited a shopping centre. But they had not met any of the dissidents. It was clear that the race could now not go ahead at the rescheduled date either. However, it was logistics not morality that was given as the reason for the cancellation. The new date for the race in October meant Bahrain would get India’s Grand Prix schedule – the new Formula One commercial centre – and extend the calendar into December. The teams just could not cope with the pressures this would create.

The whole affair brought little credit to Formula One, least of all the highly paid drivers. Apart from Red Bull’s Mark Webber, who acknowledged the moral question of sport taking place in the wake of a bloodbath, nearly all the other drivers avoided the moral issue. I could not even coax Britain’s most successful F1 driver, Nigel Mansell — who has chalked up 31 race wins and the 1992 world title — to take a stand on this issue. When I asked in the middle of the crisis whether it would be morally justified to stage the Bahrain Grand Prix, Mansell replied: “There are great people involved in Formula One who are in charge and it is up to them to speak to the power brokers of the country.”

The problem here, as Max Mosley, the former head of FIA, astutely put it was:

The Formula One world did not seem to appreciate that the government in Bahrain was about to use the Grand Prix in support of suppressing human rights.

For all the moral high ground Formula One may like to claim, when faced with a stark ethical issue it is powerless and has to duck and dive. The same drama has played itself out again this year, with F1 facing international condemnation for holding the race in Bahrain.

Sports administrators may present themselves as the Vatican of sport, beyond the control of any authority but their own. Yet the money needed to run modern sport means they have to compromise with dubious governments and regimes. The result is that the high moral purpose of sport is sacrificed if not totally ignored. And until sport can deal with this basic contradiction, problems such as Bahrain will continue to appear. The worrying thing is that few in sport seem willing or able to deal with it.

Mihir Bose is the author of The Spirit of the Game: How Sport Made the Modern World (Constable)

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This article originally appeared on Comment is Free on guardian.co.uk

Poor practice tends to get in the way of good intentions. During a meeting at the foreign office a few weeks ago, I gently reminded the decent-minded mandarins that they had a problem: Britain’s role in pushing internet freedom, and freedom of expression more generally, was being undermined by our own government departments. Trouble with rioters last summer? Well, go after BlackBerry messengers, David Cameron suggested, until it was pointed out to him that this was exactly the sort of thing the Egyptian and Tunisian regimes tried to do during the Arab spring.

Now, Britain’s parliamentarians, in all their familiar bluster, have come up with a new wheeze: why not order search engines to go on a giant trawl and delete – not only from their searches but from the internet itself – any material that is deemed to invade privacy?

“Google and other search engines should take steps to ensure that their websites are not used as vehicles to breach the law and should actively develop and use such technology,” reads the report published today by the joint Lords and Commons committee on privacy and injunctions. Translate these words into Russian or Mandarin and you can imagine the uproar.

Just in case these uppity tech firms don’t get the point, our MPs and peers recommend that if they refuse to censor voluntarily, they should be forced to do so through legislation. Our traditionally insular parliamentarians had, at least, the foresight to acknowledge that such “pro-active monitoring … may not be consistent” with the EU’s directive on e-commerce, but what the heck, why not give it a go?

The government is likely to thank the committee for its deliberations, and then give them a wide berth. In any case, everyone is waiting on Lord Justice Leveson’s hacking inquiry this autumn. The questioning I received in January at the hands of Leveson’s leading QC was more arduous, and informed, than the grand-standing of the committee. I was struck, when giving evidence in parliament in November, by their ignorance about the digital world. One of the few MPs who understands the issues, the Lib Dems’ Martin Horwood, tweeted straight after that session about the “embarrassing rudeness” and “ignorance about internet” from his “colleagues”.

Google (who, to declare an interest, I now advise part-time on freedom of expression) already complies with “take-down” requests by national authorities. However, if the content is legal in another state, it remains visible in that nation. These requests are now listed in a regular “transparency report“. What Google do not do is embark on giant fishing expeditions, acting as the global censor of taste, decency, legality and privacy.

Max Mosley, who successfully sued the News of the World over his privacy – appears to have seduced the committee. Not only have they bought completely his complaints that search engines have failed to erase in perpetuity all “offending pictures” of him, but they nearly bought his idea that all journalists be legally obliged to give prior notification to anyone they might be planning to write or broadcast about. His application was resoundingly thrown out by the European court of human rights – Index on Censorship was among those objecting to the application – but still the committee has recommended that Britain’s new beefed-up press regulator should require prior notification, “unless there are compelling reasons not to”.

The one, and perhaps only, innovative idea in this copious report is to put the onus on newspaper company directors to take responsibility for standards. One of the points that seems to be lost in the phone-hacking privacy maelstrom is that this has been much more a problem of the nexus between politicians, police and media moguls than it is about day-to-day journalism.

It is perhaps no surprise that parliamentarians are no great fans of the fourth estate. It was they who, still smarting after the expenses scandal, sought to exempt the issue from freedom of information scrutiny.

The UK needs a more professional and rigorous regulatory system. It needs executives and non-executives to be held more accountable for their actions. But this country already has some of the most restrictive laws in the democratic world, particularly when it comes to defamation and surveillance.

This report is replete with affirmations about the importance of free expression. MPs and peers talk a good talk, but fail to understand that – while improvements must be made to standards – the only people who benefit from a clampdown are the rich and powerful. Look at Hungary’s hideous new press law, with its statutes on licensing and other measures that some of the witnesses to Leveson have advocated. Look at France, where generations of politicians have claimed privacy to evade scrutiny on their financial misdemeanours. Ask yourself: does our media find out too much or too little about what is done in our name? It is no wonder that our politicians then seek to tame these feral beasts.

John Kampfner is the outgoing chief executive of Index

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There is a confusion at the heart of British debates about privacy. We tend to speak of journalists, of their role, their rights, their responsibilities and very often their lack of restraint and how it should be addressed. But this is misleading, and prevents us from seeing some of the complexities and possibilities, because the word ‘journalist’, in this context, covers two very different groups of people. One group is the actual journalists, as traditionally understood, and the other is those people whose principal professional activity is invading other people’s privacy for the purpose of publication.

The difference between the two, when you pause to consider it, is profound. Journalism is demonstrably valuable to society. It tells us what is new, important and interesting in public life, it holds authority to account, it promotes informed debate, it entertains and enlightens. For sure, it comes with complications. It is rushed and imperfect, it sometimes upsets people and in pursuit of its objectives it occasionally does unpleasant or even illegal things. But by and large we accept these less welcome aspects of journalism as part of the package, and we do so because journalism as a whole is in the public interest. It does good, or to put it another way, we would be much poorer without it.

Invading people’s privacy for the purpose of publication does not do good, though it may make money. In that industry, deception and payment for information are routine, not exceptional. The subject matter is almost never important — except to the victims, whose lives may be permanently blighted – and while a story may entertain, it does so only in the way that bear-baiting and public executions used to entertain. The whole activity exists on the border of legality, skipping from one side of the line to the other at its own convenience and without sincere regard for the public interest.

If they are so different, why do we tend to lump them together? A number of reasons. One is that journalists themselves are slow to draw the distinction because theirs is traditionally an open industry, without barriers and categories, and also because they don’t tend to think of what they do in terms of doing good and being valuable. But there is also a more tangible explanation, which is that the privacy invaders do everything they can to blur the line. It is in their interest to be considered journalists, after all. They can shelter under the same umbrella and enjoy the same privileges as journalists. They can talk about freedom of expression, freedom of the press and serving the public interest; they can appeal to tradition and history and they can sound warnings about current and future censorship. This helps them to protect what they do.

Today, in 2011, the activities of the privacy invaders have provoked a crisis which threatens to compromise and damage the journalism that is done in the public interest. After a succession of scandals, the worst of them associated with Rupert Murdoch’s News of the World, the demand for tighter legal constraints on the news media has reached a level not seen for many years. This is probably not another “last chance saloon” episode, with empty warnings and hollow condemnations, as was seen in the early 1990s, because the centre of gravity in the debate has shifted. Many people in Parliament, the law and the media itself who were previously vital to the defence of press freedom are in despair. They watch in particular the phone hacking scandal, in which the News of the World has been forced to admit illegally accessing people’s voicemails on an astonishing scale, and they feel that the press is out of control and unwilling to take responsibility for its failures. There is a strong chance that the next year or so will bring important change.

The greater the threat of effective press regulation, the more the privacy invaders can be counted upon to press their claim to be journalists, and so part of the free-speech tradition. They are like drowning men in the water, clinging on for dear life to those who have lifejackets. But journalists, for their part, may be approaching a moment of choice. Do they acknowledge the difference, the better to protect their own interests, or do they risk being dragged down into the depths by the sinking privacy invaders?

And it is not just a moment of choice for journalists. The reading public also needs a clearer understanding. We need to recognise privacy invasion for what it is, to accept that a luridly packaged, sensational, self-promoting and at the same time self-righteous product is actually bad for our collective health. And we need to grasp better the distinction between that and what is genuinely done in the public interest.

Privacy invaders at work: the Max Mosley case

The most vivid recent example of the privacy invaders at work, and the one which most clearly shows that what they do is not journalism, is the case of

Max Mosley, the former president of the Federation Internationale de l’Automobile. Because Mosley sued, details of a modus operandi which normally remains hidden were exposed. The story is well known, but details are worth revisiting.

In March 2008, the News of the World persuaded a woman who participated in private S&M parties with Mosley to film one of these events secretly, promising her £25,000 if the resulting story made the front page. A reporter was recorded showing her how to use the camera and saying how far away from Mosley she should stand “when you want to get him to do the Sieg Heil”. The party took place and the paper got its film. There was no Sieg Heil, but some German was spoken in one role-play scene (by a participant who was German) and joke-shop prison uniforms were worn in another. In the paper’s view, this established a useful connection — Mosley’s father had led the wartime British fascist movement. The story appeared under the headline: “F1 boss has sick Nazi orgy with 5 hookers”.

The next week, for a follow-up story, the paper approached two other women participants and told them to choose between being identified in print and giving an interview. They refused to cooperate, so the paper returned to the first woman. Her payment had been unilaterally reduced from the promised £25,000 to £12,000, but she was now told she could earn a further £8,000 if she gave an interview. (It was alleged in court that she too was threatened with exposure.) She agreed, but the court heard that her role in the interview involved nothing more than signing the first page of a text that had already been written, and which was altered between signature and publication. It appeared under the headline: “Mosley hooker tells all”.

Besides the fact that it appeared in a newspaper, there is almost nothing here that qualifies as journalism. For one, the whole approach is difficult to reconcile with the code of practice of the Press Complaints Commission (PCC), which at least in principle binds journalists working for member organisations and which includes clauses on such matters as accuracy, privacy and the use of subterfuge. The code makes clear, for example, that it is not acceptable to employ a clandestine recording device on a ‘fishing expedition’ — in other words, when you don’t have good grounds to expect you will gain a particular kind of evidence of a particular kind of wrongdoing. Though the paper made desperate efforts in court to create the impression that it had had such grounds, the judge would not credit them and indeed no reasonable person would have.

In a way, though, the terms of the code were the least of it. This may sound pious, but it is a simple fact that journalism has to be about truth. If a reporter is not trying to write about the world as he or she sincerely believes it to be, then the product is not journalism. It is fiction passing itself off as journalism. In this case the paper didn’t get what it hoped for (the Sieg Heil) but relied instead on some other German words it didn’t understand and did not bother to have translated. (German = Nazi to the News of the World.) The paper promised its informant £25,000 and then paid her £12,000 because it knew she could not hold it to its word. It threatened people with exposure if they did not cooperate, but in court denied this was blackmail. It presented its readers with an ‘interview’ which was nothing of the kind. Even in court it could not get its facts straight. The judge observed of the author of the supposed interview: “… his best recollection is so erratic and changeable that it would not be safe to place unqualified reliance on his evidence”. And yet for all the shameful conduct that was laid bare, no one at the paper was disciplined or reprimanded, let alone sacked. In other words, this is what the News of the World does.

More than anything, though, it is in their attitude to the public interest that the privacy invaders mark themselves out as different. The public interest is central because it is a sort of get-out-of-jail card for journalists, though it is actually recognised only grudgingly in law. An ethical journalist can justify telling a lie, or covertly recording a conversation, or trespassing if this act is done in the pursuit of the public interest, and even if he or she is found guilty of an offence, others will usually understand this as valid and will give their support. The public interest can literally keep a journalist out of jail, and it is not merely in the eye of the beholder. The Press Complaints Commission, for example, defines it as follows:

The public interest includes, but is not confined to:
i) Detecting or exposing crime or serious impropriety
ii) Protecting public health and safety
iii) Preventing the public from being misled by an action or statement of an individual or organisation

How did the News of the World justify publishing the Mosley story, which concerned legal sexual activity between consenting adults? Mosley’s behaviour, the trial was told, was “so debased, so depraved that the law will not offer it protection from disclosure”. The alleged Nazi elements of his activities were said to have mocked the Holocaust and, when combined with Mosley’s family background, contributed to a “disturbing situation” which was of “legitimate public interest”. Colin Myler, the paper’s editor, further claimed that exposure was justified because “as the head of Formula One Mr Mosley is the figurehead for the sport. He’s invited to the opening gala dinners, whether it’s with princes, prime ministers, kings, queens and presidents”. And the paper also argued that the beating which took place during the session amounted to a form of assault which it was legitimate to expose, and that Mosley’s relationship with the women amounted to illegal brothel-keeping.

Not only did the court reject every one of these arguments but it also exposed the cynicism with which they had been prepared. The assault argument, put forward only after Mosley sued, was dismissed by the judge as “artificial” and “verging on desperation”. The brothel-keeping charge, he noted, had been “thought up” by the paper’s lawyers, only to be “abandoned” before the trial’s end. As for the Nazi theme, it turned out to have no foundation in fact — and here the judge’s remarks revealed just how a public interest defence works in the hands of privacy invaders. He said he was ‘prepared to believe’ that the paper’s editors and reporters, “on what they had seen, thought there was a Nazi element – not least because that is what they wanted to believe. Indeed they needed to believe this in order to forge the somewhat tenuous link between the claimant [Mosley] and his father’s notorious activities more than half a century ago, and, secondly, to construct an arguable public interest defence …”

There was no cool assessment of the evidence, therefore, and no measured calculation of whether this was really one of those rare cases where intrusion into someone’s most private affairs could be justified because exposure makes the world a better place. This was about what they wanted and needed to believe if they were to publish –– and they were determined to publish. In other words, the story comes first and then, as the judge put it, you “construct an arguable public interest defence”. And if that defence doesn’t work you try another, and another, and another. This is not how journalists behave. They don’t “think up” public interest cases which are “artificial”, and they don’t allow themselves to believe something just because it suits them. They don’t abuse the entire ethical structure just so they can get whatever it is they know or believe they know into print. Certainly they get things wrong sometimes and they make misjudgments, but their general aim is to act ethically, just as it is to act truthfully.

Deception, muddy waters and the right to know

The suggestion that journalists are ethically driven often provokes sniggering, because many people believe the opposite. Yet journalists spend more of their time confronting and worrying about ethical questions than people in most other walks of life. Being accurate, balanced, fair and responsible while turning around a product that is acutely time-sensitive is demanding. You will not always agree with the decisions they make, but it is a simple fact that professional publications and professional journalists take these matters seriously though the procedures are often not formal. It is obvious, however, that no such scruples attended the preparation of the News of the World’s Mosley scoops, and it would be hard to exaggerate how far recklessness has damaged the name of journalism in recent years.

The coverage of the disappearance of Madeleine McCann in 2007, when a dozen national newspapers printed between them hundreds of grossly libellous stories on their front pages over a period of nearly a year, is probably the most shocking instance (though it was not a privacy issue). The Express papers were the worst offenders on that occasion, forced to pay a reported £550,000 in damages – and what soul-searching followed? What did the then editor of the Daily Express, Peter Hill, do to ensure it could not happen again? He famously told MPs: “I have reprimanded myself.” Journalists tend to laugh or shrug at this but they should take it seriously, because with those words Hill was mocking what they do for a living.

In both motivation and method, the Mosley case demonstrates, journalism is distinct from the industry of privacy invasion. But the privacy invaders prefer to muddy the water. When the News of the World lost that case it announced that “our press is less free today after this judgment” — appealing, by implication, to a noble British history and British tradition of press freedom. Now press freedom is an important matter and its history is certainly rich in noble deeds, but William Cobbett and John Wilkes did not suffer imprisonment and exile to enable journalists to bribe, bully and deceive their way into other people’s bedrooms. Nor, if you forgive the anachronism, did they have in mind the sort of people who would illegally hack into the mobile phone messages of the famous on the off-chance they might learn something titillating. These martyrs in the cause of press freedom had some meaningful conception that the press needed to be free to serve the public interest, and they did not see the public interest merely as a smokescreen.

You may by now be thinking that this is all very precious, and wouldn’t it be a dull world if we didn’t have these naughty boys in the tabloids blowing raspberries and shaking things up? It’s a comfortable attitude so long as you are not at risk of being a victim of the intrusion for which it is a cover, and so long as you don’t care that innocent people suffer for it. But spare a thought for those of us who teach the journalists of the future. What are we supposed to tell them? “Don’t worry about ethics because, so long as only a minority of people suffer from what you do, the majority will thank you for making the world a more diverting place”? That is not a viable attitude.

The privacy invaders use another version of that argument. They suggest that they are journalists, but the anarchic, irreverent, pushy part of the business, keeping the rest on its toes and preventing complacency. Again this isn’t viable. They don’t keep journalism virtuous; they drag it down, routinely showing contempt for the kind of boundaries they demand to see enforced in every other part of society. When the News of the World was convicted of illegally breaching Max Mosley’s privacy, it raised two fingers to the court, attacked the judge and the law and did nothing whatever to alter its habits. When the Express was caught libelling the McCanns, nobody was disciplined and nothing changed and, as we have seen, the editor mocked the idea that it should be otherwise. When Gordon Taylor, head of the Professional Footballers’ Association, produced evidence in 2008 that his phone had been hacked by the News of the World, the paper paid him £700,000 to shut up and go away.

For the privacy intruders the water can never be muddy enough. We are told that celebrities collaborate in their own exposure and it’s all part of the modern publicity industry. Often true, no doubt, but not always — and any journalist should be able to tell the difference between the person who wants to tell or sell a story and the person who has to be stalked, deceived and bullied for a story. We are told that public figures have an obligation to behave in certain ways because they are “role models”. Among the many problems with this are that the standards are arbitrarily set by editors and inconsistently applied, simply because the test is not what is right or wrong but what will sell newspapers on a given day. And editors who live by such dictates (and rely on dubious means to get their stories) are surely the last people we should rely on to judge what is appropriate conduct and what is not. We are also told that this is all about power and privilege, that the protection of privacy is a confidence trick designed to conceal from us the wrongdoing of top people. This is a con trick in itself. It just happens that editors aren’t usually interested in intruding upon the privacy of the poor, but when the time comes that they are —  say in the case of victims of crime or with bereaved families — they often show no mercy. Rich or poor, they will stitch you up if it suits them.

Paul Dacre, the editor of the Daily Mail, has offered a different and curious defence. In a speech in 2008 he argued: “… if mass-circulation newspapers, which also devote considerable space to reporting and analysis of public affairs, don’t have the freedom to write about scandal, I doubt whether they will retain their mass circulations with the obvious worrying implications for the democratic process”. This implies that professional intrusion into privacy is a price society has to pay if people are to be informed about things that are genuinely in the public interest. That can’t be right. It is true that the News of the World carries coverage of public affairs, indeed it occasionally prints front-page stories which are genuinely in the public interest — its coverage of match-fixing in cricket was a case in point. But journalists know that every story has to stand on its own ethical merits. Because you have published one worthy story does not mean that in the next one you have a licence to intrude. That is like saying that if you get 20 stories right you are free to commit a libel in the 21st, providing the story helps to keep your paper afloat. If the News of the World is to survive, it should pay its way by reporting in the public interest, full stop.

Let us say, then, that we are going to make a distinction between journalism and intruding in people’s privacy. Two questions immediately arise. First, where is the line between the two? And second, what difference does it make?

This is not simply a matter of drawing a line between tabloids and broadsheets, as they used to be, or between populars and qualities, as they were before that. In the first instance, we are identifying a kind of activity, but from there it is a short step to knowing who the people are who routinely engage in that activity, and which are the organisations that encourage, condone and trade by it. It is not all that complicated. The new non-journalist category, incidentally, will include some people not previously thought of as journalists, people like Glenn Mulcaire, Jonathan Rees and Steve Whittamore — private detectives who in their day were employed by the News of the World and who have all, incidentally, been convicted of crimes. Is this snobbish? Only if you believe there is something elitist about having ethical standards. Is it realistic? If we put aside the obfuscation, and make the effort to recognise these distinctive activities when we see them, yes. It really is not such an effort to tell the difference between those who want to inform and entertain and those who share the motivation of the former assistant news editor on the News of the World who told a colleague in 2002: “This is what we do. … We go out and destroy other people’s lives.” And it could be argued that making the distinction might strengthen the hand of those people in the relevant organisations who want to behave ethically.

An urgent matter

Will it make a difference? Certainly not in the sense that it will solve the privacy problem, and put an end to unjustified intrusion. That argument will run and run, and it is likely that no satisfactory boundaries will ever be fixed. Moreover the intruders, who are resourceful, will find ways to shield at least some of what they do. But the distinction will help to clarify the debate by separating those participants who have no real interest in ethical conduct or the public interest from those who do. It will more clearly expose the interests of those who argue that that law which allows scrutiny of the activities of a corporation must also allow scrutiny of the private life of an individual. And it will surely lend extra weight to the demands of journalists to be free to do what is genuinely the work of journalism.

This is an urgent matter. Because of the serial horrors — McCann, Mosley, hacking — the demand for statutory regulation of the press is growing. The Press Complaints Commission has failed to shore up standards or to convince the public that the press is sincere in wanting to regulate itself. If journalists, for reasons of nostalgia, inertia, confusion or misplaced loyalty, choose to keep swimming with the privacy intruders, they may well drown with them. If they push themselves free, then there is a better chance that we will find ways of protecting the freedoms that are vital to journalism.

Most of all, though, a clearer distinction will benefit the reading public. The more distance that opens up between ethical journalism and professional intrusion into privacy, the more the public will understand what it is getting and what it can trust. And that is in the public interest.

Brian Cathcart’s “Code breakers” appears in the new issue of Index on Censorship magazine, Privacy is dead! long live privacy, available now.

Brian Cathcart is professor of journalism at Kingston University and former media columnist at the New Statesman. He was a journalist at Reuters and the Independent. His books include The Case of Stephen Lawrence (Penguin). He is a regular contributor to Index online.

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If you missed it or want to listen again, the video and audio are embedded below:

The debate was held to mark the launch of the latest issue of the Index on Censorship magazine Privacy is dead! Long live privacy, which includes an interview with Sir David Eady, the High Court judge by legal commentator and writer Joshua Rozenberg. The new issue is available now.

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The British press loves to hate high court judge Sir David Eady for his judgments in privacy cases. He talks to Joshua Rozenberg about balancing rights

Where should we draw the line between personal privacy and freedom of expression? In England and Wales, such questions are left to the judges to decide. Parliament has chosen not to create a privacy law; no doubt because politicians of all parties have no wish to antagonise the media any more than is necessary. Even if there were legislation, it could not define all the subtle variants that occur in the real world. So it will always be up to judges to balance Article 8 of the European Convention on Human Rights, which requires respect for a person’s private and family life, against Article 10, which protects freedom of expression.

That’s certainly the view of Sir David Eady, and he should know. As the senior high court judge responsible for privacy and defamation work until recently and still a part of the specialist judicial team, Mr Justice Eady has decided several of the leading cases in this rapidly developing area of the law. Perhaps the best known of these is the claim that Max Mosley brought against the publishers of the News of the World, of which more anon.

Speaking to me over tea and cakes at the Royal Courts of Justice in London, Eady recalls that when Labour came to power in 1997 it had always intended the judges to develop a law of privacy. All that was needed was for the human rights convention to be incorporated into the domestic legal systems of the United Kingdom. Under the Human Rights Act 1998, which took effect in 2000, courts are required to “take into account” decisions of the human rights court in Strasbourg when interpreting the convention.

“It’s clear from Strasbourg jurisprudence that anything sexual — anything concerned with personal relationships — attracts protection under Article 8,” Eady says. “And that’s normally the subject matter we’re concerned with, because the press is normally interested in footballers, sex and so on. The big question comes when you have to balance Article 8 against Article 10.”

As a rule, he explains, courts must apply the test in the Princess Caroline case, von Hannover v Germany, decided by the human rights court in 2004: the decisive factor is whether the publication contributes to “a debate of general interest to society”. If the case is about a footballer having a fling, the answer is almost certainly that it doesn’t.

One case in which Eady did have to strike a balance was Lord Browne of Madingley v Associated Newspapers, decided in 2007. The then chief executive of BP tried to stop his former partner from speaking to the Mail on Sunday about their four-year homosexual relationship. Browne resigned from BP immediately after the court of appeal disclosed that he had lied in court about the circumstances in which the two had met.

“Some of the subject-matter of the case was private,” says Eady. “Some engaged the public interest or the interests of shareholders.” And so the media was permitted to report certain aspects of the case. “But in most cases, public interest is not even argued, particularly at the preliminary stage. And there haven’t been many trials.”

If there is a balance to be struck — perhaps because a claimant has forfeited his right to privacy — then the law demands what judges have described as an “intense focus” on the comparative importance of the rights being claimed. There may be room for debate over whether a relationship is already in the public domain: is the relationship known, for example, only to those in an individual’s workplace or more widely? It may be necessary to keep the claimant’s identity private to protect the privacy of his lover or his children. Perhaps an innocent party’s mental health might be jeopardised by disclosure. And circumstances may have changed between the granting of an injunction and the time the case comes to trial.

Privacy law by the back door?

“It’s not a precise art and you can’t legislate for a precise outcome,” Eady says. It’s inherent in a balancing exercise that different judges may reach different conclusions on whether the same couple are conducting their relationship in public or in private. You might say they have appeared together on so many occasions or at so many parties or public functions that this is no longer a private matter. But another judge might say: ‘Well, I think they’ve been fairly discreet about it’.”

But he insists that judges do not decide privacy cases on the basis of their religious views or some moral code. What they’re focusing on is the principles laid down in previous cases — in particular, the Strasbourg jurisprudence. If so much depends on a single judge’s intense focus on the case, then perhaps we should pay more attention to the individual judges themselves. There was some concern that Eady, as the judge in charge of the Queen’s Bench jury list until recently, was hearing too many privacy cases himself.

He points out that because privacy is derived from the law of confidence, which evolved as an equitable remedy, many privacy claims are brought in the Chancery division of the High Court — where Eady himself does not sit. The most recent example of this involves allegations of phone-tapping by the News of the World, a case being tried by Mr Justice Vos. Other important privacy issues are dealt with in the Family division.

But Eady acknowledges his own involvement in developing privacy law. “It so happened that I was judge in charge of the list for several years and the practice was in those days that I never did anything else but the Queen’s Bench list.” Although it’s a large division, most of its judges are assigned to other work — criminal trials and appeals, for example, or judicial review — and so it was inevitable that a high proportion of the privacy cases would come before Eady.

Mr Justice Tugendhat, who succeeded Eady as judge in charge of the jury list, is doing a broader range of work. But media cases generally — not just privacy claims — still tend to come before the specialist judges if they are available: Tugendhat, Eady and now Mrs Justice Sharp. “There’s an increasing tendency towards specialisation among the judiciary and the ‘customers’ like to get in front of a specialist judge if they can,” Eady explains. “That tends to be the fashion of the day.”

Can litigants actually choose their judge? “They make a request. And if it’s a reasonable request then the listing office tries to co-operate.” What’s not acceptable is to ask for a case not to be listed before a particular judge for no good reason.

Eady seems resigned to the fact that his decisions are going to be misunderstood and misreported in the press. In complicated cases, he may write a short summary of his decision for the benefit of reporters. But he would not wish to see judges or their communications office justifying decisions by way of a press release. He accepts that ill-informed media comment is something that goes with the territory. “I think it’s inevitable because the press are interested in the press’s own affairs. So privacy and libel get much more coverage than personal injury, commercial cases or even public law, all of which are just as important if not more important.

“There are lots of judgments that have been criticised where it’s quite apparent that people haven’t read them. But there’s nothing you can do about that: the press office aren’t going to give them a spoonful of sugar to make it easier. And if they want to criticise the judgment, they will – whatever it says. But I don’t really bother to read that stuff.”

He thinks again. “I couldn’t miss the Dacre stuff, obviously,” he adds, referring to a speech made by the editor of the Daily Mail to the Society of Editors conference in 2008. Paul Dacre had asserted that “while London boasts scores of eminent judges, one man is given a virtual monopoly of all cases against the media enabling him to bring in a privacy law by the back door”. There had been more of the same criticism subsequently, Eady recalls. “Essentially, the problem is that it misunderstands the function of a judge. It’s presuming that a judge has some kind of political or personal agenda when all that he or she is doing is applying or interpreting the law, rightly or wrongly.”

Surely, judges are human and they are bound to be influenced by their personal views?

“Judges are human and they make mistakes,” Eady replies. “But I think they make a pretty good fist at not being influenced by personal, political or religious views. So if you are saying that somebody should have their privacy maintained in relation to a certain type of lawful but unconventional conduct, that doesn’t mean you go along with it or behave in that way yourself — or necessarily approve of it or have a view about it. If it’s lawful conduct between consenting adults, that’s it: it doesn’t matter what your own personal views or inclinations may be.”

Mosley, privacy, the public interest — how things might have been different

Eady is clearly referring to the Max Mosley case, which he decided in 2008. At that time, Mosley was head of motor-sport’s governing body, the FIA. He established that the News of the World had breached his privacy by revealing that he enjoyed sado-masochistic sex sessions.

But the £60,000 damages Eady awarded Mosley was little consolation for the FIA boss. What Mosley would have preferred was a permanent injunction that prevented details of his sexual preferences from being revealed in the first place. Since he had kept them private, that application would almost certainly have been granted. But there was no application for such an order because Mosley had no idea that the News of the World was about to invade his privacy. The newspaper was not required to warn him in advance and it deliberately withheld the story from the edition that was available on the night before publication.

That’s the gap in the law that Mosley tried to fill. He asked the European Court of Human Rights to rule that the lack of any requirement to notify a potential claimant before writing about his private life amounted to a breach of Article 8. In May 2011, his claim was dismissed, partly because of the “chilling effect” that it would have had. But how significant would it be if Mosley had won and publishers had been required to warn people before writing about their private lives?

“I’m not sure it would be terribly significant”, Eady says, “because there are not that many cases where a newspaper is able to keep it that secret. I genuinely don’t have a personal view on whether it should or shouldn’t happen but I can understand why Mosley is so keen about it.”

Surely it would have an impact on the media? Every time we wanted to disclose personal information about an individual, we would have to give the person concerned an opportunity to seek a court order blocking publication.

An injunction is by no means automatic, Eady insists, although the claimant stands a good chance of being granted an order for a few days, pending a full hearing. But the sort of case we are talking about is not one where the claimant would rush off to court without notifying the defendant newspaper. Since the publisher would have alerted the claimant in the first place, there is no reason why the newspaper should not be represented at the initial court hearing. And if there was a public interest in publication — because, to take a hypothetical example, the mental capacity of a judge, a minister or a surgeon was affected by an undisclosed brain tumour — then an injunction would be refused.

Sex and health are clearly areas that the law will protect in the absence of any over-riding public interest in disclosure. So are personal financial affairs. But what about other areas that an individual in a responsible position may wish to keep private, such as extreme political or religious views? Would the law prevent such views from being made public by a spouse?

“That’s quite a difficult question to answer,” Eady admits. There may be no evidence that the individual’s private views had ever affected the holder’s public position. “On the other hand, you might say that it’s difficult to envisage how somebody who holds those views can be rational.”

Because the French burqa ban happens to be in the news on the day I am interviewing Eady, we discuss what would happen in the case of a strict Muslim who might not let his wife appear in public unless she wears a full veil.

“Does that necessarily mean that the person shouldn’t be allowed to be a judge, or a teacher or whatever it might be? To what extent has he allowed those views to intrude on his decisions or conduct? It all depends on the circumstances.”

At some point, he continues, an individual’s views may become so irrational that his judgment cannot be trusted on anything. “I’d have considerable doubts about a flat-earther being a teacher, or a judge or a doctor.”

So would it have made any difference if there had been a Nazi element to Mosley’s sado-masochistic activities?

“It might have done,” he admits. “I didn”t have to grapple with that in the end because I found that there wasn’t. But if he had been mocking Holocaust victims — which was one of the allegations made in the News of the World — there would have been quite a powerful argument for saying that should have been revealed. He had, at that time, a role in the FIA, which involved dealing impartially with people of all creeds, races, colours and so on.”

It would, of course, have been possible for Mosley to have brought a libel action over the article, which was headlined “F1 Boss has Sick Nazi Orgy with 5 Hookers”. If the newspaper had sought to justify its allegation that there was a Nazi element to Mosley’s role-play, that defence would have been dismissed by Eady on the facts that emerged at the privacy hearing.

“There is a close comparison between privacy and libel,” Eady tells me. “They interlink because they’re both part of the human personality — or, as they tend to call it in Strasbourg, human integrity. So one can see why Article 8 would have them both under its umbrella — although originally, of course, it didn’t. It’s a very recent development that libel has been brought in under Article 8 – not in the convention, obviously, but in case law.”

The frenzy of superinjunctions

And that poses problems. In English law, the same set of facts may give rise to claims in either privacy or libel. A claimant may then choose how to proceed. Much may depend on whether he is seeking an interlocutory injunction — one that prevents publication pending a full hearing.

In libel, all that a defendant need do to resist such an injunction is to say he will prove that what he published was true — a test that goes back 120 years to the case of Bonnard v Perryman. “That’s not an answer in privacy, obviously,” explains Eady. “The issue is not, ‘Is it true?’ but ‘Is it your business?’”

In deciding whether to grant an injunction in a privacy case, the court must consider whether the claimant is likely to succeed when the case comes to trial. “It’s a much easier burden for a claimant to discharge in a privacy case than in a libel case because injunctions in libel cases are almost never granted.” Having said that, Eady mentions a recent exception. In ZAM v CFW, decided in March 2011, the high court granted an injunction on the basis that the claimant could not be fully compensated in damages for the injury to his reputation if the threatened libel — which was held to be clearly false — was published.

“Since Strasbourg now regards both privacy and libel as coming under the Article 8 umbrella, the question arises: is it any longer feasible, or sensible, or justifiable, in principle for having separate tests for interlocutory injunctions, depending on whether it’s privacy or libel?”

Is that as far as it goes — or will we eventually see libel and privacy subsumed into one tort called protection of reputation or protection of personal integrity?

As the law now stands, there would be problems at the damages stage, Eady explains. “One of the things you have got to be careful about is not to give a claimant an award of damages which represents restoration of reputation, so that he or she gets the benefit of suing for libel without having done so.”

At the time we are speaking, there is something of a media frenzy over “super-injunctions” — court orders that ban reports of their own existence, at least temporarily. “The classic example of this is of a threatening blackmailer, which is surprisingly common: I’m dealing with one at the moment and I can think of three or four this year. People who know somebody who’s in the public eye and know something that they think is discreditable see the opportunity for making money. They”re in touch with journalists who are ready to pay it.”

In those circumstances, the judge is likely to grant an injunction. But what happens if the potential blackmailer hears about it through the media before it is formally served on him? He would not be bound by it. “There is a risk he’ll go to the journalist, clinch the deal and then say, ‘You can’t touch me’.” Eady says those are “classic circumstances” for the grant of a superinjunction.

Once the court order has been served on the blackmailer, there is no reason why its existence should not be reported. Indeed, the judgment Eady is writing appears a few days after we speak. OPQ v BJM and CJM is unusual because Eady granted an order of general effect — “against the world” — banning publication of confidential information about the claimant on a permanent basis.

This is something of an innovation. But it has the same effect as a temporary injunction granted ahead of a full hearing. Under the so-called Spycatcher doctrine, such an order binds everyone who knows about it. But that restriction is thought to lapse once a case settles, as OPQ v BJM is about to do. Hence the need for a universal order — which is perfectly logical once you accept the fundamental principle that people are generally entitled to keep their private lives private.

“It’s surprising how many injunctions do hold and how many are settled on private terms, fairly quickly,” Eady tells me. That includes cases where the press are defendants — “because they recognise, on mature reflection, that there’s no public interest argument and they’re happy to get out of it”. For his part, Eady seems to be in no hurry to get out of a job he clearly enjoys. But those judges who were appointed after February 1995 — including Eady and most of his serving colleagues — must retire when they reach the age of 70. That leaves Eady with less than two years to go. Still, with privacy developing as quickly as it is, it will be fascinating to see how far he can develop the law before he leaves the public stage and tries to regain the personal privacy that has eluded him on the bench.

The interview with Sir David Eady took place on 11 April. The new issue of Index on Censorship magazine, Privacy is dead! long live privacy is available now.

Joshua Rozenberg is a leading commentator on the law and presents the popular BBC Radio 4 series Law in Action. His books include Privacy and the Press (Oxford University Press)

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The post UK: Max Mosley renews court bid for new privacy laws appeared first on Index on Censorship.

The European Court of Human Rights based its decision on “the margin of appreciation” that is accorded to every country to solve certain problems in its own way, according to its own traditions and inclinations. The message of today’s decision is directed to the UK Parliament — “it’s over to you”. There is a duty to protect privacy, but we can do it in our own way, so long as we do not err on the one hand by suppressing information of genuine public interest, or on the other, allowing intimate facts of no value to be intrusively obtained and published for sniggering entertainment.

The real problem is first to find a sensible test to distinguish between the two, and secondly to devise a legal approach that will serve to deter abuses of privacy whilst maintaining open justice and free expression. Today’s judgment does nothing to solve the first problem, which arises because of its incoherent decision in the “Princess Caroline” case, which defined privacy in terms of “enhancing personal development” and amounted to little more than vague psycho-babble. But it did provide some helpful pointers in solving the second. Mosley was awarded £60,000 by a judge in England, and received a massive 250,000 euros in Germany, and is suing for more compensation in France and Italy. A law which allows such sums to be awarded for blatant breaches, after open court proceedings, provides an adequate remedy to victims.

Of course, Mosley’s argument is understandable. Post publication damages will not put the genie back in the bottle. The victim will never be the same again, the secret will be out, and money cannot compensate for the humiliation. True enough, but the courts cannot perform miracles. They cannot, as his judge pointed out, be like King Canute, policing the electronic waves of incoming information. Do we really want Scotland Yard to spend our tax money on a “twitter squad” arresting those who indulge in internet speculation about the going-on in secret courts?

Moreover, a law that made invasion of privacy a civil wrong (tort) with damages of up to (say) £250,000 awarded by a jury, would operate in time as an effective deterrent. Jury verdicts are publicly acceptable, whereas decisions on such subjective moral issues by judges (perceived as middle-class and male) are not. Well may judges rail against “sniggering tabloids”, as the Euro court has in its Mosley decision, but the final verdict should be left to a representative sample of readers in the jury box. Would Max have won his case before a jury? His spanking episode with five prostitutes might have struck them as morally reprehensible, or they might have thought him pretty good for his age. The point is that over time, if juries award heavy damages against tabloid intrusion, tabloids will think twice — or three times — about intruding. They will take care to ensure they have a public interest rationale before they do it again.

The tension between free speech and privacy is inevitable, and there is no ideal solution. But we must stick to our constitutional principles: justice must always be seen to be done, and remedies for human rights abuses must be workable, publicly acceptable, and should not bring the courts into disrepute. So Parliament should sweep away super-injunctions and all the Euro-nonsense that has accreted to the concept of privacy, and pass a law creating a civil wrong of publishing intimate personal details, unjustified by exposing crime or serious impropriety, protecting public health or safety, or revealing hypocrisy. Either party should be entitled to opt for trial by jury, with damages capped at £250,000.

This would provide a solution consistent with our traditions and our European obligations. No more secret courts, no more prior restraint. Let the press be free — and let it take the consequences if it abuses that freedom. In other words — those of the Duke of Wellington — “Let it publish and be damned”.

Geoffrey Robertson QC is co-author of Robertson & Nicol on Media Law (Penguin, 5th Ed.). He wrote Index on Censorship submissions to the European court in the Mosley case

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Victory for Mosley would have meant that media outlets would have been required to contact subjects of stories prior to publication. But there were fears that such a step would lead to a rise in interim injunctions barring publication.

In a ruling published this morning, the Strasbourg court judges noted that:

having regard to the chilling effect to which a pre-notification requirement risks giving rise, to the significant doubts as to the effectiveness of any pre-notification requirement and to the wide margin of appreciation in this area, the Court is of the view that Article 8 [the right to privacy] does not require a legally binding pre-notification requirement.

Case of Mosley v. the United Kingdom

The post Max Mosley loses “prior notification” bid appeared first on Index on Censorship.

Ahead of tomorrow’s crucial European judgment on privacy and prior notification, we recap Max Mosley and John Kampfner’s recent privacy debate. Are court gagging orders on newspaper exposés an abuse of privacy laws by the rich, or a safeguard against tabloid intrusion into family life?

The press are outraged that they cannot freely report the sex life of anyone vaguely interesting, so they inveigh against the right to privacy. The fact that the Human Rights Act –– under which an entitlement to privacy is enshrined –– was passed by parliament after extensive debate is conveniently ignored. The press like to pretend that the law was invented by judges.

What the press never do, but the judges must, is weigh the public interest (if there is any) in disclosure against the distress which exposure can cause the individual or family concerned. The tabloids will happily destroy a family or cause acute distress to another human being for the fleeting entertainment of their readers. To do this without a real public-interest need is deeply uncivilised. It’s like bear-baiting – quite fun, perhaps, for a certain sort of person, but unspeakably awful for the bear.

Generally, these injunctions are temporary: they hold the ring until a trial decides if the information should be public. They are only given if the judge thinks the complainant will win. Very occasionally the mere fact of an injunction would make the information public. Hence the extremely rare superinjunction.

John Kampfner: commentator and chief executive of Index on Censorship

Max, I respect your tenacity. Having been in the firing line of tabloid sex stories, it is no surprise that you seek a new level of privacy and protection for those in the public eye. Indeed, so committed are you that your attempts to secure for claimants “prior notification” of all media stories are being fought over at the court in Strasbourg. My organisation is one of those opposing you, because we believe your move constitutes an assault on free expression.

The recent spate of superinjunctions is another example. I accept, and I reckon all sensible advocates of free speech also accept, the entitlement to privacy as enshrined in the Human Rights Act – for those who have never put their private lives in the public domain or who do not act hypocritically. But privacy is not the same as secrecy, and what we’re seeing is a new form of law: rich man’s justice pursued in secret.

If only you were right and that superinjunctions were “extremely rare”, and that they merely and temporarily “hold the ring”. They give the man (and, yes, it is almost always a man) a blanket right to concealment for as long as he needs it.

And if you’re an entertainer or footballer “playing away” (superinjunctions are granted almost exclusively to these two types), you would, naturally, not complain about the way the judges are currently interpreting the law. Why would you? You can do what you want – and gag the women, and anyone else, from saying anything to anyone at anytime.

Max Mosley: You say “privacy is not the same as secrecy”, but how can something remain private if it is not kept secret? Once made public, the information is, by definition, no longer private.

The fundamental question is: when should private information be made public, despite the right to privacy? The law’s answer is: when the public interest in its revelation outweighs the need for privacy. I find this reasonable.

The problem comes when a tabloid wants to publish something which may interest its readers but involves no public interest beyond idle or prurient curiosity. This is what the judges are preventing, particularly when publication would cause distress to a family.

It is no doubt annoying for the tabloids to be sometimes deprived of sexual tittle-tattle, but it is hardly an attack on the freedom of the press. No judge will grant an injunction where there is a genuine public interest in publication.

My Strasbourg application hopes to prevent tabloids keeping publication secret until it’s too late to go to a judge. I believe independent judges are more reliable than tabloid editors when it comes to weighing privacy against public interest.

It’s a common misconception that these injunctions are permanent; they are not. They are merely interim orders which stop the private information being made public until a full trial can be held. A so-called superinjunction is only granted on the rare occasion when its mere existence would reveal the information. Unfortunately, legal proceedings in the UK are expensive, but that is no reason to deny them to everyone.

John Kampfner: It seems that we agree on much of the principle, but we disagree fundamentally on the current practice. Yes, privacy is a right under article 8 of the European Convention and now under the Human Rights Act. It should, however, be balanced against article 10, the right to free expression. The problem is that our judges are now interpreting privacy as a catch-all. Anyone who wants to hide anything can lodge last-minute secret applications to judges; invariably they win an injunction and, more invidiously, a superinjunction.

And it’s not all about sex lives. It’s about hiding awkward revelations that might affect the “brand”. Trafigura didn’t want the story of its role in the dumping of toxic waste in Africa made public, so it went to court [to stop the Guardian revealing that it had been debated in parliament]. John Terry‘s lawyers cited his commercial interests as the reasons for his gagging order.

Investigative journalism faces many challenges, not least economic. But the current weight of law is heavily skewed against the public’s right to know, or to use that somewhat pious phrase, holding truth to power. We now are not even allowed to know who is trying to silence whom and about what.

Of course, we will never get the balance entirely right. But I would much rather err on the side of openness than secrecy. If your law succeeds it will set back the cause of free speech by decades.

Max Mosley My law (as you kindly call it) would make no difference to serious journalism. Paul Dacre gave evidence that the press approach their subject in 99 cases out of 100. So the 99 would not be affected by my application. Prior notice is needed to protect the remaining 1% because tabloids maintain secrecy when they suspect publication is illegal. They know that once the story is out, people don’t sue because they end up out of pocket even if they win.

I think you are unfair on the judges. They carefully balance the right to privacy against the right to freedom of expression, as the act requires. And it is not true that anyone with something to hide canThe truth is that nothing which is genuinely in the public interest will be suppressed. get an injunction. The judge has to be satisfied the complainant is likely to win at trial. That’s a very difficult hurdle. As a result, lawyers advise clients not to proceed unless they have a very strong case. Someone who wants to hide something the public should know about will be told not to bother. John Terry’s injunction failed precisely because the judge thought he was protecting his commercial interests rather than his privacy.

Judges are honest, fair-minded and independent. They are not infallible but they can be appealed. As I have said, our privacy is far safer with them than with a tabloid editor.

John Kampfner: If only you were right about our judges. I’m afraid their recent record speaks for itself. Britain has had among the most restrictive libel laws in the developed world. Now, thanks to the Libel Reform Campaign, led by my organisation and our partners, the coalition government is introducing legislation that will go some way (not far enough yet, in our view) to reverse a trend that saw bloggers, authors, scientists, doctors and others all but destroyed for raising important issues at conferences and in print.

No sooner, however, have we stemmed one tide than we are facing these other measures chilling free speech. I repeat: everyone is entitled to a reputation. But we should be talking about protection against serious harm and against malicious falsehood. We should not be talking about laws that protect individuals from embarrassment or inconvenience. I hope that Andrew Marr‘s decision to abandon his superinjunction, and his regret at having sought one out in the first place, might prompt others in public life to think twice before doing so. But, sadly, given the lead our judges are setting, I’m not holding my breath.

The European Court of Human Rights will rule tomorrow (10 May) on  Max Mosley‘s petition to make it a legal requirement for newspapers to inform people in advance that they intend to publish material that may impact on someone’s private life. Read more here

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