We need to know more about technology than the techno-fans. We need to know more than ministers promoting technological solutions to social problems (not hard to do); we need to know as much about security as the security services; we need to know more about communications techniques than the media, and we need to know more about networking than social-networking gurus. This knowledge can be a terrible thing, because everywhere we look we see vulnerabilities. The sad truth is that the entire edifice of modern communications is built upon fragile foundations.

It didn’t have to be this way. Privacy advocates lost the argument by allowing governments and industry to define the needs of citizens and users. We would call on companies to strengthen the technical protections in their systems and they would claim that users don’t care about security or are uninterested, citing 18-year-olds who want to publicise their private lives or housewives who don’t want to be bothered with complex technology.

We are now facing tangible and hitherto inconceivable threats to our liberty because the entire edifice of modern communications and information technologies is built upon consumer stereotypes.

It is our collective fault now that there is a rapidly growing number of data breaches and data losses. The systems that were built to contain and protect our information are fundamentally flawed. The flow of personal data is becoming the default, and the dams erected by law are temporary annoyances for an industry interested in profiting, governments interested in monitoring and malicious parties whose motivation can be obscure. If the US State Department can’t be bothered to adequately secure its own network of inter-embassy communications, what chance is there that Facebook and Google will take better care of your personal messaging and commonly used search terms?

The irony is that the only debate we privacy advocates ever seriously won was over the right of individuals to use encryption technologies to secure their communications. We fought this battle in the 1990s, on the cusp of the information revolution, looking forward to the day when we would all have desktop computers, and everyone would use encryption technologies to secure their communications. Governments were keen to maintain their restrictions on the general public’s ability to encrypt communications so that law enforcement agencies retained unfettered access to content.

We fought these restrictions and, even to our surprise, by the end of the decade we eventually won. By this time, however, governments had successfully stemmed the tide: cryptography and other privacy-enhancing technologies had come to be seen as obscure and inconvenient. Everyone is now theoretically capable of encrypting their communications — but no one does. Furthermore, restrictions on encryption remain in countries such as China, India and across the Middle East.

This is indicative of how the entire infrastructure of the modern economy and social life is built on insecurity. Privacy is becoming a popular subject, and a growing concern for the average citizen and consumer of mainstream technology. Yet users’ interest is poorly serviced. This is why there is a frequent narrative that ‘privacy is dead‘. Regardless of modern concerns, faulty decisions have been made at key moments in the development of modern computing.

Microsoft was the first culprit to emphasise ease of use over security in the 1990s, leading to a decade of annoying trojans and viruses developed by teenagers. In response, a software industry of anti-virus checkers and firewalls arose to plug in the holes so that users were informed and protected from attack. We had the chance to learn from this and make our next technological steps more informed and considered. Instead, Smartphone operating system developers like Apple and Google are now making similar mistakes by not keeping their users informed of what kind of information is leaving their devices and what applications are doing with their data. This is a repetition of Facebook’s approach when they created features that broadly shared users’ information, only later adding some features to inform users and to let them have some authority to control information flows when using third-party applications. Once your information is collected by devices and applications, as we have seen from Microsoft in the 1990s, and now Apple, Google and Facebook, it is rarely secure. In fact, your data is often readily available to any party who can query, buy, subpoena or simply steal it.

The expansion of ‘cloud’ services like Google Documents or Dropbox makes matters even worse. Instead of residing on your computers, your most confidential information is not only removed from your control, it is removed from the country and stored on foreign servers under the jurisdiction of foreign laws and law enforcement agencies. Almost universally, this information is not secured. Documents, emails and calendar information are stored in unencrypted form, and readily accessible by local law enforcement authorities.

Amongst the few positive developments, Google recently deployed disk encryption capabilities in its mobile operating system, Android, though it still has to be turned on by the user. Even when these companies do build in the capabilities for privacy, they rarely, if ever, come as standard. Security is the exception rather than the rule.

After the Russian authorities began clamping down on Russian non-governmental organisations for breach of copyright (as a pretence for searching computers), Microsoft then kindly offered free versions of its operating systems to NGOs. Unfortunately, the version of Windows they offered does not include the use of disk encryption, as that is only available in the ‘premium’ editions.

At the core of this problem is companies’ perception of their typical user. The typical user in whose image applications, programs and social networks are designed is an American teenager, perfectly content to transmit and publish every detail of their personal life to an unlimited audience. It is not the advocate, the dissident, the researcher, the professional — the people who need varying degrees of data security in order to protect their livelihoods, and sometimes their lives. Facebook, Apple, Microsoft and Google all require their users to jump through hoops in order to protect their information, and the majority of these users lack the time or awareness to do so.

In turn, companies’ systems are being probed, and vulnerabilities are being exploited. Last year, a gang in New Hampshire used ‘publicly available’ social network updates from area residents to target addresses when they knew the homeowners were out or away, stealing over US$ 100 000 worth of property in a week. A survey of hackers and security experts last year found that more than half of them were testing the limits of cloud services’ security.

Meanwhile, last year a Google employee was fired after it was discovered that he was monitoring the communications of teenage girls. Far more widespread, insidious and difficult to combat than such isolated incidents of criminality are the routine surveillance practices conducted by governments. These are not techniques reserved for dictatorships. For instance, the spying capabilities embedded by Nokia Siemens in their technology for Iran’s telecommunications system, intended for the use of the Iranian authorities, were mandated by the Clinton administration under federal law applying to all US telecommunications firms, and then supported by European policy-makers and standards bodies under the more acceptable guise (or pretence) of protecting their own citizens from crime.

Some countries, like Sweden, openly acknowledge that every piece of information that enters or leaves their borders is subject to government surveillance. Whether you’re a journalist sworn to protect the names and addresses of your sources, a lawyer building a case against a corrupt high profile politician, or a human rights advocate, all are pinning their hopes for security on a fantasy: the belief that the people who build your operating systems and applications have any way (or, indeed, any intention) of protecting you against governments who have the law on their side.

Another part of the fantasy is that governments are in control. Disturbingly, in fact, they don’t even appear to have complete mastery of their spying capabilities; for ten months during 2004-2005, the Greek government’s own surveillance technology was turned against it when an unknown adversary monitored the voice calls of dozens of government officials and cabinet members, including the prime minister. Between 1996 and 2006, Telecom Italia had a similar breach where more than 6000 individuals’ communications were illegally monitored, for the purpose of perpetrating blackmail and bribery. As communications security expert Susan Landau noted in her testimony to the US Congress in February this year, in that period ‘no large business or political deal was ever truly private’.

Surveillance is getting easier. In the Hollywood version of governmental power, the seizure of digital evidence by the security services involves a dawn raid by armed officials, who carry off piles of hard drives, laptops and computer towers from seemingly innocuous suburban houses. This image is out of date and unrepresentative.

In the 21st century, law enforcement access is just a few clicks of the mouse away. Why enter your home and read your letters when they can get into your webmail account and read every message you’ve ever sent or received?

In the US, a member of staff at one of the major mobile providers recently let slip at an intelligence industry conference that the company receives eight million requests a year from domestic law enforcement agencies for specific data on geolocation; that’s a publicly traded company, one that advertises its services on billboards and TV channels across the country, not some shadowy private intelligence outfit operating under the radar.

There are companies in the business of surveillance that develop the databases, cameras, biometric scanners, DNA test kits, drones and a myriad other technologies that are being deployed around the world. Companies are also profiting from selling and buying personal information. Consider Thorpe Glenn, an Ipswich-based company that celebrates its ability to analyse the information of 50m mobile subscribers in less than a fortnight. Thorpe Glenn’s press releases boast about ‘maintaining the world’s largest social network’, with a full 700m more profiles than even Facebook can lay claim to. This practice is rapidly becoming an industry.

Chris Soghoian, a researcher in the US, has found that companies frequently get paid for each instance they respond to government requests. Google, for example, has received US$25 for responding to a request for data from the US Marshal Service. Yahoo!’s ‘Cost Reimbursement Policy’ offers US$20 dollars for the first basic subscriber record and then a discounted US$10 per ID thereafter, though email content is US$30-$40 per user. They could, technically, develop a business model just on handing over information to law enforcement agencies. Jokes aside, what incentive do these providers have to make communications infrastructure more secure? There are, however, some signs of change.

Over the past year some companies have announced security and privacy advances in their products andservices. Certainly the uprisings across the Arab world helped, as companies did not want to be seen on the wrong side of history and face the same kind of admonishment as Nokia Siemens after the Iranian elections in 2009. Google vacillated for years before turning on encryption on its network layer, but it is swiftly becoming common practice. It is to be hoped that we will see a similar paradigm shift now that Facebook has enabled users to turn on HTTPS to help protect data as it passes through the internet (although predictably enough it has yet to employ HTTPS by default, making it less easy for people to use it).

The global struggles against abusive governments have also focused international attention on the enormous capacities of those governments to spy on their citizens, and the enormous human cost of this kind of all-pervasive surveillance. Once the behemoths of the internet take positive steps, smaller companies will hopefully follow.

Yet so long as the key technology developers keep on assuming that their users are uninterested, and so long as they seek to profit by selling our habits and interests, we will all remain vulnerable. It is now time for a mature policy debate on privacy and security. Not one that sees the benefit of the state as paramount, nor one that presumes that if a service is free then the user’s information can be exploited. Business models should fail with each security and privacy blunder, just as laws should be called into question with every new breach and abuse. The rise of mobile devices and cloud services is a replay of the 1990s all over again, where the policy and business world is grappling with technological change and telecommunications growth.

If left to their own devices, governments will build more vulnerabilities and back doors while industry will acquiesce and build for ‘sharing’ and ‘organising the world’s information’. If we can hold on to this moment in history just a bit longer, and keep these companies thinking about the global community of diverse users, and not merely those who are 18 years old, while reminding them that backdoors aren’t always used for noble purposes, then we may have a fighting chance. Perhaps we can even chalk up a real win this time.

This article comes from the current issue of Index on Censorship magazine, Privacy is dead! long live privacy, subscribe here

Gus Hosein is Privacy International’s Deputy Director, and a Visiting Senior Fellow in the Information Systems and Innovation Group in the Department of Management at the London School of Economics and Political Science

Eric King is the Human Rights and Technology Advisor at Privacy International and Technology Advisor at Reprieve

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.

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)

Despite an anonymised injunction designed to keep his name and the story of his extra-marital affair out of the tabloids, British footballer Ryan Giggs has found that where there’s the internet, there’s a way…for the story to get out, that is.

Partially in response to the draconian nature of the injunction the footballer obtained, tens of thousands of Twitter users published his name, briefly turning it — along with the name of his alleged mistress — into a Twitter trending topic, with purportedly as many as 75,000 individuals tweeting the name.  We call this public backlash to overbroad censorship attempts the Streisand effect.

The controversial super injunction and anonymised injunction privacy procedures are born of judge’s interpretations of 1998 Human Rights Act which aimed, nobly, at protecting individuals’ privacy, while also protecting their right to freedom of expression. However, the balance here is plainly off. Article 19 argues that super injunctions are a form of prior censorship that is not permitted under international human rights law — including permitted limits to Article 19 of the Universal Declaration of Human Rights and Article 10 of the European Convention on Human Rights.

It’s easy to see why. In this case, as in reportedly many others, injunctions have become a tool of powerful public figures to try to stop embarrassing facts from being discussed, and in this instance the injunction process is ironically being used to require Twitter to pierce the anonymity of its customers based on the content of their speech. Particularly in this situation — where very public figures who actively seek public attention much of the time are trying to ensure that the public only learns the heroic, and not the embarrassing, facts about them — these broad super injunctions raise deep concerns.

While the situation raises raises many questions, three issues jump out at us:

Blaming the Platform —- the UK needs Intermediary Protection

In the United States, intermediaries like Twitter are protected by Section 230 of the Communications Decency Act of 1996. CDA 230 provides online intermediaries that host speech with protection against a range of laws that might otherwise hold them legally responsible for what their users say and do. In essence, CDA places the responsibility for speech on the individual speaker rather than on the platform.

As Eric Goldman noted in a position paper for an OECD experts workshop on internet intermediaries on the benefits of immunity regimes for internet publishers:

“The United States has seen an explosion of entrepreneurial activity from Internet publishers of reputational information—a process fostered by 47 U.S.C. § 230, which Congress enacted in 1996 as part of the Communications Decency Act. Content originators remain liable for their content, but 230 provides Internet publishers with a powerful immunization for content originated by third parties. With 230’s protection, Internet publishers are developing innovative ways to supply consumers with helpful reputational information, freed from concerns that innovation will increase their liability for user content…”

CDA 230, along with the First Amendment, would protect Twitter (and likely most US Twitter customers) should the footballer attempt to enforce a British judgment here in the US, assuming Twitter is not subject to jurisdiction of the UK courts.

That’s good news, but the failure of the UK to adequately protect intermediary platforms under law raises deep concerns.

It Weakens Courts to be King Canute

It is now painfully clear that the judicial ruling is not stopping the facts about this matter from being spoken and that there is a strong public interest in this gossipy news about very public celebrities. As the English courts themselves recently observed in a similar case:

“The Court should guard against slipping into playing the role of King Canute. Even though an order may be desirable for the protection of privacy, and may be made in accordance with the principles currently being applied by the courts, there may come a point where it would simply serve no useful purpose and would merely be characterised, in the traditional terminology, as a brutum fulmen. It is inappropriate for the Court to make vain gestures.”

Continued insistence on this injunction, and continued efforts to impose liability, run the risk of creating an atmosphere where British court rulings have reduced authority because they are viewed as unrealistic and out of touch with modern technology.

British citizens deserve better and it may fall to the British parliament to change the privacy law in order to fix this problem.

Once Again Twitter’s Policy of Notifying Users is Key

In January, Twitter rightfully received the world’s praise for insisting on notifying its users when the US government demanded information about several Twitter users. Now Twitter’s policy of notifying users may be triggered again, in the event that they receive appropriate legal process requiring them to identify users who republished the information. EFF has called on other service providers to make the same promise to notify users that Twitter has made, so that if a “super injunction” hits any other service providers, users can take steps to protect themselves.

Jillian York is the director of international freedom of expression, and Cindy Cohn is legal director, at the Electronic Frontier Foundation

The position of the media reporting

A committee investigating the growth of super injunctions and anonymised privacy injunctions has emphasised the need for open justice and public hearings.

Lord Neuberger, Master of the Rolls, formed the committee in April 2010 in response to widespread concern about secret injunctions whose very existence could not be reported.

The committee, which reported its findings at the Royal Courts of Justice on Friday, has made a number of procedural recommendations, such as the creation of a secure database tracking injunctions, and has drafted guidance for injunction applications.

The new procedure, the committee said, would enable the media to be informed about applications in advance.

The committee made a distinction between secret super injunctions, such as those protecting the oil trader Trafigura and the footballer John Terry, and anonymous privacy injunctions for which judgments are publicly available.

While the committee only identified two of the former category since footballer John Terry , the number of anonymised privacy injunctions has increased.

“Injunctions have until early 2010 been granted perhaps a bit too readily,” Lord Neuberger told the assembled media.

Neuberger said the committee was “obviously anxious that hearings take place as much as possible in public”.

Sensitive information could be dealt with by reference to a private document, he said.

Lord Neuberger found the law relating to contempt of court for reporting parliament as “astonishingly unclear”.

Questions were raised following the use of parliamentary privilege to challenge recent privacy injunctions.

On Thursday, the High Court varied the details of a privacy injunction involving the former Royal Bank of Scotland chief executive, Sir Fred Goodwin, after Lord Stoneham used parliamentary privilege to reveal more details about the injunction to House of Lords peers.

In regards to journalists circumventing injunctions by reporting a breach of an injunction in parliament, Lord Neuberger said:

“…I would not to like to pontificate about what the law is a) it does appear to be unclear and b) in due course as a judge I might be asked to rule on what it is and therefore I can’t express a view to you. ”

“It is very unsatisfactory,” he continued. “People should know where they are.”

“Historically the courts and parliament have mutually respected each others’ territory and have worked very well together.

“I have every expectation and certainly every faith that this will continue in relation to this particular topic.”

The Lord Chief Justice, Lord Judge, suggested that the internet might be further regulated for injunction breaches in future:

“I’m not giving up on the possibility that people who, in effect, peddle lies about others through using modern technology may one day be brought under control, maybe through damages, very substantial damages, maybe even through injunctions to prevent the peddling of lies.”

Since the committee hearing took place, Bloomberg Businessweek has reported that lawyers acting for a claimant known as “CTB” have filed papers against Twitter in the High Court in London.

While the document gave no details of the claim, according to Bloomberg, CTB is the set of intials used in CTB v News Group Newspapers Ltd & Anor, involving a footballer and the reality television star Imogen Thomas.

Judith Townend is a freelance journalist and PhD candidate based at City University London. Her blog meejalaw covers digital media law

Lord Neuberger’s recommendations will bring much needed clarity to the use of injunctions. There has been a widespread perception that the courts have increasingly undermined open justice and free speech in favour of privacy.

The proposals in this report will go some way towards correcting the imbalance by providing clear guidelines, reaffirming the fundamental principles of open justice and freedom of expression, and offering for the first time a mechanism for monitoring the use of injunctions.

Super Injunction Report 20052011

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