Striking a balance on privacy
Eric Barendt asks if a privacy statute would help the courts weigh freedom of speech and privacy
05 Feb 10

Eric Barendt

Eric Barendt asks if a privacy statute would help the courts weigh freedom of speech and privacy

I am starting from the fundamental point that in both libel and privacy cases the law has to balance two important human rights; on the one hand, freedom of speech and of the press, and on the other hand personality rights to reputation or to privacy. The European Court now treats reputation as an aspect of the right to respect for private life guaranteed by article 8 of the convention on human rights, so in libel, as in privacy cases, the courts here must balance two rights of equal value and weight under the convention. Neither right is absolute or entitled to automatic priority over the other. The press and other media — Carlyle’s Fourth Estate — are just as powerful as government, so it is right for the Strasbourg Court and our courts to protect the individual against their incursions on individual privacy as they do against infringements by government.

In Jameel v Wall Street Journal Lord Hoffmann suggested: “Until very recently the law of defamation was weighted in favour of claimants and the law of privacy weighted against them…” But the House of Lords in the Naomi Campbell case had attempted to redress the balance in favour of privacy, and in Reynolds it had redressed it in favour of greater press freedom to publish stories of genuine public interest. Does English law strike the balance correctly in libel and privacy cases? My view is that it does not do this well in libel law, but does in privacy cases. One point is that in libel cases the free speech and free press arguments are usually stronger than they are in privacy cases, first because defamatory allegations concern the claimant’s public standing in the community and secondly because they often, if not always, raise matters of genuine public interest.

Libel law
In view of the concern about impact of libel law on not just the media, but on academics and science commentators who are increasingly subject to libel actions, I think the time is ripe for fresh consideration of this area of law — both the substantive and procedural law. I would myself emphasise three points in the recent report by Pen and Index on Censorship, Free speech is not for sale:

1. Putting the burden on the claimant to show falsity, perhaps even to show negligence. If we require personal injurires claimants to prove that the defendant drove carelessly or to show medical negligence, would it be wrong to require a libel claimant to show irresponsible journalism, at least if damages are claimed?

2. There is no reason why companies should be entited to the protection of the libel laws, which should be concerned to protect the dignity and reputation of individuals. The capacity of corporations to bring libel actions should be curtailed. That is what has been done in the Australian Defamation Law 2005, which precludes such actions by companies with more than 10 employees, unless they can show malice, as in malicious falsehood actions. I understand from Australian defamation lawyers, that the reform, initially controversial is now widely accepted, and has given the media more freedom to report on business and financial affairs This change would save us from future McLibel cases.

3. It should be much easier and cheaper to resolve defamation actions through mediation and an emphasis on remedies other than an award of damages. A simple admission by the press that it got things wrong, and/or a declaration of falsity is what most claimants want.

I welcome the stronger protection given by the courts in the last few years to privacy and against the misuse of personal information. Privacy is a fundamental human right, which everyone, including politicians, is entitled to assert, sometimes to stop a publication seeing the light of day. I do not think we have a right to know about the private life, sexuality, or sex life, of politicians and public figures unless there is some indication that this affects the discharge of their public duties: we are all entitled to say to the media, Mind Your Own Business. The public would not have been better off if, to take just two examples, it had known that David Lloyd George was conducting an affair with his secretary from 1916, or that John F Kennedy, both as candidate and President, had a series of such relationships. If the law allows the media carte blanche in this area, we run the risk of hounding out some people from public life and deterring others from entering it.

1. The courts here generally get matters right when they balance freedom of speech and privacy but I do favour a privacy statute for two main reasons: First, though it might make little difference to the law in practice, there is some value in parliament declaring in effect that privacy is a fundamental value.

2. The law could usefully set out the terms of a free speech defence to privacy actions, by providing in a non-exhaustive list the circumstances in which the press and other media could argue that publication was in the public interest. The public interest provision in the PCC Code shows how this could be done — for example, it makes it clear that it is a defence if publication reveals crime or prevents the public from being misled.

So passing a privacy statute might actually work on occasion to the advantage of the press as well as providing clarification of the general state of the law. But the truth is that government and parliament are terrified of the press, so it is improbable that whatever political party forms the next government, we will see the introduction of privacy legislation.

Eric Barendt is the Goodman Professor of Media Law at University College London. This is an edited extract of a speech he delivered last night at Gray’s Inn.