This piece first appeared in the Observer

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