Tuesday, May 24, 2011

Where should the right to privacy begin and the right to speak freely end?

I'm a strong proponent of freedom of speech. I cannot and have no wish to deny this. The Paul Chambers so-called "Twitter Joke Trial" has shaped my views in this area. I have even at times half seriously referred to myself as a free speech fundamentalist, although in reality I am not. I understand that there are and ought to be limits imposed on what a person can say. These limits depend mainly upon the context of the speech act in question and the rights of other people. I have the right to say something that you find offensive. You do not have the right to be free from offence. You have the right not to be threatened and abused. I do not have the right to direct threatening and abusive language at you. The right to privacy is enshrined in the laws of many countries, including the United States and every member of the European Union. The European Convention on Human Rights, which is implemented in the UK by the Human Rights Act 1998, specifies among other things the rights to free expression and privacy. Naturally these two rights are often in tension. When this happens the judiciary must apply a consistent approach to deciding which of the two should take precedence in any given case. The case of CTB v News Group Newspapers has presented a unique challenge to the judiciary for reasons that I do not wish to explore in great detail; however, I want to talk about this case in particular because I have a view of privacy that seems to differ sharply from the judiciary in this country and in Strasbourg. Quite to my surprise, my view of privacy also seems to differ from some of my friends who otherwise have very similar views to my own where free speech is concerned. Before I go any further, let's look at the text of Article 8 of the ECHR which is implemented in HRA98:

  1. Everyone has the right to respect for his private and family life, his home and his correspondence. 
  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
There are two separate statements here. At this point I need to make clear that there is no public authority attempting to interfere with the privacy rights of CTB. Instead, we have a newspaper group and a private individual who wish to breach the privacy. Because of this, the second statment has no bearing on the case. The first statement says "Everyone has the right to respect for his private and family life, his home and his correspondence." The facts of this case are very roughly as follows: A woman called Imogen Thomas had an alleged affair with a professional football player who is married with children and who wishes not to be named; Imogen Thomas desires to tell the story of her relationship with the football player identified in the court documents as CTB and News Group Newspapers Ltd. wishes to purchase the story for publication in their newspaper, The Sun; The claimant CTB sought and Justice Sir David Eady granted on the 14th of April 2011 a temporary Anonymised Injunction preventing the disclosure of the claimant's identity. In his judgement, Eady cites evidence before him, tending to suggest blackmail, as one of the major reasons for the granting of the injunction. He is quick to point out that the evidence has not been properly tested and that he cannot come to any final conclusion at that stage. (See para 9). The evidence also appears to suggest that Newsgroup were using Imogen Thomas with her consent to set a trap for the claimant in order to obtain additional materials for their story. Because of this, Eady felt it was reasonable that the claimant be excused from serving the respondent Imogen Thomas in advance of the 14 April hearing (see para 12). What this effectively means is that Imogen Thomas was unaware of the action until she was served with the injunction and was not afforded the opportunity to state a case. She was at that point and is still muzzled from revealing the identity of the sports star with whom she had an affair, to any party other than advisors and close friends and family (I am led to believe), who are then also bound.

Case law and what is referred to as "the new methodology" (para 23) requires first that the court decide whether the subject matter of the threatened publication gives rise to a "reasonable expectation of privacy". In this case Eady feels (and is indeed supported by case law) that there is no doubt on that score, as it is concerned with "conduct of an intimate and sexual nature and, what is more, there has been no suggestion in this case that the relationship, for so long as it lasted, was conducted publicly". Here is where I find myself differing sharply with the judge (and evidently also case law). I do not believe that conduct of a sexual nature is necessarily intimate, nor do I believe that the fact of such a relationship is necessarily entitled to privacy. The salacious details of such a relationship may well be, be not the fact of it. What I see here is that there was a relationship involving two people and one of them wishes to keep it secret while the other wishes to disclose it. I would argue that contrary to intuition, there is a greater expectation of privacy in a relationship that is conducted publicly. That is because in a secret relationship such as this between one married and one unmarried party, the former is at great risk from exposure while the latter is not. It is hard for me to see how such a relationship could foster the necessary levels of trust in order to be regarded as intimate. The view (no matter how sincerely held) on the part of CTB that the fact of his relationship with Imogen Thomas should be accorded protected status should she wish to reveal it does not therefore seem reasonable to me. As such, if it were up to me this application would have fallen at the first hurdle. That she should be even temporarily prevented from disclosing personal details of her own life because of a perceived obligation of confidence that she owes to the claimant strikes me as wrong and also dangerous. It is made worse by the fact that once the information was already leaked to the wider public, the further dissemination of that information was and still is in contempt of court. In my opinion Article 8 should not generally be used to prevent one from revealing information concerning the activities and aspects of one's own life even where it intersects with another. This should be a matter of ethics, not a matter of law. Article 8 should rather be used to prevent and/or remedy unauthorized access to private information about a person, i.e. blatant press intrusion into the private sphere. Examples of this might include a journalist going through someone's rubbish bins, or a newspaper using fraud and deception to obtain information. If the allegations against NGN and Imogen Thomas are true, then this is indeed a very serious breach of privacy and is indeed also attempted blackmail. However, Imogen Thomas was not afforded the opportunity to state a case when the injunction was granted and so the evidence before the judge was one sided. It is therefore in my opinion wrong to gag her. The final paragraph of the judgement is one I find particularly galling:

Moreover, in so far as Ms Thomas wishes to exercise her Article 10 right by selling her life story, she is entitled to do so, but only subject to the qualification that she is not thereby relieved of any obligation of confidence she may owe, or free to intrude upon the privacy rights of others: see e.g. McKennitt v Ash, cited above, ...
The implication is that since CTB does not wish to be named as having had an extra-marital affair with Ms Thomas, she may never publicise this information, regardless that it happens to be true and a part of her own life. I'm sorry, but no. The information was lawfully obtained as the result of shared experiences and she is an autonomous human being. Because of this I also take issue with paragraph 33:

It follows that one can rarely arrive at the answer in any given case merely by reference to generalities. It must all depend upon the particular facts of the case. It follows too that there can be no automatic priority accorded to freedom of speech. The relative importance of the competing values must be weighed by reference to the individual set of circumstances confronting the court. Of course the court will pay particular regard to freedom of expression, but that does not entail giving it automatic priority. All will depend on the value to be attached to the exercise or proposed exercise of that freedom in the particular case. It will rarely be the case that the privacy rights of an individual or of his family will have to yield in priority to another's right to publish what has been described in the House of Lords as "tittle-tattle about the activities of footballers' wives and girlfriends": see e.g. Jameel v Wall Street Journal Europe SPRL [2007] 1 AC 359 at [147]. It has recently been re-emphasised by the Court in Strasbourg that the reporting of "tawdry allegations about an individual's private life" does not attract the robust protection under Article 10 afforded to more serious journalism. In such cases, "freedom of expression requires a more narrow interpretation": Mosley v UK (App. No. 48009/08), 10 May 2011, BAILII: [2011] ECHR 774, at [114].
The problem with this is that the "tittle-tattle about the activities of footballers' wives and girlfriends" and the "tawdry allegations about an individual's private life" should not be regarded solely as the object of journalism. They are first and foremost the reflections of a party to the "tittle-tattle" who ought to be permitted to speak about them. If a newspaper wished to publish some details that no other party wished to have told, then I can follow that reasoning. The paragraph is referring to the newspaper's freedom of speech as pertaining to the publishing of information it has obtained. It is another matter when applied to Ms Thomas' freedom to recount her life. If there was some way to prevent newspapers from publishing the information while still preserving Ms Thomas' right to communicate it freely, then that would be far preferable. The fact that the information is not in the public interest is to my mind immaterial. It should be Imogen Thomas' right to speak freely as an interested party. It seems to me that Eady's interpretation is that Ms Thomas should not even be permitted to publish a personal blog of her account. Had she done so before the injunction was granted, she would have been in breach of CTB's Article 8 protections. I do not agree.

The issue has been raised a number of times surrounding the right to privacy that the family of CTB deserve. The revelation of the affair could have potentially devastating effects on their private family life, including severe marital distress and teasing and bullying of children in the playground. I appreciate this and it is indeed sad that our attitudes to marriage and sex can cause such harm to others. However, I see this as an indirect consequence of the revelation of the affair, which is after all a consensual relationship between two people who knew the risks should the truth come out. As much as we would like to believe that we can always shield our family from the consequences of our actions, this is simply not practical in real life. A husband, wife, father, mother, son or daughter may be convicted of a crime for which they are incarcerated for a length of time. Certainly this will have serious and profound negative implications for private family life. Likewise will a serious illness. However, it is folly to think that we should fail in our duty to carry out justice or communicate unpleasant news because of the harm it may cause to some. For perfectly innocent reasons, parents may get divorced and the children may suffer as a result. Children may be bullied for all sorts of other reasons that are not within our control. It is unpleasant, but as parents we must try to raise our children to deal with the things in life that are not fair. Kids are tough. Adults are too. With proper support they can get through difficult times with surprising resiliency. The results can even be beneficial ultimately. It is in my opinion a serious over-reach of the judicial system to interfere with speech for the purposes of preventing any harm that speech may indirectly cause to someone else owing to social attitudes. So long as parents are fit to raise their children, it is not for a judge to decide what is best for them.

In conclusion, I think these privacy injunctions are handed out too freely. They have also been shown to be farcically ineffective in the age of social media. There may be some use in certain narrow cases, but I don't think this case calls for one. Certainly the idea that an injunction can prevent blackmail seems ludicrous. Blackmail is about coercion in exchange for keeping quiet. Once the "cat is out of the bag", the blackmail game is up. Why not instead build a case for the charge of blackmail? The threat of an attempted blackmail charge with sufficient evidence to back it up ought to accomplish the same goal. Privacy is important to protect pre-emptively though. You cannot put the genie back in the bottle. So what can we do about it? First of all, I think we should review our interpretation of Article 8 which I feel has been too broad. Second, perhaps instead of a gagging order we should allow relief in the form of a court resolution which states that there has been accepted an objection to the publication of information which is deemed to be private and believed to have been obtained without authorisation. The resolution would make clear that publication of the information covered would incur greatly more severe penalties, both civil and criminal, should it be found at a later date to have been obtained unlawfully. This might give tabloid newspapers and "gold diggers" like Imogen Thomas some pause.