28/07/2008

“Britain now has a law of privacy,” wrote Tim Luckhurst in The Guardian last Thursday. He used that bald statement for emphasis but one worrying aspect of the Max Mosley case was that some journalists appeared not to know it.
 
For seven years, I have been telling the editors, news editors and reporters who attend my Real Law for Journalists course about this developing law of privacy. There is no shortage of case studies: Naomi Campbell, Catherine Zeta-Jones and Michael Douglas, Prince Charles and Loreena McKennitt, among others.
 
Look at what Mr Justice Eady said in his Mosley judgment: “There is nothing 'landmark' about this decision. It is simply the application to rather unusual facts of recently developed but established principles.”
 
Or what media lawyer, Dan Tench, said The Guardian: the decision “represents the culmination of nearly a decade of steady development of privacy law”.
 
Tim complained: “Parliament has not legislated and the people have not given their consent.”

Not entirely true: the 1998 Act enacting into UK law the European Convention on Human Rights, on which Mosley’s case largely rested, was debated in Parliament. Indeed, section 12, which enhances protection against injunctions or interdicts to stop publication, was inserted after media representations.
 
It is not just the Human Rights Act that can protect privacy, though. The Data Protection Act and the law of confidence have both been used.
 
Yes, a specific privacy law passed by Parliament would have been preferable, but who campaigned vigorously against such an idea? The media. This ‘head in the sand’ attitude is largely responsible for the gap being filled by judge-made law, either at UK or European level.
 
Ironically, one of the tactics used to fend off privacy legislation was to replace the ineffective Press Council with the arguably more effective Press Complaints Commission. Its editors’ Code of Practice was not intended to have legal effect but the world moved on while the Press fiddled.
 
So in cases relating to privacy and intrusion, it is not unknown for courts – as did Mr Justice Eady – to look at the Code to see if papers have met the standards laid down by their own industry. On privacy, the Code uses similar wording to the European Convention and editors must justify intrusions into private life without consent.
 
Misrepresentation or subterfuge can be justified in the public interest when the material cannot be obtained by other means. The public interest “includes, but is not confined to”, three areas: “detecting or exposing crime or serious impropriety, protecting public health and safety, and preventing the public from being misled by an action or statement of an individual or organisation.”

Mr Justice Eady would have had no problem with the first area, insisting the case was unlikely “to inhibit serious investigative journalism into crime or wrongdoing, where the public interest is more genuinely engaged.”
 
Although News of the World editor, Colin Myler, at one point thought Mosley’s orgy had a “potential criminal flavour”, his main justification involved the third area: preventing the public from being misled by an action or statement of an individual or organisation.
 
Even Mr Justice Eady said that if Mosley had been mocking or parodying the horrors of the Holocaust, there could be a public interest in revealing it, at least to those to whom he is accountable. “He has to deal with many people of all races and religions, and has spoken out against racism in the sport.”
 
So, if there had been a Nazi element, “that would, for many people, call seriously into question his suitability for his FIA role. It would be information which people arguably should have the opportunity to know and evaluate.”
 
The PCC would still require that the material could “not be obtained by other means”. I once heard a lawyer – who had clearly never worked in a newsroom – suggest asking for the information first and if the subject refused, then using subterfuge.
 
More realistically, I suggest to those attending my courses the procedure I use myself. I discuss the issue with my commissioning editor, including alternative means of obtaining the information, and confirm this in writing, if only by e-mail. This establishes we have deliberated, however briefly, on the public interest and alternatives to subterfuge.
 
That leaves the problem of how you can know a story is in the public interest until you investigate, perhaps using subterfuge.
 
Mark Stephens, Head of Media at Finers Stephens Innocent, raised the question in the Daily Telegraph of whether “an honest and reasonable mistake” could be protected by the equivalent of the ‘Reynolds defence’.
 
First used by the Sunday Times defending a libel action by former Irish Taiseoch, Albert Reynolds, it was confirmed less than two years ago in Jameel v Wall Street Journal Europe, effectively recognising qualified privilege for serious news reporting.
 
Five House of Lords judges unanimously agreed the Journal was right to publish a defamatory story it could not prove. Lord Hoffman said it could report serious defamations if they “made a real contribution to the public interest element in the article”, adding the question was “whether the defendant behaved fairly and responsibly in gathering and publishing the information.”
 
Again ironically, the decision overturned an earlier decision of Mr Justice Eady.
 
Francis Shennan is an award-winning journalist who has lectured on Media Law at Napier, Strathclyde and Glasgow Caledonian Universities, and has just been invited to lecture on Strathclyde's new Masters course in journalism. He has run law courses for Associated Newspapers, Johnston Press in Scotland and England, and the NUJ, and his other courses include Media Law for PRs, The Effective Freelance and Copyright and Commissioning.


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