English PEN Free Speech Café 21.06.2011

Last night the Free Word Centre played host to English PEN’s inaugural Free Speech Café. The reception area was transformed into a vibrant social space, its round tables recalling the café culture of la belle époque. The panellists were elevated above the audience on a long platform, making them highly visible and accessible. The event was chaired by English PEN’s own Jonathan Heawood, who was joined by Geoffrey Robertson QC; David Price QC; biographer Miranda Seymour and Jane Haynes, a psychotherapist.

So much of the privacy debate has centred on the tabloids that it might have been easy to forget its wider implications. Refreshingly, the focus of this discussion was the issue of privacy when writing memoirs. Should people be able to tell their stories freely, or should the privacy of their subjects prevail?

Geoffrey Robertson was the first to offer his thoughts. He began with a colourful account of the history of English privacy law starting with the 1360 law against eavesdropping. He explained how a committee headed by H G Wells had produced a Bill of Rights which emphasised human dignity, which became the first draft of the Universal Declaration of Human Rights. As he reached the 70s and 80s he described the views of the “two dominant forces”, Lord Denning and Mary Whitehouse, both “middle class moralists”. They took the stance that privacy should not be protected where the parties deserved it, and that they should be exposed if they had projected an “untrue image” of themselves.

This was challenged in the 1990s where the concept of respect for privacy came back into vogue. This reflects the cyclical theory of approaches to privacy law postulated by Clive Coleman, amongst others. Geoffrey Robertson explained that in some circumstances a “reasonable expectation of privacy” is recognised. His own view was that we should follow the Duke of Wellington in encouraging post publication remedies. (Mr Robertson does indeed appear especially fond of the “Publish and be damned” quote, as I recognised it from his submissions to the ECHR in the recent Mosley case.) He finished with a word of advice to writers: “As well as libel insurance, take out privacy insurance.”

Miranda Seymour was just the kind of writer he was addressing. She explained the difficulties which she has encountered as a biographer in judging whether information is suitable for publication or whether it is private, admitting that “you can only make your best guess”. Drawing on her own experience she remarked that the rules are both “clearer and more nebulous” when it comes to one’s own family. She asserted that she “didn’t do details” and concluded that it ultimately depended on the spirit in which you publish the sensitive information.

Jane Haynes went on to explain her own professional quandaries as a psychotherapist, whose job involved encouraging people “not to confess, but to share secrets.” She revealed that 40 publishers had turned her down as it is “not considered acceptable for a practising therapist to say anything in a memoir” as it is believed that this would endanger her patients. That is why she invited her patients to be part of the creative process and encouraged them to define their own stories and reveal their own truths.

David Price picked up on this point in his discussion, claiming that information has been treated by the courts as property, so in telling your story you are effectively claiming ‘ownership’ of that information. He cut to the heart of jurisprudence, explaining the various dimensions of the law. He said that the law is “ultimately about sanction” and deterrence, that it is designed to “restrict market forces and human impulses”. He framed freedom of expression as the right to “impart and receive information” and asked what, by law, could prevent such “voluntary interaction”?

He explained the other downsides of the current state of the law, in that it is costly and uncertain, both of which contribute to self-censorship. He stated that lawyers tend to be paternalistic, and male, and claimed that British lawyers in particular are “not very good about sex” (although this particular British lawyer seemed determined to use the word “sex” as many times as possible*). For his own part, he thought that there was something in the Whitehouse/Denning approach and questioned whether privacy was “actually conducive to public life”.

When asked about the fate of the “children” involved, Geoffrey Robertson reflected a similar view, pointing out that responsible adults should think of their own children and marriage when deciding how to behave. Another audience member asked where the line was to be drawn as a historian – what was the “distinction between the truth in the past and what you can tell in the present?” Miranda Seymour maintained her earlier stance that there was “no other truth”, so it depended on the spirit in which you write. When asked whether the law recognised such a distinction, Geoffrey Robertson cited the public interest defence.

A question about how to “strengthen the hand of the PCC” in disciplining tabloids was met with some derision, and Geoffrey Robertson explained that it had no power and needed to “inspire confidence”. David Price pointed out that they lack credibility because they were not seen as impartial because they were funded by the media.

The final question to be asked was on equality before the law, and whether access to privacy should be equally distributed. This referred back to the idea of cost addressed by David Price, who explained the current situation in terms of supply and demand. Wealthy claimants are willing to pay large sums, so that is what specialist lawyers will charge. Geoffrey Robertson asserted that the press are not interested in the private lives of people who are not celebrities, so it is the celebrities who need protection. He finished with the disdainful remark that it was “pathetic to have the debate over such inconsequential matters and, sometimes, people.”

Nonetheless, Jonathan Heawood concluded that the privacy issue was looming. Referring to the Simon Singh case he jokingly invited audience members to bring a test case on the matter, acknowledging that “we will have to do something about it.”

* I’m not being a Mary Whitehouse – it was just virtually every other word in that part of his discussion.

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2 Responses to English PEN Free Speech Café 21.06.2011

  1. Adam says:

    hey nice round up of the evening. All the best sound bites made it in here! I’ll be interested to see if you manage to solve this conundrum. I guess i’d concur with Robertson’s final remark about inconsequential matters, although there’s something to be said for society’s facsination with sex and money, epitomised in the celebrity. surely that’s not inconsequential? Maybe the bigger question is about corporate accumulation of private details, or the ability to gag those who might expose corporate crimes (i’m thinking trafigura, of course). Anyway, coming at it mostly from a non-law perspective I’m happy to sit back and theorise.

    curiously enough, i believe i met you at the station, post-freespeechcafe, before abruptly boarding a train. i was browsing the English Pen twitter and what should come up but the link to your blog. Of course, that may have just been some other (media) law graduate . . .

    Adam

  2. Hi Laura – Thanks for this very useful summary! I’m glad you enjoyed the conversation – come back for more. What should we cover in the next Free Speech Cafe?

    Jonathan

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