Injunctions are a necessary evil: Privacy, free speech and a feral press

Last night’s debate at the LSE was the perfect event to launch the latest issue of the Index on Censorship magazine, “Privacy is dead! Long live privacy.” Impeccably hosted by the magazine’s editor, Jo Glanville, the illustrious panel consisted of Hugh Tomlinson QC, David Price QC, Max Mosley, and award-winning columnist Suzanne Moore. The four entered into a lively, engaging and thoroughly entertaining discussion of whether injunctions are, in fact, “a necessary evil”.

First to speak was the much maligned Max Mosley. Unsurprisingly, he argued in favour of injunctions, on the basis that once your privacy has been breached, “no power on earth can make (that information) private again”. He claimed that privacy is a fundamental human right, and if we accept that this is the case, we “absolutely have to have injunctions”, particularly in the age of the internet. He stated that there is “no remedy in British law for breach of privacy”, or at least none which is adequate. Mosley said he could not see what the problem with injunctions was, especially since the “law is weighted heavily in favour of the media” by virtue of section 12 of the Human Rights Act 1998.

He went on to explain his controversial pursuit of prior notification. He pointed out that you don’t have the chance to take out an injunction if you don’t know that the newspaper intends to publish details of your private life. Acknowledging that prior notification had only been absent in a small minority of cases, he maintained that for those people the effects could be “devastating.” He gave the hypothetical example of a newspaper broadcasting footage of a celebrity couple having sex in a hotel room and the couple only finding out when they saw it in the paper.

David Price QC was quick to point out that this situation would never actually arise.  He began his comments by asking what “privacy” and indeed “law” really mean. He too addressed the issue of enforceability. He said that it was about having a legal sanction. He reasoned that “if we have a feral press it is because people like to read” what they print, and that we are all “curious about sex.” The only way to stop this exchange of information between two willing parties is to create legal constraints.

The efficacy of such a sanction “depends on whether you have the power to keep the information from coming out”. His view was that an injunction “only has bite in this country and for people who are afraid of the sanction.” This was one of the many limitations he pointed out, which included cost, uncertainty and the administration of the law by paternalistic judges.   

Hugh Tomlinson QC addressed the question very logically. He said that privacy injunctions against the press are necessary and are an evil. They are necessary, he argued, because the press trade on people’s private lives, and evil because we would prefer not to have censorship. Whilst recognising that “private life” is a “difficult concept”, he postulated that there are certain core meanings. Likewise, he said that the boundaries of the public interest were “fairly clear cut” and quoted from the PCC code. On the question of efficacy, he opined that the law should still try to do something, even if this may ultimately prove to be ineffective. That is why he thought that Parliament should intervene, but pointed out that the press have been campaigning to prevent them from enacting such legislation, which would give the protection of privacy democratic legitimacy.

The final panellist to speak, Suzanne Moore claimed that the “notion of privacy” has changed over time, contrasting contemporary opinions with those of the 1990s. This is a trend which has been noted by other commentators, including Clive Coleman. She said that when politics moved to the centre this change introduced the policing of morality. Further, she explained that the concept of privacy had changed with the dawn of new technologies. She criticised judges for their “arrogance” at supposing they can administer law about social media without learning about it themselves. This was evinced by Max Mosley’s later suggestion that “no one takes Twitter seriously”.

There followed an insightful series of questions for the panel, posed both by Jo Glanville and members of the audience. Hugh Tomlinson highlighted the importance of a “dynamic social debate to which we can all contribute.” Discussing the Fred Goodwin case, David Price agreed with the host that this information was in the public interest, because Mr Goodwin was in a position of power where tax payers’ money was at stake. He questioned whether we should really “confer the right on a man having an adulterous affair to choose who finds out about it”.

Max Mosley continued this point, asking more generally who should decide where the line between public and private lies. He said that tabloid editors could not be trusted to make such decisions when they operated within “criminal enterprises”. “How could you put anyone’s privacy in their hands?” he asked despondently.

David Price suggested that the people who decide are those who buy the papers, and asserted that he would “rather have a feral press than a supine press”. This led to a discussion about deference, with Suzanne Moore saying that the press have deferred too much to authority. David Price referred to the “massive power struggle” between politicians, the media and the judiciary, and emphasised the importance of the separation of powers. Hugh Tomlinson made a final constitutional remark, endorsing Moore’s proposal of a “pact” between the media and the public: “Society only works if there’s consent.”