You may have been among those who took a slightly sadistic pleasure in the recent attempt by the News of the World’s undercover reporter Mazher Mahmood, the ‘fake sheikh’, to prevent the MP George Galloway from publishing photographs of him on the internet. But those who are keen to see privacy protected by law were making a mistake if they cheered or jeered at the court’s refusal to protect Mr Mahmood from the kind of exposure to which his paper regularly subjects others. The real coup would have been if the court had accepted his counsel’s argument that the unwanted publicity violated Mr Mahmood’s right to respect for his private life and Mahmood v Galloway had become authority for a freestanding right of privacy.
What I want to consider in this lecture is what is happening, and what needs to happen, to the legal protection of personal privacy and personal reputation in the United Kingdom, though the law I shall be talking about is the law of England and Wales and not – where it differs – of Scotland or Northern Ireland. I want to suggest, first, that privacy – prominently but not solely private sexual activity, which sells so many newspapers – is something which our law does not yet adequately protect; but secondly, that the law of libel in one important respect – cost - at present over-protects personal reputation at the expense of free speech. Thirdly, however, and before journalists cheer too loudly, I want to suggest that deterrence, which is a necessary part of the protection of reputation and arguably of privacy too, is best handled by an independent statutory regulator. Lastly I want to suggest that the electronic surveillance which is now an almost ubiquitous invasion of privacy is also a candidate for regulation rather than litigation. In other words, and although you will rightly have suspected that I have included sex in the title simply to try to fill the lecture theatre, my subject, with apologies to Steven Soderbergh, is indeed sex, libels and video-surveillance.
The protection of privacy was largely left by the common law to the law of trespass. If, as Lord Camden said in the North Briton case, the eye cannot trespass, the answer was to build a wall. If you had no property you had no privacy. The law was still no better advanced when in 1990 the actor Gordon Kaye, who had been lying seriously ill in hospital when journalists in search of a story conned their way into his room, tried to get some redress. His counsel conceded, and the court evidently accepted, that there was no simple right of privacy in our law, though the materials were ready to hand from which to deduce one. Kaye ended up with a finding against the defendants of malicious falsehood, about as irrelevant to what had happened as one could imagine.
The doctrine of breach of confidence also affords protection to those who can establish some proprietary or moral claim to the disclosed material or information. Prince Albert was able on this basis to restrain the publication of an unauthorised catalogue of his and Queen Victoria’s etchings. His great-great-great grandson has recently been able by the same means to halt the unauthorised publication of his private diaries. But the protection of confidential information is not a right of privacy.
As the case for a domestic bill of rights gained ground during the 1990s, I was not the only person expressing scepticism of its value to any but the powerful. It was still unclear in any event whether the Convention’s requirement of respect for private life bound anybody but the state. And experience – especially of libel litigation – suggested that it was those with the longest purses, the loudest voices and the sharpest elbows who would be at the head of the human rights queue. Advocates of the change – the shrewder ones at least - accepted this but argued that through the doors the powerful opened would come more modest people whose human rights mattered at least as much.
Sure enough, in November 2000, the month after the Human Rights Act came into effect, Michael Douglas and Catherine Zeta-Jones arrived in the Court of Appeal, seeking to hold the emergency injunction granted to them and to OK! magazine to stop OK!’s rival Hello! from publishing unauthorised photographs of the Douglases’ wedding in New York. Although the court, of which I was a member, discharged the injunction for other reasons, it seemed to me (and I said) that it was going to be respectably arguable when the case came to trial that, whatever the situation now turned out to be under the Human Rights Act and the Convention, the Douglases had a right to privacy which had been violated, because the common law had now developed to a point where it could protect personal privacy without having to construct an artificial relationship of confidence between the parties.
Within a few weeks, the President of the Family Division, basing herself in part on our decision, granted worldwide injunctions to prevent the tabloid press from carrying out its threats to expose the identities and whereabouts of the two boys who had killed the toddler Jamie Bulger and were now about to be released. Nothing in her decision turned upon a confidential relationship – for there was none – between the youths and the press: what mattered was the nature of the information and the risk it posed to their privacy and safety. Sceptics like myself who had feared the emergence of a human rights oligopoly fell silent.
But when, in 2003, a paradigm opportunity to acknowledge a true privacy right came before the House of Lords, it was turned down. At a date shortly before the Human Rights Act came into force, Mrs Wainwright and her handicapped son had been illegally and demeaningly strip-searched on a prison visit. In what had therefore to be a claim at common law, the son was able to recover some damages for battery; but the real wrong done to both of them was the violation of their personal dignity and autonomy, the core values of a privacy right. The House, in a decision which, if I may say so, would have brought tears of joy to the eyes of Professor Francis Cornford, whose satire on university politics, Microcosmographia Academica, had almost a century earlier advanced the axiom that one should never do anything for the first time, declined to allow such a claim to enter the common law. Adopting the common law’s curious reverse chronology, the House “reject[ed] the invitation to declare that since at the latest 1950 there has been a previously unknown tort of invasion of privacy”. The result was that it was still only where by some artifice of reasoning a violation of privacy could be allocated to a relationship of confidence that the common law would intervene.
So it was not the Human Rights Act but the common law which let the Wainwrights down. But hard on the Wainwrights’ scuffed heels came invasions of privacy which post-dated 2 October 2000, the day when the Human Rights Act came into force. In dealing with these, the courts have recognised that the Act now requires us to bring the Convention values into our law – not only the privacy value contained in article 8 but the free expression value contained in article 10. The problem has been how soon, how much and how far.
It was while the Wainwrights’ case was pending in the House of Lords that the Court of Appeal lifted an injunction granted to a footballer, Garry Flitcroft, widely known as Garry Who? Flitcroft, a married man with two young children, had had affairs with two women who had sold their stories to the Sunday People.
The salacious story which the lifting of the injunction allowed the Sunday People to publish, and which the court had seen in draft, had no news value whatever. As for the customary claim, which the court seems to have accepted, that the revelations served the high purpose of exposing the flaws in a young persons’ role model, one has to wonder what our moral custodians imagine goes on in young people’s minds. Possibly – just possibly – a certain number of boys want to grow up playing football like Garry Flitcroft. Is the revelation in the family’s Sunday paper that he has been sleeping with a lap dancer going to make them switch to, let us say, Wayne Rooney as their preferred role model? Or is it conceivably going to suggest to them that the great thing about being a professional footballer, or any other kind of media star, is that you can sleep with just about anyone?
The Court of Appeal held that this was not the courts’ business. “The fact that a more lurid approach will be adopted by the publication than the court would regard as acceptable,” they said, “Is not relevant.”
It is entirely right that the court has no role as a censor of taste. The right to give offence is a precious component of freedom of expression. But was the question one of taste, or was it a whether the substantive content of the article was such as to outweigh Gary Flitcroft’s privacy rights? It might well be that a revelation that a professional footballer has been gambling on his own team’s fixtures would carry such weight. It is less obvious that how he performs in bed (or, in Flitcroft’s case, elsewhere) with a woman who is not his wife does so, even if it makes him - in the paper’s lofty prose - a serial love rat whose infidelities need to be made known to several million people along with his wife.
And is it really the case that the courts abstain from moral judgments? Equity’s test of conscience as a ground for intervention or non-intervention is moral to its core. (As a young barrister I once failed to get a student reinstated by the High Court, despite his having been sent down without a hearing, because what he had done – practising group nudism on the campus – was beyond the moral pale of the law.) Public law will treat as void decisions which flout not only legal but accepted moral standards. Criminal law has been classically described as the enforcement of morals. And the Flitcroft decision itself drew a moral distinction between extra-marital relationships and events occurring within marriage. The court accepted as a counterweight to the footballer’s privacy rights the fact that the other party to the relationship (who was being handsomely paid for it) was courting publicity; but, echoing the Duke of Argyll’s successful endeavours in the 1960s to stop the Duchess revealing some of the seamier sides of their relationship, it drew a careful distinction between Flitcroft’s affairs and the situation where the parties to the revelation were married to one another. Marriage thus remains in legal principle an enclave of privacy. If, as a consequence, a celebrity whose wife goes to the press because he subjects her to sexual indignities finds it easier to get a gagging injunction than if she had been his mistress, it is because the court has drawn a moral line around marriage. The line may be defensible – that can be separately debated – but the hand that has drawn it is without question the hand of public morality.
There is another moral dimension to the Flitcroft case. The Flitcrofts had two young children. There is no way that the publication of their father’s infidelities in the Sunday papers would not have come to the knowledge of their schoolmates, if and when they were of school age, and of their friends and their friends’ parents. What consideration are such children entitled to? Except by its silence, the decision does not tell us. It does, however, assert that if the interest of the public in a story is understandable, it is legitimate, and that if the press is prevented from publishing such information “there will be fewer newspapers published, which will not be in the public interest”. These considerations are unlikely to survive the recent jurisprudence of the European Court of Human Rights, to which I am coming.
What the Flitcroft case also did, however, was acknowledge that the existing cause of action for breach of confidence must now be strengthened and broadened to accommodate the countervailing guarantees of privacy and free speech in articles 8 and 10 of the Convention. The acknowledgment did not save Garry Flitcroft, but it did, not long afterwards, come to the aid of the model Naomi Campbell, who had been demeaningly doorstepped when the press got wind of the fact that she was being treated for a drug dependency that she had publicly denied. Although the House of Lords were split on whether what had happened to her entitled her to a remedy, they were unanimous that, while invasion of privacy was still not a freestanding tort, breach of confidence now had to include unjustified invasions of privacy. Lord Nicholls was prepared to go so far as to rename the tort ‘misuse of private information’.
One critical thing had happened almost by stealth in the course of these early but rapid developments under the Human Rights Act: it had become accepted in practice, and was now openly acknowledged in principle, that the Convention rights – at least in this area – operated not only vertically as between the individual and state but horizontally as between individuals, or between individuals and corporations. The heated doctrinal stand-off which had accompanied the introduction of the Act, between those who considered it to be limited to the activities of the state and those who held it to be universal in application, had been resolved by the logic of events into the cascade effect of Convention values which I and others had, it seemed for a time too optimistically, forecast.
By the time, last year, that the Douglases’ case returned to the Court of Appeal following the trial of the substantive issues and the quantification of damages, the law had thus reached the position that invasions of privacy might be actionable as breaches of confidence so long as nobody actually spoke the P word. “We cannot pretend,” the Court of Appeal said on its second deliberation on the Douglases’ wedding photographs, “that we find it satisfactory to be required to shoe-horn within the cause of action of breach of confidence claims for publication of unauthorised photographs of a private occasion.” But it would be idle for me to build anything on the decision, despite its admirable conspectus of the present state of the law: leave has been given to appeal to the House of Lords, where the exegetic and analytical efforts of the Court of Appeal tend to become one with Nineveh and Tyre.
One apparently incontrovertible thing the Court of Appeal’s recent decision in the Douglas case has recognised, however, is that the jurisprudence which article 8 and article 10 are feeding into our domestic law has itself moved on dramatically. Princess Caroline of Monaco, now a German citizen, had been pestered for years by paparazzi and magazine journalists and, with a determination that only the well-off could afford, had tried with incomplete success to stop it through the German courts. In a series of decisions and appeals they had held that she was entitled to respect for her privacy in an enclosed restaurant garden, but not in a crowded public restaurant or a market or even when photographed at long range within the curtilage of a beach club. The European Court of Human Rights, to whom she finally went, would have none of this fine line-drawing. It drew a single distinction between facts capable of contributing to public debate in a democracy and details of the private life of an individual, even a well-known one. Individuals, it held, had a legitimate expectation that their private life, whether in a secluded or a public place, would be respected, because it was something in which the public had no legitimate interest unless genuine public debate required it. What was more, the state had a positive obligation to ensure that this expectation was respected. The Court refused to treat Germany’s departure from Convention norms as lying within the state’s margin of appreciation (a device which it has used in the past to avoid interfering with intolerant national decisions in free speech cases).
In spite of a great press clamour (“Europas Richter hebeln die Pressefreiheit aus” said the sober Frankfurter Allgemeine Zeitung), Germany has decided for the time being to live with the decision. But its implications for our own law are far-reaching. They make it extremely doubtful whether the Flitcroft case could now be decided as it was. They require the courts, as the limb of the state in whose custody the common law rests, to protect people’s privacy against any incursions which are not justified by the free speech requirements of genuine public debate. And they suggest that the use of article 8 simply to plug gaps in the law of confidence, in the way proposed in the Wainwright case, will not do. That, at least, is how it presently appears.
Whether it is so and whether, even if it is so, we shall now be allowed to speak the P word, remains to be seen. There are well-recognised constitutional objections to the creation by the courts of new torts. There are fewer such objections to the development, and even the renaming, of old causes of action to meet new conditions. A Victorian lawyer would have been puzzled to hear of an action for restitution, though he would have recognised it at once when it was explained to him. What he would not have recognised is its modern ambit and coherence – a product of the constant process of innovation which the common law never likes to acknowledge until it has happened.
Yet the situation we have now reached, where privacy is entitled to the protection of the law in everything but name, reduces the distinction between development and innovation to an abstraction. Perhaps we can take courage from the example of other states. In Italy, South Africa and New Zealand it is the judges who, frequently drawing on other countries’ jurisprudence, have created or at least acknowledged a legal right to privacy. The German basic law, like the US constitution, contains no frank privacy right, but where the American courts have let their common law privacy rights wilt in the shadow of the First Amendment, the German courts have extracted from the constitutional protection of individual integrity a qualified right (somewhat over-qualified in Strasbourg’s view) to be let alone. France, which between 1868 and 1881 actually had a press law that criminalised the publication of any facts relating to private life, in 1970 enacted Article 9 of its Civil Code which guarantees everyone the right to respect for their privacy. Its courts had in fact already moved into the arena. In 1897 the Paris court of appeal had ordered Whistler to hand over to Lady Eden his portrait of her, on the ground that her personality right in it overrode his proprietary right to it. And in an odd anticipation of the Gordon Kaye case, the same court in 1965 imposed sanctions on the photographing of the son of the actor Gérard Philippe in a hospital bed. But the European Court of Human Rights has halted the over-protection of privacy by French law: it has recently held that the courts, by banning publication of a posthumous account of President Mitterrand’s long struggle with cancer, albeit acting in the interests of privacy, had violated the authors’ and publisher’s free speech rights in relation to an issue of genuine public interest.
It would be better, for obvious reasons, if Parliament were to lay down the balanced protection which our international obligations now require. But because politicians, for reasons one doesn’t have to explore, don’t want this job, the courts are likely to find, as with other sensitive issues such as termination of life support, that when the music stops the parcel is in their lap. Nobody in modern times has wanted to open it: the Younger Committee in 1972 thought it would all be too complicated, and more than one judge who has argued extra-judicially for a privacy right has felt unable to advance the project judicially. If the European Court of Human Rights has now required us to take the project up again, the case-by-case development of a privacy right by courts which are equally the custodians of the right of free expression may not be a bad way to proceed. Other judiciaries, albeit inevitably in reactive mode, have found principled ways of holding the two things in balance; and, while parliamentary intervention may well be preferable in principle, nobody familiar with the intractabilities of legislation written under the customary delusion that all problems can be anticipated could suppose that a proleptic statute will necessarily do the job better.
In contrast to its slow recognition of personal privacy, the common law’s piecemeal protection of personal integrity has always (‘always’ is the adverbial wand with which the common law makes its own historical contingency vanish) included the protection of reputation. In less inflationary days, Hilaire Belloc’s cautionary tale of Lord Henry Chase set the tone:
What happened to Lord Henry Chase?
He got into a Libel Case!
The Daily Howl had said that he –
But could not prove it perfectly
To Judge or Jury’s satisfaction:
His Lordship, therefore, won the action.
But, as the damages were small,
He gave them to a Hospital.
Were he writing today, Belloc’s ending might have gone:
The jury, all of whom abhorred
The Daily Howl, made an award
So huge it cured Lord Henry’s pain
And meant he never worked again.
Who steals my purse may steal trash; but he that filches from me my good name can now find he has a very expensive lawsuit on his hands. The Atlee government deliberately left defamation out of the otherwise comprehensive legal aid system which it introduced. No succeeding government has wanted to change this; but no government, either, has felt able to take juries out of defamation cases. Except where the parties agree to a judge sitting alone or, exceptionally, where the volume of paper is just too much, libel litigants have a right to trial by jury. The public have watched with incredulity tinged with envy, judges with anxiety, and editors with despair, as juries have awarded libel claimants five- and six-figure sums of money, amplified by costs which regularly exceed the damages. It does not seem to matter very much that in the great majority cases juries take the judge’s advice and give moderate, sometimes extremely moderate, sums. The awards the public know about are the large ones they read about, and the risk editors face each time they are taken to court, even if it is not a high one, is of an award which approaches the top of the Richter scale but cannot be interfered with on appeal.
The disproportion between these top-end libel awards and the damages given for other kinds of injury, notably personal injury, is notorious. In an endeavour to reduce it, the appellate courts have allowed judges to tell juries what levels of damages are given for personal injuries and to propose a range within which the jury’s own award should lie. It hasn’t worked, and for perfectly intelligible reasons.
One reason is that the case which, in 1995, tried to recalibrate libel damages at an acceptable level restarted the meter too high. A jury had given Elton John £350,000 damages against the Sunday Mirror for an untrue story that he was chronically bulimic and was now on a bizarre diet which involved chewing food and spitting it out. £75,000 of this was to compensate him for the harm to his reputation; the remaining £275,000 was exemplary damages to punish the newspaper. At the time this award was made the conventional damages for losing both legs or the sight of both eyes were about £100,000, and the amount set under statute for the sometimes unbearable grief of a bereavement was £7,500. The Court of Appeal reduced Elton John’s compensatory damages to £25,000 and the exemplary damages to £50,000. To secure even an award of this size he would have had to lose an arm or a leg if instead of running him down in print the editor of the Sunday Mirror had run him down in the street. From this point libel damages have steadily climbed again.
The second reason for this process is perhaps more understandable than the first. Juries are well aware that to award an amount for damage to reputation and feelings which is calibrated to awards for personal injury or bereavement will make libel a paying proposition. An award of £10,000 or so to Elton John – the sort of sum other claimants were getting for facial scarring - could practically have been paid out of the paper’s petty cash; and if the paper had paid no more than that into court when the writ was issued, it could have collected all its costs of the trial too.
Dissenting in a more recent case where, loyally to the Elton John judgment, my colleagues declined to interfere with an award of over £100,000 to a successful businessman who had been cavalierly accused in a tabloid newspaper’s financial column of having lost his commercial judgment, I suggested that the time had come for Parliament to take a principled scalpel to libel law, since institutional reforms are incontestably beyond the judicial remit. There are equal and opposite cases to be made for, on the one hand, not letting libel damages become a cornucopia for the wronged and, on the other, not making libel so cheap that the media can treat the publication of falsehoods as simply a cost-benefit exercise. The reason why the two are in conflict is that both forms of redress, the compensatory and the punitive, are rolled up in a single proceeding. Yet in any modern democracy punishment is the business of the state, not of private individuals; and it is not, or so I suggested, by abolishing the punitive element of the action for libel but by removing it from the ambit of civil proceedings that justice can continue to be done in both aspects.
This notion was courteously considered not long afterwards by the Judicial Committee of the Privy Council in an appeal from Jamaica, where a former minister had been awarded by a jury the equivalent of well over a million pounds for an unquestionably serious slur on his integrity, a sum which had been reduced by the Jamaica Court of Appeal to a figure still above half a million. The Privy Council described as “orthodox” the notion that compensatory damages have themselves a punitive purpose. I won’t take time now to explain why this was a surprising postulate, even if it had been – as it was not - confined to damages for libel. But I will take the opportunity, if I may, to say that my dissenting remarks in the previous case, to the effect that defendants who face punishment by law are entitled to due process scaled to the seriousness of the issue, were not, as the Privy Council took them to be, a call for the reintroduction of prosecution for criminal libel, an antiquated and inappropriate form of proceeding. What I was interested in, and want to return to here, is the desirability of removing any disciplinary or retributive function from the civil action for libel and of introducing in its place an independent regulatory system able to penalise proven abuses of the media’s enormous power to wound without contributing to the forensic gold-rush.
The first thing this would do is allow the courts to bring civil libel damages back to their proper role of compensating people, so far as money can ever do it, for what they have suffered by being traduced. It may be fairly said that to scale such awards to personal injury damages is to tie them to a standard which is widely recognised as inadequate. The two things are also arguably incommensurable. But if the award set by law for the private grief of a bereavement is today £10,000, it is hard to see how even the public humiliation of a false story can go far beyond this level, and just as hard to see how it can come anywhere near the amount an accident victim gets for the loss of a limb. To any such award there will of course be added specific losses – of earnings where the libel, like any other actionable injury, has resulted in loss of a job; and so on.
The need to bring libel awards within rational bounds has been accentuated by the introduction of conditional fee arrangements. Naomi Campbell, who finished up with a mere £3,500 damages for the invasion of her privacy, had two altruistic grounds for satisfaction. One, of course, was her contribution to legal history. The other was enabling her lawyers to present to Mirror Group Newspapers bills of costs totalling a little over a million pounds.
People of modest means had in the past to put up with being publicly traduced; only the well-heeled could afford to vindicate their reputations. But the introduction of conditional fee agreements – which had been allowed since 1990 but which until 1999 required the successful client to pay the lawyers’ success fee out of the damages, as in Scotland they still do - has changed all that: anyone who can find a lawyer willing to gamble on the outcome – and not only in relation to libel claims – can go to court.
Ms Campbell had entered into a conditional fee agreement by which her lawyers were to be paid nothing if they lost but rewarded by a near-doubling of their fees if they won. The intelligible argument advanced against the uplift, which came to over a quarter of a million pounds, was that the risk of having to pay costs of such magnitude was a chilling factor on freedom of expression. The Court of Human Rights had considered this a good reason for reducing the £1.5m damages awarded against Count Tolstoy for libelling Lord Aldington. But while there is every reason to stifle the notion that falsehoods can be comfortably accommodated under article 10 so long as the price is right, excessive levels of damages and, as the House of Lords recognised, of costs will make even responsible media outlets – perhaps especially the responsible ones – unhealthily risk-averse.
Conditional fee agreements, even so, are probably here to stay. The Law Lords could do nothing about the costs in Naomi Campbell’s case except invite Parliament to consider the impact of the regime on the right of free expression. Punitive awards of damages, about which the courts have been apparently less exercised, raise an analogous problem. Both can be addressed if Parliament is willing to restrict libel litigation to an affordable search for genuine and proportionate redress; but the trade-off, if the reduced expense of defaming people is not simply to become part of the operating costs of aggressive journalism, has to be some form of statutory regulation, and regulation with rules, legal standards and teeth.
I don’t pretend that this is an unproblematical proposal. First of all, why should a regulator’s remit be limited to reckless or deliberate untruths about individuals or corporations? Untruths which strike at no individual, and which at present can be freely published, can do a great deal more harm than individual libels or invasions of privacy. No survivor of the 20th century, and probably no inhabitant of the 21st, can seriously believe the Panglossian myth that ideas circulate in a marketplace in which the true drives out the false. The answer may have to be that the freedom to mislead is a lesser evil than a ministry of truth.
Then, how is such a regulatory body to operate? If it is to impose penalties, it must observe appropriate standards of due process. Modern experience suggests that this can be done without mimicking trial procedures. All one can safely say is that there is no serious case for preserving anything of the Press Complaints Commission, the industry’s voluntary self-regulator, except its Code of Practice, which – as often happens – sets out admirable principles which the more aggressive of its subscribers seem to have very little difficulty in circumventing.
What a regulator will, I would urge, be required to protect is genuine investigative journalism – not about who a footballer has been sleeping with but about whether public figures have been on the take; not about a model trying to shake off a drug habit but about drug dealers getting police protection. So long as recourse lies from the regulator on issues of law to the appellate courts, the line between what is private and what is potentially public may be much better drawn by such a body, taking proper account of the UK’s Convention obligations, than by the verdicts of courts in cost-driven litigation. For the same reasons the regulatory remit could intelligibly include the protection of personal privacy.
The first effect, however, will be to get the inflationary and punitive elements out of the courts which try actions for libel and are now going to be trying actions, under whatever name, for invasion of privacy. The second effect will be to eliminate the terror of the conditional fee agreement, since regulatory proceedings do not have to be adversarial. The wronged party will refer the matter to the regulator. If there is a case to answer, it is the regulator who will investigate and adjudicate on it, and if a penalty is imposed, it will go to public funds.
Everything I have said so far on this topic assumes a media defendant. But libels and invasions of privacy can be and are committed by a variety of other people and bodies. It would be for consideration whether any punitive measure to which these became liable should also be a matter for the kind of regulator I am suggesting. In principle, at least, it probably should.
There is no question that video-surveillance, whether conducted privately or officially, invades private life, albeit in public places. That is its purpose. There is no doubt, either, about its usefulness in detecting and preventing crime of a good many kinds. What require caution and control are the other uses to which it may be put. The case of the young man who had attempted suicide in a public place and was caught on the local authority’s CCTV is a good example. The release of the footage for broadcasting without his consent and without disguising his features was held by the Strasbourg court to amount to an unjustified invasion of his privacy, notwithstanding that it only showed him holding a knife. Our domestic law had offered him little protection and no remedy.
There is an obvious case for placing issues like this, too, in the province of a regulator. Litigation is not the best way to vindicate privacy rights which are violated by the untargeted but mishandled use of surveillance. Sums of money are always a poor translation of distress, and measures to prevent recurrence are frequently more relevant than punishment.
If I suggest that the adversarial model of retribution and prevention also needs to be reconsidered in the fields of libel and privacy, as it has already been with success in other fields, it is not because I believe it is a general nostrum. The original regulatory scheme for tackling race discrimination did not work nearly as well as the litigable right not to be discriminated against which for the last thirty years has replaced it. But our experience of statutory regulation in a variety of non-adversarial forms has become much greater in these years, and there is no reason why the media and other bodies should not support it in the fields I have been considering. If nothing else, it has to be a better option for them than the costly lottery which now obtains.
This lecture has not been about free speech, but everything I have discussed impinges on it. Britain has a press which is among the world’s leaders in serious investigative journalism and which has more than once in recent years lanced unpleasant boils in the body politic. It also has a press which is the undisputed world leader in prurience and vulgar abuse. Nothing in my suggestions or in the developing privacy jurisprudence threatens serious investigation of issues of public concern: rather the reverse. If the long field-day of those who live and prosper by unwarranted intrusion into private lives is now drawing to a close, it will not necessarily be a bad thing, even if it is the end of civilisation as we have come to know it. It will never, one fervently hopes, inhibit the ability of the press to confront us with questions of the kind with which the Daily Express not long ago stunned its readers: ‘Did Diana’s driver have bird flu?’
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