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A couple of years back Max Mosley won his privacy case against the news of the world, after he had been secretly filmed engaging in BDSM style sex. In reaction to his victory, a strange alliance emerged between the red top press and this country’s Christian hierarchy.
News of the World editor Colin Myler appeared on the door steps of the court, and defended the intrusion by arguing that “taking part in depraved and brutal s and m orgies on a regular basis does not constitute the fit the proper behaviour to be expected of someone in his hugely influential position”. In other words some sexual behaviour, even if it involved consenting adults, was so perverted that the the media had a right and a duty to shine a light on it.
These sentiments were echoed by the former Archbishop of Cantebury, George Carey who felt the ruling threatened “public morality”. Things were better in the past, he complained, when “a public figure knew that scandalous and immoral behaviour carries serious consequences for his or her public profile, reputation and job,”. Odd indeed. While we are used to archbishops decrying the mass media for spreading sin, Archbishop Carey also appears to want the red tops to act as grand inquisitors, keeping “depravity” in check with the threat of public humiliation.
Such attitudes have not been absent from the recent furor against super injunctions. As the bargain basement libertarian, Guido Fawkes, recently put it, ““If you don’t want to be on the front pages then don’t pay hookers to stick dildos up your bum”. The nod to sodomy is not an accident. As with Lord Carey’s comment, this is about saying that if you engage in deviant behaviour, then you deserve a bit of public humiliation. “Judges are wrong to protect the immoral”, boomed the recent headline in the Daily Mail.
So, coming at this as a left libertarian, this issue is a bit more difficult than perhaps I first appreciated. A free society is one in which people can, within broad parameters, do as they please, but it is also one in which people may judge or criticise others for how they dispose of their freedoms. Thus Nadine Dorries has the right to churn out dishonest, reactionary crap, and we have the right to be rather blunt about what we think of it.
But then that is public political speech. Should we be willing to have all aspects of our existence subject to the same level of public scrutiny and judgement in the name of freedom. In practical terms, our ability to live as we wish, day to day, depends on our ability to keep secrets, to say things to some people but not others, and to do things in our own homes that we may not wish to do in front of the world. Would we be happy to live our lives, saying only those thing which we would happily broadcast to the world?
Public disapproval and media humiliation should not be equated with state coercion. Yet we do need to recognise that the state is not the only agent of unfreedom. You may remember the case of Gareth Mead whose life was recently ripped to shreds by the Daily Mirror, simply because his lawful but unusual sexual proclivities jarred with other people’s sensibilities.
So the idea of people enjoying a (less than absolute) right to privacy is not without merit. Yet what this should mean in practice is an exremely difficult question. The “right to privacy”, after all, knocks elbows with some of our other most cherished liberties – not least the right to free expression. Yet politics, is amongst other things, about trying to reconcile competing priorities.
The problem for us now, is that the tools with which we protect privacy are blunt and ill formed. The law, as it stands, is a vague hand-me-down from Europe, added to incrementally by various judgements. The deeply political question, about how we, as a society, reconcile privacy with other freedoms, has been outsourced to lawyers and the Eurocracy. Aside from anything else, while our emerging privacy law remains a mess of precedents and vague principles, it will remain a rich man’s law, wherein the ability to shell out huge legal fees really does matter.
We urgently a national conversation on how, and how far, we as a society wish to give support the right to privacy. And we need some decisions, taken by people who are politically and democratically accountable. A law on privacy is not, by necessity, unjustified. But any law which impacts upon on something so important as the freedom of the press, must have more legitimacy than the current mess.
To contact Reuben email firstname.lastname@example.org