Echoes of puritanism in the campaign against super-injunctions

This post was written by Reuben on May 10, 2011
Posted Under: Uncategorized

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.

Like this article? Print it, email it, Stumble, Facebook and Tweet it:
  • Print
  • email
  • StumbleUpon
  • Facebook
  • Twitter
  • Google Bookmarks
  • Digg
  • del.icio.us
  • Mixx
  • Yahoo! Bookmarks
  • Live

To contact Reuben email reuben@thethirdestate.net

Share

Reader Comments

Nigel Whitfield

There are all sorts of conflicting things that I feel around this. As a writer (but only computer hackery), I don’t like the idea of the press being told that they can’t print something.

However, the case of Gareth Mead mentioned above is a clear example of how the prurience of some of the papers can ruin someone’s life, for no very good reason at all. That’s simply not reasonable. Why should someone be hounded out of their job, just because they play sex games that other people don’t like?

Had Gareth been famous, or just extremely wealthy, he could probably have obtained an injunction, or even a ‘superinjunction’ that would have prevented the publication of a story that, while it might be titillating, clearly had no real public interest. It’s unfair that that sort of relief is available only to those with money to spare.

When I talk with people and express my views about the state of things, some of them say “Oh, you’re very eloquent, you should go into politics.” It’s a nice sentiment, I’m sure. But while I might be passionate, I probably lack the theoretical grounding of many on the left.

Far more serious – and more likely to put many off – is that I feel that I simply couldn’t, even if I did feel I had the intellectual clout for it. I enjoy my kinky sex; I organise some club nights for guys into leather and cigars; I know Gareth personally; I’ve made mistakes in befriending people who years later turned out to have some very unpleasant, and illegal habits.

You can make a rational argument that I have more experience of the real world as a result. But it’s also a certainty that one or more of those things would be dragged up sooner or later if I were to achieve anything politically.

In the US way, way too much was made from the question of whether or not Clinton inhaled. I fear that we’re in danger of going the same way and as a result, effectively excluding from public life many people who might have something to contribute, simply because what they do in bed, or who they know, or have associated with in the past, is likely to be considered fair game by an ever more prurient tabloid press.

Oddly, that happens at a time when companies like Ann Summers are found on more and more high streets, S&M imagery appears in mainstream culture, and many people seem more willing to acknowledge that sex is more than just the missionary position. People will buy their fluffy handcuffs, yet still consider that if a politician does the same, he or she isn’t fit for office.

#1 
Written By Nigel Whitfield on May 10th, 2011 @ 11:32 pm

Excellent points. As well as the puritanism, there is an hypocrisy and prurience on the part of the papers (and their readers who are defending their right to publish details of other people’s private lives), so there is not even a misguided but consistent moral standpoint for them to argue from.

Small point: the former Archbishop of Canterbury is George Carey, not Brian.

#2 
Written By John Self on May 11th, 2011 @ 8:51 am
Roger

Another small point – a poster above mentioned whether Clinton inhaled or not. Although the crime was commited in the moment he possessed the spliff (rather than the inhalation), the issue of illegal drug use is obviously very different to that of ‘unusual but lawful’ sexual practise, especially if said candidate supported the illegality of the drug in question.

#3 
Written By Roger on May 11th, 2011 @ 4:39 pm
Hugh

Would not the answer be to “have all aspects of our existence subject to the same level of public scrutiny and judgement in the name of freedom”? Not freedom of the press, or of speech, but freedom to do what we like if we do believe that it is morally good or indifferent.

A principle of economic interventionism and redistributive taxation is that private decisions about how we spend our money are also public decisions, so that we need to create a framework in which people are persuaded (through the threat of sanctions) to spend their income in certain approved of ways. Why would this same principle not apply in other areas? How someone spends their income is as important to them (their identity, their autonomy) as how they use their genitals and respond to their desires (indeed, the two are quite closely related for many people).

If the answer is because decisions about sexual activity which are not broadly approved of do not have the kind of negative social impact which would merit such disapproval, then this will not be shown by defending privacy, since the groundswell of evidence that would ‘change’ society’s and culture’s ‘mind’ would not be able to be built under privacy’s veil.

It is interesting that you raise the example of Nadine Dorries, moreover, because her ‘private’ decisions as regards sexual activity are in opposition to her protestations about the public damage caused by similar sorts of decisions. They are an excellent example of the non-private nature of ‘private’ decisions since they not only damaged her lover and his spouse (both members of the public) but contribute to wider narratives of the weakness of marriage through her public reputation, hence damaging the public.

There’s a deeper, non-utilitarian/non-socialist point about the limits of ‘private’ decisions as well: seeking to disguise one’s activities is an utter failure in authenticity. Conrad wrote that “there is a taint of death, a flavour of mortality in lies”; Sartre that man is “nothing else but the sum of his actions”. The answer to this problem is precisely to do what you are proud of and think is right, and show the world this, and not do what you do not. The world can take or leave your recommendations and be the better or worse for it if they are wise or foolish.

#4 
Written By Hugh on May 11th, 2011 @ 6:54 pm
Nadia

Fantastic work Reuben. I find it amazing that such hysteria has been created by those who wouldn’t think twice about asking a court to prevent publication of their own sex lives through the actions of a vindictive colleague.

I must stress, the remedies in place under the law for misuse of private information are NOT the sole preserve of the wealthy in spite of what the media would have you believe.

If your case is strong, most solicitors offer Conditional Fee Agreements whereby all legal costs are recouped from the newspaper concerned. As most privacy cases settle before trial, this isn’t noted by the media.

To put this into perspective, there are about 200 libel cases filed with the High Court each year and far fewer privacy cases. A handful of these will involve people who are not already in the public eye.

However, Mosley’s £60,000 award for damages in 2008 has led to larger privacy settlements in comparison to the £4,000 ceiling in Campbell v MGN (2004). There’s more on this in Lord Justice Jackson’s Review of Civil Litigation Costs.

Whilst the present system is far from perfect, the reality is that anyone who applies for damages with a strong case may be rightly compensated regardless of personal circumstances.

#5 
Written By Nadia on May 11th, 2011 @ 9:12 pm

Add a Comment

required, use real name
required, will not be published
optional, your blog address

Please leave these two fields as-is:

Protected by Invisible Defender. Showed 403 to 464,853 bad guys.

Previous Post: