Cleaning up Britain’s privacy laws

Should government or the courts draw the line between free speech and the right to privacy?
Cleaning up privacy laws
Yui Mok/PA Photos/Keystone Press

No one can whip up a scandal quite like the British press. In a country in which the kiss ’n’ tell splash is both a lucrative and time-honoured tradition, many publications here view it as their right—in some cases raison d’être—to be able to publish the raunchiest details of a celebrity’s sexual indiscretions with impunity.

But the British courts don’t always agree. For several years now, British judges have been granting anonymizing court orders, commonly known as “super-injunctions,” which prevent U.K. media outlets (usually tabloid newspapers) from publishing stories that may be damaging to the parties involved. In some cases, the orders prevent the claimants themselves from being named, and in the most “super” of super-injunctions (a slang—not legal—term), the injunction itself is also banned from public mention. The injunctions cost between $30,000 and $80,000 on average to take out, prompting widespread criticism that they are an option open to only the already rich and famous.

If there is only one thing the British press like less than being scooped, it’s being muzzled. While super-injunctions have long been an irritant to the scandal sheets, they have only lately boiled over into front-page news, after the Wikipedia entries of four protected public figures were rewritten with lurid details inserted. In response, a number of others jumped at the opportunity to speak out against these gag orders, which some see as both hopeless in the digital era, as well as a dangerous infringement on freedom of the press.

BBC TV political commentator Andrew Marr recently admitted he was “embarrassed” by a gag order he had taken out in 2008 to prevent the news of his own extramarital affair from emerging in the press. “I did not come into journalism to go around gagging journalists,” he told the Daily Mail, adding that he would pursue the injunction no further.

Indeed, there would be little point, given how difficult it is to contain such details. This past weekend the Twittersphere was abuzz with the leaked names of celebrities who were alleged to have standing super-injunctions. These included a married Premiership footballer who was alleged to have had an affair with a former Big Brother star and glamour model, a famous actor who is accused of sleeping with a prostitute, a celebrity chef with legal problems, and a “show business figure” who had his celebrity mistress (and co-worker) fired after his wife learned of their affair.

The controversy has prompted calls in the House of Commons for the government to come up with clearer privacy laws—ones that are not left wide open to the interpretation of the judiciary. Even Prime Minister David Cameron waded into the debate last month, when he admitted at a public meeting he felt “a little uneasy” at the prospect of court orders determining the fine balance between free speech and private life. And another Conservative MP went further, decrying “the ability of judges to decide policy instead of elected parliamentarians,” raising, somewhat bizarrely, the rumour that even an unnamed elected official was seeking a super-injunction in order to prevent private activities being discussed in Parliament.

While the controversy continues, supporters of increased privacy laws argue the debate is being stoked by a media desperate for moral high ground in light of the ongoing phone-hacking scandal. That case, in which several prominent U.K. tabloids are accused of breaking into the voice mailboxes of a long list of celebrities from Jude Law to Prince Harry, rocked the nation’s highest office when Cameron’s communications chief Andy Coulson was forced to step down amid allegations he had known about the practice during his time as a tabloid editor. The first civil cases, including one involving actress Sienna Miller, are scheduled to begin later this month.

Entertainment lawyer Duncan Lamont, head of the media and entertainment law team at London’s Charles Russell law firm, says that the widespread media perception that super-injunctions are on the rise is actually false—only a handful have been granted this year. But they do tend to accumulate—he says there are currently about 50 outstanding—which builds resentment in the media. Lamont argues that, in an intrusive press culture like Britain’s, the usual legal process of claimants seeking damages against a publication after a kiss ’n’ tell story has been published simply doesn’t work. “By the time your case is heard you might have gotten divorced, had your children refuse to speak to you and been shunned by friends in the street.”

He points out the case of Formula One head Max Mosley, who in 2008 won a breach of privacy case against the News of the World tabloid, which reported he’d taken part in a Nazi-themed orgy with prostitutes. While Mosley admitted he had indeed privately paid for and taken part in group sex, the court ruled there were no Nazi overtones involved. He was awarded $95,000 in damages.

Since then, Mosley has embarked on a crusade to toughen up Britain’s privacy laws, seeking a ruling this week from the European Court of Human Rights that would require the media to alert an individual in advance of any report dealing with their private life. Should the court find in his favour, other celebrities might be spared the nuisance of becoming, as Lamont put it, “a worldwide figure of fun.”