The controversy over footballers’ and businessmens’ privacy injunctions raises important questions about the quality of our democracy.
What information about the rich and powerful is it necessary for the public to know?
It is to be hoped Lord Neuberger gets the answer right when he publishes his committee’s eagerly awaited report on privacy injunctions, expected before Easter.
No doubt he will say so-called ‘super-injunctions’ should be used only exceptionally and should cede to the slightly less draconian ‘anonymity orders’ and tailored injunctions that have proliferated over the last year to allow at least partial details of privacy cases to be published.
But it remains to be seen how he will tackle a key obstacle to press freedom: the fact that courts have insisted on taking a rather narrow view of the ‘public interest’ since 2004 when privacy began its ascendancy in the well-known paparazzi case involving Princess Caroline of Monaco.
When the press and public’s right to publish and receive information, under Article 10 of the European Convention on Human Rights, conflicts with an person’s privacy rights under Article 8, judges set a high bar in scrutinising whether publication would contribute to a debate of general interest in a democratic society.
Usually they decide revelations about the behaviour and morals of powerful private individuals are not of sufficient public interest to outweigh the right to privacy in the absence of criminality or hypocrisy.
But perhaps such revelations should more readily be seen as contributing to a debate of general interest in a democracy, and judges should strike a new balance between individual privacy rights and the collective rights of millions of members of the electorate who need to see transparently how power is wielded in society.
The wording of Article 8 allows privacy to be overridden where that is “necessary in a democratic society” for the protection of morals and the freedoms of others.
Conversely, Article 10 allows freedom of expression to be overridden where “necessary in a democratic society” for the protection of the reputation or rights of others.
So, the balance hinges on the fulcrum of what publication is deemed “necessary” in a democracy.
But have judges got it right at a time when social media networks reflect a trend for openly sharing personal information globally and the internet so easily circumvents gagging orders?
When soccer star John Terry failed in his attempt to gag revelations about his private life last year, Mr Justice Tugendhat briefly touched on the pivotal issue.
He said freedom to live as one chooses was one of the most valuable freedoms, but so too was the freedom to criticise the conduct of other members of society as being socially harmful, or wrong.
He said: “Both the law, and what are, and are not, acceptable standards of lawful behaviour have changed very considerably over the years, particularly in the last half century or so.
“During that time these changes (or, as many people would say, this progress) have been achieved as a result of public discussion and criticism of those engaged in what were, at the time, lawful activities.
“The modern concept of public opinion emerged with the production of relatively cheap newspapers in the seventeenth century.
“Before that there was no medium through which public debate could be conducted. It is as a result of discussion and debate that public opinion develops.”
Similar concerns for media freedoms were expressed by Lord Macdonald QC, the former DPP, when he wrote in a newspaper article on privacy that our centuries-old tradition of “scurrilous, even scabrous, journalism” had on important occasions provided a critical strand of popular control over the governing process.
He said: “Britain is a better place today than it was at a time when the common people were not to be told that their king was sleeping with a divorcee.”
He added: “The freer the flow of information, the freer the society receiving it.”
From newspapers’ perspective, the public and the private are intertwined, and it is not only elected representatives that wield power.
The aggregated effect of any set of privacy injunctions is generally to obscure the way in which wealth and power are gained, used and retained.
If the rich and powerful can hide dubious personal behaviour which is invariably likely to affect social status and earning potential, that can’t be good in a meritocratic democracy, the argument runs.
The electorate will not know the true nature of the society that it has to shape and govern through the ballot box.
The media must hope Lord Neuberger and other English and European judges soon decide that less privacy, and freer publication, are necessary in a democracy.