I have been thinking about privacy – again – over the last fortnight, so with apologies for two consecutive Law Columns dwelling on this issue, here is further food for thought.
Readers will recall that in the previous Law Column, one of my colleagues commented on the drone chaos at Gatwick in December and the legal position of the couple who were not, after all, responsible for “ruining Christmas”
The point my colleague made was that in light of the decision in Sir Cliff Richard’s case against the BBC, it appeared that the Gatwick couple could well have a valid claim against those who published their details.
The implications for open justice are obvious, and knowing how important this principle is for journalists, I was expecting posts from HTFP readers to be fairly critical of any legal development which inhibits the ability to report police investigations or arrests.
So I was quite surprised when a regular contributor wrote:
“There is no excuse for naming people before they have been charged. It is against natural justice”.
I have heard this argument before, usually from politicians, but it would be interesting to know if this is an opinion which is now more common amongst journalists.
Then, last week, I was asked to participate in a BBC local radio discussion on the same subject. It’s always difficult to convey tricky legal concepts in a two minute Q and A, but I did my best. (Will I be invited to another discussion? Only time will tell!).
Anyway, the slightly unexpected question that was put to me was this: do I now advise news publishers differently, following Sir Cliff’s case? In the brief time available, I could only fall back on the lawyer’s favourite: “it depends”.
But on reflection, I think the answer is probably ‘yes’.
For example, last week a premiership footballer was arrested on suspicion of assaulting his girlfriend. The allegation was vigorously denied and the player was released soon afterwards. As was to be expected, the police statement simply said: “A 26-year-old man was arrested on suspicion of ABH. He has been released with no further action“.
The question I was asked was whether the man could be named. In the good old days, I would not have hesitated to say “yes, no problem”.
But because of Sir Cliff, I felt obliged to be more cautious, and draw the editor’s attention to the risk that theoretically, the man might try to sue for breach of his privacy rights. This meant, I said, that the editor had to assess the risk and make an editorial decision with that possibility in mind.
Interestingly, the editor decided to name the player, presumably on public interest grounds.
Personally, I think he made the correct decision, but as the mere lawyer rather than the editor, that wasn’t my call. But I think it’s a good example of how legal advice has had to adapt to changing circumstances.
And finally, the third reason for thinking about privacy last week was when I learned that in the same radio interview (either before or after my contribution), the Director of Hacked Off had taken the opportunity to lay into IPSO.
In commenting on the Gatwick couple, he said:
“If there was proper remedy and a truly independent regulator that you could raise an issue with if you had a problem with the press, then that would help to deter the press from publishing misleading information that gets away from actually the public interest”.
But is this criticism justified? After all, IPSO’s Code of Practice, with which most mainstream publishers and journalists comply, is clear on the issue:
Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications.
Editors will be expected to justify intrusions into any individual’s private life without consent.
It’s not for me to defend IPSO and its status as an independent press regulator, but given the commitment that most journalists and their employers give to privacy rights, it seems clear that there’s more to this than meets the eye. As readers will know, the Code’s requirement that journalists protect privacy rights is identical to the obligations imposed by the law.
But the one thing on which everyone can probably agree is that privacy law is in a state of flux, with more developments sure to occur in 2019. Happy New Year!