Companion website for
COMPARATIVE MEDIA LAW & ETHICS
by TIM CROOK
to be published by Routledge on 15th December 2009
For details of the book, please visit Routledge.
Author's profile at Goldsmiths, University of London
Tim Crook Media Law Bulletin Tuesday 15th December 2009
Media Privacy USA and Media Privacy UK - An Atlantic Ocean apart
1. I am curious to know if media publisher editors in the United Kingdom are prepared to concede that the mother country of common law has become the land of judicial censorship. It is certainly the home of privacy injunctions gagging media coverage of the infidelity and alleged moral infractions of home-grown and global celebrity. And the very existence of these court orders and the celebrocrats protected are also censored by ‘superinjunctions.’ Most of the world’s media has been discussing and reporting the coverage of the global celebrity Tiger Woods’ extra-marital relationships. US media law is determined by the country’s constitutional First Amendment which prioritizes freedom of expression and freedom of the media. As soon as the news emerged that Mr Woods had been at the wheel of a motorcar colliding with a fire hydrant with reports that his wife had applied one of his golf clubs to the car’s windows, his private life became somewhat newsworthy.
2. He is a billionaire and public figure par excellence. His wealth is dependent on product endorsements and includes advertising campaigns where his family life would appear to be part of the Tiger Woods’ brand. If Tiger Woods had been British and his home in Virginia Water rather than Miami, Florida, it is likely that the story of his alleged serial infidelity and public and private embarrassment could have been fully suppressed by London High Court injunction. Indeed on the very day that Mr Woods had publicly admitted his infidelity and said he would be taking a break from the sport to attend to his family, The Guardian newspaper reported that the London High Court had issued a gagging injunction seeking to prevent England’s media from reporting new aspects of the tsunami of allegations of his serial relationships widely disseminated in the US media. British privacy law could have censored any discussion of the potential impact of such revelations on his public relations profile and sporting brand. Such privacy law could have also gagged the expression of what is usually classified in English libel law as ‘fair comment’ - honestly held opinions, expressed without malice, on a matter of public interest and based on true facts. This is because it would have been unlawful to report ‘the true facts.’ There could have been no discussion of Tiger Woods as ‘a cad of the first order’ in the Guardian. Nor could the columnist in the Daily Mirror have been able to say ‘Tiger Woods, you give man sluts a bad name’. It is even possible that the elegant and intelligent ruminations of one of the Guardian’s distinguished former editors on Tiger Woods’ extra-marital difficulties might have been blocked. Nothing would have been gained by silencing a writer with, in my opinion, the wit and style of the late Keith Waterhouse and the experience and wisdom of Cicero. The nature of the allegations about Mr Woods’ private life is indicated by The Sun -Britain’s largest selling daily tabloid. It would appear that the London High Court injunction concerned ‘UK publication of nude photos or sex tapes featuring him.’ The Mail on Sunday reports that the injunction was obtained in London despite the fact that the images may not exist.
3. The newspaper suggests the court order obtained is of the ‘John Doe’ variety and it is also suggested that the hearing took place without any notice to, or representation from any UK media publishers. ‘John Doe’ is an American legal catchphrase for what we would recognise as ‘John or Jane Smith or anybody’. There is something philosophically discomforting about the concept. The spectre of secret censorship orders being made without any adversarial challenge against everybody at all times and throughout the world about something that may not exist is rather evocative of George Orwell’s 1984. But it must be very strange to Americans that the ‘John Doe’ catchphrase is banded about to identify a legal phenomenon that would probably be rendered unconstitutional in US federal law. The media coverage of public figure infidelity, adultery and marital bust-up is now seen as something capable of full privacy law cover-up in the UK. The US First Amendment gives freedom of speech protection for anyone perceived to be a victim of public figure infidelity. The News of the World coverage provided to its readers and television viewers throughout the world via Sky News on 13th December would in all probability not exist had Tiger been a Limey and the sources of the allegations that he had been playing away had been located in the United Kingdom. Whilst any angle on the story offered by the US National Enquirer is blocked to UK readers because of the American ‘tabloid’s reluctance to be subject to England’s libel and privacy laws, the 21st century phenomenon of 24/7 celebrity breaking news can be consumed instantly from the TMZ website, though it is impossible to know for certain what might be viewable to US surfers but blocked by high court injunction to those resident in England and Wales.
4. The Tiger Woods scandal blows across the Atlantic during a pivotal time in the development of the British media’s coming to terms with the impact of the ‘new respect for the right of privacy’. Journalistic commentators such as Stephen Glover in the Independent on Sunday have been reflecting on how the appetite on the part of so-called British quality and tabloid newspapers for the story has been high in a country where Tiger Woods could have expected more legal protection had he been in team Great Britain instead of United States of America. The origin of the new privacy law has been explained over 17 pages of analysis by the London High Court judge specialising on hearing media law cases, Sir David Eady. Sir David informed his audience at the University of Hertfordshire on 11th November that the new law had not been created by him. He continued his analysis of the developing privacy law in England that he had started in a speech to copyright and intellectual property lawyers at the House of Lords in February 2009 and media lawyers at a JUSTICE conference in early December. The Human Rights Act 1998, enacted in October 2000, combined with the impact of the 3 to 2 Law Lords’ ruling in favour of Naomi Campbell’s privacy case against the Daily Mirror in 2004, means he and other judges have to take into account ECHR jurisprudence from Strasbourg and give effect to convention rights by recognising a right to respect for privacy remedy on a horizontal citizen to citizen as media publisher basis. To quote from a 2006 case in Belgium called Leempoel, that very few people in Britain have ever have heard of: ‘publications whose sole aim is to satisfy the curiosity of a certain public as to the details of the private life of a person, whatever their fame, should not be regarded as contributing to any debate of general interest to society.’5. The successful privacy action by Max Mosley, President of the Fédération Internationale de l’Automobile, against the British Sunday tabloid News of the World heard by Mr Justice Eady in July 2008 underlined that British media privacy law means that any revelations about a public figure’s private life and sexuality can only be published if they are in the genre of the Profumo scandal of the 1960s. There has to be a context of political hypocrisy, a threat to national security, or serious concern about public safety central to the private life revelation. Voyeuristic title tattle that sells popular newspapers is considered the lowest public interest value in the intense focus on the balancing exercise with the court’s duty to protect the right to respect for privacy in terms of personal, social and psychological identity, integrity, dignity, and right to reputation. We are in the age of personal autonomy and the right to develop personality without the intrusion and harassment of the media gaze. As indicated in my last blog the ECHR treats libel as privacy and has therefore gestated the idea and practice that prior restraint injunctions combined with super-injunctions can now be granted in relation to truth deemed as private and false defamatory allegations about private matters if claimants can show they are likely to succeed in a full hearing of the action.
6. Whatever senior judges and politicians say about the media being warned that this would happen in 1997 and 1998, the fact of the matter is that any examination of mass media texts in these years demonstrates there was no focus or concentration of debate on these consequences. Neither Parliament, nor the judges ever told the media that freedom of expression will not be a constitutional priority as a result of the Human Rights Act 1998. The Daily Mail editor Paul Dacre has a valid argument that media privacy law has been introduced by the back door.
Yes of course we can isolate short paragraphs of warnings from Lord Derry Irving, Lord Bingham and Martin Linton MP during parliamentary debates. But that is not the same thing. The New Labour government in 1997 realised that media messaging in politics did not originate in the debating chambers at Westminster. When did New Labour’s Lord Chancellor, Home Secretary or any other cabinet minister ever go on the Today programme on BBC Radio 4 and say we have decided that freedom of the media and freedom of expression will be subordinated to the right of privacy and right to reputation particularly in respect to public figures committing adultery and engaging the services of the sex industry unless it can be proved they are being hypocritical? Furthermore, when did they ever say we will be allowing prior restraint if libel and privacy complainants can demonstrate to a High Court judge sitting in secret that they are likely to win their actions? I do not recall any policy announcement that any photographing of anybody famous in public can be stopped on the grounds of privacy?7. Is there a justifiable reason to be worried about the fate of media freedom as a result of these developments? I ask the question because I detect a distinct lack of cultural enthusiasm for what I would call media freedom plurality. Amongst the political, media, legal and higher educational elites in the UK (spheres of influence and sub-cultures I know only too well) there is no respect and utter contempt for the sex scandal exposé genre of journalism pursued by ‘tabloid’ media publications such as the Sun and News of the World, and I frequently notice an intense negativity in body language and facial countenance whenever I mention the title Daily Mail.
8. Max Mosley now has an action at the ECHR in Strasbourg seeking a ruling against the United Kingdom for failing to ensure that he had legal warning that the News of the World had paid a woman to film his participation in a private session of sado-masochistic activity in a basement flat in Chelsea and they were intending to publish. Mr Mosley believes that this right in potential privacy intrusions is a positive obligation under Article 8 of the Convention on Human Rights. His legal team argues that this has been implicitly stated in ECHR jurisprudence and resolutions of the Council of Europe in 1970 and more recently 1998 (Resolution 1165). However, as I pointed out in pages 230 to 233 of my book, the Council of Europe cannot be considered a model of democratic constitutionality. Its democratic credentials and legal legitimacy was doubted by Lord Hoffmann in his annual Judicial Studies Board Lecture in 2009. I searched every mass media publication digitised on LexisNexis for 1998 and could find no reports or news coverage about the resolution. The legal editor of the Times, Frances Gibb, was one of the few journalists I could find taking any interest in the reforms to the Strasbourg Court in that year. I cannot imagine any UK journalist ever received a press release about resolution 1165. You would have to have been a media lawyer or academic with PhD research interests to have realised its significance.
9. My own view of Max Mosley is I imagine rather similar to many people of my class, background and education. I do not believe we have any interest at all in any aspect of his private sexuality. I was aware of the News of the World’s coverage, but was not inclined to view the video obtained by subterfuge and secret filming without his consent. The fact he is the son of the notorious British fascist leader Sir Oswald Mosley is and was no reason to think any less of him. It is commonsense that we do not choose our parents and he and any of Sir Oswald’s other children were entitled to love him as a father. In fact, Max Mosley conceded when giving evidence before the House of Commons select committee enquiry into press standards, libel and privacy that in his youth he had supported his father: ‘I used to support him until I was about 21 or 22 and then started doing other things’
I also recall an interview given by Max Mosley’s half-brother, Nicholas, who wrote a brilliant biography of Sir Oswald. He described how as an infantry officer reporting to the front line during the 2nd World War Italian campaign he gave his name to the adjutant ‘who said without looking up --- 'Not any relation to that bastard?' I said 'Yes, actually.' He said quickly 'My dear fellow, I'm so frightfully sorry.'" Nicholas went on to win the Military Cross and inherit the baronetcy. And there can be no one who has not the profoundest sympathy for Mr Max Mosley in the desperately sad loss of his brilliant and talented elder son through addiction illness. There can be surely no greater tragedy for parents than to experience the passing away of one of their children. Mr Mosley is in my opinion much admired for his courage in confronting the tabloid culture of public figure private life intrusion. It took guts to fight the News of the World and thereby amplify the embarrassment and hurt of the original story.10. Mr Mosley’s campaign for a legal obligation for media organisations to give notice of publications that intrude on privacy has the support of the distinguished and much respected Professor Gavin Phillipson who in the first issue of the academic Journal of Media Law provides a cogent argument in his paper ‘Max Mosley goes to Strasbourg: Article 8, Claimant Notification and Interim Injunction.’ In fact Professor Phillipson is a consummate representation of the social elite I admit to being a member of and pulls no punches: ‘it cannot be right that at present newspaper editors are in a position to deny the effective application of Article 8 at will, particularly when some of them are so plainly contemptuous of the values it protects and the judges who are seeking to apply it.’ He can see no merit at all in the concept of freedom without responsibility in a country that ‘has a tabloid press that openly declares its hostility to the European Convention and judicial protection of privacy and exhibits a very clear pattern of publishing grossly invasive stories.’ The academic construction of media freedom privileges in the first edition of this authoritative journal contains a further prescription for free press compromise and subjugation. The legendary Professor of Media Law at the University of London, Eric Barendt, in his article ‘Balancing Freedom of Expression and Privacy: The Jurisprudence of the Strasbourg Court’ intellectually challenges the belief of the German social democratic Frankfurt school theorist Jürgen Habermas that freedom of expression should not be ‘balanced:’ ‘Jürgen Habermas has argued that balancing deprives basic rights of their normative strength; in his view, the process downgrades them to the status of goals which must take their place among the range of policies facing legislators and administrators. Further, there are no rational standards for balancing, so decisions how to weigh, say, freedom of speech against national security become arbitrary, or at least unpredictable.’ Barendt’s reasoning is intellectually reasonable and morally respectable: ‘An implication of Habermas’s argument is that rights must be absolute, for balancing or weighing them in the light of competing goals would deprive them of that status. But that cannot be correct. Convention rights are, with one or two exceptions, qualified, not absolute. More importantly for the purpose of this article, his argument cannot be applied to cases of competing rights, where, say, the right to freedom of expression is claimed by one party, and the right to privacy (or the right to a fair trial) is asserted by the other.’
11. At the end of the ten week course on media law and ethics that I teach at Goldsmiths, University of London, (New Cross rather than Bloomsbury), I asked the impressive community of more than 100 students whether they believe there was any public interest in public figures committing the moral infraction of adultery and consuming the services of the sex industries. These are well-educated young people from all parts of the world and as multi-cultural and intellectually radical as you would ever find in London or the UK. The majority vote was against there being a public interest; more so on the issue of infidelity. This is some evidence (obviously not socially scientific or authoritative public opinion survey) that the UK judiciary may be ruling on the right side of public opinion. But I fear this is by no means the end of the argument. And I am now going to argue against my own moral instinct and preference in what I would personally view as the public interest. In both instances of the hand voting there were still 30 to 40 per cent of students who believed that there was public interest justification for publication even in the absence of any construction of political and social hypocrisy. That 30 to 40 per cent constituency could be a metaphor for the reading public of many millions who choose to buy the tabloid media. Giving public interest to this ‘social appetite’ is not simply a matter of surrendering to the rule of the media market jungle of the lowest common denominator. These issues are much more complicated.
12. Much that I respect her majesty’s judges, it is indeed possible to argue that they have less democratic legitimacy and constitutionality than national newspaper editors. True; neither category of individual has been democratically elected. However, being the editor of a media publication that hundreds of thousands or millions of people choose to consume daily or weekly is a socially elective process in the context of freedom of expression, and that is the very oxygen of democracy and liberty. Sometimes it is ugly, crass, and verging on the intolerable. Entertainment journalism can pander to the base instincts in audience: voyeurism; schadenfreude; and absurd and pompous vicarious fantasy. The independence of judiciary and the authority of the rule of law are equally important. These constitutional imperatives too can be hard and unjust but both constitutional halves of the equation, judiciary and media, must realise that you cannot have one without the other.
13. At a recent human rights seminar in memory of the brilliant and wise jurist Sir Henry Hodge,
I talked about the constitutional wisdom and dignity of former Prime-Minister Stanley Baldwin who in 1931 famously discussed the problem of ‘Freedom without Responsibility’. He was attacking the Press Barons Rothermere and Beaverbrook whose daily papers had libelled him. Instead of instructing solicitors, Baldwin let freedom of expression reign and demolished the inky Barons by making a speech that dissipated the poison of their bullying bluster. He likened them to the prerogative of the harlot through the ages and although advised he could sue and win, made it very clear that he had no wish to touch their money with a barge-pole.14. I am not at all confident that there would be any merit in censoring the irresponsibility of the popular media to irreverently and irresponsibly intrude on the infidelity and sex industry shenanigans of public figures. I do not believe the social debate on the value of loyalty and adultery in human relationships is closed, just as I do not believe the last word has been written on the moral rectitude of buying people for sex. The same goes for ‘puffing on spliffs’, ‘sniffing Charlie’ and popping E or speed at any age or in any context. I do not believe it matters whether the frisson of relationship betrayal and recreational indulgence of chemical substances is on the right or wrong side of existing law. Such debates still inform the public interest and have to be open to the exposure of uncomfortable and embarrassing truths. We are all role models in one way or another, and the luckier and more powerful we become through the concentration of wealth, privilege and fame, the more interested the people are in our private/public existential being. The alternative will be a constitution and society based on false-consciousness, and moral self-delusion.
15. Equally I do not believe our society will gain by giving public figures a legal immunity not to be photographed in public, even when, as Baroness Hale of Richmond so quaintly put it in her speech in Campbell v MGN, they are off duty going round to the corner shop to buy a pint of milk.
Any police commissioner or chief constable in the UK, as is the case of any Sheriff in the USA, should know that there comes a point when paparazzi frenzy becomes a breach of the peace and risks public endangerment. Any legal system failing to back them up should be ashamed of itself.16. When the ‘gutter press’ oversteps the mark as it were what greater and more appropriate form of punishment is there than to learn that they have disgusted and outraged the very people who sustain their existence? Did not the Sun discover this with its revolting libel on the bereaved people of Merseyside after Hillsborough in 1989?
I seem to recall that a middle-ranking Sunday red-top experienced a considerable executive panic when the outrage of the mother of a serial killer’s victim over cheque-book journalism had enlisted the support and sympathy of the Queen.17. Professors Barendt and Phillipson, and Sir David Eady are outstanding jurists on the subject of media law, but I would urge them to remind themselves of the rough and tumble and somewhat disreputable origins of English common law free speech doctrine. It resides in the struggles and theories of Sir William Blackstone, Jeremy Bentham, and John Stuart Mill. They along with Jürgen Habermas give full jurisprudential consensus to the importance of the freedom of the press and freedom of expression paradigm. The constitutionality of media freedom was won by enlightenment pornography, disgraceful libels and outrageous intrusions on royal, political and social celebrity by disrespectful and pox-ridden demagogues such as John Wilkes. Compared to the rakish benders of the Hellfire Club, I would not be surprised if today’s tabloid editors are more likely to be habitués of Catholic mass or the Baptist chapel. When it came to partying Wilkes introduced a baboon dressed in a cape and horns to liven the Satanic role play of his nocturnal gambling, drinking, and womanising. Contemporary newspaper editors are not without charm and a tincture of cunning, but after a long day of editing they have always looked more likely to retire to bed early with a mug of Horlicks/Ovaltine and hot water bottle in a fluffy Snoopy cover.
18. Much that it sticks in the craw, boring bourgeois elitists such as myself must accept that contemporary tabloid scandalmongers are the dishonourable though vital heirs apparent of our equally disreputable Enlightenment ancestors. What they do wrong and how they hurt actually empowers and elevates the purpose of high public interest investigative journalism. I prefer to have the choice of demeaning myself as a media consumer even when it hurts the innocent and powerful. To take that away from me through prior restraint gagging orders, judicial censorship of the truth, and the suppression of information I can never test in the marketplace of moral discourse means that I and everyone else have no opportunity of improving ourselves. The public interest in freedom without responsibility will always be more vital and necessary than the private interest of personal autonomy with responsibility.
LINKS
Joshua Rozenberg blog - Leading and respected UK Legal Affairs journalist.
US Supreme Court blog - Longstanding and much respected coverage on the US Supreme court.
Heather Brooke - Award winning campaigning journalist and Freedom of
Information expert.
Paul Lashmar - Respected investigative journalist and lecturer at Brunel
University.
Tim Crook Media Law Bulletin November 2009
