Privacy and Injunctions - Evidence - Parliament

Professor Steven Barnett—Written evidence
system is required – preferably frontline self-regulation with a statutory backstop – which
has the power to levy fines of sufficient magnitude to deter further breaches.
Should we introduce a prior notification requirement, requiring newspapers and other print media to
notify an individual before information is published, thereby giving the individual time to seek an
injunction if a court agrees the publication is more likely than not to be found a breach of privacy? If
so, how would such a requirement function in terms of written content online eg blogs and other
media?
Unwarranted publication of personal details cannot be undone, and for some of those on
the receiving end no amount of damages will be recompense for the distress caused. It is
therefore axiomatic that prior notification should be allowed, as long as the threshold for
granting injunctions continues – as it is now – to be high.
The anarchic nature of online, social and mobile media is often quoted in privacy debates as
a reason for doing nothing. In fact, the power and reach of new media tends to be
overstated, and the potential damage of these media in breach of privacy cases is tiny
compared to the main conduits of mass communication. Very few blogs can count their
readerships in more than four figures, and even the better known (such as Guido Fawkes)
tend to consist of those “in the know” talking to themselves. While Twitter revelations
were blamed for the “outing” of Ryan Giggs (reinforced by his naming in Parliament), the
disclosure of an identity is very different from the widespread coverage generated across
television bulletins and tabloid newspapers. In particular, the sensationalist and lurid nature
of much popular press coverage cannot possible be emulated in 140 characters on Twitter,
and the latter should not be used as a convenient excuse for violating legitimate privacy
rights.
Is section 12 of the Human Rights Act 1998 appropriately balanced? Should the media’s freedom
of expression be protected in stronger terms? Or is there a disproportionate emphasis on the
media’s freedom of expression over the right to privacy?
Section 12 is an anomaly, the result of undue pressure by newspaper proprietors on the
government when the Human Rights Act was going through Parliament. It is particularly
unwelcome because it exploits concerns about freedom of expression for individuals with
freedom to promote commercial self-interest through publication of celebrity-based
revelations – themselves often derived through illegitimate or unlawful means. This is an
important distinction: my right to criticise the government or the judiciary is a cornerstone
of democracy and should be sancrosanct; but my right to intrude on other people’s lives
purely to indulge my appetite for gossip is not an equivalent free speech. I would commend
to the committee Onora O’Neill’s words in her 2002 Reith lectures:
Like Mill we may be passionate about individual freedom of expression, and so about
the freedom of the press to represent individuals’ opinions and views. But freedom
of expression is for individuals, not for institutions. We have good reasons for
allowing individuals to express opinions even if they are invented, false, silly,
irrelevant or plain crazy, but not for allowing powerful institutions to do so. Yet we
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