Free Speech Cafe: Privacy

In recent weeks, no issue has been more hotly debated in the national press than the right to respect for private life, and its seemingly irresolvable opposition to the right to freedom of expression. In recognition of the importance of this subject, PEN assembled a panel of experts from the legal, psychological and literary spheres to discuss the changing face of privacy law, and what the consequences of proposed reforms may be. Joining the panel were David Price, a leading libel and privacy lawyer currently acting for Imogen Thomas, Geoffrey Robertson QC, an eminent human rights barrister, Jane Haynes, psychoanalyst and author of Who Is It That Can Tell Me Who I Am?, and Miranda Seymour, winner of the 2008 PEN Ackerley Prize for her frank memoir of her troubled family life, In My Father’s House.

Introducing the evening, English PEN’s Director Jonathan Heawood remarked that the fraught relationship of privacy and freedom of expression was a theme very much in keeping with PEN’s mission – to protect ‘freedom to write and freedom to read’, and yet avoid embracing a ‘naive fundamentalist commitment to free speech’ without consideration for the subtle and nuanced negotiations that continue to fuel debate in this area. It was, he went on, an extremely topical issue in the current climate of high profile trials and super-injunctions, with as yet unnameable players battling to protect their privacy in the nation’s courts. The debate has significantly polarised public opinion – giving rise to competing views that, on the one hand, the tabloid hacks are feral beasts that ought to be destroyed, and on the other that celebrities have in some sense done a deal with the devil and deserve to reap the fruits of their Faustian pact. Drawing closer to PEN’s concerns and members, Heawood asked the audience to consider what happens if autobiographies of controversial writers like Graham Greene and George Orwell become impossible to publish because the wishes of family, lovers and partners are allowed to take sway? What price are we willing to pay for private life?

Opening the discussion, Geoffrey Robertson offered a whistlestop tour of the law of privacy and restraint of press freedom, dating back over 650 years to a 1360 law against ‘the eavesdropper’. Despite these precocious beginnings, however, since then law has signally failed to keep pace: the major human rights treaties of the 20th century were based on natural rights, in which privacy didn’t figure, neither was it a feature of 1930s debates in the legal and political field, until a committee of writers and artists, among them HG Wells and JB Priestley accompanied a letter to the Times with a draft Declaration of Rights. Pithily asserting that ‘a man comes into this world through no fault of his own’, the declaration asserted a dual right to privacy – first that the citizen should not be the subject of investigation or secret dossiers by the state, and secondly that ‘his private house or apartment or reasonably limited garden enclosure is his castle, which may be entered only with his consent’. The declaration became the first draft of what turned into the Universal Declaration of Human Rights, a landmark piece of post-war legislation, based on what Robertson described as ‘a rather Napoleonic concept of honour and reputation’.

Human rights legislation is infused with the ideological conflicts which raged through the last century: as a consequence Article 8 is not framed as a right to privacy, but as ‘respect for privacy and family life and home and correspondence based on the way the Gestapo treated home and family life, secret surveillance and state agents’ behaviour towards informers’. At common law during the 1970s and 1980s, the dominant forces were Lord Denning and Mary Whitehouse, both, in Robertson’s view, ‘middle-class moralists’ who viewed all adultery as wrong, and were utterly against any kind of privacy because ‘people deserved to be exposed and shamed if they deviated from the moral majority’. Open season was declared on cheats and adulterers, but swiftly degenerated from voicing the moral opprobrium of the masses to all-out muck-raking, culminating in disgraceful episodes like the hounding of Russell Harty as he lay dying – with journalists dressing in white coats to gain admission to the ward, and sending flowers as bribes to his nearby bedfellows. At this point it became clear, Robertson acknowledged dryly, that something had to be done.

The case that started the ball rolling centred on a little known Canadian folksinger, but was the first in a series of cases that profoundly affected legal thinking in Europe – leading to what Robertson referred to as ‘quite incoherent judgements from Strasbourg’ which have been picked up by British judges, with the result that anyone with a ‘reasonable expectation’ of privacy can claim protection. Even from beyond the grave, it would seem, as a case in which a family sued for breach of privacy on recognising a tomb stone in a horror film suggests.

So if the system doesn’t work, Robertson asked, what is to be done? Sadly neither politicians nor the Murdoch press seem to possess the moral mettle to take the matter in hand, and are themselves perhaps too fond of the protections a privacy law might afford.

One option, he suggested, would be to take the advice of the Duke of Wellington – ‘publish and be damned’ and leave it to juries to decide the issue. Significantly, Max Mosley claimed for breach of privacy rather than libel, and as a consequence the case was decided by a judge rather than a jury. A return to jury verdicts might be one solution, though not one without its own problems, not least time and expense.  His final advice to writers was dispiriting: recommending that until the current law was reformed, they take out not only libel insurance, but privacy insurance too.

Miranda Seymour began by explaining that so ‘cowed’ was she by the threat of privacy law that she had written out her notes in advance. Biographers and memoirists, she said, face a slightly different task to journalists: clearer lines are drawn, and often the interests of the family are the primary concern. The biographer faces a challenge, however, in second guessing what their subject wished to be revealed and concealed. ‘Almost anything can be said’ she went on, provided it is said in good faith. ‘In the controlled environment of the pages of a book, print becomes the truth’ – in her own case, setting down troubling aspects of her family history ‘enabled us to go on living in a house haunted by the past’.

Jane Hayes contrasted her position with Seymour’s – describing it as essentially encouraging people to share precisely the family secrets the biographer may feel beholden to conceal. In her experience, it is not uncommon for people on their deathbeds to spill out ‘secrets that they have held tight all their lives’, and which they don’t want to die without having shared. Her own life was thrust into the spotlight when her son-in-law was unlawfully killed. In many ways, she remarked, therapists are ‘like Coriolanus – happy to pathologise patients but not to go into the marketplace themselves’ – happy to reveal scars, but not wounds. As a therapist, she is acutely aware of the subtle distinctions between curiosity, privacy and secrecy. The distinction between private and secret is that privacy is visible and clearly signposted, whereas secrecy is either of the kind which only feels meaningful where the secret is shared with another trusted person, or the secrecy of deep secrets, never told unless on death or in memoir, and linked to pathologies of guilt and psychopathic consciousness.

Last to join the conversation, David Price brought the subject back to the legal principles underlying the debate. He touched on the nature of law as essentially ‘about sanction’, characterising it as a mechanism designed precisely to stop us doing ‘something we want to do’. In what circumstances then, he asked, is the state entitled to prevent voluntary interaction between individuals? Any law of privacy will operate on the threat of a punitive measure – be it an injunction, damages or imprisonment. Another fundamental component of English law, he continued, is uncertainty, and coupled with the broad ambit of the proposed privacy law, this may result in writers self-censoring for fear of prosecution, whether such fears are well-grounded or not.
Essentially, Price maintained, law is about property, but what constitutes property becomes hard to determine when we enter the domain of shared personal experience. In the landmark case of McKennet v Ash, information about the claimant was deemed to be the claimant’s ‘property’ even though it had arisen as a result of a shared experience – radically affecting the Defendant’s right to speak about, and in some sense claim ownership over, their own past. Price’s own view was that apart from carefully defined circumstances where a contractual relationship exists, no law of privacy should be countenanced. He cautiously admitted sympathy with the Denning approach, and questioned the idea that protecting a right to privacy was the best way of protecting family life.

As the evening moved into a question and answer session, conversation ranged widely over the issues that had been raised by the speakers. One audience member raised the Orwellian spectre of governmental invasion of our private lives, and the huge incursions made into citizens’ privacy by states trading personal information between themselves. Jonathan Heawood agreed, lamenting the ‘huge social illiteracy’ around that kind of private information, and the extent to which the law has fallen behind in trying to regulate it. The recent case of Dominique Strauss-Kahn was also debated, with America’s rigorous anti-pap laws attracting praise from several of the speakers. The PCC, however, came in for strong criticism: David Price asserting that a regulator paid for by the media will always lack credibility, while Geoffrey Robertson likened it to a ‘confidence trick that ceases to inspire confidence’. The palpable inequity in the ability to protect privacy was also addressed – with Super Injunctions costing tens of thousands of pounds, one listener asked, was privacy becoming the preserve of the wealthy and famous? While David Price contended that to some extent celebrities’ desire for the limelight afforded them a reduced right to privacy, Geoffrey Robertson maintained that Super Injunctions were rarely needed by ordinary people, though a real problem that remains pertinent to the debate is ‘foot in the door intrusion on grief’ which can affect all those touched by tragedy. He also drew a distinction between different gradations of celebrity – identifying ‘power-wielding celebrities’ such as politicians as fairer game than ‘mere’ celebrities ‘because their lives have to be judged by their capacity for hypocrisy’.

Drawing the evening to a close, Jonathan Heawood looked to the future, and, recalling Simon Singh’s landmark case, asked whether a test case for literary biography might also be called for. Where PEN goes from here – not simply legally, but also morally, philosophically and practically will be hugely important.

Report by Lettie Ransley

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