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This article can be found in Issue 5 of Vhcle Magazine.
2011: Privacy
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It would, in effect, mean newspapers would need a judge’s approval before publishing private information – at the moment they have a ‘get-out clause’ of simply not informing the subject. For example, during the Daily Telegraph’s revelations of how MPs were abusing their expenses system, subjects were often either not contacted or contacted very late for comment to prevent an injunction being sought. If the newspaper had been forced to contact the MPs involved then gain a court’s approval before publishing, it could have taken a long time, cost a lot, and there is no guarantee that the judge would have agreed with the journalists.
The prospect of that cost could introduce a ‘chill’, meaning reporters don’t even bother starting a story that could end up in court. It’s often argued that the UK’s libel laws have this effect – and in fact the costs system was recently denounced as a breach of the right to free expression by the European Court of Human Rights – but this law could also affect serious journalism as well as gossip and rumour. One possibility is to have a ‘public interest’ defence, with a presumption towards allowing publication if the newspaper can show a reasonable public interest in the story (the subject could still sue afterwards if the story turned out to be false).
But even this has the unpleasant requirement to gain a judge’s consent before publication. I’d certainly trust a judge over a tabloid editor, but it’s not just about the tabloid editors – it’s about the journalists exposing elected representatives abusing their expenses, or about the tax affairs of the people donating millions to our political parties, or about the hypocrisy of a holier-than-thou MP who has an affair.
It ends up as a balance between the few important stories that could be blocked, and the invasions of privacy that could happen more regularly without a new law. I – reluctantly – have to come down on the side of the media and say that mandatory notification would be too damaging. I would like to see lower costs (read: lawyer’s fees) but higher damages awarded to victims of invasions of privacy, with a failure to notify made an aggravating factor.
This doesn’t solve Max Mosley’s problem. It means an individual’s right to privacy can be breached and that the newspaper can quite legally act in such a way that the individual has no way to prevent this. But it would go some way towards deterring newspapers from publishing details not in the public interest that someone wants to keep private.
Jamie Dance Thunder (Yes, that's his real name.) An English Language graduate from Cardiff University, now studying for an MA in Investigative Journalism at City University, London. He hopes his interests of bad puns and current affairs will help him get a decent job on a newspaper, or failing that make him that guy at parties who makes terrible topical jokes and is the only one who laughs.
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Privacy, March 2011 Vhcle Magazine Issue 5, Global Notes
Unless you have a particular interest in the children of British fascists or watching funny-shaped cars going round and round and round, the chances are that you’ve not heard of Max Mosley.
Or at least if you live in Britain, the chances are that you hadn’t until he had his bottom spanked by five women and found himself on the front page of the UK’s best-selling Sunday newspaper.
Mr Mosley, understandably, wasn’t very pleased about this (er, the publication, not the spanking. I imagine he was quite pleased about that). He sued the newspaper, Rupert Murdoch’s News of the World, for invasion of privacy, and won £60,000 in damages.
The News of the World’s justifications for the story were pathetic. It claimed there had been a Nazi theme, and that this was in the public interest because Mosley is the son of the former British Union of Fascists leader Oswald Mosley. Unfortunately the only evidence of any Nazi involvement was that some of the women spoke in German.
It then claimed that Mosley’s position as head of the Formula 1 governing body meant there was a public interest in revealing his sex life. That also didn’t get very far, unsurprisingly.
Having lost his job and his dignity, Mosley has now taken a case to the European Court of Human Rights, arguing that newspapers should notify people before publishing stories about their private lives. This would give them a chance to argue to a judge that it is a breach of privacy and so should not be published.
It sounds a reasonable proposition, and there’s no doubt that the story was an example of unjustifiable intrusion that absolutely should not have happened. It’s also true that no amount of damages can change the fact that Mosley’s privacy was invaded.
So why have so many journalists and lawyers come out against the plans?
Roy Greenslade, former editor of the tabloid Daily Mirror and now a lecturer in journalism ethics, sums the fears up when he says it would have a “chilling effect” on all journalism. He argues that while Mosley is quite right to feel aggrieved, the unintended consequence of his law would be to stifle the press.
It’s standard journalistic practice to contact the subject of a story prior to publication, not least because they might actually be able to explain the scandal you think you’ve found. In that sense, Mosley’s law would affect very few pieces of serious journalism – it’s primarily the celebrity tattle and sex scandal stories that regularly ignore this convention. And if in most cases the subject of the story is notified in advance, they have the option of seeking an injunction anyway.
But while a subject notified in advance already has the option of trying to block the story in the courts, it’s not used all that often. If Mosley’s law was implemented, however, it might be, and those court hearings can be costly and time-consuming.
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