There are two ways to view the issue of privacy as it applies to media law and regulation:
- There should be tougher, tighter restrictions on the media's ability to invade our privacy, as tabloid newspapers in particular persist in doing so on flimsy grounds
- We urgently need to liberalise privacy law in favour of the media, as it is becoming increasingly difficult for UK media to publish information about the rich and powerful (those with access to expensive lawyers)
As ever, there are overlapping issues with digitisation:
- UK-only privacy regulation/law is made absurd by the easy access to global online resources
- As most of us permit websites and apps to track huge amounts of personal information about us, we increasingly undermine the argument that we have a right to privacy
There are cases from the press, TV and film that we can consider, but there is a further point we swiftly encounter, for example through the Max Mosley case:
- Media regulation of single industries makes no sense, and is ineffective, when there is so much cross-media ownership
Indeed, Marxist critics, such as Chomsky or Curran and Seaton, would argue that media regulators are too focussed on content issues and should really be focussed on enforcing strict limits ownership to avoid (and un-do) the concentration of ownership (one of Chomsky's five filters in his propaganda model) we see in every media industry. Contrastingly, the free market advocates (supporters) of free market deregulation argue that it is laissez faire policies that create competition and guarantee the pluralism that underpins basic democratic theory.
- Without radical action and limits on media ownership, regulation of content will arguably have limited real impact, and the 'fourth estate' (media) will be bound to fail to fulfil the pluralist, watchdog role citizens of democracies depend upon.
Wider law comes in to most areas of media regulation, and this is no exception. The Human Rights Act has provided a specific 'right to privacy'. The UK was forced to do this to meet EU law under the European Convention on Human Rights (again, you'll find this tagged in several posts).
As the Trafigura case (below) highlights, there is a real issue on cost: it is arguable that only those with access to expensive lawyers have a functioning 'right' to privacy. Furthermore, by simply launching a legal appeal to ban any media coverage, companies and individuals will often succeed as media owners are reluctant to lose money fighting such battles. As newspapers continue to decline, will there be institutions like The Guardian willing to pursue (for years!) such a case? Their efforts nearly drove the paper to bankruptcy.
Some of the cases you can refer to to explore this (most are detailed in previous posts - look for the 'privacy' tag); brief summaries follow, then a few sample paragraphs pulling some of these points/examples/terms together:
- MAX MOSLEY: Successfully sued NoTW for reporting on his private sexual activities, and falsely accusing him of Nazi role-playing. The paper also published video footage through its website which clearly undermines the idea of single-industry regulators such as the PCC (which failed in any case, as Mosley could only get justice by going to court). This also strongly showed the influence of EU law in the UK.
- TOPLOADER GUITARIST: Part of a (divorced) celebrity couple, he went straight to his lawyers when the Daily Star published a photo of his 8 year-old. Owner Desmond had withdrawn from the PCC, refusing to pay the levy. The photo was an obvious breach of Clause 6 of the Editor's Code, on 'Children'.
- RYAN GIGGS + TRAFIGURA: Giggs took out a 'super injunction': not only was it illegal to state he'd had an affair with his sister-in-law, it was also legal to mention that Giggs had launched a court case. Corporations have also used privacy laws to 'gag' media criticism. The Guardian fought a long legal battle to overturn Trafigura's superinjunction; they had dumped toxic waste causing deaths and disease. The cost of the legal battle is the key point in some ways: if we do get a world without newspapers, only bloggers, will they really fund expensive legal battles against such legal bans? Widespread Tweeing of Giggs identity made his superinjunction an absurdity.
- RIGHT TO BE FORGOTTEN: a Spaniard successfully won a legal battle for the 'right to be forgotten' by Google. His right to privacy, though, threatens conflicting rights of information and expression, and has the potential consequence of making it impossible for small, independent companies to rise as google competitors; the cost of manually editing search engines for individual requests is potentially vast.
- BLAIR BRATS: Former PM Tony Blair and his wife Cherie had a series of battles with the press over coverage of their children, which included reports of son Euan's public drunkenness and drug-taking; the buying of expensive property for him; the choice of school; school reports and exam results, etc. You could argue that this obviously shows the PCC failing - but there is also a case for what the PCC terms a 'public interest defence': surely it is right to highlight the hypocrisy of a politician who brought in ASBOs and lectured on education?
- BROWN'S BABY: Gordon Brown's testimony to Leveson was quite sensational: the NoTW threatened him in a phone call - they were going to publish (illegally obtained) information about his sick child, and would make the story even more intrusive and upsetting if he didn't co-operate with quotes. He did. And his wife Sarah had NoTW head honcho Rebecca Brooks, currently on trial for phone-hacking (etc), over for a sleepover with their children weeks later.
- ROYAL PRIVILEGE: This can be viewed from different angles. One of the very first press regulator rulings was over a Daily Mirror poll on who Princess Margaret should marry - the General Council of the Press didn't like this! When Princess Diana died, seemingly during a chase by paparazzi, anti-media feeling and outrage at invasion of privacy was intense. Her sons won extraordinary protection from the PCC, who repeatedly gathered together all national editors to warn them to leave them alone while at school ... and even university. Given these were heirs to the throne, there is an obvious argument for 'public interest' overruling their right to privacy, but then these weren't the working class Hillsborough victims or 'The Worst Brat in Britain' that The Sun casually abused. Prince William would throw a thank you party for the press after he graduated. This is an ironic case: the PCC being effective for once, but in a case where it was wrong to limit the freedom of the press?
- BENEFITS STREET: The C4 doc/reality show, like My Big Fat Gypsy Wedding, has proven extremely controversial. Yes, participants originally agreed to be filmed, but most now say they weren't prepared for the reaction: widespread abuse, personal attacks and utter vilification through the press (and even police investigations when some appeared to admit to petty crime). Such people lack expensive lawyers, though. It is notable that the producers of Benefits Street have so far failed to find another community willing to be filmed for a second series. (google 'guardian benefits street' for many useful articles on this; Wiki)
- BIOPICS: Gregg Allman and Jimi Hendrix biopics have both hit difficulties when representatives of the stars refused to co-operate (meaning no access to Hendrix music for example). Film-maker Nick Broomfield, who has previously produced investigative documentaries about 2Pac and Biggie Smalls, plus Courtney Love and Kurt Cobain, says he can't produce anything like this any more given the rising expense of legal fees.