WIDER ISSUES: Privacy

This is a topic I've frequently blogged on - use the tag cloud to find previous posts.

There are two ways to view the issue of privacy as it applies to media law and regulation:

1. 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
2. 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.

A few quick examples of exam-style writing on some of this:

The Max Mosley case as well as that on the 8 year old daughter of the Toploader (British rock band) guitarist and Gail Porter, model and TV presenter, highlighted the inability of the press regulator to adequately deal with privacy issues. Wider law, particularly the Human Rights Act (which brings the UK into line with the European Convention on Human Rights), not just defamation laws, are key here.

Mosley’s case helped re-establish the legal principle that what might interest the public is not the same as the 'public interest', a legal term which is used to justify media intrusion which someone may wish to avoid. Mosley’s lawyers successfully argued that his sex life was not a public issue, that the public had no right to know about this. News International’s now closed title the NoTW (long nicknamed News of the Screws as it built its circulation success on a steady diet of sex 'scandals' and 'kiss and tell' stories) had published not only a story but also a video of Mosley with prostitutes. The courts accepted that this was not relevant to his public role as head of a motorsports body, the FIA. He won damages for defamation, as the paper had falsely claimed he played out Nazi fantasies as part of this.

This case also highlights the difficulty of regulating any single media industry in an era of what Web 2.0 (O'Reillys term) theorist Henry Jenkins terms convergence, the blurring of boundaries between once distinct media and how they're accessed. Murdoch’s newspaper was a web operation with TV elements through its video stream, so could arguably be covered by the PCC, OfCom or even AtVod, the online video regulator created to enforce EU web regulations.

Another recent legal ruling on the right to privacy, which is guaranteed under EU law, saw a Spaniard successfully win 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. In an era of superinjunctions, such as Ryan Giggs ban on the entire UK media from reporting on his affair with his sister in law (notably rendered meaningless by widespread Tweeting), the media's right to publish and the publics right to know are clearly under threat.

The Toploader case highlights the specific failings of the PCC on this. Despite having very specific regulations in place about the right of children, including celebrities’ children, to privacy (Clause 6 of the Editors Code), the tabloids and mid-markets still routinely report on and use photos of celebrities children. A photo of this 8 year old child was used as part of a typical non-story, but one with the potential to entertain the public in this era of celebrity culture, about the Christmas plans of a divorced celebrity couple. It clearly breached Article 6, but the Toploader guitarist turned to his lawyer to directly contact and threaten the Daily Star with legal action if it didn't remove the photo from its website. The PCC was an irrelevant bystander (though it still offered to help) as Richard Desmond's Northern and Shell, owners of the Star and Express, had quit the PCC in 2011, simply refusing to continue paying its levy. There was no penalty for this and so these papers effectively operated free from any system of regulation other than existing wider law.