Is privacy total deniability?

The debate on privacy has matured to the extent where it is increasingly (though not universally) appreciated that privacy and security are not the same goals or the same disciplines. However, occasionally something crops up which reveals that the concept of privacy is still a slippery one, treated very differently in different cultural and legislative contexts.

The case of Max Mosley is an illustrative one. Max (who is the head of the FIA – the international governing body of motorsport) is currently suing a number of media organisations in various European countries, because they alleged that he had taken part in a Nazi-themed sado-masochistic session with a number of prostitutes. Last year he succeeded in convincing a court that the sado-masochistic orgy in which he had been involved in had had no Nazi theme – and he was awarded £60,000 on the basis that his privacy had been breached by the publications. The ‘Nazi’ allegations may have struck a particularly sensitive nerve as Max is the son of the late Sir Oswald Mosley, leader of the UK’s fascists in the years before the second World War; presumably that’s also why the media thought it might sell more papers.

Max’ position, as I understand it, is that as long as an individual’s private activities are irrelevant to the activities of their public persona, there is seldom if ever a public interest argument in favour of publishing them, to the detriment of the individual’s privacy.

There are two problems with this superficially plausible argument.

Both are very well put here by Ian Hislop, editor of the satirical magazine Private Eye, which has been around for as long as I have, and has carved a niche for itself by exposing the differences between the actual and claimed behaviour of our public figures. He’s well qualified to have a view, incidentally; as the Wikipedia entry for “Private Eye” notes, he’s the most sued man in Britain.

The first problem, then, is that there will always be a legitimate judgement as to whether the individual’s private activities are, indeed, irrelevant to their public responsibilities. In Max’ case, for example, as the head of a multi-billion pound industry, he is often involved in adjudications over whether other motorsport figures have behaved honourably, ethically, and/or in compliance with the sport’s rules. That seems to me to call for a degree of personal integrity rooted in the individual’s behaviour, both private and public. As Ian Hislop puts it:

“I don’t think we’re yet at the point where we have a Mosley-style consensus that all forms of sexual activity, including paid prostitution, are acceptable behaviour in your private life.

“I think a lot of actions head into a grey area, where they help you assess character in those who are either in public office or who have official duties to perform.”

The second concerns the way in which this principle is already being put into practice in UK law. There have been a number of cases in which individuals have not only sought the suppression of material which a journalist intended to publish, but have gone further and sought injunctions against mentioning the fact that they have sought injunctions against publication. (If that has made your eyeballs spin, think of it this way: “Not only are you not allowed to say that I molest dormice, but you are not allowed to say that you have been forbidden to publish someting about me”).

That seems to me to be entirely a step too far. Even if we accept that publishing allegations about me and dormice would violate my privacy, I find it hard to give the same weight to mentioning the fact of the allegations without mentioning their substance.

The picture it sketches is of a media organisation which – perhaps repeatedly – threatens false allegations against an individual, complies with the injunction against publication, and then publishes articles to the effect that “Mr Volestrangler has repeatedly sought injunctions against this publication, and we can’t say what they were for, but as we all know, there’s no smoke without fire… nudge nudge”.

The question is, does that happen? And if so, does it happen frequently enough and with such damaging consequences that it justifies restricting the media in the way Max is pressing for?
Frankly, I doubt it. I’m sure there are many ways in which the UK’s privacy laws could be improved, but this isn’t one of them.

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One thought on “Is privacy total deniability?

  1. CarolynC says:

    I once signed a contract that stipulated I could not divulge the contents with the exception of my spouse or my attorney. (Nothing related to you or your affiliations.) I didn’t have a spouse. My attorney passed away. That totally sucks. Now I am going to find an attorney, and a spouse. In that order. ;^)cc

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