Whither the rule of law?

Wednesday May 25, 2011

Eamonn Butler explores the boundary between free speech and privacy in the super injunction controversy.

The ‘unsustainability’ of recent super-injunctions has caused much agitation among the ruling (and rutting) classes. You go to court to hush up some dark stain on your reputation, and then you find politicians naming you from the safety of Parliament, your photo over the front page of the Sunday Herald in Scotland, and the Twitterati having a whale of a time embellishing your story.

What should a free society make of all this? Do people have a right to privacy, even those who make their living out of being famous? If so, how should it be protected? Or can it be protected?

There is a curious topsy-turviness about US and UK thinking on this. In America, the constitutional right to free speech means that you can say pretty much anything you please about someone in public life, and there is precious little they can do about it, a situation which papers like National Enquirer exploit to the full. But you cannot impugn the reputation of a private person without facing court action. In the UK, it seems almost the opposite: the rich and famous hire expensive lawyers to protect themselves with super-injunctions, while lesser mortals cannot actually afford to fight libel and defamation actions.

Then there is the issue of different jurisdictions. The foreign media have gleefully ignored the gagging orders of British judges – not just now, but historically in cases such as the Spycatcher expose, which the rest of the world could buy and read, but we in the UK could not. Now journalists in Scotland believe they can ignore English judges without redress. Unless you go for a gagging order in every jurisdiction in the world, how can you prevent your name coming out?

The instantaneous nature of Twitter, Facebook and the like bring into doubt how far gagging orders can ever be enforced. The cat is out of the bag, and round the world, before the judges can even catch it. And the international nature of the electronic media is another problem. A website might be based and run from, say, the Irish Republic, but if it is easily accessible in the UK, does its content violate UK law, and what can UK law do about it? Again, the Americans have no doubt. Around half the world’s internet traffic goes through US servers, which US prosecutors believe gives them a perfectly good reason to seek the extradition of folk who run internet gambling sites from other countries and charge them with racketeering offences that carry whole-life sentences.

Another issue in the whole business is the plight of people who are falsely named because of the wild speculation that follows when gagging orders are discovered. It is maybe even worse for those who are genuinely caught up in a scandal – the prostitutes used by footballers, for example – but who cannot defend themselves because they are not allowed to identify the other party.

Plainly, this is not a happy situation. And those of use who believe in a free society need to be thinking more about how we respond to it.

One obvious point is that the law should apply equally to everyone – soap stars, footballers, actors, bankers and even the politicians. A legal system in which the rich can afford gagging orders and the poor can’t defend themselves is no good. Maybe it’s time to break the lawyers’ monopoly and get some competition into the court system, which might make justice more generally affordable.

Another obvious thing is that the law can’t outlaw reality. We have moved on from the days of the Chancellor’s blue pencil and D-notices. If the web is abuzz with information, gagging orders won’t control it, so why try?

And yet, I believe that in a good society, people’s privacy should be protected. Any of us would face serious financial harm if our bank login details were published; but a media circus over, say, a footballer’s illicit affair could cause just as serious personal harm to his innocent wife and children.

The ‘public interest’ solution to this is looking increasingly ropey. The public is genuinely, if pruriently, interested in the affairs of the famous. We don’t want it protecting them like French politicians. When colleagues and I founded the Adam Smith Institute thirty five years ago, we adopted the rule that we would do nothing that we weren’t prepared to appear on the front page of the Guardian. Perhaps, given the realities of modern communications, the best rule for celebrities is to do nothing they are not prepared to see on the front page of the News of the World.

Dr Eamonn Butler is director of the Adam Smith Institute