Time for a new privacy law that leaves well alone

Times Online, January 12, 2007

Privacy is a delicate issue in today's world. On one hand, we are currently lucky enough to be able to watch the latest round of Celebrity Big Brother, in which people find that their natural discretion is countervailed by the allure of having their every movement broadcast to millions, and on the other, our putative sovereign is contemplating bringing a test case on behalf of Kate Middleton, an appealing young woman who has the questionable fortune of being enamoured of Prince William.

To add spice to this intoxicating mix, just before Christmas three appeal court judges upheld a decision supporting a Canadian folk singer’s opposition to her former personal assistant publishing a book about their time together. The singer, Loreena McKennit, may be only partially better known than the inmates of the BB house, but that did not stop the judges agreeing that information gleaned by Niema Ash, her assistant, could not be revealed because it had been obtained through being "in a position of trust". The McKennit case was heralded by Hugh Tomlinson, QC, of Matrix Chambers, as "a decisive step towards a fully-fledged English privacy law".

Some might say that Mr Tomlinson would say that, for he is also advising the Prince of Wales, whose solicitors, Harbottle & Lewis, this week warned newspapers to "sharpen up their act" in connection with coverage of Ms Middleton’s life or face legal action. Such action could entail a complaint to the Press Complaints Commission, proceedings under the Protection from Harassment Act 1997 against individual photographers, or even an attempt to use the common law to build on a 2004 European Court of Human Rights ruling in Prince Caroline of Monaco’s favour and grant a general injunction against unnamed photographers. Equally, however, Harbottles is understood to be involved in negotiations with the media to secure an informal agreement over how much, or rather, how little, publicity will flow in Ms Middleton’s wake.

So far, then, so labyrinthine. And, as is typical when it comes to privacy, so unclear. If it is true that each society gets the laws it deserves, why do we not know exactly where we stand with regard to privacy? Despite a succession of recent rulings that tend to recognise people’s privacy rights, "tending" is all that they do. There is nothing definitive, merely a series of broad principles with which opposing sides fence and parry. To every case its own facts, and to those facts the vagaries of interpretation, but to what end? Why is nothing clear?

One answer is that the lack of clarity in the law reflects society’s own ambivalence about privacy. We choose to castigate the BB housemates as has-beens, wannabes and desperadoes, but if there was not an appetite for their antics Jade Goody would not have amassed an estimated £8 million fortune. The clamour to sign up for the next show has probably already begun, while over on ITV just about its only ratings success story is The X Factor, a show that yields the occasional gem but an awful lot of delusional lunatics who can neither sing nor dance but think the rest of us want to watch them. Alas, apparently we do.

Having written about a few lowlights from my own life in Wrecking Machine, and having worked on both the claimant and defendant sides of media law, I am acutely aware of the argument that if you stick your head above the parapet, you’re fair game. But there must, surely, be a question of degree, and in Kate Middleton’s case she appears to have done nothing to court the media. Three days agoshe turned 25, and she should, in a sensible world, be able to live out her next 25 years without having a phalanx of paparazzi following her every move.

So how about the following: let’s let our archaic libel laws slip slowly into the desuetude they deserve, in exchange for a well-defined privacy law that assesses and responds to the degree to which an individual has colluded in or actively engendered collateral damage to, or even the outright destruction of, his private life. And if it’s the case, as Marlon Brando once put it, that "privacy is not something that I’m merely entitled to, it’s an absolute prerequisite," let’s do the right thing and leave well alone.