Friday 30 March 2012

Privacy and injunctions

On 27 March 2012, the House of Lords and House of Commons Joint Committee on Privacy and Injunctions published a report, "Privacy and injunctions". The report and the published evidence (published on 16 March 2012) are available from this page:

(My comments here are very critical of the report, so it is worth noting that not every member of the Committee agreed to everything in the report. Some were greater friends of freedom than others. A record of voting on particular parts of the text is given on pages 88 to 103 of the report.)

The Committee really does not understand the importance of free expression. There are warm words about its importance, but the Committee regards a right to privacy as being of equal importance. On page 5, we find:

"The fundamental right to freedom of expression lies at the heart of this debate. The right to privacy is equally important. It is universal and can only be breached if there is a public interest in doing so."

Equality of importance of these rights simply cannot work, if the latter means a right of privacy as against publication in the media, rather than a right to keep one's affairs private from the state (and a right not to be the object of state snooping is arguably that right that Article 8 of the European Convention really confers). Free expression, and privacy as against media publication, are bound to come into conflict, all the time. And free expression must be accorded the higher status, if we are not to become an utterly oppressed people.

One reason to accord the right to privacy the lower status is that if someone does something shameful and it appears in the newspapers, he or she has only himself or herself to blame. Another reason is that those who are most likely to take advantage of a right to privacy are those who already exercise significant influence through their wealth, fame or political position. The reality of such people's personalities and actions jolly well should be open to scrutiny.

The Committee's attitude to Twitter is ambiguous. There are warm words about its role in the Arab Spring in paragraph 92, but then a certain pleasure is taken in the fact that Twitter users can be identified and action can then be taken against them (paragraph 100). The Committee hesitates over the use of country-specific blocking of tweets (paragraph 108), but seems to think that disclosure of the fact of blocking would make blocking acceptable.

The degree of oppression that the Committee calmly contemplates can be seen in a couple of further passages, in paragraphs 109 and 115.

Paragraph 109: "We recommend that, when granting an injunction, courts should be proactive in directing the claimant to serve notice on internet content platforms, such as Twitter and Facebook. Beyond that, claimants in privacy cases should make full use of notice and take-down procedures operated by responsible internet service and social media providers, who should also seek to disseminate best practice and discourage illegality amongst users and other providers."

Extract from paragraph 115: "Google and other search engines should take steps to ensure that their websites are not used as vehicles to breach the law and should actively develop and use such technology. We recommend that if legislation is necessary to require them to do so it should be introduced."

The message of paragraph 109 is that it is responsible to kowtow to the judges who dictate what we can write, and what we can read, and whose reasons we cannot inspect because, by the nature of the case, they have to act in secret. And it would be quite wrong for anyone to stand up and say "It is a very great evil for any arm of the state secretly to regulate expression, so I reject that regulation".

The Committee's belief that we should kowtow is set out on page 5: "The rule of law in protecting the right to privacy should be upheld by all. If a judge has made a decision, based on hearing the full evidence in a case, that decision should be respected by those who have not heard all the evidence". The judge might be better informed than the rest of us about the circumstances of the particular case, and about the relevant precedents. There would be no reason to think that the judge had an ethically respectable position on freedom.

It might be different if the proceedings were public. Then it would be reasonable to say "I disagree, but I can see that the decision is one that one could reasonably reach, and that, plus my respect for the rule of law, is enough to lead me to respect the decision". But it would be an abnegation of one's own rationality meekly to accept a judge's deicision, when one had no idea what the grounds for the decision were. The fact that privacy is the point of the proceedings, so that they have to be secret, makes no difference to this point. If the only way to enforce a right is to ask us to take secret justice on trust, the right should not be enforced.

Paragraph 115 says that search engines, in whatever country they are based, should apply British law to hide information from British users. I hope they ignore this request, even if legislation to put it into effect is enacted. In particular, American search engines have the noble First Amendment to uphold. There is no reason why people or companies in nations with greater freedom of expression should respect the laws which govern that freedom of nations with lesser freedom of expression, even if the freedom is only a little bit less.

Finally, in chapter 5, the Committee proposes a press regulator, the jurisdiction of which would extend to all major publishers of newspapers, whether they liked it or not. That would amount to the requirement to obtain a licence to publish, however it was dressed up as non-statutory or semi-statutory. It is, like much else in the report, an oppressive proposal.

My overall conclusion is that a right to privacy (as against media publication, rather than as against state snooping) can no longer be enforced, save by oppressive means. That means we must give up trying to enforce the right, and rejoice in our right to free expression instead.

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