The world and his dog have ripped into Paul Dacre of the Daily Tory for his whining about Mr Justice Eady's decision to allow Max Mosely a bit of privacy. Dacre's thesis comes down to this: Mosely was a pervert who liked to engage in Nazi themed orgies; exposing such behaviour was a just act because it exposed his moral repugnance, his unsuitability for the governance of motor sport, and, well, stuff. The fact it made a highly profitable headline for the Mail was, of course, by-the-by in its pursuit of the public good.
So Dacre & the Mail are dissembling cunts. Were they incorrect? Most of the legal blogosphere is of the view that they were. Carl Gardner did a pre-eminent job in kicking them in the nuts: characteristically forensic and on the mark in so far as it went. Astonishingly the Government weighed in with the remarkable statement:
"10 November 2008
Statement from the Judicial Communications Office - Speech by Mr Paul Dacre
"Judges determine privacy cases in accordance with the law and the particular evidence presented by both parties. Any High Court judgment can be appealed to the Court of Appeal".
This comment was issued in response to a speech by Mr Paul Dacre, Editor of the Daily Mail, to the Society of Editors."
Brief to the point of being almost invisible this was the governmental 'raised eye brow' and its brevity should not be taken as undermining its, remarkable, public disapproval of Dacre's remarks. Other lawyers have weighed in to defend Eady. The essence of their defense was that:
- Eady was reflecting the Human Rights Act
- He was complying with ECHR jurisprudence
- He was merely one of a series of judges interpretive the new privacy reality
- The judgment didn't give excessive protection to the amoral
- the courts protected newspapers in a matching commitment to freedom of the press that Dacre didn't complain about.
All true. And Geeklawyer despises the Daily Mail even more than Karl Marx. But even if Dacre is fundamentally misconceived in his objections to case law and statute, and he is, he points, albeit indirectly, at the larger and more valid issues about valid privacy policy objections to current law.
Traditionally privacy policy in the UK has been that you don't, as a default position, have it. Sure, contractual reasons might create it or confidentiality rules might, under very limited circumstances, allow it but otherwise you are fair game. It's the Anglo-Saxon/Common Law approach and it fits in with a minimalist libertarian approach to regulatory conduct. Dacre's comments can be framed within that conception. Does Mosely have a right to privacy on such a matter? Or more precisely since the court has said yes, should he have such a right? Geeklawyer, regrettably, says, no.
A simple look at the law reports demonstrates that whatever the theoretical concerns of privacy activists the newspapers ae mostly concerned with scummy celebrities. Sure, there are occasional horror stories like the Sunday Sport's repulsive abuse of Gordon Kaye while he was vulnerable and defenseless in hospital recovering from an awful accident. But for the most part it is celebrity cunts like Sienna Miller Russell Brand and Max Moseley, all of whom are well able to wield legal and PR resources in their own defense. And they all are the first to tip off the media when they are attending an event and want publicity that helps their careers.
So sure if it were the weak defenseless and vulnerable falling prey to the press then Geeklawyer would be sympathetic. Were it possible to draft privacy laws to address the much much bigger threat of governments amassing huge databases on our private lives so as to control us then, again, Geeklawyer would support them.
The sad truth is that privacy laws mostly, in practice, protect the powerful and the rich against the media. Geeklawyer would be content to see media rights strengthened against whores like Britney Spears, JK Rowlins, Naomi Campbell, Victoria Beckham etc so long as such media protection extended merely to exposing people such as them.
New blog post: Privacy? Fine, just not for publicity whores please http://tinyurl.com/5tu9uc
I shall return here when I am completely sober to give a view...
But.. for the moment.... Dacregate is being analysed simply in terms of the law as it stands - and it would be a brave commentator who says, at this point in our jurisprudence, that we have a 'firm law of privacy'.
We have a 'growing law of privacy' to be sure - and hopefully one that will reflect the balance, in a mature, sensible and rational way, between private and public interest.
I suspect the Court of Ap;peal and The Lords - perhaps our new Supreme Court - will determine this. Or should Parliament do it? I Think I would prefer the professionals to do it - what about you?
As i say - I will revisit this.
I'm really really not so sure that we can say we don't have such privacy law.
For certain 10 year ago we could say such a thing: we had confidentiality law etc etc which trod on the toes of privacy in a limited respect: but it had at it's core the relationships (e.g. confidentiality/contract etc) between defined parties in a pre-existing nexus, however tenuous, but not the rights of an individual solus.
These rights are substantively new and original and not a re-casting of prior rights: they are De Novo in character and relate to the rights of a man to be left alone considered in no other context than that. We have crossed the conceptual Rubicon and said that, like the love that dare not speak its name, privacy is to be regarded and respected for itself. This *is* new for English common law and not a mere increment in legal thinking.
I do hope that the courts should agree its existence but qualify its remit.
You just seem to have a different line in the sand from that of Dacre, if what you are saying is that privacy would be fine for some but not for those you dislike. The only law that I would trust to protect me is the one that is going to be strong enough to protect those that I might personally despise. And I can't bring myself to start on the present government's selectively oppressive legislative bias.
But this is a bit more like it.....
Oh I totally agree; you are paraphrasing Voltaire of course, and rightly so. I despise celebs & the Daily Mail and yes of course I would fight for their right to privacy. The caveat of course is which of their flavours of privacy I would protect.
Would I protect Siena Miller wanting a bit of private time on a beach? No! Fuck off, she likes the money fame and trappings of celebrity so she should take the bits she doesn't like too. You don't want that? Fine: fuck off and stack shelves in Sainsbury's for a living or be a whore like Heather Mills and suck off old desperate lonely rock stars for their money.
I think there should be a distinction made between breaches of privacy that are in the public interest and those which are private matters. We need to protect the rights of individuals to live a private life without trial by media for their private behavior.
Subjective moralizing about people's sex lives is not in the public interest, Osborne's Corfu adventures with the elite is. With politicians you could perhaps argue more of what they do is in the public interest, and they therefore deserve less privacy. I should imagine it would be almost impossible to draft a working privacy law that didn’t risk restricting some press freedoms.
I do worry about trials by media though and the effect this has on our society. Maybe if reporting on celebs private lives was reduced, we might see a return on people being famous on their merit as individuals, their contribution to arts, science and culture as opposed to who they have been shagging in coke binges. It would certainly cut off needed media exposure on which these parasitic celebs feed on.
Geek,
Is it really true that Eady has merely been applying the law? He is, in the sense that he seems to measure the conflicting rights to privacy and freedom of speech most scrupulously.
My impression, as a non-lawyer, is that the weights he gives to them are highly subjective and reflect his own hostility to people selling their stories to the press.
@ james c
'the weights (Eady) gives to them are highly subjective and reflect his own hostility to people selling their stories to the press.'
you might find these informative. they are about as balanced a view as can be found out in the wild
http://heresycorner.blogspot.com/2008/11/dacre-v-eady.html
I've no connection with the writer but they do give an interesting analysis of some of the factual content, and how easy it is to get unwittingly caught up in the legal process when merely blogging, and, in conjunction with a reading of the actual judgement, give you the chance to form a more balanced view of the whole thing than just looking at the normal tabloid froth
Apologies for jumping in on Geeklawer's home turf, BTW. (I was brought up to be polite)
isn't it clever? won't let me put all the URL's in one post...
http://heresydungeon.blogspot.com/2008/07/everything-ive-learned-about-spanking.html
and now i'm posting too quickly....
http://heresycorner.blogspot.com/search/label/Max%20Mosley
http://heresycorner.blogspot.com/2008/07/max-and-liberty.html
http://heresycorner.blogspot.com/2008/07/in-news-again.html
http://heresycorner.blogspot.com/2008/07/switching-sides.html
with any luck, this is the last...
@james c:
I don't think Eady's approach was subjective at all, James! You could argue that he was just wrong to say it wasn't a "Nazi themed" meetng, or party, or orgy, whatever you want to call it. But apart from that, I think all his calls were either (a) clearly based in authoritative case law or else (b) in the press's favour. You can sensibly argue, like Geek, that the law shouldn't be this way, and of course it's possible to criticise Eady J's legal reasoning - but I think you really need to engage closely with the detail to do that. What I don't think anyone can sensibly argue based on the judgment is that Eady is making this up as he goes along on the basis of anti-press attitudes. I think that's a hilarious suggestion! Of course it was Paul Dacre's.
I wasn't thinking about the Mosley case, which seems clear cut, but the bizarre injunction to prevent the cuckolded husband selling the story of his wife's adultery to a famous sportsman.
Found this via Scunnered's link.
Thinking about this affair some more, it strikes me that Dacre is unlikely to be so stupid as actually to believe that Eady J was making up the law to suit his personal whim. Nor can he be unaware that the judge passed up the opportunity to award Mosley exemplary damages. I think he's playing a rather subtler game, to destroy in the public mind the view that the law is or could be objective. It fits in with a much broader and older tabloid narrative about "liberal" judges handing down lenient sentences to rapists or drunk drivers. It's about establishing the popular press as an alternative centre of legitimacy.
None of this means, of course, that Eady J wasn't, in fact, personally sympathetic to Mosley. I find it impossible to read the judgement without concluding that he was.
Yes. I'm sure that is a part of the game: there is this tabloid misconception of the judiciary; it stems from a very much older (i.e. since the Thatcher years) power play by the Government that resents an independent judiciary that won't tow the party line. Neo-Labour have adopted the same line, since it is not about political belief but assuming effective control over a society where other organs of state have a constitutionally independent role. It served the Tories to complain about 'liberal' judges and the accusation now serves Neo-Labour too.
The Tabloids have been willingly co-opted into the propaganda role with the Mail in the vanguard with piffle such as this.
The sad truth, from the perspective of a left-libertarian, is that the judiciary are, largely and with a few admitted exceptions, a spineless bunch of right-wing conservatives (small 'c') worried about maintaining their unspoken subordinate constitutional position, rather than fighting for liberty & the citizen and/or their own integrity.