Thursday, July 24, 2008

Meanhile after Mosley.. a privacy and libel round up

For a change, something privacy related.

So what do we think of the Mosley case? In many ways this is absolutely nothing new let alone "landmark". We have had a long string of cases which support the idea that press intrusion into the firmly private lives of celebrities will be regarded as a serious breach of privacy. This wasn't even a difficult case: the events took place in private behind closed and locked doors, not in the more contested world of the outdoors (cf Rowling (Murray v Big Picture)); the case wasn't contaminated as in Douglas by the existence of a threatened connected revenue stream. It wasn't a contested kiss and tell dispute as in Ash where opposing rights of freedom of expression and privacy of non-press parties clashed. This really was a pure privacy and reputation case, about as intimately private a matter as you can get, an exotic sex life, where the incentive of the newspaper was to sell lots of newspapers. It doesn't seem surprising therefore that the damages award was so high, or that the judge was so critical of the paper involved.

Nor is there really anything very new on the tabloid side. It's clear if there really had been a "public right to know" here, the case would have gone the other way. But the Nazi allegations were never proven and the NotW botched its defence. Frankly , Pangloss remains bemused how even if Mr Mosley did spend every Tuesday goosestepping in jackboots and lederhosen singing Tomorrow Belongs To Me, this would have much to do with his "public" role, the handling of Formula 1 racing. But perhaps this is one of these sporty things we females are not privy to. (I don't understand why footballers are expected to have faithful marriages either, or why the public should care either way.)

Still, as my colleague Judith Rauhofer wrote to me triumphantly to say, this case certainly affirms the aphorism from earlier cases, that even if the public is "interested", it won't necessarily be "in the public interest" for the details to be disclosed.

The much bigger issue is how far will the flowering emergence of UK post HRA privacy jurisprudence go. Almost everyone except the tabloids thinks the UK's tabloid press needs restrained, by privacy case law in the absence of legislation.

But what if it is not the press but me or you who had blown the gaffe on Mosley? We live in the web 2.0 world after all. What if I had spilled it in my blog.? What if someone had set up a fake Mosley Facebook profile in which his interests were claimed to be the Luftwaffe, iron crosses and Eva Braun, his sexuality was described as Random Play with Whips, and his politics as Neo-Fascist?

This isn't altogether a hypothetical. Oddly enough today someone also got successfully sued for 15K damages for libel, and £2K for privacy, for setting up a fake profile on Facebook in an attempt to embarrass and belittle his former mate from school. (he sounds quite a horrible person, but that's not the point really.)

The fake FB profile actually involved lies about the alleged subject, or it wouldn't have lead to a libel award. But the next case , after Mosley and the rest, could easily only involve private and damaging, but not false, details.

One clear example that clarifies where this might lead is one Judith and I debated at the Law and Society conference in Montreal - is there now a human right not to be "outed"? Tonight I've watched a documentary in which John Barrowman explained in copious detail how glad he is to be gay. But not everyone feels that way. Indubitably, outing can cause damage - everything from loss of job to loss of friends and emotional distress to suicide in some cases. Shouldn't it be actionable?

But - Do I , an individual have the ethical duty not to harm my fellow man, if I do not lie? Maybe I do , but that is still a long way from a legal duty. The judge in the Mosley case stated:

"The law now affords protection to information in respect of which there

is a reasonable expectation of privacy, even in circumstances

where there is no pre-existing relationship giving rise of itself to an

enforceable duty of confidence. That is because the law is concerned to

prevent the violation of a citizen's autonomy, dignity and self-esteem."

But don't I too , as part of my rights of autonomy and personality and self esteem, have a right to describe the world how I see it, as long as I don't lie, defame or negligently misstate? These are`my duties of care, the traditional limits of freedom of speech. I am not required in general to protect and sustain the image my friends and enemies want to project - to be part of their personal PR agency. Nor should I be.

Of course if I out my friends, they are unlikely to stay my friends and I might well be ostracised in my social group. Shouldn't these social norms and sanctions suffice? Yet it is hard to see exactly where to draw the line between the next Facebook case, the one about privacy not defamation, and the outing example. There is also surely a societal interest in truth, and critique, as well as in privacy.

Do we really want the whole world to be a giant self fulfillment and image protection arcade? or do we want the right to say, "but look - the Emperor has no clothes." Or perhaps even, in today's case, no jackboots.

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