Privacy article for the Irish Times 25 September 2006
ARTICLE FOR THE IRISH TIMES 25 September 2006
By Tim Toulmin, Director, Press Complaints Commission
Legislators have missed the boat when it comes to privacy laws. Perhaps 10 or 20 years ago it may have been theoretically possible to introduce effective legislation, although defining what privacy actually is and capturing in law the notion of public interest has always defeated the best of minds. But those points no longer even need to be made. The stark fact is that imposed rules governing what people may or may not say about one another through the medium of newspapers or magazines can no longer possibly be effective in this digital age. Of course, national parliaments can impose reporting restrictions on media that operate within their jurisdiction. But will that mean that information will remain private? Certainly not – on the contrary, it will encourage enterprising journalists or others to exploit the dearth of information and establish websites located outside the country’s jurisdiction, but aimed at people within it. They could make a fortune. There was the recent example of the site which dealt in gossip about Oxford University students. When one of them tried to take action against it they had to give up after discovering that the server was based in America. In the meantime, the site merely became increasingly popular.
It is a safe bet that a similar thing would happen in any western European liberal country that tried to control the flow of information in the traditional media. The point of privacy laws is to restrict correct information, but other countries have strong safeguards for freedom of expression. So while certain information may not be published in print under a country’s privacy laws, people in that country will still be able to access it from a website based in another. Already political and celebrity blogs have a certain following. With publicity they become more popular. With more visitors, they attract more advertising, allowing them to prosper. People who think that it will be easy to restrict the flow of true but potentially intrusive material by introducing a law are wrong. Any such law will simply encourage new media.
But everyone recognises that unfettered freedom of expression – enabling anyone to publish intrusive pictures or details of an individual’s medical records, sex life, financial affairs, correspondence, family life and so on – would be pretty brutal. So if not by the law, then how do you strike the right balance between the rights of the public to receive information on the one hand, and the rights of individuals to respect for privacy on the other? The answer is that there must be a strong element of voluntarism. There need to be rules agreed by the media – not imposed from above – and administered by an independent body to whose rulings and guidance the press agrees to submit. These are the hallmarks of a press council (the Press Complaints Commission in the UK), the work of which would be impossible if it had to co-exist with statutory rules on privacy.
Such bodies are plentiful throughout Europe – including in Eastern Europe where their relatively new freedoms are balanced by voluntary rules, precisely in order to protect their freedom from legal encroachment. They have just issued a rare joint statement expressing alarm at the possibility that a voluntary press council in Ireland will be impossible if a privacy law is introduced. You might think it is none of their business. But it is. They are worried about the message that will be given out if a prosperous, liberal Western European democracy like Ireland introduces legislation that will be interpreted as a restriction on freedom of expression.
I realise that there is a difficulty in convincing some people that media Codes of Practice work in relation to privacy. It is a straightforward problem: success is measured by the invisible. It is in the articles that do not appear, the journalists that do not turn up on someone’s doorstep, and the stories that are not pursued. There are a large number of people in British public life whose blushes have been spared as a result of the PCC. Some of them do not even know it. Others have contacted us to use our anti-harassment mechanism whereby messages to editors to call off their photographers and reporters are passed on. It has a near 100% success rate. While writing this article I have taken a call from someone currently in the news, whose driveway is besieged by reporters (press and broadcast). By teatime they should have disappeared. And in terms of what is published, what is preferable as a means of redress – a lengthy court battle in which all the private details are repeated, which takes years and costs a fortune, or a discreet conciliation service that obtains swift and satisfactory remedies such as apologies, undertakings about future conduct, the removal or destruction of intrusive material from databases and so on? It’s not just our customers that prefer the latter. 68% of the general public (according to MORI) would prefer a system which delivers swift apologies and results to one which imposes fines but takes longer.
So in whose interests would a privacy law be? Not those of the general public, for which access to justice would be restricted by the necessity to use a lawyer (in fact or in the popular perception). Not those who believe that the law has no position in restricting free expression and scrutiny of the powerful, or those who think that a thriving, pluralistic media is good for democracy. And not for people in public life, who will find that imposed rules simply encourage people who have information about them to find other outlets for it. So the element of voluntarism is essential for a press council or ombudsman to be able to work. Of course it’s a not perfect system. But it’s a good formula – and should be given a chance to work.
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