The ‘free press’ in Britain is distinguished by the most oppressive libel laws, which prevent reportage of great importance about crime and malfeasance. For example, no journalist could properly write about the life and crimes of Robert Maxwell until he was dead. Yet there is no law at all to protect personal privacy: ‘Kiss and sell’ stories by bedroom sneaks are staple reading. In contrast, across the Channel, France offers the most stringent protection for privacy. French people first became aware of President Mitterrand’s illegitimate daughter when she was nineteen (and then only with Mitterrand’s implicit consent). The paparazzo who telephotoed the sucking of the Duchess of York’s toes was fined £70,000.
The deal struck for a country’s press invariably expresses its national preferences and values. In America, for instance, the deal is often brokered by the courts, against the background of a constitutional presumption in favour of the media. It is only liable for defamations of public figures if they are published recklessly, heedless of the truth. But even celebrities are protected against gross invasions of their privacy – in publishing their health records, for example, or photographs of them lying injured in car crashes. And it was the US Court of Appeals that defined ‘paparazzo’ as ‘a kind of annoying insect, perhaps roughly equivalent to the English “gadfly”’, when in 1973 it refereed the clash between Jacqueline Onassis and the gadfly in question, the photographer Ronald Galella. Galella had exceeded the reasonable boundaries for news-gathering by intentionally assaulting Mrs Onassis and by entering her son’s school, disrupting her children’s riding and water-skiing lessons and endangering their safety in car chases. The result of this case was an acceptable compromise between free speech and privacy: Galella was prohibited from approaching closer than twenty-five feet to Mrs Onassis and thirty feet to her children, or blocking their movements, or doing anything that might jeopardise their safety or cause them genuine alarm. Otherwise, his taking and selling of pictures was not restrained. This is the very least that public figures should expect from the law, anywhere in the world.
The laws governing the British press also reflect the country’s values and preferences. Libel is a rich man’s sport, a class act which serves to unblot escutcheons and cover up awkward truths about important plaintiffs. Newspapers bear the burden of proving truth in court and have no ‘public good’ defence. But this, after all, is a society that’s known for prurience and prudishness. The newspapers most despised for invading private lives are also the most popular: they mirror rather than create the national character. This is a society in which tens of thousands of people report their neighbours for not paying their annual television licence fee; in which the security services have still not been brought under democratic control; in which telephone tapping and other forms of covert surveillance are permitted by the Home Secretary without police first having to apply to a court; and in which eavesdropping is a popular pastime. Today’s true Brit is perhaps Cyril Reenan, the retired bank manager whose hobby was snooping on others’ conversations with the assistance of a £1,000 radio scanner linked to an antenna in his garden. When he intercepted Diana’s ‘Squidgygate’ conversation with an old boyfriend, James Gilbey, he insisted he did not want to hurt the Royal Family; that, evidently, is why he delivered the tapes to the Sun for safekeeping.
The deal that has been done allows Britain to snigger over what people are like in bed rather than worry about what they are like in their bank accounts or business dealings. The apogee of this state of hypocrisy is a body called the Press Complaints Commission (formerly the Press Council), funded by newspaper proprietors as an insurance policy against the advent of privacy laws. Every time there is an outrageous invasion and it is said that the press is ‘drinking in the last-chance saloon’ the Commission is there to find an excuse for the saloon never closing. It will promote endless amendments to its ‘code of conduct’ which everyone knows will be ignored by editors in the interests of circulation, because breaches involve no fines or payments of compensation to victims. After Diana’s death it was the same story: amendments to the code, pious promises not to pay six-figure sums for pictures of celebrities caught in some sort of flagrante (until someone else publishes them somewhere first) and business as usual. A ‘code of conduct’ without any sanction, which does not even offer to pay the psychiatric bills of victims injured by its breach, is simply a confidence trick.
The question that all editors who affect concern for human rights should ponder, before they engage in further attempts to stave off the advent of a privacy law, is this: why is privacy a value which calls for protection under every human rights treaty ever devised? There is, I am convinced, a psychological need to preserve an intrusion-free zone of personality and family, and there is always anguish and stress when that zone is violated. Hence the European Convention and other charters speak of a ‘right’ to respect for private and family life, home and correspondence. But in the same breath, these declarations also speak of the ‘right’ of freedom of expression. In real life, the two rights are rarely seen to co-exist. Influenced, perhaps unduly, by the media’s self-interest, we have become much more concerned about free-speech violations than privacy violations: the former attract the undivided attention of human rights organisations (some formed solely for this purpose) while the latter are rarely condemned. We are inclined to perceive loss of privacy merely as a quid pro quo for being rich and famous, forgetting (as Orwell never did) that this was how communism deprived all citizens of any right to privacy from the State. The concern is not merely, or even mainly, for princes or film stars or potentates: instant international exposure is liable to alight upon anyone caught up in a major disaster or unperfected moment of heroism or horror. The same protection should be offered to all, implemented by law rather than left to our better nature.
It is a mistake to see privacy only in terms of the excesses of the tabloids. A whole range of intrusions – from unlicensed private detectives to bailiffs and credit agencies and secret intelligence services – take liberties in this area as well. What matters is that the law should enforce respect for a few fundamental decencies, so that privacy and freedom of expression are recognised as values which are universal and complementary. Public figures, whether crowned or elected or created by happenstance, might then enjoy the reputation they deserve. Reputations, in other words, which must withstand revelations about all aspects of their lives except that part lived behind a door marked ‘do not disturb’. This part will be located by laws which will generally deny entry to the cradle, the school and the toilet, to the bedroom, to the hospital and the grave.
This is because a ‘right’ is empty rhetoric unless it can be enforced. ‘Voluntary self-regulation’ is a fraud. The media must be obliged to recognise a lowest common denominator of decency which says about certain photographs (of Diana in the changing room, for example) ‘up with the publication of this we will not put’. In her lifetime, considerations of decency and respect for privacy were treated with contempt. When Diana was surreptitiously photographed by the Sun, pregnant on a Caribbean beach, the newspaper was immediately condemned by the Press Council – a ruling which it used as an excuse for republishing the photographs under the banner headline ‘THIS IS WHAT THE ROW’S ALL ABOUT, FOLKS!’ After her death, however, there seems to be a new awareness of two limits: dimly, one imposed by conscience, and more keenly, a fear that readers content to be treated as voyeurs will revolt if regarded as ghouls.
I had hoped Diana’s case about the gym photos would be decided by distinguishing between subject matter that is truly private and that which is fair game. It was, and it remains, important to edge British law forward from its current position, seen in its paradigm failure to protect the privacy of the intensive-care hospital room of TV star Gordon Kaye, photographed and recorded by intruding journalists as he was struggling to regain consciousness after a brain operation. The Court of Appeal ruled in this case in 1991 that there was no satisfactory legal remedy for what the judges admitted w
as a ‘monstrous invasion of privacy’. A court in New Zealand was prepared to create such a remedy, when asked by children to stop the showing of scenes in a pornographic ‘splatter’ movie which had been shot, identifiably, on their parents’ grave. These are examples of a privacy which requires protection not because of any contract or confidentiality or fiduciary relationship, but by reason of our humanity. Diana’s claim would have been unanswerable on that score had the secret camera captured her in the sauna or in the showers or in the lavatory (all places she was smart enough to avoid at LA Fitness). But enthroned on the leg-press, in a communal atmosphere which cannot historically or culturally be located within the sphere of ‘the private’? I think – tentatively – not, although I was looking forward to reading the judgment. Win or lose, this case would change the law for the better. It would focus it on the quality of the privacy invaded, rather than the relationship between the parties or the reprehensibility of the means by which the photos were obtained.
But it was not to be. A few days before ‘the case of the century’ was due to be tried, there was a deal done between the parties to avoid any embarrassment my cross-examination might cause to the Princess of Wales. This was disappointing, if only because I would probably have caused more embarrassment to the newspaper. It is always deflating for a counsel when a ‘big case’ settles at the door of the court (a condition which my wife calls courtus interruptus), and this was a lost opportunity to make some good law. I imagine the Princess was disappointed too: she had been led to believe that she would win a great victory, and even the Duke of Edinburgh had publicly congratulated her when she issued the writ. But victory was not assured, and perhaps she lost heart at the prospect of reliving the violation all over again, in a witness box. This is the great irony about all the fuss the media makes about a privacy law: it will in practice be rarely used, because very few wish to go through an ordeal in the courtroom which invades their privacy all over again.
As for Bryce Taylor, it was claimed by some newspapers that he returned to New Zealand a very much richer man, as the real beneficiary of the out-of-court settlement. They said that a syndicate of Royal admirers had clubbed together to pay his legal costs and to reward him for going away quietly. The size of his reward was put as high as half a million pounds. In this event, he would deserve to go down in legal history as the first defendant to be paid for the privilege of being sued, and paid even more than the damages claimed by the plaintiff.
In 1997 Diana was killed fleeing the flashbulbs she so often positioned herself to attract, a terrible end to the Faustian bargain she had made with the media. Her death has, however, provided some wider understanding of the universal need for a right to be let alone. The law she failed to create in court will, I hope, come about under the impetus of the privacy guarantee of the European Convention on Human Rights, once it is incorporated into British law.
Chapter 17
Cash for Questions?
Editor: Can we legally publish the evidence against all these Conservative MPs? The public interest is overwhelming, on the brink of an election when some of them are candidates.
Lawyer: That’s not a defence to the crime of contempt of Parliament, which you will be committing if you publish these confidential transcripts.
Editor: What’s the punishment?
Lawyer: That’s up to your judges, who are all MPs. They keep a special cell for contemners, just beneath Big Ben. The chimes will drive you mad. Black Rod hasn’t put anyone there since Charles Bradlaugh, back in 1880, but if the Tories get back, you never know.
Editor: If I publish this evidence, they won’t get back.
There was some nervousness in the editor’s office six weeks before the 1997 election, on the day the Prime Minister prorogued Parliament. John Major’s action meant that Sir Gordon Downey’s report into the Guardian’s allegations against Neil Hamilton and other MPs could not be published until after the election. The newspaper, however, had been sent transcripts of his secret hearings, embargoed from publication. They revealed that half a dozen Tories had variously confessed to breaches of parliamentary standards, acceptance of money and favours, avoiding tax and a range of conduct unbecoming an MP or anyone else in a position of public trust. I advised that publication of the confessions would be in breach of confidence and would constitute the crime of contempt of Parliament, but would be the public duty of any editor who took democracy seriously. Some of these MPs were standing again, for very safe seats – and this was something their electors had a right to know.
The electors should, of course, have known about this evidence when it was given. The Guardian had persistently urged Downey to hold open hearings but his advisers had insisted upon secrecy. Downey’s report should certainly have been published before the election, as John Major had promised when he called for this inquiry into ‘cash for questions’. But now it could not be published, for he had prorogued Parliament. So Alan Rusbridger decided to overlook the legal dangers, and to publish important extracts from the Downey secret hearings. There was some concern at the paper that night about whether Conservative Central Office might get wind of the scoop and prevail on a sleepy judge to grant an injunction. So the editor took another unprecedented decision. ‘No newspapers to Newsnight.’ It was the Guardian’s publicity manager’s ritual responsibility to have a front page at Television Centre by 11.15 p.m., for Paxman or Snow to wave the headlines: the Downey memorial edition was kept under wraps for fear of alerting the Tories that the game was up. I felt able to advise that Black Rod would be unlikely to put Alan over Mrs Betty Boothroyd’s knee for the crime of contempt of Parliament, since the one person more guilty of contempt for Parliament was the Prime Minister, who had dissolved it a few days before Downey was due to report.
It was this publication by the Guardian of extracts from Sir Gordon’s secret hearings which set the sleaze ball rolling through the Tory campaign. MPs’ misconduct became the biggest single issue at an election which swept away not only the accused Tory MPs but many more who might have held their seats, had Neil Hamilton not made a fateful decision to play the justice game against the Guardian. He started the firmest of favourites, and only a month before the libel trial was reckoned by his lawyers at 9–1 on, a racing certainty. That he is now something of a seaside entertainment, a latter-day Rector of Stiffkey, may be due on one level to his vainglory, but on a more important constitutional level, to the absurdities of a system of Parliamentary self-regulation which puts MPs beyond the law of the land.
If John Major had acted sensibly when it all began, he might still be Prime Minister, or (more probably) have led a healthy opposition. On 20 October 1994, the Guardian’s front-page story was ‘TORY MPs WERE PAID TO PLANT QUESTIONS SAYS HARRODS CHIEF’. It alleged that Tim Smith, the Northern Ireland minister, and Neil Hamilton, minister at the DTI, had accepted sums of money in return for putting their powers and privileges as MPs at the service of Mohammed Al Fayed. The proprietor of Harrods claimed he had been told by the lobbyist Ian Greer that ‘You need to rent an MP just like you rent a London taxi.’ The Guardian had some evidence to support Al Fayed’s allegations against Hamilton – a few fawning letters, and the £5,000 bill (at today’s prices) for a free week’s stay at the Paris Ritz. It had none against Smith, apart from the fact that he, like Hamilton, had asked parliamentary questions and tabled parliamentary motions on Al Fayed’s behalf. But the morning this story was published it was Smith who admitted receiving ‘commissions’ from Al Fayed, and resigned from the government. Hamilton clung to office ferociously by issuing a libel writ and by assuring Michael Heseltine, his boss at the DTI, that he had not had any financial relationship with Ian Greer. It was principally public disgust at the size of his bill at the Ritz that persuaded the Prime Minister a few days later that Neil Hamilton should resign as a minister in order to spend more time with his libel lawyers.
Among advanced democracies, only in Britain could allegations of this seriousness against government minist
ers receive no law-enforcement response. The Prime Minister should immediately have instigated a full-scale police inquiry. Al Fayed should have been interviewed, and so should the three witnesses who later came forward to support his story. On this evidence, Smith and Hamilton should have been arrested and sent for trial, with an Old Bailey jury deciding whether or not they had acted corruptly. Neil Hamilton would then have been conclusively condemned or vindicated, long before the 1997 election. In the United States, equivalent allegations would immediately have been sent to a ‘special prosecutor’ with powers to bring politicians, and even presidents, before a court. In Australia they would have been investigated forthwith by a judge heading an ‘Independent Commission Against Corruption’ – a body established to root sleaze out of the democratic process. But this was Britain, where in the time-honoured tradition of the Gentlemen’s Club a committee of fellow MPs occasionally met to decide whether a chap had gone too far. ‘We can exploit our healthy majority on the Privileges Committee,’ gloated the government whip David Willetts, and that is precisely what they did, finding Neil Hamilton merely ‘imprudent’ in taking on the Ritz. The Privileges Committee did nothing at all about Tim Smith. He slipped from ministerial office to the Deputy Chairmanship of the Public Accounts Committee, and prepared to present himself as a fit and proper candidate for the safe seat of Beaconsfield. Hamilton, together with Ian Greer, proceeded with his libel action against the Guardian.
London is the libel capital of the world because English law heavily favours the plaintiffs. ‘Defamation’ is in law no more than criticism – a statement of fact or opinion which lowers the plaintiff in the estimation of right-thinking people. All that the plaintiff has to prove is that the defendant published a defamatory imputation about him: the burden then shifts to the defence to prove that it is true. When corruption is alleged – as it was in effect by the Guardian – that burden is very heavy indeed, almost to the criminal standard of proof ‘beyond reasonable doubt’. So there have been celebrated cases where newspapers have published the truth, yet lost: John Profumo collected damages for the suggestion he had been sleeping with Christine Keeler; Richard Crossman and other politicians perjured themselves in the witness box to succeed against the Spectator, Liberace won massive damages against the Daily Mirror for implying he was homosexual. In the US, and in most European countries, newspapers which act responsibly have public interest defences for publishing credible allegations about politicians when they cannot be proved, and even when they turn out to be unfounded, but there is no such defence in British law. So it was a great relief to the Guardian when Neil Hamilton’s libel action first came unstuck. A judge ruled that a court did not have the power to try allegations which turned on motives for asking questions in the House of Commons, because of a clause in the 1688 Bill of Rights which forbids courts from questioning an MP’s performance in Parliament.
The Justice Game Page 43