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Saturday, 21 August 2010

The Sex Lives of Footballers

A tabloid newspaper complains that the courts have now granted two injunctions to protect the private lives of footballers.

On the face of it, these injunctions raise "free speech" issues: they are injunctions granted by the courts to prevent the mainstream media publishing something it otherwise would want to publish.

However, this view may be misconceived.

Two hallmarks of a free and civilised society are free debate on public issues and protection of privacy for individuals.

My own commitment to libel reform has nothing to do with enabling the mainstream media greater freedom to intrude into private lives; instead, it is to free public debates - about health, science, safety, the conduct of corporations and of police officers and other officials in the discharge of their duties - from the deadening effect of the threats of libel actions.

But the non-exposure of the sex lives of footballers, soap stars and other celebrities does not represent any significant free speech issue.

For me, the libel reform campaign is not about promoting the interests of the mainstream media.

That may be an effect of the campaign in certain situations, but it is not an objective.

Libel reform is instead about providing individuals with information on matters of public interest.

And however the concept of public interest may be defined, it is difficult to see mere intrusions into private life as being any component of it.


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13 comments:

Jasper said...

The trouble is that the sex lives of footballers and other such "celebrities" are precisely what most of the public are interested in.

It may be a sorry situation (well, not maybe, it is) but the line between what is in the interest of the public and what interests the public is so blurred that I'm surprised anyone can make a decision in such cases.

Oh yeah, that's why you legal people get paid the big numbers.....

Great stuff as ever, keep up the good work.

Michael Kingsford Gray said...

Prurience versus Jurisprudence

Nick Gordon said...

For me, the problem is that injunctions like these are now becoming an accepted part of the legal landscape. I don't much care about footballers' sex lives, and I do care about privacy. The courts, however, do seem to be developing a sympathy to the argument that, if I might under certain circumstances be harmed by publication of something about me, then publication should be stopped.What that does is to create an opportunity for those with more money than morals to control what's being said about them.

Not, IMO, what the courts are for.

I note, btw, with amusement, that my verification word for this post is 'strop'.

Oliver Pereira said...

I couldn't disagree more with this blog post. Part of the essence of liberty is being allowed to talk (and write) about whatever you want.

Don't get me wrong; I have no interest whatsoever in the sex lives of footballers. I have no intention of ever reading or writing about such things. However, there are many other people who do wish to share information about such things, and it should be their right to do so.

Neither am I concerned with the interests of the mainstream media. That's a red herring. If a particular fact is banned from being talked about, then even the smallest and weakest of media outlets is penalised in the same way. (And, of course, it is the smallest and weakest which have the least ability to stand up against such restrictions.)

You talk about free and civilised society. Never mind about the hallmarks. The free and unrestricted sharing of information - of any kind - is its very bedrock. A society in which a person can be punished for conveying a piece of information to another person can never call itself civilised, no matter how trivial, frivolous, or offensive that piece of information may be in the sight of others.

Lloyd Jenkins said...

@NickGordon
"The courts, however, do seem to be developing a sympathy to the argument that, if I might under certain circumstances be harmed by publication of something about me, then publication should be stopped."
Any danger of an example? Did they use privacy law to do so?

Obviously the misuse of the power could be a major issue, but I think we have to be bold in protecting fundamental rights, and that means taking risks too.

I'm glad JoK is distancing the libel reform campaign from the tabloid/grauniad view that there should be basically no restrictions on the press.

NotACat said...

@Olivier: A society in which a person can be punished for conveying a piece of information to another person can never call itself civilised, no matter how trivial, frivolous, or offensive that piece of information may be in the sight of others.
I would imagine that a rape victim would find it offensive for her identity to be bruited abroad, but you apparently would find it acceptable to publish her details regardless.

Did you actually intend to convey this impression, or did you mistype?

Lloyd Jenkins said...

"A society in which a person can be punished for conveying a piece of information to another person can never call itself civilised, no matter how trivial, frivolous, or offensive that piece of information may be in the sight of others."

You've no time for trade secrets? Or the secrecy of the locations of nuclear missiles, and their launch codes? In fact, would it be acceptable for someone to publish your PIN code along with your daily schedule?

The right to privacy is the cornerstone of any democracy. That's why it's included in pretty much every declaration of fundamental rights.

Nick Gordon said...

@Lloyd Jenkins Max Mosley, Trafigura and at least some of those who sought and got 'super-injunctions'. I can't say which of the 'super-injunction' cases entailed privacy because we're not allowed to know, so that fails the test of fact, I'm afraid.

Larry Motuz said...

A good article. Thank you.

If we are going to draw lines in the sand,I do believe that,when the privacy rights of human beings conflict with free speech that may be harmful to them--directly or indirectly--to those persons, then privacy must rank somewhat higher than the needs to know of nosy parkers.

Lloyd Jenkins said...

@Nick Gordon
"@Lloyd Jenkins Max Mosley, Trafigura and at least some of those who sought and got 'super-injunctions'. I can't say which of the 'super-injunction' cases entailed privacy because we're not allowed to know, so that fails the test of fact, I'm afraid."
I'm not sure that Trafigura used the tort of privacy, but I'll have to check that. Does anyone know? I can't see how they could have.
On the other hand, what was wrong with the Mosely case? So far as I'm aware -it's been a while since I studied it- he was involved in private sexual acts, which the tabloid press wanted to publish. The acts weren't 'nazi' or anything particularly terrible. I can't see that there was any public interest in the information, which was clearly intensely personal (as sexual preferences are). I can't help but feel that he deserved an injunction.

Oliver Pereira said...

@NotACat: I didn't mean to convey the impression that such a thing would be acceptable. However, there's a big difference between "unacceptable" and "punishable by law". Causing offence is an unavoidable by-product of freedom of speech. In an ideal world, every speaker would be careful with what they say, getting their message across with the minimum of damage to the feelings of others. But if they get it wrong, the "liberal" response would be to tell them so, to persuade them to apologise for their offensiveness, and perhaps to shun those speakers who persist in being offensive. If they had the constant threat of legal action hanging over their heads, they might be more careful, but it could have a tremendously chilling effect on their willingness to speak freely, and we could lose out on a lot of what they otherwise would have had to say. I don't like people causing me offence, but I would much rather be offended - and have the opportunity to berate those causing me offence by means of some free speech acts of my own - than live in fear of facing legal action for offending someone else.

I am not a lawyer, and I don't know what the legal restrictions are on publishing the identities of rape victims, but I can think of several situations in which a person might find it appropriate to do so. If the rape happened to result in the birth of a child, for example, then that child would not even be able to discuss their own origin without identifying their mother as a rape victim.

@Lloyd Jenkins: Trade secrets benefit the individual companies that hold them, but I can't see how this benefits the rest of us. If another company can take the same information and make better use of it, well, that's bad luck for the first company, but better for everyone else. As for my PIN, I keep it secret. If anyone found it out, its publication would alert me to the fact, so I could get it changed! It's people who keep my PIN to themselves that I need to worry about, because I might never know. And nuclear weapons? We'd all be better off without them!

Less facetiously, I will scale back the hyperbole of my first comment, and grant that some rights should trump others. The right to life and the right not to be physically attacked should take precedence over the right to freedom of speech. I will (grudgingly) accept the curtailing of speech that would clearly lead to the endangerment of lives. But any supposed "right not to be offended", which is effectively what the whole privacy issue is, doesn't come close.

I dispute that democracy implies a right to privacy. It is quite easy to imagine a perfectly democratic society in which every person dedicates their entire life to public works, and has no private life at all. Not a society in which you would want to live, perhaps, but it is one end of a continuum along which there is an inverse relationship between democracy and privacy. The more democratic a society, the less distinction there is between private citizens and public servants; in a true democracy, they would be one and the same set of people. And the more involved in politics the people are, the less their lives can be considered private.

To illustrate the last point, Peter Tatchell and his OutRage! movement showed us that the sex lives of political figures can be an issue of public interest. If a politician is involved in supposedly private activities that are opposed by their public stance regarding those same activities, then the inconsistency merits public exposure. If even that most private of activities can become a public issue, then there is nothing that cannot. And the more that we are involved in the political process - which is what democracy means - the more the same principle can be applied to any of us.

Nick Gordon said...

@Lloyd Jenkins - that's not my point. I haven't expressed an opinion on whether anyone mentioned here deserved protection or an injunction. My point is that some principles of privacy are being determined on the basis of a small group of people with means to go to court. The rest of us are excluded from the discussion

vp said...

Although I am against prior restraint in almost all circumstances, I sympathize with the tenor of this post. The private lives of celebrities are not generally a matter of public interest, and I don't really care if it's pretty easy to sue for libel over such stories.

However, this emphatically does not hold for people who are holders of, or candidates for, public office (where "public office" includes any high position in government or Parliament). I definitely believe that a US-style approach of maximalist free speech is demanded for such persons.