April 29, 2011 7:59 pm

Gagging the media

The pendulum has swung too far in favour of privacy

The BBC journalist, Andrew Marr, was pilloried in some quarters this week after admitting to taking out a super-injunction to prevent the press from reporting an extra-marital affair. But simply calling him a hypocrite misses the point.

True, as a journalist Mr Marr should not have reached for such a gagging order. Super-injunctions, which forbid the media from reporting their existence, as well as preventing disclosure of their substance, are a menace to free speech and should be scrapped.


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But this is not to deny Mr Marr and his family a right to be sheltered from press intrusion. In this case, there was no public interest in reporting the original story. Mr Marr is not some moralising politician, and what he does in private, so long as it is legal and does not compromise his public role, is his own affair.

The case lays bare the muddled state of the UK’s privacy laws. There is a balance to be struck between an individual’s right to a private life, and people’s right to be apprised of matters that are of public interest. But the need to protect Mr Marr from intrusion should not provide cover for others about whose activities the public should be informed. Of late, the pendulum has swung too far in favour of privacy, driven by court rulings based on Article 8 of the European Convention on Human Rights. These have granted a number of super-injunctions and gagging orders – some on questionable grounds.

The answer must be to replace the current hotch-potch – which has evolved haphazardly – with legislation. If there is to be a dedicated privacy law, it must have a strong public interest defence embedded within it. Defining this should not be impossible. Most people can distinguish between wrongdoing and prurient gossip.

It is not just the law that bears re-examination. The media must look to their own conduct. In their willingness to expose cant and wrongdoing, some newspapers are too careless of privacy. The phone hacking scandal and the use of entrapment have strengthened the case not only for tighter judicial enforcement of privacy, but for a regulatory agency, which would be a wrong step. Some acknowledgement by the press of errors, and a genuine commitment to effective self-regulation, would be welcome.

It is perhaps true that celebrity gossip is important to the business model of tabloid newspapers, and in its absence we might have a less diverse media. But this diversity cannot justly be purchased at the expense of gross intrusion into the lives of unwilling victims.

Information is the lifeblood of democracy. The public’s right to know about people whose decisions affect their lives must not be eroded by judges – however well-intentioned. Parliament should intervene to strike the balance.

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