This pamphlet was written in 1989, at the command of Chris R. Tame, Director of the Libertarian Alliance. He had been invited to submit evidence to a British Government enquiry into whether and how it should censor the press. I wrote it very quickly, and was surprised that it was taken so seriously at the enquiry.
Sadly, it was never published by the Libertarian Alliance. Since it is the only one of my writings for the LA to have been lost in the famous pipeline, I can hardly complain.
I did think of revising it for Web publication – cutting out all the dreary stuff at the beginning about what I think the LA is and ought to be, etc. However, I am far too lazy to do any such thing. So here it is – except for the Forward added in 1990, exactly as it was seen by the Calcutt Committee. It is worth reading, I suppose, if you are interested in press freedom and the various arguments for and against it.
4th January 1997
Made by Sean Gabb
on Behalf of the Libertarian Alliance
To a Committee
Established by the Government To Consider What Measures Are Needed
(a) to give further protection to individual privacy
from the activities of the press (b) to improve recourse against the press
for the individual
One: About The Libertarian Alliance
Two: The Problem
Three: The Liberty of The Press
Four: Libertarian Views of Restraint
(A) The Existing Law
(i) Civil Libel
(ii) Injurious Falsehood
(v) Contempt of Court
(vi) Sedition, Blasphemy, Obscenity, Racial Hatred
(vii) Official Secrecy
(viii) the “D” Notice System
(B) Proposed Changes to The Law
(i) Strengthening the Press Council
(ii) The Right of Reply
(iii) Invasion of Privacy
Five: Individual Recourse
(i) The Expense of Legal Action
(ii) The Effectiveness of Legal Action
Six: Concluding Summary
Now that the Calcutt Committee has reported – and at some length – we need have no immediate fears for the freedom of the press. The Report recommends no present action. It considers numerous schemes of restriction, only to turn each down. The defamation laws are not – and for this we are to be profoundly grateful – to be extended to covers libels on the recently dead. The law of copyright is not to be amended to give the subjects of a photograph any right to a say in its use. This may be a pity, since the suggestion here was my own: though, speaking personally, the summary way in which it was dismissed was more than compensated for by its being considered at all. More to the point, we are not to be burdened with a new tort of invasion of privacy. For much the same reasons as by the Younger Committee, some twenty years ago, and about as decisively, all arguments in favour of this have been rejected as unworkable or undesireable.
One complaint only comes to mind having read through the Report. Its authors still believe, against all common sense, that there can be such a thing as compelled “voluntary self-regulation”. They state in the conclusion: “We recommend that the popular press should be given one final chance to prove that voluntary self-regulation can be made to work”. Now, suppose a thug points a gun at me and says “I will give you one chance to hand over your wallet voluntarily: otherwise, I shall kill you, and then take it myself”. In all but a very strained sense, the use here of the word “voluntary” is redundant. So it is in exactly the same way when used by a politician or any other representative of the State. What the Authors of the Report are making, then, is not one final plea for decency, but a polite threat. And a free country is not to be governed by threats, polite or otherwise.
In my comments below, I show a rather cold respect for the principle of the freedom of the press. I say that there ought, on libertarian grounds, be no such things as specific liberties, but only an application to specific cases of a general freedom – always, of course, within the normal limits – to do as we will with ourselves and our own. Nevertheless, in practice, in this world of ambitious and already over-extended governments, there is probably good reason for regarding this one liberty as of primary importance. Rather than making my own attempt at elaboration here, let me do much better and quote from Lord Chesterfield’s speech on the Playhouse Bill:
One of the greatest blessings we enjoy, one of the greatest blessings a people, my lords, can enjoy, is liberty; but every good in this life has its alloy of evil: licentiousness is the alloy of liberty: it is an ebullition, an excrescence; – it is a speck upon the eye of the political body, but which I can never touch but with a gentle, with a trembling hand, lest I destroy the body, lest I injure the eye upon which it is apt to appear….
There is such a connexion between licentiousness and liberty, that it is not easy to correct the one, without dangerously wounding the other: it is extremely hard to distinguish the true limit between them: like a changeable silk, we can easily see where there are two different colours, but we cannot easily discover where the one ends and the other begins….
Let us consider, my lords, that arbitrary power has seldom or never been introduced into any country at once. It must be introduced by slow degrees, and as it were step by step, lest the people should see its approach. The barriers and fences of the people’s liberty must be plucked up one by one, and some plausible pretences must be found for removing or hoodwinking, one after another, those sentries who are posted by the constitution of a free country, for warning the people of their danger. When these preparatory steps are once made, the people may then, indeed, with regret, see slavery and arbitrary power making long strides over their land; but it will be too late to think of preventing or avoiding the impending ruin.
The stage, my lords, and the press, are two of our out-sentries; if we remove them, if we hoodwink them, if we throw them in fetters, the enemy may surprise us”.
London, July 10th, 1990.
1. Report of the Committee on Privacy and Related Matters, CM 1102, HMSO, 1990, 122pp, £11.50.
2. Para 7.30-1.
3. Para 9.8: “While, in theory, the law of copyright could be extended to give each of the people appearing in photographs joint copyright with the photographer, we consider that this would be wholly impractical, especially in relation to group photographs, crowd scenes or photographs including passers by”. For my suggestion, see below.
4. Para 14.38.
5. From a speech given in the House of Lords in June, 1737; quoted by Thomas Erskine, 18th December, 1792, for the defence in R v Paine, 22 State Trials, 442-3. The punctuation in the first part of the quotation may not be original, but come instead from the court reporter.
The Libertarian Alliance is a non-party organisation dedicated to clarifying and explaining the principles that underlie a free society. While there is no such thing within the Alliance as a “party line”, these principles have been broadly agreed in the following terms:
(1) The right of all persons to life, liberty and justly acquired property;
(2) The voluntary exchange of all goods and services;
(3) Each individual’s right to pursue his or her chosen lifestyle and to promote it by peaceful persuasion, but not to impose it forcibly on anyone else;
(4) Elimination of coercive intervention by the state, the foremost violator of liberty.
This form of words is quite clear, and in little need of commentary. But, for the avoidance of ambiguity, a completely free society, in libertarian terms, would be one without drug or gun controls, without controls on immigration or obscenity or any sexual act between consenting partners, one where the roads, schools, hospitals and police forces were entirely provided by competing free market enterprises, and where the power of the state was limited to the absolute minimum consistent with the continued existence of such a society.
Since libertarians are not agreed on whether a society ever can be completely free, this final point is one of controversy. Some believe that this absolute minimum is zero, and that government is no more than a consecrated protection racket. These are the “anarcho-capitalists”. Others believe that government is now, and perhaps always will be, necessary, and look back on the England of the eighteenth and nineteenth centuries as a model – admittedly, a very imperfect model – of how state and citizen should stand one to the other. These are the “whigs” or “limited statists”. The argument between these groups, and between different factions within them, is often rather heated. But these internal divisions are as nothing compared with that existing between all libertarians and supporters of the current political consensus. To whatever extent a free society might be realisable, it is not disputed that the one in which we live is grossly unfree. Even if they agree an interim practical objective of ensuring to people only those freedoms enjoyed in Britain immediately prior to the start of the Great War in 1914, libertarians may have at least several generations before them of con-tinued relative unity.
It is said, increasingly often, that the popular press in Britain is “out of control”. Without giving specific details, there are two main charges:
First, that means generally considered immoral are used in the gathering of information. One obvious instance of this would be the use of telephoto lenses to take embarrassing pictures of royalty and other famous persons. Another would be the publication, or use in publica-tion, of stolen papers and photographs. Another would be the dressing up and pub-lishing of confidences obtained by deceit. Still another would be the wearing down of reluctant interviewees by constant pestering.
Second, that, however gained, personal information is too often used without regard for the feelings of those to whom it relates. It may be quite proper to ignore how some politician might feel about his exposure in an act of fraud or hypocrisy. This is a matter of public concern. It is seen as something else when the publication of what is essentially of no such concern blasts the reputation, or even marriage, of a private individual.
The truth of these charges is scarcely worth denying. There is, in the public mind, a good arguable case that many newspapers are less a benefit than a nuisance, and that new laws are required to curb their activities.
Now, while the newspapers concerned are, in themselves, indefensible, the standard argument against new laws is that they must necessarily restrict the liberty of the press. This is a liberty which may well, in particular instances, seem highly vexatious, and, indeed, even dangerous. It is, nevertheless, the most important of all our liberties. Take this one away, or seriously abridge it, and every one of our others is immediately threatened.
This is a valid argument – but one more for employing the utmost caution in laying on restraints, than for leaving entirely alone. Hardly ever are the words “the liberty of the press” taken as meaning a newspaper editor’s absolute right to publish whatever his con-science, or proprietor, might dictate. They mean only that he is not subject to prior restraint by authority, or to any other restriction applying solely to the press. He is not required, before starting publication, to register himself, or to lodge funds as security for any damages that might be awarded against him, or to give other sureties of good behaviour. But he is fully answerable to the courts for all breaches of the general law regarding publication. This law comprises the laws of libel and of injurious falsehood, of confidence and copyright and contempt of court, of sedition, blasphemy, obscenity and incitement to racial hatred, and of official secrecy. There is in addition the quite lawless pressure of the Defence, Press and Broadcasting Committee (the “D” Notice Committee).
No more than anyone else do libertarians believe in absolute press freedom. As in so many other matters, there is no agreement here on details. But there is a broad agreement on the principles that are to be applied. These are not very different from those which apply now, or have applied in the past. But, as has been said above, there is much in the traditions of this country which approximates pretty closely to libertarianism. The limited statists – and, perhaps, for the duration, the anarcho-capitalists also – accept the need for certain restraints to operate in the public interest, if in vastly milder form than those currently existing. For the rest, it is a matter of property rights and their just enforcement. People should be free to do with themselves and with their “justly acquired property” as they please – but only so far as they do not violate the equal rights of others. I ought to be free, without let or hindrance, to light a cigarette in my own home: blowing smoke in your face is something else entirely. By the same argument, no one should be able to prevent my starting a newspaper: but neither am I to be able, without redress against me, to print things injurious to the legitimate property rights of others. To see the working of these principles, let us first consider those restraints on the press which we already have.
This is a difficult matter for some libertarians. On the one side it can be said that a person’s reputation is nothing more than an idea existing in the minds of others, and that no one can legitimately expect to have a property right in the contents of another’s mind. On the other side is the evident fact that people do consider themselves to have such a right – and that, if the law denied them any redress, they might be inclined to seek it themselves, in duels or in other acts of violence. In addition, the right is capable of clear statement and application: “[t]he law recognises in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit”. For these reasons, if with reservations, many libertarians would accept that the law of civil libel is justified.
Nor, accepting this, should they hesitate to endorse at least one aspect of the law of criminal libel. To be sure, justification is made a much harder defence. Proof of publication is made easier. There is no limitation of time. Even the law’s underlying principle is now open to doubt, since the Plaintiff is no longer required, as formerly, to prove any tendency on the part of the offending words to provoke a breach of the peace. Yet, whereas, for the tort of libel, damages and an injunction are the only remedies available, for the crime, a Defendant may also be sent to prison for up to two years. It is not unreasonable to expect that anyone who damages another, if unable to pay from his pocket, should suffer in his liberty. Otherwise, scurrilous editors would take to hiding all their assets, and be able thereby to publish with complete impunity.
In large degree, the same reservations apply to this law as to that of civil libel. In this case, however, there is the requirement that actual financial damage must be proved, as opposed to the less tangible loss of reputation. If I were to publish a claim that Captain Flint’s last treasure were buried under your back lawn, and a mob came and turned your garden into something resembling a shell crater, you would have an obvious cause of action against me; and perhaps no libertarian would dispute your right to seek redress.
There is little disagreement here. “The law has long recognised that and obligation of confidence can arise out of particular relationships. Examples are the relationship of doctor and patient, priest and penitent, solicitor and client, banker and customer. The obliga-tion may be imposed by an express or implied term in a contract but it may also exist independently of any contract on the basis of an independent equitable principle of confidence”. This obligation clearly binds the person to whom information has been imparted. It also binds any third person to whom it might be passed. Anyone who publishes such information, unless it can be shown already to exist in the public domain, or that it is of a nature so iniquitious that its disclosure becomes a duty, is rightly liable to civil remedies.
Here, though, is difficulty again. On the one side is the claim that no one can have any more right to a particular arrangement of words than to the words themselves. On the other side is the acceptance of the current belief that certain kinds of arrangement consti-tute distinct and potentially valuable works of the mind which deserve the same protection as more tangible forms of property. No one has the right to use what he has not lawfully acquired. He cannot profit from the sale of another’s stolen property. He cannot, without per-mission, publish what he has not himself written.
If we are to retain trial by jury, it follows that the press should be restrained from seeking to influence potential jurors with sensational, and perhaps incorrect, accounts of the evidence to be offered in pending criminal proceedings. To this extent, the law of contempt of court is justified – if not on the grounds of private property rights, then certainly on those of securing justice for individuals accused of having broken the law. But most civil proceedings are no longer tried before a jury. Interlocutory proceedings and appeals always have been decided by judges. That a judge cannot disregard irrelevant or biassed press comment in his deciding an issue ought to be incredible. The present law appears to have gone too far. It allows the deferral, or even outright prevention, of discussions that often involve matters of great and pressing importance.
None of these is a matter affecting any specific individual. In each case, a prosecution must be under-taken either by the state or by a private person who needs prove no more injury to himself than is alleged against the public as a whole. The argument, that certain kinds of writing have a tendency to deprave or corrupt the reader, may or may not be correct. What libertarians would deny is the normal conclusion to this argument, that the circulation of such writings should be forbidden. People are adults or they are children. If they are the former, they are to be treated as rational beings, capable of interposing some process of thought between suggestion of evil and acceptance of it, and then between acceptance of evil and action in obedience to its promptings. Otherwise, it they cannot be trusted with temptation, it seems rather strange to trust them with the vote. If they cannot govern themselves, they most certainly ought not have the right to govern everyone else.
There are, however, circumstances in which the publication of certain views – or perhaps their publication in certain forms – might provoke a breach of the peace. It seems at present very likely, for instance, that the appearance in a Bradford newspaper of a cartoon showing the Prophet Mohammed, or the late Ruholla Khomeini, fornicating with a pig would lead to wild rioting. In the case of this rather extreme instance, it can be argued that the publisher of the cartoon ought to be answerable at law. On the other hand, it can be argued equally well that the existence of a law before which he might be answerable would encourage many of the com-motions which it was designed to prevent: if throwing petrol bombs really could produce the withdrawal of offending material, it would be only reasonable for some people to throw them. And the instance given is an extreme one, not, as yet, often met with in this country. Perhaps, moreover, if there were a danger of its being regularly met with, it might be more effect-ively covered by a general law than by those which we have already, or by any development of them. Each of the restraints mentioned above is little more than a means of permitting a few bigots to try determining what the rest of us can read or look at. So far as they go beyond the purpose of deterring malicious provocations to break the peace, they are unwarranted interferences with freedom of speech, and ought to be repealed at the earliest opportunity.
While the state exists, it will continue to have secrets in need of protection. At present, there are many things that ought not to be made public. For example, a newspaper editor might take it into his mind to discover and publish the names and addresses of informers against the various Northern Irish terrorist groups. The consequences of this are so easily predictable, that to do it would be almost to commit murder. The civil damages payable in any action for breach of confidence would be grossly inappropriate. For this reason, then, some law of official secrecy has a proper function.
But this is not to endorse the law as it stands, which is largely a means of protecting governments from public ridicule or execration.
This is objectionable on three grounds. In the first place, what has been said above about official secrecy applies in full. In the second place, it is a means of prior restraint. Editors are told what items to amend or delete in advance of publication. In the third place, the rulings of the Committee have no legal basis. They owe what sanction they possess to various kinds of pressure. Disobedience can result in a newspaper’s being denied access to the confidential briefings by which ministers commonly make information and their feelings about certain matters known to the press. It can also result in a prosecution by the Attorney General for breach of an actual law. When the press is viciously opposed to the government, the chances are that a country is in trouble, or even about to exper-ience some destructive crisis. But it is little better when government and press are quietly sorting out their differences in private. Additionally, the system is a mild form of the arbitrary power that is discussed further below. It is to be unhesitatingly condemned.
Some of these laws, then are acceptable on libertarian grounds. But others are not: and, of those that are, many have been pushed beyond what is considered to be their proper function. Taken together, they constitute a scheme of restraint that is uncommon, and perhaps even unique, in the free world. If, this much being said, they are still insufficient for the protection of indiv-iduals from trespasses by the press, it is arguable that they should be reinforced with others. But it is important to libertarians that any reinforcements which might be proposed should fall within the category of what is acceptable rather than of what is not.
As to how the law should be reinforced, there are three proposals. Each is in itself distinct from the others, but the advocacy of one by no means excludes the advocacy of either or both of the others. These are: the strengthening of the Press Council, the granting of a “right to reply”, and the creation of a new tort of invasion of privacy.
This is a voluntary body, set up in 1953 to deal with those complaints from the public that are not to be – or cannot be – taken before the courts. Complaints may be personal or general. Someone may complain if he feels that he has in some way injured by a newspaper report. He may complain if he feels that a racial or religious group or whatever – of which he need not even be a member – has been slighted.
In the event of its upholding a complaint, the Council’s only sanction at present is to declare a censure on the newspaper concerned. It cannot award damages or compel a retraction, or grant any other kind of remedy. It cannot even ensure that its censure will be published. There have been instances where newspapers have simply not bothered printing censures against themselves. There has been at least one instance where a newspaper has printed a censure, but only after having consider-ably softened its wording.
There are two kinds of proposal for strengthening the Council, formal and informal. The first involves a grant of statutory powers of supervision over the press. Its jurisdiction and procedure are to be less circum-scribed than those of a regular court, but its decisions and any awards that it might make are to have the force of law.
The objection to this scheme is quite straightforward. It breaches one of the fundamental rules of our Constitution – that of equality before the law. It is in no way suggested that a Press Council invested with judicial powers would become a modern Star Chamber, or an official version of the kangaroo courts which have been, and remain, a blemish on British trade unionism. The Council is currently presided over by a distinguished member of the Bar. Its other members are at least competent to distinguish what is just from unjust. But it is not – nor, in the scheme under consideration, is it intended to be – a regular court of law. Newspaper editors are to be called before it, and made to face proceedings from which the normal safeguards of English law are, at least in part, lacking. It might be that those safeguards have been elaborated to the point where they serve the cause of justice less than they enrich the legal profession. But this is an argument for general law reform, not for a selective denial of rights. It might be that the charges made would not be cognisable before the proper courts. Again, this is an argument only for making them so. It might be that certain charges brought before the Council would be incapable of precise formulation in the proper courts. But this, most certainly, is nothing but an argument against bringing them in the first place.
We turn, then, to the second means of strengthening the Council. These are the ones most likely to be adopted, because apparently most popular with the Government and acceptable, as the least of evils, to the press. Nothing formal is to be done. No statutory powers are to be conferred. The press is to take itself in hand. It is to adopt a explicit code of newspaper ethics, in any dispute over which the Press Council is to be the arbiter, and is to pay spontaneous and full respect to any adjudications. If only this would happen, the Government would be saved the effort and embarrassment of having to make a press law. But it will not happen without a credible threat from the Government that, in the absence of voluntary self-regulation, laws will be made.
The objection to this is that it blurs what ought to be a very clear distinction between what is and what is not law. Laws are made by the Queen in Parliament, or are discovered by the courts. They are not, nor ought to be, merely what the government wishes. In a free country, no minister or official has any more authority over the citizen than what is given by law; and all arguments over the use of that authority are to be decided ultimately by the courts. When clear sight of this distinction has been lost – when a government can get its way simply by announcing its wishes and inviting compliance with them, threatening either future real laws or, more likely, current reprisals in the event of non-compliance – then a precedent has been set for a transformation of limited constitutional rule into arbitrary power. It may be said that precedents enough have been set already. In the past thirty years, there have been at least three “voluntary” prices and incomes policies. There was the “voluntary” boycott of the 1980 Olympic Games. There is the “Voluntary” agreement between the tobacco industry and the Department of Health, by which cigarette advertising is curbed. The “D” Notice system has already been mentioned. These are only a few of the precedents that can be cited for indirect compulsion of the press. But, leaving aside any consideration of the matters which they govern – though libertarians are, in each case, against restraint, whether unlawful or otherwise – these are bad precedents. Certainly, they are not to be followed by any government which talks even half as keenly as this one does about individual freedom under the rule of law.
This is to be available for persons who may have been offended by some item about themselves in the press. If a newspaper, for example, correctly reports that a clergyman once played the piano in a brothel, he is to have access to so many column centimetres to point out: that he was at first ignorant of where he was working, and that he left as soon as he realised; that he was very young at the time, and that a ten day engagement twenty years ago is no automatic reflection on his character now; that his engagement was in West Berlin, a place where brothels are not illegal, etc, etc.
If such a scheme could be set up on a truly voluntary basis, there could be no argument against it. Various American newspapers have operated one for years, and with apparent success. So long as it be within the law, after all, what a newspaper publishes is not for anyone but the proprietor or his agent to decide. The scheme would also be of great and obvious benefit. The individuals concerned would benefit from being able to put their own case. The reputation of a newspaper could only rise if its concern for the truth were seen to go to the extent of printing attacks on its own accuracy.
The Libertarian Alliance would certainly benefit. As a small organisation, opposed not merely to the current political consensus, but also to most of the proposed replacements of it, we have been grossly misrepresented in the press on numerous occasions. Like many other groups, we are too poor to start a newspaper of our own; and, even if we had the money, we should still – let us be honest – in all probability lack the readership to justify starting one. It would be highly convenient if, every time we were mentioned as advocates of policies which we do not – and, indeed, cannot by the nature of our principles – support, we could advertise what we do believe in at somebody else’s expense.
The only objection is the requirement that any action be should truly voluntary. And the fact is that, while the quality newspapers already go to considerable lengths to show fairness, the tabloids, together with certain other publications, will do nothing without compulsion or the threat of compulsion. The only way in which a right to reply scheme of any importance could be established in this country, other things remaining equal, would be to give quasi-judicial powers to the Press Council, or to frighten proprietors into a show of spontaneity – both of which options have been discussed above.
In American law, this tort has been recognised for the better part of a century. Following the example set, privacy is now protected in Canada and Australia, and in France and West Germany, and in various other countries. Whether it should also be protected here has been a subject of continual debate during the past twenty years. It was examined by the Younger Committee in 1972. Its further examination is perhaps to take up much of the present Committee’s time.
Briefly put, if such a tort were introduced into English law, it would become the duty of the courts to provide remedies whenever “a person’s interest in seclusion, or in his personal dignity and self-respect, or in being free from emotional upset, [were] interfered with by conduct which they [regarded] as intolerably anti-social”.
That people have an interest in privacy, and that this should be given legal protection, may, on a first glance, seem perfectly reasonable. The notion is, even so, objectionable on a number of grounds.
First, there appears to be some difficulty in giving the word “privacy” a clear and distinct legal meaning. Reviewing the American cases and the literature that surrounds them, Raymond Wacks concludes that it “has grown into a large and unwieldy concept” Is it a condition, or a state, or an “area of life”? Or is it synonymous with “human dignity”? Is it an end desirable in itself, or a means of achieving some other desirable end, such as creativity, love, or emotional release? In the absence of any satisfactory or commonly agreed definition, privacy has come to mean anything that a judge and jury can be persuaded to accept. Denial of it has meant the denial of a woman’s right to an abortion, and the compelling of someone to cut his hair, the subjecting of someone to unwelcome advertising, and the putting of someone under surveillance.
Actions for infringement of privacy, moreover, are tending to obscure, and perhaps to weaken, the protections afforded by the first ten amendments to the Constitution. For example, the Supreme Court was persuaded twenty years ago to strike down a state law against the possession of obscene material. Its decision was not grounded on any balancing of the First Amendment right to freedom of speech against the claim that harm may result from the circulation of certain kinds of literature. It was grounded instead on the appellant’s right to privacy. It was ruled that “in the privacy of his home an individual had the right to enjoy the materials of his choice”.
The property rights of others always being respected, no libertarian would dispute this. In a purely libertarian world, indeed, there would be no specific liberties. The rights to speech and association and the like would simply derive from a general liberty – within the obvious limits – to do as one pleased with one’s own. But this general liberty is nowadays so little recognised in the United States – and, for that matter, in the rest of the comparatively free world – that its upholding in one instance may have been more to restrict than to defend the right to freedom of speech and the press. Whereas, in a libertarian world, the specific right would derive from the general one, in America, a limited form of the general right should derive from the specific one guaranteed in the Constitution. To decide otherwise, as the Supreme Court appears to have done, has been to allow the authorities largely to nullify the right supposedly upheld.
One is free to read dirty or seditious books in one’s own home, but not necessarily to read them anywhere else. Nor, certainly, is there a right to buy, sell or exchange such books if the Justice Department and the U.S. Post Office – a government-run monopoly – are in any way involved. The usual procedure is to go through various big city magazines, repying to the personal and business advertisements that offer literature and other items. The replies are invariably sent from small, conservative towns in the mid-west. The goods having arrived, a complaint is lodged, and the advertisers are prosecuted for having used the mails for an obscene purpose. Since trials are held in those places where the complaints are lodged, convictions are all but certain. If a defendant is acquitted, it will usually be only at a great personal and financial cost. Rather than decide the scope of the First Amendment, for or against the right to publish obscene literature, the Supreme Court grandly announced that an American’s home was his castle. It did nothing to protect that castle from being laid seige to by the Justice Department and Post Office.
The right to privacy has also been confused with the laws of defamation, of confidentiality and of proprie-tary interest. There is no reason, bearing in mind the American experience, to suppose that the establishment here of the tort of invasion of privacy would not introduce an equal confusion into our laws. Moreover, since our own rights derive not from an enshrined bill, but from various specific legal remedies, even a much lesser degree of confusion would expose us to the risk of losing our freedom.
Second, some of the invasions from which the tort is used in America for protecting the individual are already protected in this country.
In an English libel action, the burden is on the defence to prove that a false statement has not affected the estimation in which the plaintiff stands. In America, the burden of proof is reversed; and it must be proved in addition that the statement was made with actual malice. In consequence, many fewer actions are begun, and many fewer go against the defence. Naturally enough, many more Americans, if they consider themselves to have been adversely commented upon in the press sue for invasion of privacy.
Again, the law of confidence may well serve to protect here what in the United States is protected by the privacy laws. Some years ago, a marriage collapsed between two prominent people. There seem to have been various sordid details attendant on the collapse, and the husband approached one of the more sordid Sunday newspapers with a view to selling them. The wife sued – not for invasion of privacy, but for breach of confidence. The case was decided in her favour. This branch of the law was sufficiently flexible to be applied to a trespass for which in advance there had been no obvious remedy.
Third, some invasions that are not currently protected against in this country could be dealt with by extensions to the existing laws rather than by creating a new one.
Let us consider the matter of unwelcome surveillance, either by telephoto lens or by radio bugging. At present, unless some act of physical trespass is also involved, these acts are not covered by the law. The Princess of Wales can have her pregnant belly shown on page one of any tabloid to which the photographer sells a print. The only requirement is that the picture should not have been taken from the land of anyone who might object to that use of his property. Private conversations can be monitored nowadays without the hint of a physical trespass. There are machines capable of recording human speech from the vibrations of a window pane.
One possible answer is to extend the law of copyright. A person’s appearance may be as much his own creation as a poem written by him. It may easily be as valuable or more so. Michael Jackson’s face and body are certainly creations, and pictures of them are certainly very valuable. At present the copyright of a photograph is vested in whoever points the camera and takes it. Perhaps copyright should be vested in the subject. By all means, the right could have certain reasonable limitations. There need be no cases in which the photographer of, say, a theatre audience were sued by every member for breach of copyright – although an individual member might be able to sue if he could prove himself to be the true subject of the picture, everyone else being included just as background.
This extension would, additionally, protect from other kinds of unwilling or unpaid commercial exploitation. It would no longer be possible to use the likeness of a famous person to advertise goods and services without permission.
In the same way, transcripts of private conversations might be regarded as copyright material, not to be made use of without the owners’ permission.
Fourth, there are invasions which could be protected against by the everyday routines of a libertarian society.
At the moment, if a newspaper wishes to harrass me into giving an interview, or just to print photographs of my coming and going from home, it can send reporters to camp in the street outside my house. They cannot come into my front garden, for that would be trespass. Nor can they come along any footpath that bounds my pro-perty. But, unless I have a very long and secluded drive, a telephoto lens from the street can easily reach to my front door, and through any windows that are not tightly curtained. If I have no front garden, but my house opens directly onto the street, I am virtually at the reporters’ mercy. If there are dozens of them, I might be able to have them moved on or prosecuted for obstruction. Otherwise, there is nothing that I can do.
The fault here, surely, is not the lack of a privacy law, but public ownership of the streets. These are owned, for the most part, by local authorities, and, so long as they are not obstructed, they are open to anyone who cares to walk along them. If, on the other hand, they were privately owned, any number of restrictions could be placed on who came into them and for what purpose. They might be owned jointly by the occupants of the properties built along them, or by the builder of those properties, or by a company set up to run an entire development. But, assuming any kind of link with the properties built along them, whoever owned them would have a financial interest in keeping local occu-piers happy. If required, the owners would keep them in repair, and patrol them, to watch out for criminals. They would also, assuming a demand, make and enforce rules against the unwanted presence of reporters and film crews.
This need not prevent anyone’s use of a street for the pursuit and apprehension of criminals, or for the service of legal documents. What it would do is extend the normal laws against trespass beyond their current frontier, where private property gives way to the Queen’s highway, to the privatised highways themselves.
In the same way, the more usual kinds of electronic surveillance could be prevented. On the one hand, property owners could refuse to allow the use of their land for snooping on others, and enforce their refusal by actions for trespass. On the other, persons who placed a high enough value on their privacy could make special arrangements with their telephone companies. By paying a higher charge than those who might not greatly care if their conversations were being monitored, they could have their lines shielded from intrusion. For any breach of that shielding, an action would lie in the first instance against the company.
Fifth, there are invasions which simply ought not to be prevented by law. Take the instance given above, of the clergyman’s past being revealed. This is clearly an attack on his “interest in seclusion, or in his personal dignity and self-respect, or in being free from personal upset”. But, bearing in mind its truth, no good principle can be laid down by which its revelation ought to be restrained.
Suppose a man had once been in charge of a passenger ship, and, panicking, had deserted it in a storm, taking only the crew with him; and the ship’s survival and the safe arrival of the passengers had been matters left to chance. Everyone, perhaps, is liable at some time to act out of character; and, assuming no loss of life or great loss of property, he ought not to be pointed at for the rest of his life. But suppose that, some years after this lapse, he again takes charge of a ship and advertises for passengers: is the passing round of a warning to be made an actionable matter?
The answer is surely not. Yet where is the difference between these two hypothetical instances? It might be said that the second involves a revelation made in the public interest, and not the first. But it would be hard to imagine why a newspaper should want to take up space with the early life of an entirely private and untopical clergyman. Its most likely reason would be that he was now undertaking, or about to undertake, a work of interest to the public. This might be taking a party of children on a foreign holiday, or becoming Chairman of a Synodic committee, or leading a campaign for some change in the law. Depending on what he was doing, his past might be, to some people, of the utmost importance as a reflection on his character in the present. There might be people who would resolutely claim that, whatever he had done or was now doing, his past ought to be regarded as a closed book. There might be any number of others who would disagree. Parents, strict moralists, political opponents looking for proof of current hypocrisy – any of these might very well claim a right to know.
If someone is to have a right to privacy in this respect, either it must be absolute or it must be qualified on the grounds of there being a public interest to know the truth about his character. If absolute, the right would be clearly outrageous. If qualified, the courts would be put to the task of drawing lines where the mixed state of public opinion gives no guidance for drawing them.
What has been considered so far has been the matter of what protections ought to be open to individual privacy. There remains to be considered that of how they are to be invoked and enforced. It would go far beyond the scope of the present enquiry to discuss in any detail a reform of the whole civil law. But, in connection with the activities of the press, there are two frequent complaints: that few private individuals can afford the expenses of going to law; that, even if an action succeeds, many newspapers will not be at all disturbed by the consequences.
At least since the time of Jeremy Bentham, efforts have been made to reduce English law to a simple and harmonious system of justice, in which delay and cost could be minimised. Comparing at least the civil law of 1789 with that of today, much has been done. But it seems to be inevitable that, in a free country, there will always be a tendency for justice to become slow and expensive; and that there is a point beyond which these ills cannot safely be diminished. Some of the most scathing satire in English literature is directed against lawyers. But the one great civilisation in which the practice of law has been discouraged, and at times prohibited, is that of China; and China is notoriously a country without law.
This is not to say that the poor should be denied access to the courts. Libertarians do not support the legal aid scheme by which the taxpayers’ money is spent on the conduct of private law suits. In any case, assistance under the scheme has always been denied for the prosecution of actions for defamation. But deregulating the market in legal services is a reform that libertarians would support.
The monopoly possessed by the Law Society and Inns of Court should be abolished. This would no more result in the disappearance of solicitors and barristers than the lapse in 1695 of the Licensing Act resulted in the disappearance of well-printed books. It need not even result in a fusion of the two professions. But it would subject the doing of much routine work to competition from firms of skilled but unqualified persons. It would introduce competition into the higher reaches of the law. Doing this, it would lower prices. As for the kind of litigation which is likely always to remain expensive, it would allow the charging of contingency fees – the arrangement by which work is undertaken not for a fee, but for a share of any damages won in the event of success.
These are, of course, matters presently under consideration by the Lord Chancellor’s Department, and so further elaboration here would be out of place.
Several of the newspapers most frequently complained of are owned by immensely wealthy men, to whom damages and legal expenses are a very modest burden compared with the thrill of claiming to be able to influence opinion. Also, the increased circulation, with all that this means for advertising revenue, resulting from some libels and trespasses often pays many times over even for a lost suit. In the April of 1987, the Sun published allegations against a popular celebrity so false and of so shocking a nature, that it subsequently made a private settlement of a million pounds. The editor and proprietor seem to have considered this money spent to good effect. More people read the newspaper while the allegations were being made. The quantity of entertainment derived from their making disposed a certain class of temporary reader to pay readier attention to the next “exclusive”.
But this may be only a passing phenomenon. Giving someone a million pounds, if in the instance cited above considered worth the expense, is still an expensive business; and the size of this settlement reflects the settled tendency in recent years of juries in libel actions to award increasingly heavy damages against newspapers – damages which go far beyond their normal function of compensating the injured party. This ten-dency has – for pretty obvious reasons – been attacked in the press. Some lawyers are calling for the role of the jury in defamation trials to be curtailed or even abolished. But jurors should not be regarded a stupid people, easily misled by a palintiff’s tears. They are ordinary members of the British public – one of the most stolid, commonsensical bodies in the world. They know the value of the awards they are making. They know, if not always consciously, why they are making them. As a body, they are complaining about the behaviour of the press. In juries, they are acting to curb that beha-viour. And their means of doing so are the awarding of exemplary damages. Sooner or later, an award will be made that leaves the wealthiest proprietor aghast and out of pocket. When this has happened, the number of libels published in the press will diminish wonderfully.
It might be useful if judges in those civil actions from which juries are now excluded took the same general line with the press in setting their awards of damages.
The Libertarian Alliance shares the general concern at the debasement of the British popular press. It agrees that many things are now reported which ought, in all decency, to be ignored. It agrees that some of the means by which information is gathered are disreputable.
While it appreciates the value, in current circum-stances, of constitutional prohibitions of censorship, it does not believe in any absolute liberty of the press. The right to publish ought to be seen as deriving from the right to own and use property, and to be subject to the same limitations. Of those limitations which now exist the Alliance approves – if sometimes conditionally – of all that have as their end the just protection of individual rights. It also approves – again conditionally – of those protecting the peace and certain kinds of official secret. It would approve of further limitations if they were of the same kind. But of the three further limitations most commonly proposed – strengthening the Press Council, enforcing a right to reply, and creating a new right to privacy – each is objectionable.
To strengthen the Press Council, if done by statute, would be to subject the press to a jurisdiction from which the legal safeguards available to other Englishmen would be lacking. If done merely by government pres-sure, it would be a still greater violation of the rule of law, in that proper constitutional procedure in the use of state power would have been circumvented.
The right to reply would be a good thing if newspapers voluntarily adopted it. But it would either have to be policed by a strengthened Press Council, or be adopted in response to government pressure.
Giving clear meaning to the notion of the right to privacy has proved extremely difficult in the United States. In consequence, actions for invasion of privacy have been allowed to take the place of the more traditional safeguards of individual rights, perhaps to the detriment of those rights. Much that American privacy actions are supposed to prevent is already prevented in this Country. Much more could be prevented by the extension of existing laws, or by the adoption of privatisation policies – especially of the streets and other public places – that are recommended by libertarians on many other grounds besides. Then there are those revelations that ought not to be restrained, either because others have a right to make themselves aware of them, or because the line between what others should and should not be allowed the right to know is not one to be drawn by the courts.
On the matter of improving recourse to the law, the Alliance believes in deregulating the provision of legal services. This would have the effect of lowering prices, and, for the more expensive kinds of work, would allow other kinds of arrangement between client and lawyer than the straight payment of fees.
At the same time, the Alliance welcomes the tendency of juries to award exemplary damages against newspapers in libel actions. This is the best way at once to make legal action worth undertaking for an injured party, and to persuade newspaper owners to look round for some other way of increasing circulation.
1. “The law of England is a law of liberty, and consistently with this liberty we have not what is called an imprimatur; there is no such preliminary licence necessary; but if a man publish a paper, he is exposed to the legal consequences, as he is in every other act, if it be illegal.” (per Lord Ellenborough in R v Cobbett (1804) 29 State Trials, 1).
© 1989 – 2018, seangabb.
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