The philosophical foundation and gold standard for any modern progressive and democratic society in the 21st Century, it can be argued reasonably, involves a trinity of respect for (1) Human rights, (2) A free Press and freedom of speech and (3) The Rule of Law.
Ironically, it is this very trinity which has led to one of the more complex legalo-philosophic ‘hard cases’ of recent times. For the Rule of Law to be respected, consensus and consent is required. A poor law which is disregarded or unenforceable is, as many have observed, merely words on paper and serves to undermine respect for law – law being, arguably, the basis upon which we can all live our lives without fear of oppression from State or others.
If you accept what is a very basic formulation above as a proposition for debate: The complex rights of privacy of the individual and freedom of speech (which includes the free Press) immediately come into the scope of The Rule of Law and getting it wrong will, ultimately, lead to a lack of consensus and undermine respect for The Rule of Law.
Some years ago, we did not not have a particularly effective privacy law. The European Convention created two rights: The Right to Privacy (Article 8) (Eight) and The Right of Freedom of Speech (Article 10) Both of these rights are enshrined in our law by virtue of The Human Rights Act. The judges have to balance these two interests. Government has been reluctant, for whatever reason, to put privacy law on a statutory footing. It is, therefore, unreasonable to criticise the judges for doing what they are required by law to do – balance the issues of privacy and freedom of expression under, to keep it simple for the purposes of this piece, the public interest test. It is not, of course, unreasonable to criticise judges for doing this task badly. There is an appeals procedure to correct poor application of the law by the judges.
By gleefully revealing the identity of those who seek injunctions (or superinjunctions) on twitter and other social media (which they do by ReTweeting?); people in England & Wales are, in effect, saying they have no respect for The Rule of Law of our nation. I understand why they do it. There are many reasons – mischief making, tin foil hat thinking, genuine concern for the rights of freedom of speech, irritation that these injunctions are, apparently, only available to the very rich (men, it would seem, in the main) and other subtle variations on these themes – possibly including nihilism and poorly thought out anarchy.
I know that it is old fashioned – but we do have a (flawed) mechanism for voicing dissent: Protest – campaigning, lobbying Parliament and, ultimately, rejecting a government at the ballot box.
Hugh Tomlinson QC and others have written serious analyses of the issue. Hugh Tomlinson QC has an excellent and very readable analysis in The Guardian.
How to create a privacy law
The Guardian: If we want a law of privacy, what should happen next? There are four possibilities
Again, being old fashioned, I don’t subscribe to “The might of tweeters is right” or ‘The 50 million flies eat shit so it must be good” doctrines – but if Parliament doesn’t have the courage to address this very complex – and very important – balancing of rights, the judges will continue to do it, because that is the law of our country as it stands, and judges apply the laws of our country.
Why don’t I subscribe to the “Might of tweeters is right and 50 million flies doctrines? I give you a very simple, but deliberately extreme, example: What if the majority of tweeters thought it was a great idea to bring in “an eye for an eye law” and pour acid into the eyes of a criminal to punish him for his crime?”
I prefer, as do most/many, the imperfections of our Rule of Law. It is, however, not up to the judges to make sure The Rule of Law is good (they merely apply the law and fill in the gaps where there is no law) – that is up to us, through our Parliament.
I make no pretence that this is anything other than a short foreward to a very complex issue to put some of the key points for debate.
AND.. I just could not resist this tweet from the online editor at The Times…. I must credit him for pointing it out!