The Might of Tweeters is Right and The 50 million flies eat shit, so it is good – Doctrines

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!

12 thoughts on “The Might of Tweeters is Right and The 50 million flies eat shit, so it is good – Doctrines

  1. Privacy is already protected by the laws of libel and slander,and free speech is limited still more by”the Official Secrets act”;
    The Human rights article 8 is surely drafted to protect the private family from interference by public authority, and no reasonable interpretation would take it as a license to curtail free speech by individuals.There is maybe a case for curtailing certain elements of the press but individuals ,never!
    Unfortunately the “Establishment” in the UK at any rate have hi-jacked the Human Rights Act and turned clause 8 into an instrument of opression that was never intended by those who drafted it.
    Thr “rule of Law” should be as statutes indicate to the average man reading them, and crazy balancing acts pretending that privacy usually outweighs free speech BY INDIVIDUALS should have no part at all in our legal system.

  2. It is a complex issue. I do agree that the Judiciary is not blame and in any case it appears to me to be correct in granting injunctions in privacy cases where there is no public interest. Sado-masochistic practices between consenting adults are not illegal. Nor does Max Mosely wield power or make our laws so I think he is entitled to have his private life respected by the Press.

    The proposition that the Rule of Law must always be the paramount principle I find troubling. Suppose our Parliament enacted legislation to “euthanise” mentally and physically impaired citizens? This is a plausible scenario given the current urgent cuts agenda. It would be, I suspect, a fairly easy task for a government to assemble a team of social psychologists and PR spin doctors with a view to persuading an impoverished, perhaps desperate, electorate to go along with the “euthanasia” of “useless eaters” and “parasites”. Goebbels did much of the propoganda spade work when he persuaded the German public of the undesirability of Jews in the 1930s and 1940s.

    Now suppose such laws were enacted by the UK Parliament alongside the repeal of HRA and the UK’s subscription to ECHR? Would Judges be duty bound to reject appeals against death sentences pursuant to their role of adminstering the law? Could citizens claim a higher duty to conscience and morality when they refuse to comply with such laws? Or must people surrender absolutely to the rule of law and obey it unquestioningly? Unquestioning obedience, of course, was the principle upon which Nazi Germany operated and was used as a defence by Eichmann and by some of the Nuremberg defendents.

    I personally hope I would have the strength to swim against such a tide were it ever to happen here and hence I do not believe the rule of law should be absolute.

  3. Stephen – as to your euthanasia point – what better argument could there be for a free press, a free blogosphere etc etc to raise awareness and reasoned and effective protest?

    One good thing about history – and the decency and common sense of most people – is that we are able to and do curb the excesses of politicians. I accept, however, that we may not have done so on some very important recent issues – Iraq et al (in time) – and then, of course, we raise the interesting question when civil disobedience and protest is justified to stop politicians abusing the rule of law.

    It is a fascinating issue. I don’t even pretend to have the answers – but I am enjoying reading (and listening) widely to discover what those answers could be as we use laws to shape the future of our country.

    Maybe I am too naive and optimistic about the basic decency of people? I sometimes wonder whether I am wasting what is left of my time on law, but it isn’t just about law – it is about so many very human issues and interests – law is merely a form of glue to facilitate lives and democratic policy. Unless – of course, it is used oppressively. History teaches us that that is a very distinct possibility in the future?

  4. Charon

    Unfortunately, although I believe History is progressive and will lead to the eventual emancipation (?) of humankind I am much less optimistic about individual human nature. I believe it is often a blank cheque upon which those who have power can write their signatures. The economic environment makes desperate and impoverished individuals much more malleable and susceptible to extreme beliefs and behaviour. Unfortunately, we need only look back to the horrendous Nazi regime, its origins and causes, to suspect this is true.

    As a side point, I expect that under the scenario I painted in my previous post freedom of the Press would have been materially curtailed; not to protect privacy but to inhibit free speech, free thought and the investigative functions of the press. So you are right – a civilised society does depend on the three pillars of Human Rights, Free expression and Rule of Law.

  5. Is there in fact a reasonable ‘public interest’ in the dalliances of celebrities, if these celebrities place themselves in the public domain as a ‘brand’? If someone poses in underwear for a tabloid newspaper, sells photographs of their wedding to a supermarket glossy, is paid to sit on a chat-show sofa to talk about their family, or flogs a ghost-written biography at the tender age of 30, or whatever else, then they are opening themselves to scrutiny in a way that the general public do not do. After all, human rights laws are applied to public rather than private organisations, are they not?

    Is ithe injunction culture a case of having one’s cake and eating it as opposed to living and dying by the sword? I would like nothing better for the activities and opinions of a whole tranche of celebdom to vanish from public life, as the quid-pro-quo for privacy. Harumph!

  6. Personally I tend towards freedom of expression over privacy when it comes to suppressing the right of people to make public their own stories. Unless there is an explicit, or strongly implied right of confidentiality, such as in a doctor/patient relationship, then I don’t like judicial censorship of free expression. Note that “paid for sex” services would clearly fall in the category where confidentiality would be expected (which would cover the Mosley case).

    I note that in one instance Judge Eady has decreed in that there are “implicit” rights of confidentiality just by being a friend. Personally I don’t think the law should be involved in regulating issues such as that.

    However, I would draw the line at third parties exposing private information where none of the participants wish this to happen. Then there is a valid case for protection of privacy in those circumstances where no public interest is served. This is not charter for spying.

  7. Jess the Dog

    Re your point that celebrities make their living from their public image, are you suggesting they shouldn’t? Celebrities have a moral (and, I believe, a legal) right to disclose, and to withhold, any items of their private life they chose. Consent must be paramount.

    If a celebrity’s public image/reputation is an asset from which they derive a living then perhaps, just perhaps, a case may be made for media intrusion where it is discovered that the public image is false.However, Max Moseley does not trade on his public image and so I cannot see any justification for media intrusion and exposure of his private life.

  8. Stephen, I’m not concerned about Max Moseley’s private life (which certainly does not seem newsworthy other than to voyuers) or even those of the horde of celebrities who grace our screens and news-stands. We would all be better if the whole circus packed up and went away.

    However, if there is a public interest in the image, reputation and activities of celebrities when promoted by themselves for their own financial benefit (Hello magazine etc), then where does this end? When they decide they do not want someone saying something about them?

    People have the right to expect privacy, but when a celebrity lifestyle and role creates a public (and thus not private) image, it is surely unreasonable to gag people from talking about them. There are laws for libel and slander, after all. It is unfortunate that we seem to be a nation of voyuers, both for authorised or for unauthorised tittle-tattle. It’s a snake devouring it’s own tail, and we now seem to be back in the days of the 1950s innuendo-laden scandal sheets.

  9. One point that has arisen today was the reporting of the Milly Dowler case. There were certain details which added to the consideration of her father as a suspect, including some unsavoury details about pornography. It’s difficult to see why this is of public interest, as the father is not a suspect. Why were these permitted to be reported?

  10. Pingback: Law Review: Suprme Court TV – Reform of The Lords – Lawyers go for a Walk « Charon QC

  11. Steve Jones,

    Personally I tend towards freedom of expression over privacy when it comes to suppressing the right of people to make public their own stories.

    But it’s not just one person’s story in the cases being talked about, is it? It’s the other person involved in the tango.

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