A breach of privacy can be hideously painful for the victim and his family. It is much worse than burglary. Possessions can be replaced but privacy can never be restored. Today, the damage from an invasion of privacy is permanent, constant and world-wide. No matter where the victim goes, all it takes is a quick look with an Internet search engine and all is revealed.
Faced with a law to protect privacy, the more scurrilous tabloids have a way round it. When they have a story which they know is illegal, they make sure the victim cannot find out until it's too late. They even use "spoof" first editions. They know that if they can get the story out without their victim seeking an injunction, there is almost no risk they will be sued afterwards.
Why this is so can be seen from my example. I had no knowledge of the story until the Sunday it was published, so I had no chance of stopping it. All I could do was sue for damages later. I was awarded a record £60,000 against the News of the World. They also had to pay £420,000 towards my costs. But my legal bill was £510,000, leaving me £30,000 worse off. On top of this, the private information was published all over again and on a huge scale.
This was not a surprise. At our very first meeting, my lawyers explained that because the story was already out, all I would get if I sued was a large bill and massive additional publicity. They also warned that if I lost, the bill would be £1 million. I was astonished that this was the state of the law in the UK. No wonder the tabloids are confident their victims won't sue.
The tabloids go to great lengths to stop their victims going to court because the UK has quite a good privacy law. The judge weighs an individual's right to privacy against society's right to know. Both are protected by the Human Rights Act. Neither takes precedence over the other.
Sometimes the balance can be fine. But difficult and finely-balanced decisions are what judges do. They apply an "intense focus" to all the facts and reach a fair decision. Given the huge variety of possible circumstances, it is unrealistic to suppose a statute could prescribe in advance when privacy should prevail over free speech or vice-versa.
Some journalists and editors object. They claim that judges, not Parliament, are making the law. In fact, the judges are applying a law passed by Parliament as recently as 1998. But whenever an entirely independent, unbiased judge decides that there is no public interest sufficient to justify publication of a private matter, the tabloids react with fury. Independent supervision is fine for other professions, but not for them.
At least one tabloid editor claims the right to expose to the world any private activity he considers "immoral" or "depraved". Anything sexual is fair game, even if it is between willing adults in private. He believes they have no right to privacy if their activities are not to his taste. Doubtless the Taliban would support his attempts to tell grown ups what they may or may not do in their bedrooms, but we shouldn't.
When private information is relevant to democratic debate or to a decision the public have to make, it should be published, even if painful for the individual. And the judge will allow it because the public interest outweighs the right to privacy. But the suggestion that there is some pressing public need to expose a promiscuous footballer or a gay businessman is laughable.
Quite obviously, the only effective remedy is to prevent unlawful publication before it happens. But the victim can only seek an injunction if he knows what's going on. The problem of deliberate concealment by certain red tops to stop their victims going to court must be removed. A newspaper should be bound to inform its victim if it intends to publish something which there are reasonable grounds to believe infringes his right to privacy.
The victim would then be able, if he so wished, to have the case for and against publication considered by an independent judge. The fate of the victim and his family would no longer be entirely in the hands of a red-top editor who just wants to sell his paper. And the costs would be significantly less than 5% of the cost of a self-defeating, post-publication trial.
In Strasbourg, we are seeking a ruling that the UK government should make prior notification compulsory. The government do not deny that the European Convention on Human Rights and the Human Rights Act require an effective remedy for breach of privacy and they must know their post-publication remedy is useless. But, for whatever reason, they want to retain the status quo and continue to allow certain tabloid editors to operate beyond the reach of the law.
A civilised society should not allow an individual to be tormented for no better reason than entertainment or profit. All such cases should be dealt with free of charge by an independent Press Complaints Commission. Justice would then be available to those who are unable or unwilling to spend vast sums on litigation. Unfortunately, the current PCC is a creature of the press with no power to prevent publication and no right to inflict financial penalties. We need an independent PCC with teeth but we probably won't get one. The prospect of a career-threatening tabloid attack is too much for most politicians.
- The News of the World issued a statement after Mosley won his privacy action claiming the press in the UK was less free "after another judgement based on privacy laws emanating from Europe" and said it would continue to fight for its reader "right to know".
- Two more secret injunctions for rich and famous