Do you remember that tabloid staple, the shagging footballer? The love rat who played away, scoring with a casually met blonde who duly capitalised on her encounter with a spot of what used to be fondly known as kiss’n’tell?
We don’t read so much about such beasts these days. I’m guessing this is not because young footballers have become more chaste or God-fearing. It’s because newspapers have become unable to persuade judges that it is in the public interest for the striker’s marital misdemeanours to be splattered all over their front page.
Blame it on the Europeans – and the tabloids did. In Europe, they have a funny view of privacy. Believe it or not – and you couldn’t make this stuff up – Europeans believe privacy is – wait for it – a human right! And our craven judges have been obliged to follow the law they made in Brussels, or wherever. Pretty soon, decent British newspapers will not be allowed to print anything. It marks the end of 300 years of the English free speech and John Milton [subs, please check] would will be turning in his grave.
I parody only slightly. But this rhetorical bluster was for public and political consumption. In court, the newspaper lawyers eventually realised they could not, with a straight face, advance a public interest argument for 90% of these stories. Sometimes they didn’t even try: they literally didn’t turn up. In the absence of any editorial pretence the judges had no option but to find for their claimants.
Thus we were landed with what editors were encouraged to disparage as “judge-made privacy law” or a “privacy law by the back door”. Many tabloid editors may well be hoping that, now we are once more a sovereign nation, an Englishman’s right to read a juicy shagging story over their breakfast table will be restored.
But will it? Haven’t we all become a bit more tuned in to some sort of right to privacy? Deep down, don’t we all feel a bit uneasy at how much “big tech” knows about every detail of our lives? Wasn’t the chilling bit of the Edward Snowden stories the revelation that states and governments had started to help themselves to massive amounts of data that we thought we were simply sharing with Google or Facebook? Do we really want our medical records or private Instagram moments floating freely around in the ether?
Footballers, celebrities and royals clearly have a very public aspect to their lives. Does that mean they have no private zone, where they can expect a right to be left alone? Lord Justice Warby, in finding for Meghan Markle in her lawsuit against Associated Newspapers, has resoundingly asserted that even a world-famous duchess should have aspects of her life that are off-limits to journalists.
In a closely-argued 53-page judgment, Warby brought the main elements of the litigation to a close by arguing that Associated had no prospect of succeeding at trial. Meghan’s anguished letter to her father was private, he ruled. What’s more, she owned the copyright. There was no overriding public interest in publishing substantial extracts from the letter. Case closed.
As with shagging footballers, elements of the press have cried foul. The judgment will have a chilling effect on the press, they argue, since it will be used by genuine rogues to claim that newspapers have no right to publish “private” or leaked material.
That’s possible. There are examples where bad cases – such as the BBC’s lame attempt to defend its conduct over Cliff Richard – can lead to worse sequels, such as a subsequent judgment in which a businessman, referred to as ZXC, who was being investigated by a UK law enforcement body, defeated Bloomberg last year. That case will go to the supreme court, and it is to be hoped that court finds a better balance between privacy and freedom of expression.
But in general it is inevitable – and no bad thing – that the public interest purpose of journalism is put under scrutiny. Indeed, it is what the vast majority of British journalists sign up to.
Nestled in numerous journalistic codes of practice you will find an asterisk. Journalists agree not to go in for harassment or intrusion; they agree not to use subterfuge or hidden recording devices; they promise not to interview children or walk into hospitals or pay criminals … except. The “except” is the asterisk – and the asterisk is the public interest. If an editor can convincingly argue it was in the public interest for them to sanction a breach of the code, they should have a good chance of winning in court or before a regulator.
That’s not what happened with Meghan. We might enjoy reading about the Duchess of Sussex’s troubled relationship with her father, just as we may sit through endless series of The Crown – gawping as the curtains are drawn back on the truth, or the Netflix equivalent of the truth, about the royal family.
However, enjoyment doesn’t count as the public interest. Whether or not we watch The Crown, we’re all surely aware that marrying into the royal family presents immense challenges. With Diana, Princess of Wales, it led to tragedy. Both the Duke and Duchess of Sussex have spoken of their mental health issues as they’ve struggled to balance living in the intense global stare that comes with being royal with some sort of private zone for themselves and their family.
You can see an editor’s point. If you have built a business model on being able to publish such stories, this new concentration on public interest is an unwelcome development. However, for most people, Warby’s decision that even a world-famous duchess should be able to write to her father in private is not, on the face of it, unreasonable.
Alan Rusbridger, a former editor of the Guardian, is principal of Lady Margaret Hall, Oxford, and author of News and How to Use it