Nick Pickles’s blog

Max Mosely can get Carter-Rucked

Today, Max Mosely has lost his legal bid to establish precedent that journalists should warn people before exposing their private lives.

And it’s a damn good thing too.

While many would question the news worthiness of celebrity gossip in the first place, the wider issue is one absolutely in the public interest -simply, the same precedent Mosely sought to establish would have been used by corporates and public figures to quash any negative reporting.

Mosely claims his legal action is about privacy. Fine. But Britain doesn’t have a privacy law. It has the 1998 Human Rights Act, and his legal action - not to mention to swathe of super-injunctions currently being ridiculed on Twitter - are based upon judicial interpretation of that.

As Ian Hislop told the culture, media and sport select committee, the current state of privacy law is ‘censorship by judicial process’. While in the past legal action has followed publication, the vogue now is to threaten legal action once the subject of an investigation becomes aware of it. The theory goes that costs (particularly where conditional fee agreements are involved) are such a threat that they push editors to self-censure. Indeed, this is exactly what Centre for Socio-Legal Studies at the University of Oxford, concluded into a study around the use of “no-win no-fee” libel action.

It wasn’t a libel action that Schillings threatened Private Eye with when they told the magazine to stop making inquiries about the former NHS IT head Richard Granger. It was a privacy action. While libel carries the financial fear, privacy opens up the possibility of pre-publication injunction.

As Ian Hislop said: “Privacy is the new libel. If you want to shut people up, privacy is the way you go about it because libel is too difficult.”

As a taxpayer, I would hope a court would view an investigation into how £13bn of public money was splashed on an utterly unworkable IT system was in the public interest - but it’s absurd the Eye, or any journalist, would have to pay a fortune simply to defend themselves from an injunction before publication on the grounds that the figure involved wanted to protect their privacy.

Parliament needs to move swiftly to resolve this situation. It’s undoubtedly having an impact on investigative journalism, while malpractice and activity far from the public interest is given judicial protection. It is absurd an entirely new avenue of privacy law is being abandoned to judicial creativity, far beyond the realms of acceptable interpretation.

We do need a clear privacy law - the kind that makes children a no-go for paparazzi, protects the family lives of public figures and gives journalist a clear guide on how they can investigate stories without tapping phones or rooting through bins.

The flip side of that law must be made equally clear -the media have a right to investigate stories freely and publish where there is a public interest. Furthermore, those who see fit to sell their privacy to the highest bidder when it suits them cannot subsequently expect their activities to be off-limits because of their own misbehaviour.

Or, as Guido Fawkes puts it - “If you don’t want to be on the front pages then don’t pay hookers to stick dildos up your bum.”