Great Analysis on UK Privacy v. Free Speech Debate

I really like this article in The Economist describing the legal and social issues involved in the privacy of individuals v. freedom of speech in the UK. The UK is struggling with how to find the balance. But this isn’t just a legal issue. The social values in a not-so-Victorian era dramatically complicate things:

TAKE the common-law principles of fairness, add a dash of European human-rights legislation, a lucrative tabloid trade in kiss-and-tell stories, an ineffective press watchdog, a touch of angst about secret justice and a technology that makes everyone into a publisher, and what do you get? The mess of Britain’s privacy laws, now under sweeping review by a joint committee of both houses of Parliament.

Having recently returned from four years of practicing privacy law in the UK, you may take my word that the British love their tabloids. I even admit to making the occasional purchase- the British tabloids, after all, are of a far higher quality than their US counterparts. If you doubt me, do an Internet search on Max Mosely- you won’t see that stuff published in the US!

The central issue:

The argument is a strong one: that a breach of privacy causes irreversible harm. In libel cases, untruthful damage to a reputation can be restored by an apology and damages; but once embarrassing private information has been disclosed, it stays public, no matter how the leaker is punished. However, the practical difficulties of protecting court-ordered privacy are increasingly daunting.

Once information is out, it’s out. It’s not quite trying to close the barn door after the horse has left. It’s as if the horse and barn have replicated a hundred thousand times and you need to capture all the horses and close all the barn doors. It’s just not possible. (A little Digital Rights Management or encryption never hurt anyone though. I frequently use both in my sensitive emails and documents to minimize the risk of the data getting out in the open.)

Max Mosely won his suit against the British tabloid, but an Internet search will turn up the very headline he “successfully” obtained his remedy against. All of this is why, in part, the EU attempt to make the Internet forget, just won’t work.

The solution suggested by a UK media attorney is to substitute damages for injunctions.

Mark Stephens, a media lawyer, argues that tabloid stories are soon forgotten if not accompanied by a legal kerfuffle. “You take it on the chin and it’s tomorrow’s fish-and-chip paper,” he counsels (although betrayed spouses may not be so sanguine). In other words, treat privacy like libel, with penalties and remedies available only after publication.

I’m not sure if we have any other choice. Currently, “superinjunctions” are obtained by the “victims” which require all UK media outlets to abide by the injunction.

This is not some esoteric debate. A UK footballer was named in Twitter posts as having an affair with a model. He has filed a legal action against Twitter and “persons unknown” seeking to obtain their personal information to bring actions against the posters. Twitter will inform the posters of the action so they can intervene in the action if they choose.

If you would like additional information about “superinjunctions” and how they work, check out The Guardian’s site on the issue.

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