Remember how the great press barons turned nations against each other and then pocketed tidy profits, not only from newspaper sales but also from arms deals on the side? Compare the behaviour of old and new media giants like News International and Twitter over the last few days. They have propagated the idea that free speech and privacy are at war with each other. The media’s coverage of privacy injunctions has developed this shaky idea into the status of a truth universally acknowledged.
But this is a phoney war, based on a convenient truth. Free speech and privacy are two sides of the same coin. Both rights developed out of the Enlightenment suspicion of states which interfered in the private lives of their citizens. The right to privacy allows us to choose our own way of life, within the law, without interference or surveillance. Whether we are gay or straight, monogamous or promiscuous, we all benefit from this; just as we benefit from the right to speak and write about our views and to express our identity through art, clothing, hairstyles and body piercing. My privacy rights let me do my own thing; my speech rights let me talk about it — if I choose to.
Of course there are times when these two rights come into conflict — and these are not all as crude as a kiss and tell story. There are similar problems around literature that deals with private lives: family memoirs, biographies and autobiographies, for instance, as well as novels, plays, poems and screenplays that draw on personal experience. The law should recognise that the speaker’s right to map their world is likely to take precedence over the feelings of people who find themselves depicted in print. Otherwise, we risk opening the floodgates to litigation from the families and friends of most creative writers at work today.
However, the challenge of balancing free speech and privacy in this context is not impossible. We might use the concept of malice, which has a clear legal meaning, in order to decide whether someone is seeking to publish in order to harm another person. But we should err heavily on the side of publication in order to avoid the problems that have developed around the use of libel law, which the Government is now – thanks to the libel reform campaign — seeking to resolve.
What is more problematic is the idea, now commonplace in public discourse, that the internet has its own rules. This can’t be right. The internet is in part a marketplace for horrific images of violence and abuse. Should we say that, because these images are created and circulated via many different jurisdictions, we should do nothing about them — and allow them to be created and circulated here, too? This seems analogous to the argument of normally admirable commentators – and even the Prime Minister – when it comes to Twitter and injunctions. They give too much credence and credibility to the idea of the web as a haven for free speech and democracy. It isn’t. The web is a highly corporate space, where the rights of its users are intensely compromised in the pursuit of share value.
Twitter is widely expected to float on the New York Stock Exchange next year, following LinkedIn, which surged on the open market at a valuation of $4.3bn, and FaceBook, which was priced most recently at $50bn. The value of these social media giants is based not on revenue (LinkedIn only made around $15m profits in 2010-11, and expects to make a loss this year), but on the information they hold about their users. With 100 million users, LinkedIn is evidently worth around $43 per head. FaceBook’s 200 million users – with their endless spew of information about their tastes, preferences, location and shopping habits – are clearly more valuable to advertisers, at as much as $250 per head. By generating content via these sites, millions of us are helping to generate billions of dollars for a handful of people.
Twitter is actually trading in our privacy. We should watch very carefully as they respond to Ryan Giggs’s request for information about their users (though now that the injunction has been breached by John Hemmings this request may have been superseded by events). The platform for free speech that Twitter provides is largely unaccountable in this jurisdiction. And so we are faced with the odd spectacle of a civil disobedience campaign facilitated by companies which are not domiciled in the UK and MPs whose absolute privilege removes them from the normal consequences of such disobedience. This campaign may be the means to an end, but it is not an end in itself.
We need to restore the rule of law, and to provide a more lasting balance between articles 8 and 10 of the European Convention, as domesticated in the Human Rights Act 2000. For the judges have indeed got this wrong. But we should not look to Twitter or News International for the answers to this moral dilemma. We need to work together to define the principles of a new privacy law, which protects our fundamental right to live our own lives whilst also protecting our right to speak freely. These twin rights belong to us, not the media, and we pit them against each other at our peril.
