The right to be let alone
- 21 May 2011
- From the section UK
Numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops". No, not Twitter: the Box Brownie.
Today's row over new technology apparently threatening the very concept of privacy has its origins in the late 19th century when two American lawyers, Samuel D Warren and Louis D Brandeis (what was it about the middle D?), wrote a hugely influential article in the Harvard Law Review railing against the way "modern enterprise and invention" were being used by the press "to satisfy a prurient taste" for the details of sexual relations.
The pair of young attorneys said newspapers with their "instantaneous photographs" were "overstepping in every direction the obvious bounds of propriety and decency" and argued the press had "invaded the sacred precincts of private and domestic life".
The article is still cited in US legal argument today and is credited with having paved the way for the country's privacy laws.
Could the row over Twitter and instant messaging do the same for Britain?
The idea that a citizen has "the right to be let alone" became part of American cultural identity and today public disclosure of embarrassing private facts is a civil offence if the details are deemed to be non-newsworthy, private and highly offensive to a reasonable person.
In California the state constitution regards privacy as an "inalienable right" and in Montana personal privacy "shall not be infringed without the showing of compelling state interest".
It is, of course, the debate over how one should define "compelling" and "newsworthy" that means America's privacy laws are still evolving.
"Yellow journalism" - celebrity-based tabloid gossip and revelation, is still a huge industry in the United States and there is always going to be a tension between people who enjoy the trappings of a public life and those who demand the freedom to publish details of celebrity private life.
But the US has at least attempted to answer the questions which current debate about injunctions forces us to confront in the UK.
What is private? And, when push comes to shove, who should decide?
The arguments of the last week have exposed an ancient tension between Parliament and the judiciary.
Politicians, including the prime minister, have expressed concern that "unelected judges" are using the Human Rights Act to create a privacy law on the hoof.
Basically, they are saying: "Get your undemocratic tanks off our lawn".
On Friday two of the most senior judges in England and Wales lobbed the criticism back saying that, by passing the Human Rights Act, Parliament has already effectively created a privacy law, and it was down to the poor old judges to try to make sense of the confusion and mess.
Do we trust judges?
The reason the Master of the Rolls and the Lord Chief Justice took off their wigs, invited 100 grubby hacks into the Royal Courts of Justice and offered the media greater access into injunction hearings is because they know the legitimacy of the judiciary depends on public confidence.
People who make their living from the yellow-tinged end of the news spectrum have been popping up on radio and television to cast judges as doddery, out-of-touch, Establishment figures who are far too quick to protect the rich and famous from having to face the consequences of their transgressions.
Ex-Sun editor Kelvin MacKenzie and the publicity guru Max Clifford probably touch a nerve when they suggest the judiciary are the last people the public would want as adjudicators on public morals.
The judges, though, complain that the stereotype is not only unfair, but if people understood the legal arguments underpinning their decisions on injunctions, they would be seen as brave public servants trying to chart a difficult and dangerous course between competing rights.
The government has made it clear it does not want to introduce a privacy law in the UK but hints that legislation might be necessary.
One suggestion is that a commission or inquiry be set up to investigate the issue of where society thinks the line between a right to privacy and a right to freedom of expression lies.
As the journalist and anti-censorship campaigner John Kampfner put it to me: "The current situation is a mess," with both judges and politicians fearing to tread in the territory.
Plans for a British Bill of Rights might offer an opportunity for clarification on what we mean by privacy and the public interest.
The trouble is that, even if we do define "private", will the latest examples of "modern enterprise and invention" inevitably mean "what is whispered in the closet shall be proclaimed from the house-tops"?