The PM Privacy Commission spoke to Hugh Tomlinson QC on Monday June 13, 2011. The commissioners are Sir Michael Lyons, Lord Faulks QC and Baroness Liddell.
Please note the PM programme, BBC Radio 4, must be credited if any part of these transcripts are used.
NB: This transcript was typed from an audio recording. The views expressed by the witness are their own.
Because of the possibility of mis-hearing and the difficulty, in some cases, of identifying individual speakers, the BBC cannot vouch for their accuracy.
ML: Well good morning and welcome to the first day in the BBC PM programme commission seeking to explore the balance of the rights of the individual, the privacy of the individual against the rights of the press, the need of the press to investigate matters of public concern. We've already published the terms of the remit of the commission and already there's been very considerable interest from listeners and response to our invitation to explore whether that's actually enough for the job we've set ourselves.
Early reactions have included firstly a concern that we should focus on the public interest as opposed to the interest of the public in particular those things that might...
....Clearly members of the public distinguish between the general array of individuals and those who we might call celebrities who have a public position and therefore we might look for different standards in terms of their rights to privacy.
Some people have also asked us to explore as we look at the impact of new media, the role of the citizen journalist so that we don't just concentrate on new means of distribution of information but actually who's asking the questions in the first place and whether that has an impact on regulation for the future.
And finally, a number of people have questioned the role of the police and particularly in terms of protecting access it private information. Whether actually we can rely on police and whether we're clear about the responsibilities and powers that the police need to protect private information. So those are issues which have emerged in early discussion. Umm I think we're clear that they don't need us to change the remit but they are very helpful in encouraging us to focus on those issues in our questioning of witnesses.
Now lets get things going today by introducing my colleague commissioners and I turn first to Helen Liddle.
HL: Hello, I'm Helen Liddle. I'm a former British high commissioner to Australia, a former cabinet minister as secretary of state for Scotland and a very long time ago I used to be a newspaper executive on a tabloid newspaper. So some of the issues around the pressure's on newspapers I can still remember.
ML: Now Edward Foulkes.
EF: I'm a practising barrister and a member of the House of Lords and my practise is concerned mainly with claims against public authorities, professional negligence and cases involving the human rights act. And I come from this not entirely as a lawyer I hope but also as a newspaper reader and listener to radio.
Well thank you both for joining me and our job is to do try to do justice to the public interest in these issues and to ask questions on behalf of the PM programme.
And we start today with our first witness Hugh Tomlinson QC, deeply involved in the issues we're going to discuss. Hugh welcome, thank you for coming to see us today, perhaps you'd like to say a few words about your background and interest in the subject.
Thank you for inviting me. My practise as a barrister involves a large number of cases concerning privacy. Not just privacy relating to the media but also privacy relating to the state which is an important intrusion into privacy by police and by public authorities. I'm also one of the editors of a blog which deals with media responsibility issues which is known as "Inforrm" with two r's. And I've spent a long time studying these issues, not just from the perspective of my cases but also from an interested academic perspective.
ML: Perhaps I can start the questioning by just asking if you'd give us a short view on how the current debate about injunctions and super injunctions fits into the sort of historical development of the issue of the rights of the individual versus the rights of the press.
HT: Well, there's been a debate about the question of the privacy law and the press going back at least 60 years. There was a private members bill introduced in 1961. There've been private members bills introduced from time to time thereafter.
There's always been a tension between on the one hand the need for active fair proper investigative reporting and on the other hand intrusion into the private lives of individuals. Those with longer memories may recollect the the famous Calcutt Commission where David Meller who was then the minister said the press were drinking at the last chance saloon. Well the last chance saloon has a very long last orders period. It's still not closed down but these are issues which come back again and again and I think there's a particular reason it's come back this time I think are really a set of accidents and contingencies. And they arrive everywhere in the world, it's not just England. Every country in the world has these problems in different versions - they're difficult and they're perennial but they need to be addressed.
ML: Has the human rights convention brought this to a particular head or is it just the latest chapter
HL: Well, I think the thing about the human rights act is that everybody recognized that it was going to bring in a form of privacy law and that was debated at the time and I mean the press actually tried to bring in an amendment to exempt themselves from the human rights act and Lord Wakeham who was then the PCC chairman, the press complaints commission chairman and that was withdrawn. The human rights act has certainly focused things so there is now in a way a law of privacy in England much more like there is in France then there was 10 or 15 years ago.
EF: Yes Hugh do you think it's difficult to define privacy and that may be one of the reasons it's taken a lot of inactivity to get to where we are.
HT: I don't myself think it's difficult. I mean, it's quite interesting that there have been investigations into privacy law in Australia, Canada, New Zealand and they've all really come up with rather similar sets of definitions. I mean I think the basic principles are fairly clear.
EF: The human rights act provides I think under Article 8 that there are rights. They're not exactly described as a privacy right but they've been interpreted in that way.
HT: Well the right is the right to respect for private and family life. And of course people have often said when people wrote the convention in the 1940's that was about protecting against you know the jack booted Gestapo agent smashing down your front door. But over the years it's been developed across Europe that it's been thought private intrusions against the media and other private bodies are something the citizen needs to be protected against as well.
EF: I think one of the things which might be useful if you could clarify is what a exactly a super injunction is as opposed to any other sort of injunction
HT: A very good question. A super injunction is an injunction which says you can't publish information A, B, C and D often including the name of the person but then crucially says you can't publish the fact this injunction exists either. So it's an injunction which forbids you from mentioning it's own existence. And can I say straight away that the last one which was granted in England I happen to know because it was a case of mine and it was in August of 2010 and there hasn't been one since.
ML: Can you envisage yourself advising many people to seek super injunctions now and if not why not?
HT: Well the reason why people sought super injunctions is very simple because the press having received injunctions tried to get round them by publishing little snippets - what's called jigsaw identification - so little pieces of the jigsaw were given. One newspaper would say the footballer played for England, another would say the footballer had three different clubs; another would say they had recently scored a goal and so on and you could work out there was only one person involved. And so the super injunction was designed to, to provide stronger protection. Now I would not at the moment advise anyone to go for a super injunction, the courts wouldn't grant them. I mean the only possibility is where it's required for a very short period to protect for example against a blackmailer.
ML: I think the Master of the Rolls committee said that he thought they had been granted a bit too readily. Do you think that that's right or not?
HT: Well people focus on different things at different times and I think 2 or 3 years ago people were more focused on protecting against press abuses and then in recent times people have become more on ensuring that's there's open justice. So from an open justice perspective certainly they were granted too readily but I think at the time it was thought that they were doing a proper job.
ML: Now one of the suggestions that the Master of the Rolls has made, or his committee has made was that the media ought to be invited into some of these hearings. What do you think about that suggestion?
HT: Well they are invited; I mean the only people who always know about injunctions always are the media because the injunctions are designed to bind the media. And I mean one of the remarkable and little noticed facts is the media never challenged super injunctions. I mean they knew that they existed but they didn't do anything about it.
ML: So do you think that they should have taken some of the cases to the court of appeal or the Supreme Court in order to clarify the law?
HT: Well they certainly should - I don't know myself why they didn't
HL: Hugh you said that you wouldn't encourage people to go for super injunctions now because the courts wouldn't grant them - why?
HT: Well that's because of open justice, I mean the courts say and this is obviously right. The courts say it's important for everybody to know why injunctions are being granted and to give reasons even if the people are anonymised. I mean there's a great misconception that injunctions are hiding sort of scandalous misconduct and you know that there are evil politicians who are committing all kinds of wrong doings and are hiding behind injunctions. The sad truth is that most injunctions concern two types of situations. One is sexual relationships - very often kiss and tell where someone has had a relationship and wants to make some money out of it by selling it the story to a tabloid. And the second area which is very common where someone has got hold of someone's private information, sometimes by crime and is trying to blackmail them to sell it back. It's very common; I've probably done ten cases in the last year involving blackmail I mean demands up to several million pounds and those who, there is actually no nasty secrets to hide and I think it's very important that there is open justice and what are now called public judgements which explain what's going on so that people know.
HL: It sounds to me as if a super injunction is a bit like shopping on Bond Street - if you have to ask the price, you can't afford it. How much would a super injunction cost?
HT: Well that all depends on how much opposition there is, how long the case will take if it's done in a very straight forward way. And I'm sorry I have to correct you not a super junction because people don't go for them anymore but an ordinary privacy injunction something probably ten thousand pounds but may be up to 50 or a hundred depending on the case.
HL: So it is like the classic situation of justice being open to all like the Ritz.
HT: Well there's a misconception about this because the press write about rich people because they think their readers are interested in them but if someone, an ordinary private individual through some terribly circumstance like a family murder became of interest to the press they could get an injunction and they would. I mean I think you would find lawyers who would be willing to act for them if necessary for free if the position was their privacy was being invaded.
HL: Do you support the view, that we've heard a lot about recently that the tabloid press in particular have shot themselves in the foot with all of these allegations of illegal activity in acquiring not just telephone information but bank account information as well. It's created the climate where people no longer trust the press.
HT: Well I think that's a slightly complicated question I mean there are - on the one hand there's the question of injunctions to protect people's privacy and those injunctions have been granted for many years I don't think there an increase in numbers in recent times. There's the entirely separate issue as to the methods the tabloid press use to collect their stories and there's no doubt that in recent times some of those methods have been very clearly the wrong side of the law so the tabloid press have certainly their public standing by phone hacking and by something called "blagging". "Blagging" means you ring up a bank pretending to be a person and get their bank account details and there's no doubt, I mean there's been prosecutions, there's no doubt that for example "blagging" was done on an industrial scale. I mean thousands and thousands of times by some private investigators for virtually every newspaper. That was in the early 2000's, whether it still goes on today, is an interesting question.
HL: Given that the ultimate court of appeal for newspapers is the press complaints commission which they fund themselves you've been fairly trenchant in your views about the press complaints commission suggesting that perhaps we should have OfPress as distinct from OfCom affecting the broadcasting community. Do you think the days of self regulation are past?
HT: Well, the press is I think the only institution in Britain which regulates itself. I mean even MPs now have an independent regulatory body for their expenses. Lawyers are independently regulated, doctors are independently regulated and of course broadcasters are independently regulated by OfCom. Whether or not there's the political will to have independent regulation for the press I think is a complex question. I would like to see a body that has teeth that regulates the press. In other words if they break the rules there are suitable fines or other measures against them. As happens with broadcasters, I mean if ITV or BBC break the rules, OfCom can come down on them very heavily indeed.
EF: Hugh in some of your writings on these subjects you've talked about the print media being involved in a political campaign can you say a little bit more about that?
HT: Well, I think there's no doubt that the print media took a decision, or its lawyers took decisions 5 or 6 years ago that arguing cases in court was very expensive and that actually it was cheaper to campaign against laws they didn't like and try and get them changed. I mean it's perfectly proper there's nothing wrong with that. But I mean there's another aspect of their campaign which I find there is something wrong with which is their campaign to misrepresent the legal position. I mean I've done cases where the newspaper has agreed to the injunction said yes we accept there should be an injunction and then you read the next day: "Outrage: We've been gagged" and there's no mention to the fact that they've agreed to it. And the public have got a completely mistaken impression. I mean take another example, it's often said well the public is being misled because people have sponsorship agreements that depend on them having family man images and so on I mean that's just untrue such agreements just don't exist. More importantly, when injunctions are sought one of the first things you do is look to see what your client has said publicly and if your client has said publicly something like: "I would never have an affair; I'm completely devoted to my wife" then you say to them sorry you're not going to get an injunction because you've misled the public so the press have, I'm afraid, misled the public systematically about the way that injunctions work. That is part of their political campaign and that I don't think can be approved.
EF: You touch upon some of the participants to the current controversy's and you seemed in what you've said previously to be quite supportive in the role of the judges to the challenge they've been set. Is there unfair public accusation by MPs and others that the law is being made by the judges?
HT: Well the accusation that the law is being made by the judges is completely wrong in this sense that the government and parliament has decided to give the judges the task of developing the law on a case by case basis and some years ago the parliamentary committee recommended there be a privacy law and the government said no, we don't want there to be a privacy law we want the judges to do it. Now it's very unfair to turn around and say to the judges you've been developing a privacy law, the answer is of course they have because that's what they're required to do.
EF: Ultimately, someone has to decide what's in the public interest when you're balancing the interest under article 8 or article 10 or whatever. Are the judges the right people to do it or should parliament have another go at trying to set out with some clarity what the right answer might be given the situation?
HT: Well, I personally regard it as a bit of a non problem because it's quite interesting: the rules of public interest that the judges apply are virtually identical to the rules in the press complaints commission editor's code. In other words the press have voluntarily signed up to the same set of rules that the judges apply. And that's public interest involved exposure of wrong doing, exposure of wrongdoing, exposure of information which is important for public health or safety, exposure of hypocrisy, matters of that sort. It's what the judges do and it's what the PCC does and actually the idea that public interest is sort of unclear it seems to be to be simply wrong. I mean any time anybody's ever sat down and worked out what public interest ought to contain has come up with similar answers.
EF: There has to be a balancing act because the public interest might be relatively easy to define but you've still got to weigh that against individual's rights and decide which of the two competing rights should succeed in a particular case. Are judges going to be helped by any further definition or do you think that they're getting it right most of the time?
HT: Well I think that the judges are getting it right most of the time but I've said many times that I'm in favour of having parliament decide on a privacy law. I think that would be helpful for two reasons. First of all, it would mean that there'd be a public debate and a parliamentary debate about the limits and that would be healthy in itself and when MPs started looking at the details they would realise actually that the kind of current privacy law is more or less in the right place. But secondly it would give it legitimacy because at the moment, judges are being criticised unfairly for applying a law they've developed in accordance with parliaments will. But if parliament laid down a set of rules and the judges applied them then the judges couldn't be criticised. I mean you can have you know a bit more fine definition at the edges but in the end, each case is different and cases have to be decided on a case by case basis. And only the judges are the independent people who can do that
HL: Is this not rather esoteric though because the reality is in 2011, new media which you are pretty expert at using yourself new media is a way of the citizen journalists breaking stories and of course our parliamentary colleagues have been known to use parliamentary privilege to get information into the public domain, what do you make of that?
HT: Well I think the position of the parliamentarians is very regrettable. The position is that they have put information into the public domain in circumstances where they don't know the background facts; they don't know the evidence is, they don't know the basis of the decision by the judges and parliament is not there as a court of appeal against judicial decisions and parliamentarians should not be doing it. In relation to new media well I have two things to say really. First of all, the citizen journalists play an increasingly important role in forming the public. But citizen journalists in general are not invading privacy. If you read the blogs, in general the bloggers are acting more responsibly and more seriously than the tabloid newspapers. There are a group of people where it's a kind of game - let's expose the latest secret on Twitter and that's slightly problematic if it's then taken up by the media and retold to the public I mean the reason twitter doesn't have a huge number of readers it's a rather specialist form of communication but if the mass media then take it up then it's problematic.
HL: Does it not therefore mean then that there's little point in having privacy legislation because there are so many areas out with UK jurisdiction where that this information can be disseminated. We've always had the problem over the years, for example, of German magazines publishing stories about members of the royal family or stars or people who are well known in Britain and giving an in to the media in this country to pick up stories. Is that not just going to get worse?
HT: The truth is now, if you want to find something out and you put a lot fo effort into it, you can find it in terms of privacy. Because you know you can hunt down obscure websites, you can go through twitter you can go through social media, you can look at German magazines, if your German is up to it. But there is a radical difference between that and something being splashed on the front page of a newspaper that's read by 5, 6, 7 million people and the level of intrusion and unpleasantness caused by that is far, far greater than something being available on an obscure website. And I think when it comes down to it - I mean it's often forgotten - but what privacy is about is about each person having a space in which they can develop and do their own things, have their own thoughts. If other people can intrude into that, you know, take your private diary and put it in the newspaper or photograph you in your garden pottering around or whatever it is. It's a fundamental attack on your dignity and the way that you live your life and I think it's that private space that we need to protect not just against the newspapers but also against the state. Because there's been a lot said about CCTV and state surveillance, telephone tapping. But actually in reality, the activities of the press are of a similar nature in this field to the activities of the state that most people disapprove of.
EF: Do you think there are certain people in society who really have by virtue by the position they have almost forfeited any right to privacy for example MPs who put themselves forward. Are there any areas which you would say are off limits for that?
HT: Well there's a sliding scale, if you put yourself up for election, you obviously mean that you're private life is up to a point a subject of a legitimate public investigation. There are people who trade on their private lives and probably less than is believed but there are some who like to sell aspects of their private lives and again that's a matter of legitimate investigation. But I think the difficulty is, when you get to a position when you say anybody who stands for office in any way, anything goes about heir private life. I mean the effect of that is that people don't stand for office. And you drive out of the political process anybody who doesn't have an absolutely squeakiest clean life. Now it's been said many times but you know Winston Churchill had a substantial drink problem, Lloyd George had two families you know they were the leaders of Britain in World War 2 and World War 1 - if the tabloid media had got hold of their private lives. Neither of them would have been in politics. And I'm not suggesting that therefore newspapers shouldn't look at proper parts of politicians private lives but I think there's got to be boundaries because if there are not boundaries effectively it will be very damaging to the body politic as a whole.
EF: But to take your example, if nowadays, if someone had Winston Churchill's liking for alcohol, wouldn't it be a legitimate story to say that his ability to discharge his office was thereby compromised so it was a matter of public interest.
HT: Well it might be it might be depending on how it was compromised and of course that has changed but the point I'm making is that if you end up with people who are completely squeaky clean in every respect as being the only people who can effectively run for office I think the nation would be the poorer as a result.
EF: The trouble is you can't get away from a slightly seaside postcard mentality which we still have tin this country where even the question of adultery is still of great interest to large numbers of the public so how do you, how do you say that that's something out with what they should be entitled to know?
HT: Well, I can't see any reason myself why something like adultery is of itself something the public are entitled to know. Of course if the person who's commiting adultery is someone who's paraded their wife and family in their election literature and made a point of being a devoted family man and espoused moral values of fidelity then it's perfectly proper to expose their private lives. But if you take the tabloids have run quite nasty articles about the private lives of members of parliament who were single who haven't in any way run any kind of moral campaign but they just say well their an MP their private life the public ought to know about. I think that's going too far.
ML: You played, I understand, quite a significant role in encouraging the information commissioner to release or greet the release of information about, have I got this wrong? I have got this wrong. Well let's leave that line. It appeared in one of the cuttings that I saw that I thought you played some part in the release of information on MPs expenses.
HT: Oh no I did that case yes, yes absolutely. Yes, yes sorry, absolutely.
ML: Well let me start again.
HT: It wasn't the information commissioner again it was the House of Commons.
ML: ah ok, let me start again then. Hugh you played some part in encouraging the release of information about the expenses of members of parliament which led in turn to quite a big public controversy. Looking back on that, do you have any concerns about the controversy it led to and indeed are there lessons from that about that we need to take account in trying to define new limits for a right of the press in the future.
HT: Well I was involved in the case which ultimately led to the MPs expenses material being disclosed and it seemed to me and it seemed to the courts entirely right and proper that that information should be made public because this involved the expenditure of public money and what had happened for various reasons over the years is that the rules had become very lax and very, very poorly enforced. That there may be....and the MPs in that case used privacy as a defence and effectively the public interest overcame privacy as was perfectly proper as it should have done. There may be some lessons in what happened afterwards because the press launched a series of attacks many of which related to matters of not great public significance but then that's one of the features of having a free press you know you can't dictate where it goes and I'm afraid um.....MPs....that's something that they had to put up with and you may have different views as to whether the results of that were a good thing or a bad thing overall but I think its absolutely right that the expenditure of public money should be subject to proper public scrutiny and there should be clear and obvious rules governing how it works. What the lessons are for the future of privacy, I'm not sure. I mean it seems to me that what that case demonstrates is that where proper public interest is involved the judges are in the right place and um the press now forgets when it's lambasting the judges for their sort of stupidity and incoherence and so on it forgets it loved the judges when the judges were on its side. And I suspect....you know you can't really expect consistency from the press I mean the press isn't run by a team of logicians, it's run by a team of newspaper editors who respond from day to day to what they think would interest their readers and however much intellectuals might not like that it's a perfectly proper way to proceed.
EF: And as you look back on that, what's the critical issue here. Is it those who make decisions about public expenditure or is it anybody who's paid from the public purse or is it anybody who has power?
HT: Well, I think the critical thing about the MPs expenses was expenditure of public money. I mean, you know, it's sometimes said that public money is held on trust for the public and you can't have a situation where substantial sums of public money are being spent without proper transparency. And that's what the Freedom of Information Act is all about and that's obviously a very good thing. But I don't think, I don't think ...I mean the lesson if you like from the privacy debate is the lesson that proper public interest must trump privacy considerations of public figures. So for example there was a whole argument run in that case where people might see my burglar alarm expenses and know that it's not working this week or something so it might encourage burglars in my constituency and the judges said effectively look that's all really fanciful you know we've got to properly police what goes on.
ML: As you rightly said the press are made up out of many decision makers who are pursuing their own interest, their own commercial interest and indeed their own views about what's in the public interest. Does that take you back in terms of how you get the right outcome if that's indeed possible to the issue of a regulator and the regulator having a view across the board?
HT: Well, there's always a temptation to break the rules because sensational stories sell newspapers and someone has got to say hold on a minute this is where the rules are. I mean it's a bit like football, I mean there's a temptation you know to get penalties by diving in the penalty area because that helps the position of your team. But there's a regulator, this time the referee who says stop you can't do that, no penalty. I mean it seems to me the press is disparate, the press has many interests but there has to be someone who stands over it and says....blows the whistle and says you know, you've broke the rules. Now at the moment, the courts do that because there is no effective regulator. I mean I personally think that to keep things out of the court is a very good idea. Mitigation is crude it's expensive it takes a long time. Much better to have an effective regulator who says stop, don't do this, don't go over this line and I come back to the point that OfCom.....the tough regulator of broadcasters actually makes broadcasters more or less behave well across the board and broadcasters invade privacy where it's warranted as the OfCom code says and you know they do superb work. I mean the Panorama programme recently on the abuse in the hospital - that was invasion of privacy but one that was perfectly and obviously justified. And a tough regulator can make sure that those rules are properly applied.
ML: I think you've suggested that part and parcel of that sort of arrangement might be the use of tribunals which would reduce the cost of access to justice to ordinary members of the public - have I understood you correctly.
HT: Yes, I mean, I would...it seems to me it's in everybody's interest to have a press that is dynamic, free, interesting and active and keeps to the basic rules. And the question is how can you best do that at the least expense in the public interest and it seems to me that actually a system of tribunals away from the huge expense of the courts would be a positive outcome.
HL: It seems to me that basically what you're saying is a key element would be raising the standards of the press and it's whether or not you have a big cosh to actually make the press behave in the case of the courts or whether you have them voluntarily agreeing that regulation makes, increases their credibility. Is that a fair explanation of where you come from?
HT: Yes, I mean, the courts is a big cosh and it's a very crude instrument and it would be better all round if the press regulated....if they didn't break the rules at all then it would be better all round otherwise you need a regulator that's got teeth. I mean it's quite interesting because if you look at say the US press - I mean the US press isn't regulated at all. But it has a very, very strong moral code and you speak to US journalists and they're appalled by the way the English press behave cause they...I mean US journalists say things like I would never lie to get a story, I would never tell a person a lie because that would be improper. You know, I wouldn't pay someone for a story because that would be an improper way to proceed. They don't nee regulation because they have a strong moral code. I'm afraid to say that English journalists don't have a strong moral code and they do need regulation.
EF: Have we got anything to learn from France in respect to privacy?
HT: Well, I mean French privacy law is often misrepresented in the English press like many other aspects of privacy law. French privacy law is a very supple and well thought out set of rules which have been developed over many years. I mean we've got a lot of things to learn in the sense that they've just sat down and thought about it. There are parts of French privacy law which goes too far. I mean, the public interest part of French privacy law is often quite weak and they've not quite got the balance in the right place but I think we can learn certainly from their very careful thinking through of where the boundaries should be put.
EF: Hugh, can I just take you into the Trafigura case for a moment. I mean that's often thrown up as an example of why there should be complete access by the press to all the information they need to reveal wrongdoing and things which are against the public interest. Do you have anything to say about that because there's just a danger that this whole dialogue is being played out at the moment in terms of cases which you might say are more interesting for their titillation.
HT: Well the Trafigura case is greatly misunderstood. First of all, it's not a privacy case at all. Um, what the injunction Trafigura concerned was a stolen document and it was a stolen privileged document, so it was a legal document which someone had stolen and given to the newspaper. Now, in those circumstances I think most people would agree you know you go to your lawyers you ask for advice. You get that advice in confidence and then someone breaks in, steals the document and gives it to the press. Perfectly proper that that document should not be published. There was a super injunction in that case and I think, in retrospect, you might say that it shouldn't have been a super injunction but it's interesting to note and very not remarked - the Guardian actually agreed to the super injunction continuing. So, the press agreed to what happened but then afterwards said this is not an appropriate way to proceed. And I think it's actually a very bad, a very bad case for this debate because it's not about standard privacy issues at all it's about legal confidentiality issues which come in a different category.
EF: Do you think businesses have any right to privacy or is it just individuals.
HT: Well, there's some debate about this I mean I think the general position is that businesses don't have a right to privacy. Sometimes round the edges it might be said that they have some very weak privacy rights. But, I mean, I can't think of a single privacy injunction in England - certainly none I've ever been involved in that's related to a business. You just wouldn't get one actually in any ordinarily conceivable case.
ML: Can I take you back to what seemed to me your suggestion that actually firstly that developmentally we're moving towards better protection of individuals rights of privacy and particularly your emphasis on the fact that the press themselves have a code which very clearly defines the public interest but don't seem to rely, don't seem to provide the evidence of the public interest intentions that they have that seems to need a bit of explanation. Have you satisfied yourself in your own mind why they behaved accordingly?
HT: Well because it sells newspapers. I mean, there have been a number of recent cases and the judges have complained where the newspapers have effectively admitted that there's no public interest but nevertheless said we're going to publish unless you get an injunction. That then gives them 2 stories, you know they have the story about, the original story however it's cut down by the injunction and then a nice little story about how we've been gagged and what an outrage it is and so on but strictly speaking if they followed the code, they wouldn't even threaten to publish at all because they know there's no public interest.
HL: Do you think that the pressure in newspaper circulation is driving this reduction in standards?
HT: I'm not sure whether there's....I'm not sure whether it'd be fair to say there's a reduction in standards I mean I think in a....you know it's like all these things it's a bit like the you know the bad behaviour of the young. You know people have been saying that the young are behaving worse than their elders since you know the 5th cent.....5th millennium BC. People have been saying newspapers have been going out of control certainly since the 18th century. And I don't think actually they're really any worse now than they were 10 years ago, indeed some ways they're actually better. But I mean I do sympathise with newspapers in this sense. I mean the whole newspaper industry is facing a massive and possibly fatal challenge as a result of the growth of the internet and newspapers are not making money anymore. I don't actually think that that's driving this debate on privacy I mean I think the debate on privacy has arisen because of a series of accidents that certain stories have just grown for various reasons and I think the press have then started a campaign because they think it's something that they can usefully campaign on. But I don't, myself think that there's any kind of deep reasons for this. I mean obviously the newspapers are trying to increase their circulation all the time but I don't think they're doing it particularly by fighting on privacy.
ML: We've hardly touched on the issue of inappropriate access to private information. That the whole story about phone hacking which some believe or suggested actually lies underneath the current debate about injunctions, this is an attempt by the press to take attention away from their means of collecting information.
HT: Well, I don't agree with that myself. You know the conspiracy theory is too subtle. As I've said before, I think the privacy debate is just being driven by a series of particular circumstances. But there is a serious issue about the methods of information collection of the British press and I mean partly because of the celebrity driven nature of many of the tabloids. There's a huge pressure to find out, you know, small things about the lives of celebrities, you know. I mean just to take an example of a case I did some years ago - I won't mention any names. But my client had gone on holiday to an exotic, foreign destination, a celebrity with family. And, you know, the first morning they go on the beach and there's a paparazzi photographer in a boat taking photographs of them and someone has either hacked into their phones to find out where they are or has bribed someone at the...paid some money to someone at the airline to find out where they are. I mean someone has found illegally so they could take photographs of them on the beach and publish it in the newspaper. That, is obviously completely inappropriate and there's all kinds of illegal conduct involved. Now, you know there's nothing wrong with tabloids writing about celebrities, a lot of celebrities want to be written about. But what's wrong is bribing people or hacking into their phones to get the information. I mean it's a related area because it also involves privacy but it's not an area which is...which em....the judges have been granting injunctions. One area which is not been much discussed in the media is paparazzi harassment if you remember the whole business about the death of Princess Diana and being chased by paparazzi and that comes back from time to time. I mean there are all kinds of well known individuals who are chased by photographers. The courts now will grant injunctions to stop the photographers chasing people under the Protection from Harassment Act and that actually has had a positive effect.
ML: Can I ask you a bit about enforcement. Injunctions are usually ordered against newspapers or the main source of dissemination of the information but then as we know things are discussed almost outside the range of the courts. What do you think, if anything can be done to enforce any order beyond the newspaper or the primary source of the story?
HT: Well, it's certainly technically possible that there's no, that most email accounts can be traced. I mean even you know people have anonymous email accounts through hotmail or whatever it is. It's technically possible to trace and to enforce. It is occasionally done but obviously it's a very expensive process and I think people quite often think well I've spent a lot of money on this already and a few points on twitter or some other place are not going to go any further. But I mean enforcement is a difficulty, it's a practical difficulty which arises in most cases.
EF: Does there come a time as going back many years the spy catcher case when you reach a stage where what....the story is so well known that it's pretty futile to take any enforcement proceedings.
HT: Well the courts have pointed out the very important distinction between on the one hand secrets and the other hand intrusion and privacy is partly about....a right to respect for your private life involves respecting not publishing details about it but also not intruding into your private life. And one, I mean many, many people complain I think entirely understandably and if you haven't been the victim of this it's very difficult to comprehend, but if someone becomes of interest to the tabloids they will have literally dozens of journalists ringing on their doorbell, they will be people following them and their children to school, they will be chasing them down the street. That kind of intrusion can be prevented by an injunction even if the information is no longer secret.
ML: Two last questions Hugh. Firstly, I mean if you were speaking directly to members of the public, would you - trying to help them quickly make sense of this whole controversy in all its different dimensions, would you encourage them to be confident in current arrangements or to press for changes?
HT: I would say, I would say that the basic rules that are now in place are, subject to one or two small exceptions, basically right and quite sensible so in that sense they can have confidence in the current arrangements. But obviously, the way that the media and some politicians have dealt with it in recent times has undermined the operation of those rules and the questions that people ought to be asking is of the politicians and the media - why are you doing this in respect of cases where actually you've accepted there's no public interest?
ML: Are there any questions which we should have asked you and we haven't?
HT: Well, can I, there's one thing that I think is a bit rather falls within your terms of reference and to which I don't know the answer which I think is quite interesting is the tabloid set themselves up as telling people what the public think. So they, actually we don't really know what the public think an I suspect that the, that the...I mean if you read comments on these articles and websites you often see even on newspapers that like to peddle a lot of intrusive material, you often see very negative comments on the lines you know, why are you wasting your time on footballers sex lives why don't you write about proper stories. I'm quite interested to know actually if you ask the public in terms of surveying opinion what you would find and I suspect you'll find that their view is rather less sympathetic to the tabloids than the tabloids think.
ML: You might well be right. I've got an editorial note here which I'll put to you. It'd be very helpful in the construction of this programme to have an indication from you some of the cases you've acted on. Are you able to sort of just give us a synopsis so the listener might get a feel of things you've been working on?
HT: I don't want to say....we're not recording this....? (answered off mic) Well no I don't want to talk about any of my current cases...I don't want to mention them. I think what could be said is that I have acted in many of the most high profile privacy cases in the past 12 months including the case of J.I.H which is the footballer anonymity case in the court of appeal. The case of Donald and Ntuli which involved...I acted in that case for the defendant which is the first challenge to a super injunction - one of my cases. And the claimant Howard Donald was a former member....no an actual member or Take That and I've acted in a series of other cases known only by letters such as ETK, DFT, KJH...SCG, and many others.
EF: Sounds a bit like the honours list...(laughs)
HT: Well it's important to know that the court requires at least three initials cause otherwise its indexing system doesn't work properly and I tend to do my cases by taking three letters which are close together on the keyboard so I can remember...I can remember to type them in properly.
ML: Well if my colleagues have.....thank you very much Hugh I mean you've covered a very wide area and predictably expertly - thank you very much for that. If, on reflection there are any things that you feel that we should make sure we cover when we continue we'd be delighted to hear from you. Thank you.