Monthly Archives: May 2011
Nobody makes documentaries like Adam Curtis. Even calling them documentaries is somehow wrong, since it puts them in the same category as the dross routinely served up by Panorama and Dispatches, manufactured or reheated “news”, generally fronted by a “commentator” with all the charm of a vitamin enriched paste made from dead yeast.
No, let me correct myself: Curtis doesn’t make documentaries. Using other people’s words, other people’s pictures, and other people’s music, he tells stories. Fantastic, thrilling stories, that purport to peel away a layer of assumption about the world, revealing connections and relationships that were missed or hidden.
Whether the stories he tells are “true” is a different question; telling them involves a creation of such intrinsic beauty that judging them against the standards you’d apply to mere journalism is philistinism.
From this you may have gathered that a new Adam Curtis documentary is a bit of a highlight for me.
His latest, All Watched Over by Machines of Loving Grace tells a story about Ayn Rand, the economic crises of the last 20 years, and the growth of those machines – the information technology which increasingly surrounds us.
What has surprised me is how few people “get” the title. It’s taken from the title of a poem by Richard Brautigan, which ends:
I like to think
(it has to be!)
of a cybernetic ecology
where we are free of our labors
and joined back to nature,
returned to our mammal brothers and sisters,
and all watched over
by machines of loving grace.
This will only make sense if you read this post on David Allen Green’s New Statesman blog first. The below was written a comment on it, but for some reason the NS system keeps swallowing it without trace… It’s posted here mostly as an aide memoire for me, as there’s some ideas in it I want to explore further.
There are tactical and strategic objectives here: the Sun is fighting for a tactical end (exploitation of Imogen Thomas’s account for commercial advantage); NGN is fighting for the strategic end of preserving an important (and profitable) business model that the Sun and the News of the World have used to good effect over some years.
Parallels between NGN’s strategic interests in these matters and those of the law firms and related professionals that make up the “Reputation Management” industry are obvious.
Adam’s comment about using privacy injunctions for publicity strikes me as entirely plausible. It’s really no different from the routine of alternately arranging for “candid” photographs of PR agency clients sunbathing/shopping/engaging in PDAs – and in some cases directly commercially participating in such material – and complaining about pressure from the press.
(As an aside, the former practice – which is routinely used as a quid pro quo to supress other, negative stories – is going to cause problems with any developing concept of “breach of privacy as intrusion”: the public will struggle to comprehend that two otherwise
similar sets of photographs are not both “intrusive”, and I doubt those involved will want to articulate the distinction!)
I know I keep going on about it, but a focus on intrusion rather than privacy/confidentiality of information will make the privileged position of civil claimants over criminal case participants (not even defendants) starker.
@Simon Calert: There is a clear difference inasmuch as people without CTB’s means do not have the access to this remedy in the same way. “Ordinary” people routinely suffer similar levels of intrusion (think murder suspects), albeit individual “ordinary” persons, unlike celebrities, generaly don’t do so routinely. The difference is that “ordinary” people cannot afford the thousands of pounds that obtaining a order of this kind requires.
@Phil Dando: The courts have already refused to extend/uphold injunctions where commercial considerations were the primary reason for securing the injunction. If there is now a move to redefine from “protecting privacy” to “preventing intrusion”, that discrimination against commercial reputation may begin to make more sense than it did previously.
What price access to justice?
Absurd as it may appear, it is only in the past decade that free access to the law of the land has become a reality in the UK. Before the turn of the millenium, it was apparently thought acceptable that people should have to pay – and often handsomely – to find out what laws they were subject to.
The UK government finally began to provide access to the law of the land in the latter half of this decade, first through the now-defunct statutelaw.gov.uk, then (with much fanfare) legislation.gov.uk. The site remains a work in progress, plastered with warnings about information not being up to date.
Even today, the UK courts do not provide proper access to their decisions. Examples are published, in a piecemeal fashion, to the judiciary’s websites, but no coherent database is offered, let alone historical information. It is left to BAILII, an independent charity, to do that, and and it does it based on voluntary contributions and goodwill.
To put that £160,000 into perspective, it is rather less than the basic salary of a single High Court Judge (c.£173,000) before their generous pension entitlements. England and Wales currently employ more than one hundred High Court Judges.
If we want to live in a society of laws, it must be possible for people to know what the law is. That means that the government must provide access to all laws currently in force, and all binding judgements must be published. The trite statement that “ignorance is no defence” is itself increasingly indefensible when those making the law have failed to take the steps necessary to provide people with access to it.
In the meantime, we need to value the work that BAILII does, and support its continued efforts to provide the access to justice the state and the courts do not.
A paradigm of tabloid journalism: the sexual fetishism of an older man exposed, his interest in latex and bondage fetish material happily reported by the press, along with explicit suggestions that he used sexual services. To millions who will never meet him, his reputation is changed forever.
This is not Max Moseley – falsely accused by the News of the World of engaging in Nazi themed sexual games, and correctly reported to have indulged his sado-masochistic interests with sex workers – but the father of Amanda “Milly” Dowler. And this not tabloid journalism, but the Guardian and the BBC reporting on evidence adduced at the trial of the man alleged to have killed his daughter.
In this post, I want to pose a simple question, which I feel cuts to the heart of the current debate about the developing law of privacy in England and Wales.
Why does Max Moseley’s behaviour qualify for protection, when that of Bob Dowler does not?
The High Court awarded Moseley damages because the News of the World published details of his private life, specifically his sex life. In doing so, it articulated, if not established, a principle that the reporting of an individual’s sexual behaviour would not necessarily be in the public interest, no matter that it fell outside the “norm”. Some additional justification would be needed, and it was in an attempt to provide this that the News of the World sought to argue that Moseley’s sexual games had a “Nazi” theme, drawing on the link with Moseley’s father, the Fascist leader Sir Oswald.
Compare and contrast the information being reported about Dowler:
The court heard as police prepared to search the family home, he was forced to tell them about other material, including pornographic videos in the lounge, and equipment including a rubber hood and ball gag, in the loft. Also hidden in the loft were specialist contact magazines advertising details of sexual services, “annotated in a way” which indicated Dowler had used such services, the jury was told.
Milly Dowler’s father tells court he was early murder suspect
Guardian, 16 May 2011
This information came out under questioning of Dowler by the barrister representing Levi Bellfield, the man accused of abducting and murdering Milly Dowler.
I make no criticism of the defence for introducing this evidence. As reported, they are seeking to raise reasonable doubt about the prosecution’s theory of the “crime” – “crime”, because the evidence could support a theory that Milly Dowler ran away from home, rather than being abducted by Bellfield.
It is clearly right that the defence be permitted to raise such issues, and that the jury be provided with the information and evidence which supports the defence’s contentions. But should that information and evidence be reported beyond the court room?
Levi Bellfield is being tried in a court, by a jury, and not by the “court of public opinion”. I struggle to see how the principle that “justice has to be seen to be done” extends to the wide reporting of personal information raised in evidence, especially when that principle is already so limited – notably by the rules on contempt of court, which would prevent the media from reporting Bellfield’s previous convictions had the court not chosen to admit them in evidence.
Consider: had the court not done so, the law would have protected Bellfield from reporting of those previous convictions during his trial, but would apparently not have protected Bob Dowler from the reporting of his testimony.
Reporting of the Bellfield/Dowler case comes on the same day that Mr. Justice Eady delivered his latest ruling in the case of CTB and Imogen Thomas – a case concerning an injunction granted to a married footballer to prevent Thomas from disclosing his identity in connection with truthful accounts of his sexual relationship with her. In that ruling, Eady says the following:
The Claimant is a married man with a family. It is well established, in such circumstances, that the court needs to take into account and have regard to the interests of the claimant’s family members, and their rights under Article 8 of the European Convention on Human Rights and Fundamental Freedoms.
It would be interesting to know whether any such balancing was carried out in the course of Bellfield trial – indeed, whether it ever entered the mind of the judge presiding that such a balancing act should be carried out with regard to the reporting of Dowler’s evidence.
The apparent failure of the criminal courts to engage with the principles of privacy that the civil courts are applying is an indictment of judge-made nature of the law of privacy
Judge-made law – like the current law of privacy in the UK – is able to advance by small incremental steps, without properly engaging with the broader impacts of its emergent principles. Unlike judge-made law, any statutory privacy law has to begin by decide what principles it proposes to follow, and then engaging with the effects of those principles when applied to other areas – such as the reporting of evidence in criminal trials.
In developing the law of privacy in the UK, the civil judiciary have in practice (given the reality of the costs of civil litigation) created a privileged position for wealthy claimants, and for participants in family court proceedings. Participants in criminal cases, or those who cannot afford to spend several thousand pounds on legal advice and representation, do not have proper access to the law of privacy that has been developed.
Put it more simply: A footballer covering up his infidelity is afforded greater protection by the English Courts than the father of a murdered child.
Here’s another quotation from Eady’s judgement:
…there has to be a two stage process. [...] First, the court has to decide whether the subject matter of the threatened publication would be such as to give rise to a “reasonable expectation of privacy” on the part of the applicant. In this case, as in so many others, there can be no doubt on that score. It is concerned with conduct of an intimate and sexual nature and, what is more, there has been no suggestion in this case that the relationship, for so long as it lasted, was conducted publicly. It is clear both from domestic and Strasbourg jurisprudence that such personal relationships are entitled to Article 8 protection…
Once that hurdle has been overcome, the next stage is for the court to weigh against the claimant’s [privacy rights], and any duty owed to him under the traditional law of confidence, whether it would be appropriate for those rights to be overridden by any countervailing considerations. In the present case, of course, it is necessary to weigh up [freedom of expression] rights…Also, it is necessary to have regard to the public interest and to the right of citizens generally to receive information.
 EWHC 1232 (QB) at 23 and 24
Apply this process to Bob Dowler’s evidence in the Levi Bellfield trial, and ask yourself whether it should have been published. The subject matter clearly meets the test for protection, and Bellfield’s countervailing interest under Article 6 (the right to a fair trial) is discharged by allowing the jury and the court to hear the evidence.
Here’s Mr. Justice Eady again:
Despite this long history, it has for several years been repeatedly claimed in media reports that courts are “introducing a law of privacy by the back door”. Yet the principles have long been open to scrutiny. They are readily apparent from the terms of the Human Rights Act, and indeed from the content of the European Convention itself. Furthermore, they were clearly expounded seven years ago in two decisions of the House of Lords…
 EWHC 1232 (QB) at 20
If we are to have a law of privacy, let it be based on simple, clearly articulated principles which have been debated by the public, and have general application. With all respect to Mr. Justice Eady, the Human Rights Act did not set out such principles, and the subsequent development of the law of privacy has been without debate or public engagement. Where injunctions are made in secret this latter problem is aggravated.
As to general application, the rule of privacy should not be fundamentally different when applied to a newspaper article about an affair and one about a criminal trial – if information in the former meets the standard for protection from publication, it must be shown that publication of the same information in the latter is justified on some special basis. I cannot accept that that can simply be the fact that it has been introduced as evidence in a court.
I want to see that debate, and I want to hear those principles articulated. But most of all I want to hear those who support the judge-made law of privacy answer the basic question: why is Moseley protected, but Dowler is not?