Mr Giggs gained the remedy he sought, but not the result: his private life became a public scandal, with his name featuring in fans’ catcalls in the stadium, used as a catchphrase on talk-shows, broadcast by 75,000 Twitter users and ultimately, on May 23rd, mentioned in the House of Commons by a Liberal Democrat MP, John Hemming. Ordering the parliamentary inquiry, the prime minister, David Cameron, said the situation was “unsustainable”. Few would disagree.
Britain, unlike France, does not have a formal privacy law. The European Convention of Human Rights, incorporated into national law in 1998, made things messier by enshrining two clashing principles: a strong defence of freedom of speech, and a more qualified right to the “respect of private life”. Judges (as Parliament requested then) have been chewing over that ever since, issuing closely reasoned rulings that also reflect the Press Complaints Commission’s definition of public-interest journalism. For example, the courts ruled that the Daily Mirror was justified in 2001 in printing most parts of a story of a model, Naomi Campbell, visiting a drug-rehabilitation clinic (because it exposed her as a hypocrite), but not the accompanying pictures (which intruded on her privacy).
Punishing those who gratuitously destroy privacy is one thing—and features in legal systems all over the world. Penalties for those who identify rape victims, for example, are usually severe. The real problem comes when judges try to protect privacy by stopping newspapers from breaching it in the first place.
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.
Anonymity orders are often issued against newspapers a few hours before publication as an interim measure pending a full hearing. That may keep the offending material from appearing explicitly in the mainstream media. But it does not prevent coyly coded references to a story appearing—which can be glaringly obvious to those in the know. And it does not stop a story—or perhaps exaggerated or incorrect versions of it—appearing on blogs, Twitter and Facebook. Tracing the identities of those who post such illicit material on social-networking sites, mostly based overseas, may prove impossible.
Once the news is out on the internet, Britain’s fiercely competitive tabloids become frenzied in their attempts to reveal the full story first. In Mr Giggs’s case, the big breach came when a Scottish paper, the Sunday Herald, ignored the injunction issued by the London court. This is a legal grey area: Scotland has its own legal system, and prudent lawyers usually make sure that they apply for an “interdict” there to match any injunction obtained elsewhere. Mr Giggs’s did not.
The courts’ inability to stem the tide of technological tittle-tattle risks eroding the authority of the whole legal system. But secrecy corrodes it too. Some anonymity orders in recent years have been accompanied by such drastic restrictions that even their existence may not be reported: these are the so-called “superinjunctions” which, though rare, epitomise to many the problems in the current set-up. The same worries surround secrecy in family-law cases. Some MPs feel that judges have got too big for their wigs—for example, by becoming too fond of ordering litigants to talk to nobody about the case.
This raises deep questions. When one kind of supremacy—of a court order—clashes with the sovereignty of Parliament, Britain’s unwritten constitution is frustratingly fuzzy. Mr Hemming’s remark came in flat defiance of two senior judges who had considered and rejected applications to lift Mr Giggs’s injunction, in the light of careful legal arguments and their own expertise. Mr Hemming’s party leader, Nick Clegg, rebuked him, saying that MPs who dislike the law should “change it not flout it”. It is unclear who might punish him, or how.
Diagnosing the problem is one thing, solving it is another. 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.
Such an approach could be accompanied by a beefed-up version of the now-voluntary Press Complaints Commission, with statutory powers to protect privacy and punish newspapers that breach it, and tighter definitions of “the public interest” and of who counts as a “public figure” (see Bagehot). Tabloid editors would not like this, or a formal privacy law if it were similarly restrictive.
Many, not just self-serving tabloids, fear that such a law would be twisted by the rich, powerful and well-lawyered to conceal their misdeeds. Yet the idea of the press taking Twitter as its benchmark of newsworthiness seems equally distasteful. Privacy law, like the lives it sets out to protect, is a messy business.