Andrew Tettenborn
The human rights clampdown on free speech
On Wednesday, in a decision that ought to get a good deal more attention than it will, our Supreme Court said that it was unacceptable that the press should be allowed to tell us that someone is being investigated by the police. It confirmed that someone in that position, an international businessman being investigated over alleged serious irregularities and frauds, had rightly been awarded a five-figure sum in damages from Bloomberg when it entirely truthfully pointed out that fact. Known only as ZXC, the man, said their Lordships, had a reasonable expectation of keeping disreputable matters like that quiet, even if they became known. From this it followed that unless there was a positive reason to expose him, he must be given the right to use the law to suppress press coverage, since any other result would compromise his right to private life under the European Convention on Human Rights.
Step back a moment, however, and consider. However unsurprising this decision is (and few expected it to go the other way), 50 years ago such a result would have been almost unthinkable. Of course the press had to avoid falsehood; our famously fierce libel laws saw to that. And it could not publish blatant breaches of confidence: it is worth remembering that in December 1964 the courts very smartly suppressed the original story behind A Very British Scandal as a betrayal of the seal of the Argyll marital bedroom. But outside such matters the assumption was that no one could complain if all that someone said about him was the truth, however disconcerting it might be to him.
Nevertheless, today drastic restrictions like these on what we are allowed to know are entirely commonplace, courtesy of human rights law. True, the Convention’s right to private life may once have been seen in terms of what had troubled its drafters in the 1940s: state apparatchiks invading people’s homes, snooping into their correspondence, and the like. But any such modest aims are old hat. Since 2000 an ever more liberal Strasbourg court, egged on by an even more progressive human rights establishment that has long viewed all but the heavyweight press with deep suspicion, has elevated the right to privacy into a kind of overriding right to informational self-assertion available against anyone, newspapers included. Regularly referred to in high-flown almost psychological language as encompassing your right to establish and develop relationships with other human beings and the outside world (whatever that means), it has now morphed into a right essentially to dictate what others say or reveal about you or your life, unless they are positively promoting some other equally liberal value such as safety or the democratic process.
All this will without doubt be greeted with reverential wonder by human rights activists and law professors. It should still worry us.
For one thing, we should always mistrust any legal principle that places a relatively low value on truth compared to the fairly abstract feelings of others. We are a naturally inquisitive people who like to know what is going on around us. The view of the human rights establishment, that embarrassing personal information should be readily kept under wraps and the public should only get access on a need-to-know basis from newspapers solemnly acting as guardians of the public interest, is priggish, unattractive and deeply disrespectful of the judgment of ordinary readers.
Secondly, as soon as we allow individuals to suppress personal information they would rather keep quiet while releasing other more complimentary information, we are in danger of allowing our privacy laws to be used as a means of publicity management. In previous years, the courts have, for example, allowed super-models to project a wholesome image while suppressing photographs of them visiting Alcoholics Anonymous; footballers to appear as happily married while preventing the press revealing other liaisons; and of course the Duchess of Sussex to be selective about what information to reveal about her family.
Thirdly, there is a point often forgotten. The fact that this area of our law has been all but taken over by human rights rules has put it effectively out of bounds of democratic politics. True, in some cases such a drastic result may be justifiable: think state activities beyond the pale for any civilised polity such as torture, state murder, random house-to-house searches, and so on. But it is difficult to argue that this is the case where it comes to drawing the balance between the end of press freedom and the beginning of personal privacy rights. In cases like this, even though I suggest that the balance should tip in favour of press freedom, the point is arguable either way; and if that is so, then it should be decided by democratic means. Yet were parliament to decide to reverse the result in the Bloomberg case and return to the position 50 years ago, which would be a defensible position, it would immediately incur opprobrium as a despotic government that attacked human rights. This cannot be good for democracy. Nor can it be good for human rights, in so far as it cheapens the idea of humanitarianism in the case of rights that really do matter.
It’s hard not to conclude that, gently but surely, press freedom is being squeezed in the UK: not through overt censorship or direct control, as in China or North Korea, but through a creeping combination of sentimentality, well-meaning protectiveness and – most importantly – a continuing inflation of human rights to cover matters that should be the subject of robust political debate. If Dominic Raab’s suggested limited measures to correct this inflation are not enough to curb this tendency, then something previously only whispered might become sayable in polite society. It may possibly be time the UK contemplated leaving Strasbourg once and for all.
