David T Breaker: Why a privacy law would be morally wrong

By David T Breaker

The Speaker, swathes of Parliament and most of the judiciary are less than happy about Lib Dem MP John Hemming's decision to use Parliamentary privilege to tell the nation the worst kept secret in recent history, and commentators across the spectrum are rushing to express their disdain.

Politicians unhappy with the law should seek to change it, not break it, we are told by the Lord Chief Justice Lord Judge. (Of course Hemming hasn't actually broken the law in the traditional sense, his speech was covered by his privilege as a parliamentarian in the mother of parliaments). We should regret Hemming's decision, we are told on the BBC and by others, but as a bit of a liberal fundamentalist I really can't agree.

Rather than condemn Hemming's decision as contempt of court, in fact I feel we should applaud it: at last someone has been willing to flout this crazy creation, the "super-injunction", that is so at odds with our English tradition of liberty. It's rather tragic, in my opinion, that the debate over super-injunctions has rested largely on whether they can be enforced or not, rather than whether they are morally right or not.

I've read lots of articles on why we need a privacy law, and lots of articles on why such a law is unworkable due to the internet, but barely anything on why such a law - which has come into force largely through judicial activism - is morally wrong.

Now it is a pity that the case that brings this topic to light is so, shall we say, tabloid and sordid, being hardly the sort of matter of supreme importance that I'd rather the example case be, but that is just the way things are. In truth what we are discussing is a matter of principle: it doesn't actually matter what the example is, however petty, principles are principles. So though I do not care for football, or footballers, or footballer's private lives, I do care about the freedom of speech and press that is what truly separates us from the tyrannies.

Privacy is one of those things, like apple pies and grandmas, that everyone supports. The right to privacy being enshrined into law by the Human Rights Act felt like a ban on intrusive actions, and who could be against such a thing? To oppose privacy laws you are tarred with the same brush as tabloid hacks, paparazzi and gutter press, peddling lies, mistruths and distortions, or of hounding people for photographs, bugging bedrooms and hacking phones.

Yet what the notion brings to mind, and what it entails, are two very different things. Privacy laws are not about stopping the harassment of individuals by paparazzi, ending phone hacking or any of those things, and certainly not about stopping malicious lies, for which we already have libel laws. Privacy laws in the form they have taken as "super-injunctions" are instead about halting the publication of fact because an individual involved feels they could be damaged by the revelation of that fact and a judge agrees with them, with the judge also agreeing that there is no public interest in us knowing that particular fact. This surely is fundamentally at odds with what we as a country, and we as a party, are meant to stand for?

Freedom of speech and press are both, as concepts, largely indivisible. You either have them or you don't. We allow them to be restricted only when it is in the security interest to do so, such as wrongly shouting "Fire!" in a theatre, yet no such claim can be made for "super-injunctions". Instead this tradition has been reversed.

Rather than the assumption being that anything truthful can be published as long as it doesn't threaten security, it is now the case that - with a pricy legal team - you can stop anything you dislike that damages you from ever being published, however truthful, as long as a judge agrees it damages you and that it isn't in the direct public interest to have it published. The decision of what gets published, and what we find out, and what is in our interest to know, has been taken away from us. That's serious, even if a footballer's private life isn't, and so every small blow against this illiberal intrusion into our freedom - even if performed by a Lib Dem - is surely a good thing.

We have a choice on this matter: whether we stick with our traditions or drift further into Europe, whether we choose openness or secrecy, trust people or empower secret courts. Many in politics may seek to empower courts and their super-injunctions, maybe privacy laws would suit them as they suit the political class in France, but this is England and we do things differently, or used to anyway.

Parliament must act fast on the developing privacy laws, and it must act unequivocally in support of the free press however "trashy" it at times is. And as for celebrities, life will be simple still: if you don't want damaging truths printed about you, don't do anything that would be damaging.