Balancing free speech and our privacy

Jak Ward, of the dispute resolution team, takes a 'Closer' look at the laws on privacy and how they can affect celebrities and mere mortals alike.

IN 1949, George Orwell coined the phrase "Big Brother is watching you". Sixty-five years on the phrase still resonates.

The scandal surrounding François Hollande's affair with actress Julie Gayet as reported in Closer magazine and revelations about the private lives of Nigella Lawson and Max Mosley have pitted privacy against free speech.

The media is the eyes and ears of the public and the reality is that gossip sells, particularly if it concerns indiscretions of celebrities and public figures.

With the exception of the BBC, UK media outlets are commercial ventures striving to generate profits like any other business. People want to read about extra-marital activities, a fight outside a kebab shop and see unflattering pictures of celebrities popping to buy milk in their pajamas.

It is enshrined in the law in this country, by virtue of the Human Rights Act 1998, that the competing rights to free speech (Article 10) and to privacy (Article 8) must be balanced. In other words, publication of private information must be proportionate and in the public interest.

Anyone wishing to rely upon either right cannot claim it as an absolute right. They are qualified, which one may think, for the media, provides a get-out-of-jail-free card.

Providing that the focus of their publication is in the public interest then the media will argue that the nation has the right to know and, if publications are stifled or editors are punished, it will inevitably create a chilling effect in the way that the press reports stories.

Hence, striking a balance between the two rights is the most problematic aspect in the debate. How can judges truly determine whose human rights are more important when both sets of rights are pitched at opposite ends of the human rights see-saw?

People in the public eye have a right to privacy and the media have a right to free expression.

Part of living in a free and democratic society is that even though we might disapprove of certain activities, we must permit the media scope to determine what is suitable and appropriate for publication.

Therefore, although the judiciary might condemn certain malevolent yet playful publications, they must also defend the media's right to publish.

It is not only the media that have the potential to invade someone's privacy. With the emergence of social networking, we now live in an age of citizen journalism; you don't have to work for a national newspaper to publish comments and photographs that invade another's privacy and contravene the law.

Anyone with a smartphone can publish comments on any topic and, depending upon the number of followers, friends, connections you have, those comments could go viral without any further input from the author.

If those comments or photographs fall into the hands of the named victim, you could find yourself on the end of a privacy or libel action where a claimant could seek injunctive relief and damages for their loss.

Therefore, anyone publishing information about an individual (whether in the public eye or not) should be alive to the privacy laws in England. As an individual, you may not be able to rely upon a similar defence, or a large specialist legal team, as the media heavyweights do.

So remember that Big Brother is watching you!

If you have any questions regarding this article please contact Jak Ward.