Freedom of Speech and Privacy: A Conflict of Rights?
If we were to be given £1 for every time we had heard the admonition not to ‘tell tales’ during our schooldays, there might be few people who would need to work for a living. Yet the recent furore over so-called ‘super-injunctions’ taken out by celebrities to prevent details of their private lives being revealed by newspapers shows that the message learnt at an early age about the wrongness of gossip and tale-telling is one which many people still find difficult to master.
It is claimed, rather perversely, that preventing newspapers from printing lurid stories about celebrities’ extra-marital sexual liaisons is a violation of the ‘right to free speech’, the absurd implication being that steps currently taken by courts to protect the privacy of private individuals and their families puts England within a hair’s breadth of becoming a soviet-style dictatorship haunted by the spectre of ‘censorship’.
The right to free speech is important because one thing distinguishing man from lower animals is the fact that, in addition to being able (like animals) to communicate his feelings through inarticulate noises, he can also communicate his inner thoughts through articulate speech. One of our most basic human inclinations is towards the knowing of the truth, and this is why the right to free speech should be highly valued. But we must understand and use it correctly.
Speech, like everything else, must be ordered correctly in relation to varied human goods. It is a common error to claim that the only good towards which speech must be ordered is the ‘true’ so that, provided one is not lying, it is permissible to say anything. The usual defence employed by tell-tales and gossips is, ‘But it is true!’.
Let us imagine I am out walking and see a rather large gentleman lumbering towards me on the opposite side of the street. I cross the street and say, ‘Excuse me, but you are the fattest person I have ever seen’. It may be quite true, but we all realise, I think, that this does not make of it an acceptable remark in such circumstances! Or again, let us imagine that I am a teacher and I stand up in front of a class of five-year-old children and relate to them all the grisly details of the Jack the Ripper murders, complete with a PowerPoint presentation showing photos of mangled corpses. ‘I was only telling the truth’ is not likely to be a defence which will go down well with the Head Teacher, enraged parents, or the child psychiatrists called upon to rectify the consequences of my mistake. Whilst it is always wrong to lie, it does not follow that it is therefore always right to speak truth indiscriminately. Speech must always be ordered to truth, but there are normally also other goods in relation to which it should be considered.
One of the most important of these is the good of a person’s reputation – something crucial to their ability to function in society. Some philosophers have argued in the past that destroying a person’s reputation is worse than theft, because whilst we can usually re-acquire material goods with relative ease, a ruined reputation is often irreparable, and the damage done to the wrongdoer’s reputation is often or even usually out of proportion to the wrong done.
There may be pressing reasons, such as the public welfare or the defence of a third party accused of a crime, which oblige us to reveal the faults of others. For example, in some circumstances it might perhaps be justifiable for the media to expose (without voyeuristic detail) elected politicians who are having extra-marital affairs, not because ‘sex sells’ but because in a democracy it is the electorate who are tasked with evaluating the moral fitness of candidates for elected office, a duty they cannot fulfil without relevant information, and a man who lies to his own wife can hardly be trusted to be honest about affairs of State with the general public most of whom he will never meet. There is no ‘conflict of rights’ here. It is not so much that we need to ‘weigh’ a politician’s right to privacy against the right to ‘free speech’, but simply that the right to privacy does not extend to things which, if they remain secret, will seriously harm the common good. Such an argument obviously does not apply to footballers and other celebrities who, however famous they may be, are not tasked with crucial responsibilities for the common good of society.
That super-injunctions may be broken does not in itself amount to a reason for not having them available. David Cameron has argued that it is ‘unfair’ that newspapers were not able to write about an adulterous footballer who had already been named by 75,000 users on Twitter. Such an argument hardly needs refuting. By the same token one might claim that it is ‘unfair’ not to allow newspapers to print instructions on how to make homemade bombs because they are available on the internet, or that it is ‘unfair’ not to allow supermarkets to sell pornography because people can access it on the internet. If everyone already knew the name of the footballer, as was claimed, why were the newspapers expending so much time fulminating about their not being allowed to print it? I for one was certainly not aware of the identity of the man in question, and that for the same reason that I suspect the majority of people were not aware – namely, that I do not spend time trawling through Twitter to search out gossip about which celebrity is having an affair with whom. The Prime Minister was right to say that ‘the law… has got to catch up with how people consume media today’. That new means of social communication make it much easier for people to ruin the reputations of others is not, of course, a reason for abandoning privacy laws, but perhaps even for having much stricter privacy laws which will make twitterers think twice before tweeting.