Ryan's privates expose privacy law lacuna

It was only a question of time before the law's if not the country's worst kept 'secret' was outed and Ryan Giggs was exposed as the anonymous claimant 'CTB' behind another 'super'injunction.

Whether MP John Hemming had been put up to his stunt in Parliament today or whether he did it out of altruism or self interest is broadly irrelevant, the fact is that he was able to drop in Giggs' name under privlege and do so in response to the fact that tens of thousands of people had tweeted the name while a significant number of the public (including as he himself admitted this morning, David Cameron) knew who was that elusive philandering footballer.

So as the media revelled in the fact they could name Giggs (some being braver than others to be first to repeat the name in the context of their Parliamentary reporting), we saw politicians selectively disapproving of Hemming's naming while back at the High Court the injunction itself was upheld.

So is the law in a mess or are judges and the courts merely making the best out of a bad lot of law and an even worse lot of litigants?

Judges have for several years been highlighting the deficiencies of the law they have been asked to apply, specifically with relation to privacy. The higher principles of European law are not adequately translated into domestic law to provide for a workable privacy law in the UK. With the spectre of CFAs and Superinjunctions thrown into the mix the administration of justice and 'balance' required in applying the European laws has become skewed and deep pocketed litigants and cash rich media have respectively abused their positions to the detriment of the true public interest which ultimately is meant to provide the test for the legitimacy of both story and injunction.

The inception of the PCC was in itself a compromise to keep less desirable legistlation at bay and the subsequent revisiting of privacy law by successive Parliaments has seen a fudging or avoidance of the issues. In relation to privacy - and in absence of a set of higher constitutional principles/laws (such as the US First Amendment) - the law and society have not reconciled the increasingly fine dividing line between the truly private in a human rights sense and the conveniently private in a commercial sense. The sliding scale is in essence simple - the more you put yourself and your private life out there the more it becomes commoditised and as such has less recall on privacy laws and should more appropriately be played out in the civil law sphere of breach of contract or confidentiality.

If one looks at the Douglas v Hello case it is clear that the right to publish pictures of a private event had already been sold to OK! - so its perverse to claim privacy in a commericalised event. Similarly in the celebrated case of Campbell v Mirror, the essence of the story, namely that Campbell had been exposed as having a drug dependency problem while having held herself out as not being a drug user, was rightfully exposed by the story that ultimately cost over a £million for the Mirror even though the original privacy award in the High Court had been ca £3,500. So the lawyers got rich on technicalities and process but in deciding to publish the story Piers Morgan had not told any untruths or lied but had merely exposed Campbell's misleading stance on drugs by using a picture that while corroborating the story was deemed to somehow be invasive of privacy because narcotics anonymous was a private setting...Fast forward to the disgruntled Max Mosley, Fred the Bed and Ryan Giggs and what we have are not poor harassed individuals being picked on by the press but successful, well known individuals who have all been engaged in activities that they claim are private but are at odds with the public image they seek to convey of being upstanding morally clean individuals.

We had the pathetic and undignified hash of a news item on BBC's Neswnight tonight with John Prescott lathering up his soapbox against Hemming and the press - who had the affair Prescott? (yes, Prezza is still smarting at his own outing)- while Gavin Esler unusually didn't seem to have a sensible control of his news agenda by launching on Hemming (Newsnight as so many other programmes and front pages would not have their headline without him) and then deviating to the enduring debate over the usefulnees or not of the PCC.

Yes the PCC given its current powers or not is ultimately impotent in pre-publication constraints relating to privacy (it relies on brokering deals which it does increasingly well but it has not censure, power or force which is why if a claimiant wants to secure a gag they go to law). Rather than keep whipping the PCC the government could - as David Cameron has hinted at today - give the PCC some more legal powers to do its work but unless or until this is done then those with money will seek to use legal process to cover their tracks.

What we have is a situation whereby there are fundamental human rights - as expressed through the European Convention - that have not been adeqately translated into or reflected in UK (or English - as we were reminded by the Sunday Herald's front page, Scots law has its own rules and jurisdiction)law. The result has been that those who wish to cover up their dodgy private lives have peversely sought to use privacy laws to keep their behaviours secret. The bigger the secret and the deeper the pocket the more 'super' the injunction.

As has been questioned again today IF Giggs didn't want to hurt or upset his family, the same family he parades about under the guise of being a family man, then the way to ensure that would be NOT to have an affair - it seems ridiculous to blame the media for upsetting the family you have let down and cheated on - the media didn't do the letting down and cheating, it merely reported on this. The question arises as to who (those being reported on or the media itself) and in what context are they accountable to the public - there can be little sympathy for politicians and footballers who draw support and success from the public but then seek to suppress news of their actions that could cause the same public to judge them for those actions.

What privacy law needs to achieve is a balance of when to open and close the door and who ultimately holds the key when it comes to the private lives of those who profit from publicity.

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