Eleanor Fox
With the development of the tort ‘misuse of private information’ the law has increased the protection available to public figures in protecting their privacy. However, due to an inadequate system of press regulation and the rise in social media, it has become harder for the law to properly protect and provide redress for these harms. Despite claims from the government that progress has been made, there is a clear need for a more effective regulator that will scrutinise and hold publications to account, as well as making changes to improve the protection injunctions provide.
Regulating the Press
The Leveson Inquiry was set up with the aim of a better regulated media. This resulted in the Independent Press Standards Organisation (IPSO) being established as a self-regulator. Support for this has been given by members of the government. Matt Hancock claims they have made progress and have taken steps to demonstrate their independence. Yet, looking at their source of funding, can they really be considered independent?
The Regulatory Funding Company, who funds the IPSO, is financed by its member publications. It has control over things such as the standards code, appointments, investigation fund and voting. Hence, with such a high level of influence, to deem it truly independent seems misleading. IPSO also has the power to hold publications to account by issuing fines of up to £1 million for serious breaches, nevertheless, so far sanctions have never been issued. With over 1,700 violations, it seems unlikely they have never faced a serious enough breach. This could be an effective way to deter other publications from ignoring a public figure’s right to privacy, but without serious consequences, it seems publications will continue using unethical practices.
IPSO had the potential to be a more accessible route than taking privacy claims to court, nevertheless, it has been unsuccessful. This leaves legal action as the only way to provide redress and protect privacy, but even this may be under threat from social media.
Social Media and Injunctions
Newspaper circulation has dropped by around two-thirds since 2000, with people now getting their news from social media. Online platforms are not generating the same revenue as print and social media platforms often don’t pay for the content appearing on their websites. This means stories are reaching more people without the financial benefit to the publisher. The real pressure now is to get original stories faster, with little regard for the public interest, leading to unethical reporting. This is evidently concerning because once a story has been published, it is very difficult to curb the online spread. Damages for breaching someone’s privacy may not be satisfactory and often the information can still be found with minimal effort.
Social media is also threatening to undermine the effectiveness of the remedies available through court. Injunctions are granted to prevent private information being disclosed, limiting what journalists can publish. However, as information has become easy to share and people have access to a wider range of sources, jigsaw identification has become easier. This is where people can piece together snippets of information to identify the individual who is being protected, which can often lead to misidentification or intrusive speculation. One high profile example is Ryan Giggs who was granted an injunction against The Sun newspaper. The newspaper had published the story leaving his name anonymous, however, twitter users soon identified the person in question since the same information had been repeated more than 75,000 times. This ultimately left the injunction ineffective which demonstrates that the capability of the law to protect this information and provide redress is threatened.
Contempt of court is one way to hold those who breach an injunction online accountable, but this can often be costly and increase the publicity of the injunction. However, it is unrealistic to hold 75,000 people accountable on twitter as it would be extremely difficult. This mechanism will only be useful in a few circumstances and often is ineffective with social media making it easy for information to be shared by so many. The most effective way to prevent this breach of privacy and to uphold the value of injunctions would be through the use of pre-notification requirements. This would mean publishers have to notify the individual whose information they’re writing about so they may have the opportunity to get an injunction or stop publication.
“Publishers have to notify the individual whose information they’re writing about so they may have the opportunity to get an injunction or stop publication.”
ELeanor Fox, LLB Graduate from Newcastle law school
Pre-notification requirements have faced heavy criticism over concerns of the chilling effects on journalism, where time is of the essence, such as investigative journalism. To overcome this problem, this requirement could be used for certain categories of journalism, such as tabloid newspapers, where there is no pressing need to publish a story. This is unlikely to be implemented, however, as it is thought to give too little weight to freedom of speech and there has been little discussion around categorising journalism.
Jurisdictional Problems
Interim injunctions, granted by the court prior to privacy trials, are limited in their protection due to jurisdictional issues. These injunctions granted in England are not enforceable elsewhere in the UK. The information can therefore be published online in other UK jurisdictions and shared to viewers in England, undermining the law. This was true of the PJScase, where the information was shared in the US, Canada and Scotland despite being granted an interim injunction in England and Wales.
A solution to this would be to enable interim injunctions to be enforceable in all UK jurisdictions. This has received opposition from those such as Dominic Grieve QC, arguing that separate legal systems are fundamental to the UK. However, final injunctions received after trial are enforceable in all three jurisdictions, giving little weight to this argument if other forms of injunctions are enforced in this way. Although this would not overcome the problem of sharing the information in jurisdictions outside the UK, this could significantly increase the protection afforded to people’s privacy.
It is therefore clear that further press regulation reform is needed along with relevant steps required in order to preserve the effectiveness of injunctions and overcome jurisdictional problems. Until such changes are made, the law cannot sufficiently protect a public figure’s privacy.