Free speech, privacy and the Leveson Inquiry
Back in February, Michael Gove, the Education Secretary, told the House of Commons Press Gallery that there was a "chilling atmosphere towards freedom of expression which emanates from the debate around Leveson". And, when giving evidence at the Inquiry in May, Mr Gove went even further. He argued that free speech didn't actually mean anything unless people were offended some of the time.
In Mr Gove's view, there is no need to limit the "precious liberty" of freedom of expression because, for example, reporting details of an celebrity's indiscretions might contravene that individual's right to privacy. Freedom of expression wins every time.
But does it? And, perhaps more importantly, should it?
There is a clever jurisprudential way of trying to answer these questions, for which we have to thank one of the great legal thinkers of the early twentieth century - Professor Wesley Hohfeld. Despite dying tragically young (at 38), Hohfeld (who held chairs at both Stanford and Yale) packed quite a lot of scholarship into his life. His key legacy is the analysis of what we mean when we refer to something as a 'right'. Hohfeld thought that there are four distinct concepts, each of which could be referred to as a right. For the purposes of this blog, the two key ones are (i) what Hohfeld felt could properly be called rights and (ii) privileges or liberties; what in modern-day English can be thought of as freedoms.
In order for either to exist, Hohfeld thought they needed a correlative: without the correlative, you can have no right and no freedom. The correlative for a right is a duty imposed on another person to respect that right. The correlative for a freedom is the absence of a right enjoyed by another.
The fact that the correlative for a freedom is the absence of a right is key. Freedoms are things we all enjoy in any event and without any restriction. On the other hand, we only have a right to something if someone else is obliged to respect that right.
If you assume that terms used to describe free speech and privacy reflect Hohfeld's analysis, then the fact that we say freedom of speech as opposed to a right to privacy is intuitive, and suggests that Mr Gove is correct. Free speech is a freedom we all enjoy without restriction; but we only have a right to privacy if others are obliged to respect that right. On a Hohfeldian world view, free speech also wins every time.
Indeed, until the turn of the century, this was arguably the position in English law. The courts had a long tradition of upholding free speech, whilst resisting a right to privacy.
The Human Rights Act 1998 (which came into force on 2 October 2000) changed that. Article 8 protects the right to respect for private and family life; and article 10 protects freedom of expression. To make matters even more confusing, Hohfeld's distinction between freedoms and rights has arguably disappeared. Privacy and free speech are both categorised as qualified (and not absolute) rights - and each comes with correlative duty. When they are in conflict, a judge needs to conduct a balancing exercise considering the comparative importance of each and the reasons for interfering with them.
For example, if a celebrity who publically supports family values and monogamy is having an extra-marital affair, then the hypocrisy could help to persuade the court that press freedom should win the day.
So, what about the questions posed earlier in the blog? The first is easy to answer: the Human Rights Act means that freedom of expression does not now always triumph over an individual's right to privacy.
The second question - whether or not it should - will, in part, be answered by Lord Justice Leveson. My own view is that the press is too intrusive. I'm not sure that my civil liberties would be in any way compromised if the press felt able to let celebrities make mistakes in their personal lives in private, but I know many people who disagree with me.
For the moment though, the last word should go to Lord Justice Leveson. Yesterday's statement on the press reporting of the concerns the judge raised in private following Mr Gove's February speech, contains (at paragraph 18) an interesting comment on how the press respond to criticism of their conduct:
"...it is at least arguable that what has happened is an example of an approach which seeks to convert any attempt to question the conduct of the press as an attack on free speech."
If free speech really is a freedom as envisioned by Professor Hohfeld, people (including judges) must enjoy a "precious liberty" to criticise the Fourth Estate. The press can't use the same civil liberty both to defend their own conduct and deflect any criticism of it. After all, an argument that the press can enjoy free expression and that others in society must respect that at all costs is to admit that free speech is a Hohfeldian right and not a freedom.