The Guardian’s view on privacy and freedom of the press law: not finding a balance | Editorial

PEver since Andrew’s decision to cut his losses and settle with Virginia Giuffre has made headlines. But perhaps the most significant legal activity this week took place in London rather than New York, with worrying implications for press freedom. On Wednesday, in a landmark privacy case, the UK Supreme Court ruled that suspects in a criminal investigation have the right not to be named in the media, before charges are brought against them. On this basis, he dismissed an appeal against a previous High Court ruling by Bloomberg News, which found to have breached the right to privacy of a US business executive by naming him as the subject of a criminal investigation.

In a sense, this was nothing new. The judgment only confirmed a direction of travel that began ten years ago with the Leveson Inquiry. The phone-hacking scandal that led to Leveson has come to symbolize the excesses of intrusive and lewd reporting by the tabloid press in particular. In its wake, the notion of privacy – set out in Article 8 of the European Convention on Human Rights – has been interpreted in an increasingly broad and generous way by the courts. The right to freedom of expression – and the freedom of the press to report – have therefore been pushed into the background. In 2018, in the most high-profile case of its kind, the High Court ruled that the BBC broke privacy law by identifying Sir Cliff Richard as being investigated over allegations of sexual abuse. He was never arrested or charged.

The potential harm to named suspects who are never charged has always been able to be recognized through a defamation action. But in the way they choose to balance the competing rights of privacy and free speech, these legal judgments reflect new perspectives and priorities in the post-Leveson decade.

Wednesday’s decision is a sign that the pendulum has swung too far toward suppressing information of legitimate public interest. The Bloomberg case concerned a criminal investigation into the business activities of an executive of a large public company with investors, customers and shareholders. As the editor of the news agency pointed out in a writing response, expanding the scope of privacy law to this extent will hamper investigative journalism into corporate wrongdoing. From the Libor banking scandal to the denunciation of accounting fraud at Wirecard, the public value of such reports has been repeatedly demonstrated. Nor is it advisable to throw a cloak of secrecy over police investigations, shielding them from public scrutiny and accountability. Perhaps more importantly, an excessive legal presumption in favor of privacy removes the possibility of publicity leading to new testimony, as members of the public come forward. This is how Harvey Weinstein was brought to Justice after decades of sexual predation.

Bloomberg’s verdict delivered disengage that there may be cases where naming suspects is in the public interest. But this judgment sends an unequivocal message that the threshold of justification will be intimidating, prohibitive. The right to privacy and protection from reputational damage risks becoming a catch-all instrument with which the powerful and wealthy can erect a screen around their entire lives and shut down all scrutiny. A healthy democracy requires that a better balance be struck between freedom of the press and the right to privacy.

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