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Thursday, June 2, 2011

Privacy and public interest


LONDON — How far is privacy a human right? This question has become a issue in Britain and Europe in recent weeks.

One episode that has highlighted the differences between attitudes toward privacy in the United States, France and Britain is the case of Dominique Strauss-Kahn, the former head of the International Monetary Fund and possibly a future president of France.

He was arrested at Kennedy Airport in New York on a charge of attempted rape of a chamber-maid at a hotel in New York. The French public were shocked to see photographs of a disheveled Strauss-Kahn, known as DSK, in handcuffs, later transferred to a notorious New York jail. A grand jury has agreed that DSK should stand trial in New York. He has been granted bail on strict conditions. Even if he is acquitted his political career is almost certainly over. How are the mighty fallen!

In France privacy laws are strict and the sexual behavior of French politicians is not a subject of media attention. It has been alleged that French politicians are admired by at least some members of the French public for their virility and powers of seduction while extra-marital affairs are accepted as the norm. So DSK's reputation as a womanizer was not apparently regarded as either exceptional or as a bar to his becoming president of the republic. Anglo-Saxon codes of morality were irrelevant in France.

The French code of conduct for politicians does not, however, condone rape or the use of force in seduction. But where should the line be drawn?

Since DSK's arrest, a number of other allegations against him of sexual harassment have surfaced and questions have been asked whether French privacy laws have allowed such cases to be glossed over if not buried.

Questions are also being asked about the way in which sexual misdemeanors can be covered up in Britain on grounds of privacy. A number of cases have come to light recently in which rich soccer players, media stars and business people have been granted injunctions forbidding disclosure of their sexual peccadilloes. In some cases the courts have granted so-called super-injunctions in which even the existence of the injunction must not be revealed.

The grounds for granting these injunctions have apparently often been to protect the children of the offending party or prevent blackmail. But personal embarrassment and possible implications for their business interests (especially if they are involved in advertising products) have surely also provided motives for seeking such injunctions.

The British media have campaigned vigorously against these gagging orders and have received a good deal of support in parliament and from the general public. The injunctions in a small number of cases have been breached by being referred to in Parliament, where statements by members in the house, unlike statements made outside the house, are privileged and cannot be punished as contempt of court.

The injunctions have also been breached by statements on the Twitter website, and by publications abroad which cannot be made subject to the jurisdiction of U.K. courts except in so far as they circulate in the United Kingdom. They have also been nullified in one case by publication of the name of the soccer player concerned in a Scottish newspaper that comes under Scottish law, which is separate from English law.

One of the injunctions was taken out by one of the BBC's leading presenters Andrew Marr. He was "persuaded" by the British satirical magazine Private Eye that it was hypocritical of someone in his position in the media to take out an injunction against revealing his liaison with another media personality.

One super-injunction "outed" in parliament was that procured by Sir Fred Goodwin, the former boss of the Royal Bank of Scotland, to prevent circulation of allegations of an affair which he is said to have had with a senior colleague at the bank before it collapsed and had to be rescued by the government. Goodwin, popularly known as "Fred the Shred" for the ruthless way in which he cut staff, their salaries and perks, is regarded as a man personifying bankers' greed as well as being responsible for the takeover of the Dutch bank ABN Amro, which was a major factor in the bank's collapse. The media and parliamentarians want to know whether Goodwin's sexual fling with a senior colleague was in breach of the bank's code of conduct and was correctly reported to the board.

In the case of Goodwin, at the very least, there is a real public interest in revealing misconduct. There may not be so much public interest justification for mud-raking in the case of soccer players and media stars. But these personalities have been earning astronomic sums and it does not seem unreasonable to most people that, if they seek fame and prestige, they should not expect the media merely to promote their image but should also expose their weaknesses.

It is noteworthy that all these injunctions and super-injunctions have been sought by wealthy male individuals; none by women. A person of modest means could not afford to seek an injunction to protect his private life.

Naturally the lawyers, representing applicants for injunctions, are arguing strenuously for the maintenance of the present system and for action to be taken against leaks through Twitter and in parliament, but it is becoming increasingly difficult to see how these injunctions can be enforced.

Soccer players, media stars, businessmen and politicians, if they want to maintain their reputations and protect their families and their good name, have a simple remedy. That is to behave in accordance with the accepted norms of society. If they cannot control their libidos and do not want to be shown up, let them retire on whatever gains they've acquired and return to the obscurity where they should have stayed.

In Britain we probably do not want our media to be as uninhibited as in the U.S. We may need improved rules on privacy, but the present position is farcical and wrongheaded.

Hugh Cortazzi served as Britain's ambassador to Japan from 1980-1984.


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