The Indefinite Articles

True to form I am joining a debate just as the dead donkey is having the last of its once lustrous flanks flogged from it (are donkeys ever lustrous?). As you may have guessed from my cunning title, today's post centres on Articles 8 and 10 of the European Convention on Human Rights. You may, though, have worked it out from my subtle pictures on the right. I thought about using that over-produced picture of Miss Imogen Thomas strutting to court in a flattering but staid, high neckline blue dress. However, after some really extensive research (this is what I have been doing for the last 2 weeks), I thought this one offered more to flesh out the post, artistically speaking.

So, I guess it is time to vent my feelings on the great 'public interest' debate. First and foremost it makes sense to make the obvious distinction between "in the public interest" and "of interest to the public". The former I shall take to mean knowledge that is due to the public as citizens and taxpayers because it has the ability to affect them, the services and organisations they fund, and their lives as players in British democracy. Here we are talking about nefarious activities of Members of Parliament, the head of the BBC running a sleaze campaign against ITV, Liam Fox having an affair with an executive at BAE Systems whilst considering a tender for an MOD contract. That sort of thing; and I stress, all hopefully imaginary.

Now as we see from the last example, in particular, the lines can easily blur between "in the public interest" and "of interest to the public". This is because the last one is about sex, and sex sells. Yes, this is what is "of interest to the public" - anything that gets printed in Hello!, OK or any number of other publications in the UK and abroad. In short, things the public will pay to read about and see pictures of.

You may point out that even broadsheet newspapers print a mix of the two, and you would be right. We should know about the Foreign Office talks with Syria, that's "in the public interest", but we simply like knowing about the old tortoise that got stolen but escaped and walked 200 miles home over the course of a year. That is a "public interest" story, in that it is simply something we'd like to know. It lightens the paper and provides some contrast. We didn't need to know it, nor have any particular right to it, it having no bearing on our lives as citizens. Incidentally, I made that one up too, but if your tortoise really is that heroic and navigationally astute, congrats.

So we know what at least I think is the difference between the two types of public interest. This is important because it seems to be this distinction upon which judges base the fad of today, the injunction, or even super injunction. It all boils down to readings of the ECHR's articles 8 and 10. Now they are more focussed, as you can read, on when Governments can infringe said rights, rather than when other members of society can, but as with much law, there is always room for interpretation. Herein lies the crux of the matter. Does Article 8, "the right to a private life" as it is bandied about, trump Article 10, "the right to freedom of expression" or vice-versa?

So here's my take. If something is "in the public interest", it is clearly defined that it may be made public, where it "is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." So, if the head of MI5 is sleeping with the the head of Mossad, or an elected representative is illegally paying their partner to rent their own home, it is clear cut.

Where it gets hazy for people is the "of interest to the public" area, but I cannot see why. It's all rather simple, for my money. If you choose to live your life in the public eye and thereby make money from the associated publicity you have engaged in a transactional relationship. You pose for pictures in magazines, do interviews; you get paid. Companies sponsor you to advertise their stuff because you have high exposure. You make your money this way. The public are interested in you, and you get paid because of their interest.

So where does one draw the line in terms of finding out each and every detail about your life? One glance at modern popular media tells us people will read about anything a "celebrity" does? Whilst I can understand you may not want everyone to see you looking crap with a hangover on holiday, you have to take the rough with the smooth. If you do it in public, it will possibly be caught on camera. I sympathise with those who get their boobies plastered worldwide care of 100 mile telescopic lenses whilst trying to subtly rearrange a bikini on a boat, but for the most part that's the business they signed up to. It's not "in the public interest" but I think it's all fair game as part of your contract with the people who now think of your public antics as interesting.

So, where does the remit of the telescopic lens stop? I think it invasive and intrusive to go around tapping phones, trying to entrap people, or taking photos of people through the windows of their own home. That stuff should rightfully be all illegal, and any newsworthy stuff garnered that way should be barred as having breached Article 8. So, that's stuff that may well be "of interest to the public" but to which they have no right. So, it shouldn't be gathered, and if it is and someone tries to publish it, an injunction here is totally justified.

However, Article 8 actually says "everyone has the right to respect for his private and family life, his home and his correspondence". The key part is "respect". It is not a carte blanche. If you live your life in the public eye and choose to show no respect yourself for your private and family life, you cannot then hide behind the same article which you have just flouted. That is if you, a married superstar footballer father of 3, decide to shag a publicity-seeking bimbo without the express permission of your wife, you're on pretty shaky ground. Likewise if you, a multi-millionaire motorsport head honcho decide to engage the services of some ladies of dubious reputation to play out some curious sexual peccadillo, you have breached you own privacy.

You have let into your 'circle of trust' some dodgy characters. If said bimbo/hooker decides to ring up the Sun and tell all for £50,000, well my friend, that is your fault. Article 8 only allows for the right to respect for family and private life, a respect you have chosen to disregard, unless in breach of others' rights and freedoms. Now as little as you care for the bimbo/lady of the night, they have a right to freedom of expression under Article 10. They have done nothing to invalidate their right to freedom of expression. As long as what the say is true and not libellous, they have a right to say it, and anyone to whom they say it has a right to repeat or publish it.

All of the articles within the ECHR have similar caveats. Those who drew them up no doubt knew there would be times when two articles would be drawn against each other. There is no natural hierarchy of the articles laid down; none has natural precedence over another. Some may try to argue that the clause in Article 10 caveating free speech with the "protection of the reputation or rights of others" justifies gagging injunctions due to Article 8. However, common sense must be applied in this situation. Clearly Article 10 trumps Article 8 here: those hiding behind Article 8 have themselves shown no respect for their own privacy; those invoking Article 10 have said nothing untrue.

It is madness to be able to hide any wrongdoing behind the right to the private life you chose to live in public and the right to a family life for which you show nothing higher than contempt yourself. Simply put, if you choose to live a public life you must accept the concomitant higher level of public scrutiny. You still get your private life, and it should be protected (but will be inevitably less private than my private life as nobody takes photos of me going to the shops, so yours is probably now just what you do in your home and that of your friends and families), but be careful with whom you share it. You cannot ask only for the good publicity either - the only way to do that is to only do good things. Perhaps that is a lesson young aspiring famous wannabes should learn before launching themselves into the limelight.

I'm quite glad someone did something about this ridiculous situation, and am amused at those who want to sue Twitter for what its users have written. It is as farcical as suing your school for what you think little Johnny Briggs wrote about you on the wall of the boys' loos. I wish them luck trying to track down those tens of thousands of users who can easily be anonymous who have breached these injunctions. I'm not convinced this is what the authors of the 1668-1669 Bill of Rights had in mind when their Bill allowed John Hemming MP to name Ryan Giggs under Parliamentary Privilege (oops, add me to the list of breachers), but it got an important debate going. I suppose the moral of the story is if people knowing you are a naughty boy might be bad for you, don't be a naughty boy.