Substantial constraints on the freedom of the press tend to accumulate from seemingly small restrictions. Events last week in a court in Antrim in Northern Ireland demonstrate this neatly.
A paedophile was caught sending suggestive emails to undercover police posing as prepubescent girls, and went down for 16 months. Who was he? We will never know.
Why have human rights led to this boxing in of free speech in favour of the frankly undeserving?
Why? The answer is that in court he threatened suicide unless given anonymity. The court gave in to his demand. An injunction now bars any disclosure of who he is for his lifetime, and anyone breaking it, whether in the press or social media, faces a strong prospect of jail time.
Some will see this order, which incidentally followed a similar one in Ulster about a year ago, as no big deal: a restriction, yes, but just a little one, imposed for humanitarian reasons on knowledge of no great significance. In fact, it should worry anyone concerned for press freedom a good deal.
For one thing, the paedophile’s claim to a lifetime of semi-respectable anonymity on release was hardly deserving. True, a convict threatened with attack or lynching has some moral case for anonymity, and the law provides for it (beneficiaries include sadistic child murderers Jon Venables and Mary Bell).
Not so, however, where the threat comes from the criminal himself. Moral blackmail of the ‘I’ll kill myself unless’ kind needs to be ignored, not indulged. True, this may result in the occasional felon ending his own life, and this is unfortunate. But, put bluntly, this is a risk society should be prepared to live with.
For another, the notion that an individual criminal’s name is a matter of passing interest rather than serious significance is itself disquieting. Not all defendants are non-entities. Suppose an ex-con becomes locally (or nationally) well-known; we should be able to judge him warts and all, and not be prevented from doing so by some well-meaning court order aimed at protecting his vulnerabilities.
Again, we should have the right to be able to discover if our friends and neighbours (or even romantic partners) have convictions, especially sex-related ones. True, the police might let us know if they think fit and believe we can be trusted; but this is a poor substitute.
And in any case, just suppose that the name of a criminal is indeed something of no objective importance. Should this matter? Despite the bien pensants’ rather censorious view of the tabloid press, it is by no means clear that it should. There is much to be said for allowing the press to provide us not only with what is important but what interests us. We should be left to decide what we will read, rather than have someone else determine what it is good for us to know.
Until about 1980, absent some muscular reason such as national security, the protection of police informers or blackmail victims, or the need to prevent breaches of confidence, the press was entitled to say what it liked about whom it liked provided only that it was true. How is it that we have reached the depressing situation where the press can be peremptorily ordered to keep information from us because it might hurt the subject of it?
The answer, ironically, is human rights. No legal details appeared in reports of the Antrim case, but it is pretty clear that the court order there was based on the defendant’s right to privacy, or possibly the right to life.
Why have human rights, originally a noble cause, led to this boxing in of free speech in favour of the frankly undeserving? The answer is that there has been a quiet revolution in the way the European Convention on Human Rights (ECHR) has been interpreted in Strasbourg. True, the convention protects free speech as well as privacy and the right to life. However, in the last forty years these latter two rights have waxed fat at the expense of the former.
In 1950, when the ECHR was signed, these rights were seen as restricted to outlawing the kind of outrageous and deliberate state interferences that no civilised society should practise: midnight random house searches, wholesale snooping, deliberate state murder, and so on. In this form they hardly affected free speech, if at all.
Since then, however, they have been distended beyond recognition. Privacy, once concerned exclusively with outrageous state intrusion, is now very much a ‘me-me’ protection. It allows you in principle to forbid even non-state actors such as the press from mentioning anything about you that you have a ‘reasonable expectation’ of keeping quiet.
Your right to life too has ballooned: you can now demand, as a human right, general protection from any act by anyone that creates a clear risk to your life or limb. If this new-style privacy or risk avoidance means putting severe restrictions on what the press are allowed to say and the rest of us to read, that’s too bad.
Free speech is, in practice, very much the junior partner here: the tendency is to demand that speech not only be of interest but serve some earnest purpose. Hence what happened in Antrim last week, when your right to be informed was sacrificed for the sake of saving a criminal from himself.
What can we do to roll back this rampant human rights overreach? The answer is simple, if stark. So long as we remain members of the ECHR, with its activist court and the latter’s lopsided emphasis on some rights at the expense of others, we will be stuck with an ever-decreasing area of media freedom dictated by decisions outside our control.
The need to prevent this is one more reason to push for our eventual withdrawal from the entire arrangement, and our enactment of a Bill of Rights closer to the ECHR, as originally envisaged. This is a project that needs to stay firmly at the top of Alex Chalk’s new in-tray at the Ministry of Justice.
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