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If the press would rather people used self-regulation than the courts then it has to make sure that the PCC is a credible regulator
Parliament is currently, for the first time in 15 years, debating proposals to reform the libel laws. These laws, to our shame, have made London the forum of choice for the laundering of reputations, and in repudiation of them the American Congress has passed its own. You would never guess this from monitoring the British media, which is presently obsessed with a different threat altogether – the torrent of superinjunctions gagging journalists' ability to report on matters of high public interest.
This is a curious state of affairs, not least because it's not clear that a single superinjunction has been ordered against the media so far this year. A superinjunction is one whose existence cannot be reported – as happened when the oil traders, Trafigura, succeeded in gagging the Guardian in 2009 over the existence of a confidential report about toxic waste. It is easy to deplore those. The current bone of contention is actually anonymised privacy injunctions, in which the bare bones of the cases are published – but not the identities of those involved. This is a more difficult area.
The courts are doing what parliament asked them to do in passing the Human Rights Act. Judges balance article 8 (respect for privacy) with article 10 (free expression), paying special reference to the British media's codes of practice. The Press Complaints Commission code on privacy is virtually identical to the wording of the HRA, though it allows exceptions in cases of strong public interest, such as the exposing of crime. These cases often involve very difficult balancing acts. In a recent case, OPQ v BJM and CJM, the media dropped objections to a privacy order after hearing: a) that the parties involved had all agreed to one; b) that it involved "straightforward and blatant blackmail"; and c) that there was "solid medical evidence" about the dangers to the health of family members of the claimant that might result from publication. Few people would argue that making some sort of privacy order in these circumstances was totally irrational.
Some alleged details of some of these privacy orders surfaced this week on Twitter, which led to a startling dawn chorus of demands for urgent action. Some argued for a privacy law; others simply urged parliament to discuss privacy (in reality, hoping for an anti-privacy law); others wanted the regulation of Twitter; another variant was to urge "parliament, not judges" to decide the issues; others wanted to see a statutory regulator for the press.
Some of these are absurd. Who on earth, for instance, believes the British courts or parliament could regulate Twitter? What could a parliament-endorsed privacy law possibly say that would be more permissive than the PCC's own code while also being compatible with the balancing act required by the European convention on human rights? Can we really imagining renouncing the ECHR (and thus leaving the EU itself) over the right to spill the bedroom secrets of celebrities and sportsmen? Why do we imagine that parliament would wish to pass such a measure given the ongoing criminal and civil inquiries into the mass hacking of phones by elements of the press, and the feeble response to date of the industry's own regulator? By all means clamour for MPs to consider privacy, but be careful what you wish for.
Whatever the law, someone – either judges or the PCC, but not parliament – will end up making decisions on a case-by-case basis. If the press would rather people used self-regulation than the courts then it has to make sure that the PCC is a credible regulator. Failing that, it's difficult to object to the courts continuing to making case law on the basis of the facts and of the law as it stands. Editors can certainly object to the secrecy: if so, they must then play their part in demonstrating how to reconcile openness with privacy. Meanwhile there is rather more urgency about lobbying to improve the current proposals to reform our discredited libel laws.