Be civil, or be silent

By skepticlawyer

At various points since we founded this blog, both Legal Eagle and I have written about defamation, confidential information and privacy and how they intersect. We’ve also both discussed how respecting different social classes’ political views does not entail automatic respect for their taste in music or culture. In today’s post, I want to yoke the two discussions together, in part because UK law (backed by Strasbourg) is now impinging on a particular set of prurient cultural tastes common among both the poor and the poorly educated. The impact is so direct that the working-class media nine pins are starting to fall: this week saw the demise of the Daily Sport and the Sunday Sport, the most down-market of the Red Tops. As I shall argue, blaming the internet is only the half of it: much of the blame can be laid at the feet of the European Court of Human Rights in Strasbourg and its protection of celebrity privacy to the same degree as that of common folk. Strasbourg’s jurisprudence on this score has distinctive Roman law origins, especially the ancient view that free human beings have an inherent dignity and honour which it is in no-one’s interest to breach without very compelling reasons.

In England

England, of course, is a far more class-conscious society than Australia or the United States, and lacks any constitutional protection for freedom of speech, either implied or express. Historically, it has also been relatively common for England’s social ‘betters’ to police the interests and activities of those below them: indeed, this was at the heart of the Lord Reith model of the BBC: public broadcasting existed to improve people, to enhance their aspirations, to change their speech patterns, to educate them. This meant that the BBC–for many years–didn’t really speak to the poor or the working classes, and it certainly didn’t sound like them. The working classes, it was reasoned, had the Red Tops to amuse them, about which the rest of us need not worry.

This cosy arrangement was buttressed in various ways. Britain had no tort of invasion of privacy, unlike the Europeans, where invasion of privacy is one of many forms of iniuria (a veritable thicket of activities that bring people into ‘hatred, ridicule or contempt’ and so found a cause of action). Of course, Britain has long had draconian defamation laws, but defamation can only arise after publication, and depends on the impugned statements’ falsity. All the while the Great and the Good had the tort of defamation to protect them, they did not care very much about privacy, in large part due to British social conventions that meant private scandals went unreported on the basis of ancient English ideals of fair play and decency. If private information needed protection–as Legal Eagle points out–this was facilitated through the equitable jurisdiction. This system, of course, depended on the Great and the Good being either (a) able to constrict membership of their ‘club’ or (b) as social mobility increased, ensuring that new members played by the old rules, a sort of Debrett’s for Dummies.

It is obvious that these social conventions have completely collapsed since the Second World War. Enter, stage right, Strasbourg and its Roman law support for the ‘dignity and honour of the person’.

In Europe

Of course, false and defamatory statements about an individual are a species of iniuria in civilian systems too, but true statements can also constitute iniuriae, as long as they bring the individual in question into hatred, ridicule or contempt [‘ne quid infamandi causa fiat’]. France, Germany, Italy, the Netherlands and the Scandinavians have all got distinctive national riffs on the original Roman law, but Gaius’ introduction to his discussion of iniuria is still a good starting point:

Iniuria is committed not only by striking someone with the fist or a stick or by flogging him, but also by raising a clamour against him, or if, knowing that he owes nothing, one advertises his property for sale as a debtor’s, or by writing defamatory matter in prose or verse against him, or by following about a woman or a youth, and in short in many other ways [G.3.220].

Gaius then enumerates iniuriae in gory and grisly detail, which I won’t go into here, except to make a couple of relevant points (especially when one considers the bread-and-butter of the Red Tops, the sneaky paparazzo following someone about and photographing them unknown and uninvited).

First, the Romans hated sexual harassers generally and stalkers particularly. In what seems to be an extension of the Roman version of castle doctrine–which is in the Twelve Tables–women who grew tails were given almost carte blanche to do whatever they wanted to a pursuer who wouldn’t take no for an answer. The courts would automatically acquit a woman who killed an uninvited male both directly outside or inside her property, for example; a male only got the same let-off if the killing took place inside his property. This distinction has been preserved, I might add, in modern Texas and Louisiana law. It really was ‘get off my lawn’ to the max. Their sexual harassment law (it was yet another form of iniuria) even protected prostitutes, a phenomenon not seen again until the late 20th century [D.47.10.15.15].

Second, the ‘clamour’ didn’t have to be false. It just had to be insulting enough to bring the individual into ‘hatred, ridicule or contempt’. The standard was an objective one, assessed by recourse to the Roman version of the ‘man on the Clapham Omnibus’ and general community standards (civitas): D.47.10.15.2-6. The clamorous behaviour was known as convicium; interestingly, it used to be part of Scots law, only falling into desuetude after the Act of Union 1707, as part of the common law’s greater emphasis on freedom of speech.

Third, people who had entered public life–Gaius mentions a magistrate, a senator and a high priestess as paradigm law school case studies [G.3.224-225]–were given greater protection than Marcus and Marcia Average if attacked or stalked or otherwise subjected to iniuria. This was referred to as contumelia, which gives us the lovely English word contumely. Gaius (and other jurists) justified it on the basis that people of talent and ability would not enter public life if they constantly had to stave off invasions of privacy, invective and insult–whether true or false. It is almost directly opposed to the modern American position, which gives public figures less protection than Joe and Josephine Average.

This added protection for the Great and the Good, it must be remembered, was unusual in the context of Roman law, which drew few distinctions between rich and poor when it came to capacity in other areas: contract, property, succession, commerce generally. This ‘liberalism’ was a major contrast with the Germanic codes and their ‘personality principle‘ that later became a part of European culture. If the Romans were going to draw a legal distinction, it was between slave and free and citizen and non-citizen, not rich and poor or male and female.

Article 8 ECHR v. Article 10 ECHR

It is perhaps ironic that a legal system noted for its absence of ‘rights talk’ should have fed into modern human rights law, a development to make a Roman jurist’s eyes water. The Romans talked in terms of capacity, not rights, bar limited discussions of property rights and a right of assembly (in the latter case, often when they were going to abrogate it in some way). For my purposes here, it is enough to know that Article 8–the right to privacy–of the European Convention on Human Rights has its origins far more in Roman law than common law, while Article 10–the right to freedom of expression–has its origins far more in common law than Roman law. The way in which both are limited bears the stamp of the two different systems, too: Article 8 has a distinctly Roman ‘Laura Norder’ hue, while Article 10 goes so far as to mention breach of confidence, a wholly English doctrine.

It is also important to remember that the drafters of the ECHR were concerned with the state impinging on freedom of expression, while the Roman jurists (with few exceptions) were concerned with balancing competing private interests. Interestingly, a parallel development took place in English law, as Justice Eady (writing extra-judicially) pointed out in a piece for the Index on Censorship:

Thereafter, the law of libel and slander gradually emerged in England in an attempt to strike a balance between what we would now think of as increasingly uninhibited rights of free speech and, on the other side of the scales, the rights of individuals to protect their reputations. It developed and is still developing on a piecemeal basis. But I believe it is right to acknowledge that this is the way we have been looking at such matters for many generations. It is confusing to think of the modern law in terms of the sixteenth and seventeenth centuries, when it undoubtedly was driven by censorship by the sovereign or the executive. Yet some speak as though this is still the case. For example, at the time of the Calcutt committee, looking into privacy 20 years ago, it was often said that self-regulation was the right model because statutory regulation was in some way equated to state control of the press. Yet that is a false dichotomy. It is not, and has not been for a long time, about state control. The laws of libel, contempt, privacy and confidentiality are rather concerned to address a quite different set of issues; that is to say, the fairest way to balance the competing rights and interests of individual citizens.

In that sense–when it comes to balancing Article 8 and Article 10–we have come full circle, creating a situation that a Roman jurist would recognise, but not the framers of the US Constitution, as Eady J goes on to point out:

The Americans have gone down a different route. They took it a long way through the first amendment to their constitution in that rather significant year of 1789:

Congress shall make no law … abridging the freedom of the press … or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

That is, of course, a very close relative of what we know as Article 10 of the European Convention on Human Rights. Nowadays we hear a good deal also in this jurisdiction about the right of privacy, as enshrined in Article 8, but the Americans were again there before us, at least in theory, because they had the fourth amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated …

So you might think that we had a good deal in common. But we set off down our divergent paths and, most particularly in the light of the recent information explosion, via the internet, we have come in certain respects into collision.

[…]

What we have to acknowledge, and the Americans do not, is the policy consideration now embodied in the Council of Europe’s declaration 1165 of 1998 that no one Convention right takes automatic precedence over any other. Such rights are not to be ranked in what they called “any hierarchical order” but are to be regarded as of equal value. Whether that is a good or bad ordering of priorities is not for me to say. It is simply the framework within which we all have to operate, at least for the time being, and that was confirmed, specifically in the context of privacy and the press, by the House of Lords in [Naomi] Campbell v MGN Ltd [2004] 2 AC 457.

Of course, Justice Eady is a hate figure in the British tabloids (particularly for Paul Dacre, editor of the Daily Mail), in large part thanks to his ruling in Mosley v News Group Newsapers Ltd [2008] EWHC 1777. He is seen to be providing privacy protection to those who are less deserving–celebrities–over those who are more deserving, Joe and Josephine Average. In this context, it’s worth reading the piece on Campbell Justice Eady linked to above (an article originally published in the Guardian), for it evinces the shift towards the Roman position–enhanced protection for the Great and the Good–very clearly:

It is interesting that in cases concerned purely with human rights and not celebrity, such as Wainwright [where the visiting family of a prison inmate complained that their privacy had been invaded during a strip search], or Peck v United Kingdom – where CCTV footage of a man attempting to commit suicide was used without his permission – the courts did not see fit to acknowledge the right to respect for personal and private life accorded by Article 8 of the European Convention. It has taken two of the biggest celebrity trials to bring the judiciary round to the idea that privacy needs protecting. It is disappointing that a fundamental right has effectively been bought by those less deserving of its protection.

The ‘balancing’ of the two Articles (whether the State is a party or not) is, of course, at the heart of both English and European jurisprudence on point, and not just when Eady J is on the bench, as Lord Hope’s statements in Campbell illustrate admirably:

The context for this exercise is provided by articles 8 and 10 of the Convention. The rights guaranteed by these articles are qualified rights. Article 8(1) protects the right to respect for private life, but recognition is given in article 8(2) to the protection of the rights and freedoms of others. Article 10(1) protects the right to freedom of expression, but article 10(2) recognises the need to protect the rights and freedoms of others. The effect of these provisions is that the right to privacy which lies at the heart of an action for breach of confidence has to be balanced against the right of the media to impart information to the public. And the right of the media to impart information to the public has to be balanced in its turn against the respect that must be given to private life.

The net effect of all these ECHR/Roman law derived cases is twofold. First, reporting on sexual peccadilloes–the tabloids’ bread and butter–now tends to be seen as ‘scuttlebutt and tittle-tattle’ (this phrase is now often used in English courts), unworthy of protection under Article 10. Sex and sexuality is inherently private; comments thereon are merely interesting to the public, not in the public interest. Of course, the English and the Romans still do things differently. It is still good law in England that an allegation of homosexuality is defamatory: Kerr v Kennedy [1942] 1 KB 409, while in Europe, an allegation of homosexuality amounts to an invasion of privacy, whether it is true or not, because sex is inherently private. Second, taking photographs of public figures uninvited–especially where the person in question has a reasonable expectation of privacy, such as in a restaurant–is now significantly constrained. This second aspect has its origins in Strasbourg’s decision in von Hannover v Germany (2005) 40 EHRR.

The effect of von Hannover v Germany

In that case, Princess Caroline of Monaco–angry that she and her children were continually photographed without their consent by German newspapers–brought suit in Strasbourg after she had exhausted her options in the German courts, which had continually found against her. The basis of the German rulings was that country’s Basic Law (Grundgesetz), which guarantees freedom of expression and which–importantly, at least in this instance–cannot be changed. Strasbourg proceeded to find the Bundesverfassungsgericht‘s interpretation of German constitutional law in contravention of Article 8:

In any event the Court considers that, in these conditions, the Act has to be interpreted narrowly to ensure that the State complies with its positive obligation under the Convention to protect private life and the right to control the use of one’s image.

[…]

As the Court has stated above, it considers that the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest. It is clear in the instant case that they made no such contribution, since the applicant exercises no official function and the photos and articles related exclusively to details of her private life.

Furthermore, the Court considers that the public does not have a legitimate interest in knowing where the applicant is and how she behaves generally in her private life even if she appears in places that cannot always be described as secluded and despite the fact that she is well known to the public.

Even if such a public interest exists, as does a commercial interest of the magazines in publishing these photos and these articles, in the instant case those interests must, in the Court’s view, yield to the applicant’s right to the effective protection of her private life.

Lastly, in the Court’s opinion the criteria established by the domestic courts were not sufficient to ensure the effective protection of the applicant’s private life and she should, in the circumstances of the case, have had a “legitimate expectation” of protection of her private life.

Having regard to all the foregoing factors, and despite the margin of appreciation afforded to the State in this area, the Court considers that the German courts did not strike a fair balance between the competing interests.

There has therefore been a breach of Article 8 of the Convention.

The Court expressed particular horror at ‘following or chasing persons to photograph, film or record them, in such a manner that they are prevented from enjoying the normal peace and quiet they expect in their private lives or even such that they are caused actual physical harm’ and stressed (once again) the extension of Article 8 to competing private interests, not merely the state and the individual:

The Court reiterates that, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves.

To save themselves time, they could just as easily have quoted Gaius, or–even better, Ulpian–who whips himself into high dudgeon as he points out that a man following a woman uninvited is almost as bad when he does it silently, without her knowledge, as when he does so while making comments of a sexual nature [D.47.10.15.22-23]. The ruling also means that litigants disappointed in the German courts on this point will be able to go to Strasbourg and avail themselves of a remedy underwritten by the German taxpayer.

It is von Hannover as much as Mosley that helped kill off the Daily Sport and the Sunday Sport: as the linked BBC piece above points out, celebrity ‘up-skirt’ photographs were the paper’s stock-in-trade, and these simply became impossible after von Hannover. The judges–in both Britain and Europe–didn’t really want to know, and didn’t think we had a ‘right to know’ either.

In his coruscating attack on Justice Eady, Paul Dacre engages in an interesting exercise in conflation, arguing that because scandal and tittle-tattle is popular, it must therefore be good (and so accorded protection under Article 10). It is part of a defence of ‘the common man’ that conflates ‘the common man’s’ political interests with his tastes in culture and art, an argument that is by no means unique to Paul Dacre. As I have pointed out elsewhere, I’m not sure this holds, which is one reason I found all the earnest sociological analysis of Big Brother to be unutterably patronising, as though taking a given group’s deracinated taste in popular culture seriously was a reasonable substitute for taking that same group’s political views (on immigration, say) equally seriously.

That said, Dacre does have a serious commercial point, one that (in light of the Sport’s demise) bears repeating:

Put another way, if mass-circulation newspapers, which also devote considerable space to reporting and analysis of public affairs, don’t have the freedom to write about scandal, I doubt whether they will retain their mass circulations with the obvious worrying implications for the democratic process.

Now some revile a moralising media.  Others, such as myself, believe it is the duty of the media to take an ethical stand.  Either way, it is a choice but Justice Eady – with his awesome powers – has taken away our freedom of expression to make that choice.

I hold no torch for the News of the World but over the years it has broken many significant stories about corruption and sexual wrong-doing and the opinions of its readers carry, in a democracy, no less weight than the infinitely smaller readerships of papers like the Guardian.

If the News of the Word can’t carry such stories as the Mosley orgy, then it, and its political reportage and analysis, will eventually probably die.

There is no doubt that Strasbourg (and the Roman jurisprudence it employs) is engaging in a subtle form of social engineering: using the law to wind down and wind back the sort of entertainment that Europe’s Great and Good object to when indulged in by the poor and uneducated. This is not because they think this entertainment immoral (think of the decoration that came as standard in middle- and upper-class Roman homes, which often bears considerable affinity to the sort of live action stuff Max Mosley likes to stage in his home). Rather, it is because they don’t want to know about it, and don’t think you ought to want to know about it either.

12 Comments

  1. Posted April 7, 2011 at 5:27 pm | Permalink

    Hugh Grant in the New Statesman this week. Not so much biter bit as bugger bugged.

  2. Patrick
    Posted April 7, 2011 at 6:39 pm | Permalink

    Does the German Constitutional Court accept that shit from the euro-courts? I was under the distinct impression that the Germans were in the business of telling the whole European legal infrastructure to conform to the Basic Law or die, these last few years.

  3. Posted April 7, 2011 at 7:05 pm | Permalink

    So… SL… Any comments on the Phillipics (beheaded then tongue and hands nailed up in the forum, despite the public office of the target), or, hell, half of Catullus?

    Mind you, if Joe/Jane Celeb has a fairly open facebook, lists “unspeakable acts with cute furry animals” in their likes, and “has just checked in to Spanky’s Naughty Fun Palace”, I reckon no-one should cop it for publishing those facts.

    I hope that while the gossip rags die unlamented, proper investigative journalism isn’t stifled by crooked folks with expensive lawyers.

  4. Posted April 7, 2011 at 9:53 pm | Permalink

    Patrick: the Germans (and other states parties — it is about to happen to Britain when it comes to prisoners’ right to vote) tend to abide by the rulings because otherwise the disappointed litigant then goes to Strasbourg and gets an award of damages, often substantial. Breach in this instance, for example, would lead to an award of damages, and the German government would then need to sue the media organisations in question for contributions. This tends to make the media bodies cautious as well, as it doesn’t do to look like one is passing on one’s indebtedness to the taxpayer.

    Where the Germans are in strife is that they can’t do the nifty common law trick of distinguishing cases on their facts: Germany is a Roman law ‘code’ state, and shifting the interpretation of codes is rather more difficult than repealing an act of Parliament or overriding unhelpful precedent. This means people in Princess Caroline’s position will continue to lose in the Bundesverfassungsgericht and continue to win at Strasbourg, with the inevitable damages payout.

    Dave: Cicero was seen to have abused parliamentary privilege (yes, the Romans had cowards’ castle), while Catullus was very careful to use pseuds. Always remember, too, that Antony, Octavian and Fulvia would have considered themselves the sine qua non of the ‘great and the good’ while Cicero was but a talented upstart.

  5. Posted April 7, 2011 at 11:37 pm | Permalink

    SL: On proscription list at the start of the second triumvirate… Any truth to the notion that Octavian ummmd and ahhd over Cicero for a day?

  6. Patrick
    Posted April 8, 2011 at 4:28 am | Permalink

    SL, what I was referring to, perhaps too elliptically, is that I thought that the German Constitutional Court had taken the view lately that EU law had to conform to the Basic Law, and not vice-versa. Does this only apply to prospective EU law?

  7. Posted April 8, 2011 at 7:05 am | Permalink

    The ECHR is Council of Europe, not the EU (a common mistake people make); this means its relationship with states parties is dualist. Germany’s problem here (like Britain’s) is that it has deliberately enacted the ECHR into German law, so (like the Human Rights Act 1998 for Britain), it is now part of German law.

    EU law, by contrast, can be got around (and often is, by nearly everyone), because it is almost never enacted into national law. I don’t doubt for a minute that lots of countries are bending it into a pretzel as we speak–indeed, it was this factor that allowed the ‘metric martyrs’ to get out from under the way they did.

    [As an aside, we have been threatened with public torture by one of the Faculty of Advocates bigwigs if we mistake the Council of Europe for the EU in our exams].

  8. Patrick
    Posted April 8, 2011 at 10:52 am | Permalink

    I got it, I was thinking of the way that the Federal Constitutional Court terrorised the delegates with the idea that if (first) Lisbon or (later) the bail-outs were incompatible with the Basic Law they would need to go to referendum in Germany.

    Slightly different, obviously.

    Stupid EU human rights law. Stupid EU [insert here].

  9. Posted April 10, 2011 at 6:32 am | Permalink

    The News of the Screws is now in a mountainous pile of poo over phone hacking (and other invasions of privacy). By the time it is all over, I doubt there will be anything left of it:

    http://www.bbc.co.uk/news/uk-13022583

    This piece on the whole cock-up makes for interesting, if rather arch reading:

    http://www.independent.co.uk/opinion/commentators/christina-patterson/christina-patterson-what-hugh-grant-revealed-about-the-paparazzi-and-power-2265437.html

  10. kvd
    Posted April 10, 2011 at 1:03 pm | Permalink

    SL as it happens I’ve only just finished wending my way through the various links in your above piece, and wanted to record my appreciation for the effort you have obviously put into its preparation. It’s funny – while I commented in that piece on Bolt that I had found nothing much by way of positive contribution in any of his writings that I’d read, here I am being informed and prodded to think by someone who is obviously in charge of their facts, and enthusiastic in their appreciation of our laws, and the history of same.

    So, well done! and I yet again consider I have gotten more than fair value for the time taken to absorb (most of) your essay.

  11. Posted April 13, 2011 at 6:54 pm | Permalink

    UPDATE:: Full Hugh Grant article for the New Statesman is here

    Those are the highlights. As I drove home past the white cliffs, I thought it was interesting – apart from the fact that Paul hates people like me, and I hate people like him, we got on quite well. And, absurdly, I felt a bit guilty for recording him.

    And he does have a very nice pub. The Castle Inn, Dover, for the record. There are rooms available, too. He asked me if I’d like to sample the honeymoon suite some time: “I can guarantee your privacy.”

  12. Posted April 14, 2011 at 12:07 am | Permalink

    TY DEM. I have just laughed a great deal at the chicanery revealed therein… Maybe if Strasbourg does wind up this particular jig, it will be a good thing. Phone hacking the relatives of the Soham victims is truly beyond the pale…

5 Trackbacks

  1. […] line into danger. For the pagan Romans, that line was stalking (and following more generally, which I discuss here). France, the Netherlands, Germany and Italy have all preserved this […]

  2. […] in order to get back at them for the way he’d been treated. I appraised his efforts here; at that stage, it was all very light-hearted and amusing, and journalists could claim that the […]

  3. […] widespread French belief (derived from the Roman jurists) that public figures of talent and ability should be given more leeway than those lower down the social scale; the power of Roman derived laws against invasion of privacy, the common law belief that […]

  4. […] Australia has no tort of invasion of privacy, all I can do is point to a piece of mine on English and European law on breach of the Article 8 ECHR right to privacy. The salient thing to […]

  5. By Bits and pieces « thiacassidy on April 29, 2012 at 10:04 am

    […] posts that I found especially interesting: Comparing ancient Roman law and current European law on defamation, privacy and other such things. On animals and property rights. On the euro (the writer at the time was a guest poster, but has […]

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