Book Reviews - A private matter

Privacy and libel law: the clash with press freedom
Paul Tweed
ISBN: 978 1 84766 902 5
May 2012
Publisher: Bloomsbury Professional
Price: £19.99

Privacy injunctions and the media: a practice manual
Iain Goldrein QC
ISBN: 9781849462846
April 2012
Publisher: Hart Publishing
Price: £125.00


2012 brings forth two new books which share a concern with the relationship between individual privacy and the press, a relationship which (to adapt HL Mencken) is broadly akin to that between lamppost and dog. They are Paul Tweed’s Privacy and libel law: the clash with press freedom (Bloomsbury Professional) and Iain Goldrein QC’s Privacy injunctions and the media: a practice manual (Hart).

Tweed’s book is in the nature of despatches from the front, its author being a successful solicitor in the field, with a roster of suitably starry clients. (I should declare here that I have been instructed by Mr Tweed.) It comprises a series of 12 essays covering a wide range of contemporary media law topics including phone-hacking, Leveson, super-injunctions, the proposed statutory reforms of UK defamation law currently before Parliament, the effective abolition next year of conditional fee funding, and recent legislative developments in the US. Its breadth is probably its main drawback: it rarely penetrates the surface. As such, I think it would appeal most to the non-specialist reader looking for a way in to the current debates.

The author of the other work, meanwhile, is a distinguished silk who has evidently lost none of his love for the law:
“That theme [which binds us each to the other] is, of course, the law of England and Wales, with its delightful cadences as reflected in passages in judgments, which have the eloquence to justify a readership much broader than that afforded just by the legal profession.”

As may also be apparent from this quotation, a key part of his stated mission is to demystify the principles that govern privacy injunctions involving the media and make them comprehensible to journalists and the wider public. A commendable object no doubt, but not one, I fear, that this book achieves.
In substance it consists of what can only be described as variations on a theme of a skeleton argument, peppered with choice gobbets from the authorities, coupled with some fairly impenetrable practice “checklists”. For this reason I cannot see it appealing to anyone other than specialists. It has a clear virtue for this particular readership, nonetheless: it collates a wealth of relevant material in one place.

Compare and contrast

There are other paradoxical contrasts between the two. Tweed’s book, a 142-page paperback, looks slim but turns out to be a surprisingly exacting read. Goldrein’s hardback weighs in at a hefty 1,154 pages – excluding the index – although all but 234 of these are taken up with case digests of the main authorities (which are unhelpfully lacking in detailed headnotes) and other primary materials such as extracts from rules, practice directions and guidance, model orders and the like.

The essays that make up Tweed’s work, furthermore, could just as well be considered individually as read in sequence from beginning to end: the author makes no specific suggestion. Goldrein, meanwhile, states explicitly in the “user’s guide” provided at the start of his that it “is intended to be read as a book, rather than dipped into as one would a reference manual”. It seems unlikely to me that most readers would take this course.

The things that struck me most powerfully reading both books back to back were just how far we have come since the Court of Appeal declared in 1990, in the case of Kaye v Robertson [1991] FSR 62, CA, that there was no general right to privacy in English law and just how much privacy-based litigation involving the media there has been since the enactment of the Human Rights Act 1998 (HRA 1998). The resulting case law should serve the courts well in the years to come when the press resume normal service post-Leveson, (provided, of course, that Parliament does not do away with HRA 1998 in the meantime).

Of the two books, then, Tweed’s is the more successful. The best point he makes concerns the United State’s cultural imperialism in seeking to impress on the rest of the world its pretty much unique view on where the balance ought to be struck between the rights of individuals and the press.

US influence

The US has for many years prioritised freedom of the press. More recently, in the shape of the SPEECH Act (2010), it has decided to take things one step further by making it unlawful for a US court to enforce a judgment of a foreign court if it deems the level of protection afforded to free expression in the relevant law to fall short of American standards. This notwithstanding that some of the biggest players in global publishing today – Google, Facebook and Twitter – may only be susceptible to enforcement there. Leaving to one side any question of arrogance, the SPEECH Act constitutes nothing less than a repudiation of the principle of comity and, to this extent, of the rule of law.

As I think Mr Tweed might agree, let America do as it likes within its own shores, but when it seeks to impose its views on the rest of us, modern history suggests that permitting it to do so can have undesirable consequences.

Godwin Busuttil, 5 Raymond Buildings (5RB)

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