In 1990, one of Britain’s best-known and best-loved TV actors suffered horrific head and brain injuries in a road traffic accident. Media interest in the story was intense. While the actor was unconscious, recovering in hospital, a journalist and photographer employed by one of Britain’s most salacious tabloid newspapers entered the actor’s room, interviewed him, and took pictures of him. The actor sued the newspaper under various heads of liability but lost the action. English law in the 1990s knew no right to privacy and, the judges said, the law had reached the stage where the creation of such a right could be achieved only by Parliament, and not by the evolution of the common law. It was a grotesquely unjust outcome for the actor, Gordon Kaye, and everyone knew it. 

Fast forward to the present day. Two months ago it was reported that a very well-known BBC TV presenter was under investigation for having allegedly made substantial payments to a young teenager in exchange for sexually explicit photographs of the child. If the allegations are true, it is likely that a serious criminal offence has been committed. The story was the lead news item in the UK for a whole week. The presenter’s identity was widely known in press circles and was the subject of a great deal of speculation on social media. Several BBC TV presenters found themselves under siege and had to issue exculpating statements, specifying that they themselves were not the subject of the story. After five excruciating days, the presenter’s family finally owned up, and his identity was revealed—it was Huw Edwards, the BBC’s lead anchor on its news and current affairs programmes, the man who last year broke the news to the nation that Her Majesty the Queen had died. He was one of the most trusted journalists in the country. 

The press did not reveal Edwards’ identity because they feared that, had they done so, he would have sued and obtained significant sums from them in damages. Unlike in the 1990s, British courts now recognise and enforce what they call a “reasonable expectation of privacy.” Even if a press story is true, the media in the UK will now be liable in damages for publishing or broadcasting it, if it is deemed an invasion of privacy. If the law was wrong in the 1990s not to afford poor Gordon Kaye a remedy, the law in the UK has now swung too far the other way. It has become such a constraint on press freedom that the media chill their own speech—as they did when they decided en masse to keep Huw Edwards’ name under wraps. 

The relationship between speech and privacy is not a new problem, and the press laws of both England and the United States have long struggled to get it right. But a solution is available, if only the courts choose to adopt it. The solution requires us to understand that there are competing interests at stake here—competing rights—and that justice requires both free speech and the right to privacy to be held in balance. If the law gives too much weight to speech interests, ignoring privacy concerns, it leads to injustice (as Kaye found). But the reverse is also true: if the law gives too much weight to privacy concerns—ignoring the importance of the right to freedom of speech—this too is unjust. 

British and American laws on the matter of “speech versus privacy” may look as though they are quite different from one another. The United States has its First Amendment, after all, of which there is no direct equivalent in the UK, and English law relies (in this area as in so many others) on a mix of common law and statute, rather than on the fixed provisions of a written constitution. But the differences are more apparent than real, for the substance of the law in both countries has the same root. 

The Great Bulwark of Liberty

That root lies deep in the eighteenth century. Since the invention of the printing press in the late Middle Ages, the English Crown had assumed (and the law had accordingly granted) a prerogative power to license the press. Nothing could be lawfully published without a permit. Milton railed against the censorship of the licensing regime in his great tract on the liberty of the press, Areopagitica (1644). But the regime survived until 1695 when John Locke helped persuade the House of Commons that it was unlawful as being in restraint of trade. (It is typical of the common law that Locke’s argument, based on commercial freedom, achieved success, whereas Milton’s, based on freedom of conscience, had failed.) The lapsing of the Licensing Act in 1695 did not mean that the press in England was all of a sudden free. On the contrary, the government continued both to possess and to exercise numerous powers to control the press, the most important of which was the common law of seditious libel. If you criticised, or even satirised, the government, you were liable to be prosecuted for what you had written and, if convicted, you could find yourself pilloried—your head and hands locked in the stocks for the assembled crowd to ridicule you. 

By the middle of the eighteenth century, it was not just seditious libel that authors (and their printers and publishers) had to be mindful of. The law of blasphemy protected religious sensibilities. Common law libel protected individual reputation. An emerging law of obscenity protected what writers from David Hume to Jane Austen understood by delicacy and taste, politeness and manners. Blackstone, in his Commentaries on the Laws of England (1765–69) offered the authoritative exposition of the law. None of these legal actions inhibited the liberty of the press, he intoned. As there was no licensing of the press, there was no pre-publication censorship. Therefore the press was free. If, however, something “improper, mischievous or illegal” were to be published, the writer “must take the consequence of his own temerity.” Such an approach, Blackstone opined, was “necessary for the preservation of peace and good order, of government and religion” which, in the great jurist’s estimation, were “the only solid foundations of civil liberty.” 

This was the orthodoxy which, across the Atlantic, the Founders imbibed. Yes, freedom of speech may be “the great bulwark of liberty” (a line which Madison copied and pasted from Trenchard and Gordon’s Cato’s Letters, written nearly half a century before Blackstone), but this freedom was understood just as Blackstone had perceived it. The press was free in the sense that it was unlicensed, not in the sense that the papers were at liberty to print whatever they wanted without threat of legal consequence. In her recent book Seek and Hide: The Tangled History of the Right to Privacy, Tulane law professor Amy Gajda has shown how American lawyers from Alexander Hamilton in the first decade of the nineteenth century to Louis Brandeis and Oliver Wendell Holmes in its last decade understood that press freedom was concerned with protecting “good motives and justifiable ends” (Hamilton) and not with “gossip” that “belittled and perverted” (Brandeis). 

Throughout the Anglosphere, the single most authoritative voice in this debate is neither Blackstone’s, nor Madison’s or Hamilton’s, not even Brandeis’s or Holmes’s. It is John Stuart Mill’s. His tract, On Liberty (1859) is the finest essay ever written in English on free speech, surpassing both Areopagitica and Cato’s Letters. Mill argued that the “only purpose” for “interfering with the liberty” of an individual is “to prevent harm to others.” We must, all of us, be free to speak whatever and however we wish, as long as our words do no harm to others. If we are speaking badly, so be it. If we are speaking contrary to the public good, so be it. If we are speaking unwisely, or even wrongly, so be it. The remedy, in each of these cases, is not to silence the speaker, but to speak back. In Mill’s words, these are all good reasons for “remonstrating with … persuading … or entreating” the speaker, but never for “compelling” the speaker to stop. 

This, broadly, is the approach both British and American law take to free speech now, even if the law in each country sometimes reaches different conclusions on the basis of that shared approach. Thus, in the United States, speech is protected under the First Amendment unless it demonstrably causes identifiable harm as “fighting words,” defamation, or obscenity (see R. A. V. v City of St. Paul 505 US 377 [1992]). Those categories now have definitions that are deliberately drawn very narrowly, so as to exclude only the most egregious and pernicious speech from the First Amendment’s scope. The task of narrowing the exceptional forms of speech left unprotected by the law has similarly been undertaken in the United Kingdom. It is still the case that legal action can be taken in respect of speech deemed to be “improper, mischievous or illegal” but what the law now understands by those terms is far narrower than it was when Blackstone wrote two and a half centuries ago. An identifiable harm has to be demonstrably caused before speech can be interfered with, whether that be harm to national security, for example, or to the rights and reputation of others. 

This is not to say that the protection of speech is as comprehensive in the UK as it is in the US—it is not. One of the key differences is the extent to which “hate speech” is seen as harmful. In the United States, hateful speech will be protected, no matter how offensive it is, unless it incites immediate violence. In the United Kingdom, by contrast (as in Canada and elsewhere), it is an offence to use “threatening or abusive” words which “stir up hatred” on the basis of a protected characteristic such as race, religion, or sexual orientation. In short, and to put this in Millian terms, the law in the UK, Canada, and elsewhere deems hatred to be harmful even if no violence ensues, whereas the law in the US does not. Under the First Amendment, unless and until there is a risk of immediate violence, even the most offensive speech will not pose a sufficiently “clear and present danger” to warrant intervention. 

Even if diverse conclusions are (for the time being) reached on the extent to which hate should be protected, the starting point for the analysis is essentially the same—it is an inquiry into whether hate itself (i.e., non-violent hate) causes harm of sufficient magnitude to justify legal intervention. Is hate “improper, mischievous, or illegal”? Or is it just unwelcome, unwise, and wrong-headed? Is the better strategy to criminalise it, (as happens in the UK, Canada, and elsewhere), or to expose it to the “marketplace of ideas” and to allow counter-speech to defeat hate speech in argument and debate?

A Balancing Act

It is the same basic inquiry when it comes to speech and privacy. Is the invasion of privacy in any particular instance sufficiently weighty to “count” as a harm that can set limits to free speech, or is it merely an inconvenience that must be tolerated for the greater good of living in a free society? The only answer—even if it does not answer very much—is “it depends.” In some instances, the privacy interests will outweigh the speech interests; and in other cases, it will be the other way around. Ultimately, it will be for a court to rule in any particular case. But, in doing so, courts will set out the sorts of factors that must be taken into account when thinking about how to balance free speech and privacy. For balanced they must be, because it is when they are imbalanced that unjust outcomes are reached (as in the Kaye and Edwards stories above). 

Relevant factors include, but are not limited to, the following: the nature of the person concerned, the nature of the activity or behaviour of the person, the place at which it was happening, and how the media obtained the information about the person. Thus, if the person is someone who has chosen to live in the public eye (a politician, for example), that factor might weigh in favour of publishing and against privacy. Likewise, if the nature of the activity is criminal or otherwise unethical. Likewise again if the behaviour has occurred in a public place. And likewise again if the media have obtained the information honestly and without using overly-intrusive techniques (on which see further below). But each case will be fact-sensitive and delicate judgments must be made in each individual instance. 

The court judgment in the Kaye case—that he had no cause of action at all that he could pursue in response to the press intrusion of his hospital bed—was indefensible. It was remedied, in the end, by the Human Rights Act, Britain’s Bill of Rights, which the Westminster Parliament enacted in 1998. This Act introduced into English law a limited right to privacy but explicitly provided that that right must be balanced against free speech. Indeed, the Act provides in terms that, in such cases, “particular regard” must be given to “the importance of” freedom of expression. The clear aim here was to afford innocent parties such as Kaye a remedy without inhibiting the press from reporting on matters that are in the public interest. Unfortunately, however, in their subsequent interpretation and application of the Human Rights Act, the courts in the UK have not given effect to Parliament’s clear aim in passing that legislation. Rather, they have allowed the right to privacy to grow to such an extent that it now eclipses—and puts into the shade—the media’s right to free speech.

The error lies in the case law of the UK Supreme Court, but at the least, the media is partly at fault. Such have been the underhand and unscrupulous tactics of (elements of) the press in Britain that the public lost sympathy with journalists and, more importantly, lost sight of the distinction between reporting what is in the public interest (which must be free, fair, and robust), on the one hand, and mere salacious gossip (which should be constrained in the face of rights to privacy and reputation), on the other. The tabloid tactics used on Kaye only grew more extreme as the years after 1990 unfolded. Consider Princess Diana fleeing to her death from the long lenses of the paparazzi. Or consider Rupert Murdoch going so far as to close down one of his best-selling titles—the News of the World—in the wake of scandals about journalists hacking the phones of celebrities in search of a story. In instances such as these, legitimate concern for privacy was overrun entirely by the media’s thirst for scandal and gossip. 

Such instances are a million miles from the Edwards story, yet so muddled have we become that we can no longer see the difference. The Edwards story emerged because the family of his victim reported to the press that the BBC, who knew full well of the allegations made against him, had failed to investigate the matter properly, choosing to protect their star newsman rather than probe the truth. Given Mr. Edwards’ status as the BBC’s lead news anchor, that story was manifestly in the public interest—and the press were wrong to think they needed to chill their speech to the point of keeping his identity a secret. Public interest journalism is a world away from the unwarranted media intrusion that cost Kaye his privacy, Princess Diana her life, and Murdoch the News of the World. It is a grave failing of any legal system not to be able to tell the difference.