The irony of the Daily Mail pursuing privacy

The newspaper’s court victory could backfire on its reporting – and the media in general.

Typically, when there is a court hearing in which someone is seeking an injunction to protect privacy, the media is arguing against it – in favour of transparency and publication.

But yesterday, Monday 27 March, there was a rare exception to that rule, with lawyers working for the parent company of the Daily Mail successfully securing a court order to prevent the naming of 73 of the newspaper and its sister titles’ reporters and editors, in connection with legal proceedings about alleged phone hacking at the publication (Associated Newspapers denies wrongdoing).

On one level the Mail should be given some credit for trying to protect its staff from what promises to be a high-profile court case. Among those bringing claims against the publication are Prince Harry, Elton John and Doreen Lawrence, the mother of Stephen Lawrence. All three attended court yesterday.

But the paper’s conversion to the cause of privacy is certain to raise eyebrows – not least because such legal arguments rely upon the Human Rights Act, which codifies the European Convention on Human Rights into UK law. The Mail has on numerous occasions campaigned for the repeal of the Human Rights Act, including on its front page, so its lawyers relying on it to shield the newspaper’s reporters and editors will surely raise eyebrows.

The Mail could, of course, argue that it is fully entitled to use existing laws in its defence, even if its editorial line is that those laws shouldn’t exist, but the publication might find that its privacy victory today could be a sign of greater losses to come tomorrow. The lawyers of the ultra-rich are increasingly using privacy laws, rather than threats of defamation (also referred to as libel) claims, to prevent newspapers publishing stories about their clients. Indeed, recent court rulings on privacy have tended to go against the media, making it harder to publish stories about prominent figures, even when there are public interest reasons to do so. In situations where public interest grounds are lacking – such as with most celebrity news, for example – it becomes even more difficult and costly still.

The Daily Mail is surely the newspaper (and Mail Online is certainly the website) that publishes more celebrity news than any other in the UK. Having now indulged in the protections of privacy law itself, it might find it harder to fight future cases. The law is a double-edged sword, after all.

There is a broader principle at stake here too, and one on which the Mail has arguably failed its peers: justice must not only be done, but must be seen to be done. The principle of open justice is an essential one for free and democratic societies, and the media has been fighting for more judicial access – and to maintain what it already has. The justice system increasingly considers keeping more and more information private. It was a rare victory when the Bureau of Investigative Journalism (my employer) recently helped to secure a pilot programme to allow journalists to report on the proceedings of family courts. Even the College of Policing recently considered no longer naming suspects who had been charged – although it thankfully backed down.

The Mail has long had double standards – condemning behaviour in its pages while engaging in the same practices to its own advantage – but its latest shenanigans on privacy law risk undermining its own reporting and the rest of the media. Everyone has a right to privacy, but it should not come at the expense of a free media and an informed public.