§ 2.45 p.m.
§ Order of the Day for the Second Reading read.
§ LORD MANCROFT
My Lords, I rise to move the Second Reading of the Right of Privacy Bill. The last occasion on which I had the opportunity of troubling your Lordships with a Private Member's Bill was the Marriage Enabling Bill. All of your Lordships complained that you were unable to understand, on reading my Bill, what it was I sought to do. The Bill took eleven years to reach the Statute Book and by the time it achieved that end it had been so amended that all that was left of my original draft was my name—"Man-croft"—on the back of the Bill and the words "Price 4d.". I hope that this Bill has, among what I hope to persuade your Lordships are its many merits, at least this merit: that it is clear what I seek to do.
Those of your Lordships who have not recently glanced throught the Bill may like to be reminded of my object. I seekto give every individual such further protection against invasion of his privacy as may he desirable for the maintenance of human dignity, while protecting the right of the public to be kept informed in all matters in which the public may be concerned.This Bill, therefore, is merely an extension of our age-old protection against eavesdropping, "Peeping Toms" and "Paul Prys". It is, I suggest, a logical development in a crowded and sophisticated community. Your Lordships may well ask: "Why do we need any further protection? Surely we already have protection in the law of nuisance, the law of trespass and the law of defamation." I hope to prove that that protection is nowadays not enough. I suggest that privacy and human dignity are all too frequently invaded, and that this causes great hardship and suffering—more hardship and suffering than most of us who are in public life are ready to admit; and I believe that to be wrong.
May I remind your Lordships at once of some of the things which have been troubling me, and I believe have been troubling other people as well? There was, first, the Munich air crash, a year or two ago, and the most unhappy situation in the German hospital which 608 attended upon the sick beds of Mr. Matt Busby and his colleagues of the Manchester football team. There was the harrying of Her Royal Highness Princess Margaret and Mr. Armstrong-Jones upon their recent holiday in Ireland, in circumstances which caused the noble Lord, Lord Windlesham, from the Liberal Benches, only a short while ago, to describe is as "tantamount to persecution." There was the case of the parents of a convicted murderer who were emigrating: their name was given in full in the newspapers, together with the dates of their departure and of their arrival at their destination.
There was the harrying of Sir John Huggins, former Governor of Jamaica, on the occasion of his contemplated remarriage. There was the shocking case of the late Mr. Aneurin Bevan, where photographers and newspapermen sought to invade the privacy of the hospital and obtain interviews and photographs of him lying on a bed of sickness. There was the case of Colonel Christopher Hunter, whose daughter committed suicide after an unhappy love affair. At a quarter past one on the morning after the tragedy their front doorbell was rung and a voice said, "It is the police". Colonel and Mrs. Hunter went down, unhappy and confused, in their dressing-gowns, only to be photographed immediately on their front doorstep by a flashlight photographer who at once got into his car and drove away without offering any apology or explanation.
Worst of all was the case of Miss Kriek, a Dutch girl who was murdered in Essex three or four years ago. The whole of this case was put before the country in a letter to The Times newspaper, written by a Mr. Fearon, a friend of the family. Perhaps I might read one or two extracts from his letter, because this is a point with which I am specifically dealing:Within five minutes of the murdered girl's family in Holland being told of her death, reporters from well-known British papers had swarmed into their flat, even penetrating into the dead girl's bedroom before being thrown out. One reporter even threatened to make up some news if Mr. Fearon did not give him any; and this the reporter actually did two days later. On arrival at Harwich cameramen tried to photograph the parents viewing their daughter's body, crowded round them, photographing them at all times, flashing bulbs in their faces, despite the attempts of police and immigration authorities to protect them.609 Mr. Fearon went on to say, my Lords, that he had spoken to many people in all walks of life, and every single one had condemned this ghastly behaviour. So, my Lords, do I. Hence my Bill. And I think that many of your Lordships could add to those few cases which I have put before you.
I do not stand before the House to-day as a pioneer. I am not the first person who has tried to tackle this problem. As long ago as 1892 two very distinguished American jurists, Warren and Brandeis, wrote as follows:Gossip is no longer the resort of the idle and the vicious, but has become a trade which is pursued with industry as well as effrontery.Of course we do not gossip. Other people gossip; we do not. We merely pass on the information to those who do. I have often thought that Adam and Eve must have had a very dull time, because they had no one else to talk about. Warren and Brandeis go on:The Press is overstepping in every direction the obvious bounds of propriety and decency.Here I differ from Warren and Brandeis. I do not say that the Press is overstepping in every direction. I substitute the words "in some directions"; and I do that because I want to make it perfectly clear that I am levelling no general charge. I wish to acknowledge at once the fact that many newspapermen and many cameramen carry out their difficult task with tact, with skill, and very often with great kindness. My Bill is not concerned with them at all.
I return to America. In 1942 the Missouri Supreme Court said this:The basis of the right of privacy is the right to be left alone.If the Court decides that the matter is outside the scope of proper public interest and that there is no substantial evidence to show an unreasonable, unwarranted and offensive interest in another's private affairs, then the case is one to be submitted to a jury.My Lords, in the cases envisaged under my Bill a jury would, I imagine, be almost inevitably asked for. As long as 60 years ago in America it was believed that legislation such as this would result in a flood of litigation. It was estimated that if a Right of Privacy Bill such as mine were to be passed into law it would have to be repealed for creating too much litigation. That particular Act has survived for nearly 60 years. Twenty States in America now have that measure, or 610 something roughly like it, and others are following. I noticed with interest that on the very day I put down my Bill arrangements were made in Washington for a change of plan in the White House, to obviate the difficulty of the President and his family being spied upon by members of the White House staff.
So much for America. Other countries have recognised the need for some such Bill like this. Western Germany passed in 1959 an Act which makes actionable disclosure of information about a person's private affairs without consent. Such disclosure is permissible only if it is justified in the public interest. There is similar legislation in France. And, my Lords, as long as 30 years ago Professor Winfield, a name much respected in English law, was advocating a Bill such as this. My Lords, we lag behind. Hence my Bill.
I know I shall be told that my Bill is an attack upon the freedom of the Press. I would suggest that it is nothing of the sort. I readily admit that it may be an attack on the freedom of some Pressmen—I repeat, some Pressmen—who bully the private citizen. I would remind those who tell me that I am attacking the freedom of the Press of the famous words of John Milton:Licence they mean, when they cry liberty".That, my Lords, is the root of my argument. I would also remind those who tell me that I am attacking the freedom of the Press of the words of the distinguished editor of the Manchester Guardian, Mr. W. P. Crozier, who saidIt is the job of the Press to provide news, but not to poke and pry into things a person can rightfully and decently wish to keep to himself.My Bill is designed only to give the individual the right to protect himself from unwarranted prying into his personal affairs.
My Lords, was the freedom of the Press imperilled because photographs of Mr. Aneurin Bevan did not find their way into the Press? Would the freedom of the Press have been imperilled if the photograph of Colonel Hunter in his dressing gown had not been taken on his doorstep? And, really, my Lords, I wonder whether the freedom of the Press would have been seriously endangered if we had not been shown photographs of Miss Elizabeth Taylor, now happily on 611 her way to recovery, lying unconscious on a stretcher and being carried into an ambulance. I am told that the public get only the news they want. Sometimes I doubt that. Did they really want photographs of Mr. and Mrs. Kriek viewing their daughter's murdered body? I very much doubt it, and so did Mr. Fearon in the letter he wrote to The Times. Did the people really want to see Colonel and Mrs. Hunter in their dressing gowns on their doorstep? I very much doubt it.
Some short while ago, in the "silly season", some newspapers started a popular opinion poll to discover what people thought was the most important thing in life. Some people said health. some said wealth, and some said happiness. But a remarkable number of people told the members of the public opinion poll who asked them this question that they thought the most important thing in life was minding their own business. I hope the effect of that was borne in upon the proprietors and editors of the papers that had asked that question—proprietors and editors who are often extraordinarily touchy about their own personal privacy; and quite right, too! As I say, I am making no sweeping charges. Many responsible newspapers fully appreciate the situation. They feel actively that privacy should be respected and, by so feeling, I am sure they do not feel that the freedom of their Press is imperilled.
May I, therefore, commend to your Lordships Mr. Francis Williams's hearty condemnation of prying and harrying in an article which he published in the New Statesman in 1957? May I also commend to your Lordships the Observer's protest at the harrying of Sir John Huggins, in which they stated:…our real charge is that the conspicuous, hut powerless, who err privately are pilloried for fun.Pilloried for fun, my Lords! A few weeks ago Mr. A. J. P. Taylor published a more than usually flocculent and illogical article in which he said:Are you wrong to enjoy your newspaper?Mr. Taylor was, I think, getting at me. He did not say so. I am now getting at him; and I say so readily. Of course, we are not wrong to enjoy our newspapers. Of course we want a little fun in our newspapers. But there is all the difference in the world between merri- 612 ment and mud. Most of us know that difference. My Bill is concerned with those who know it and are not prepared to acknowledge it.
My Lords, where do we draw the line? That, obviously, is the next difficult hurdle I have to surmount. I acknowledge readily that this is a difficult point. But the line between public and private interests can, and I think should, be drawn. I believe that nine times out of ten anybody with a small amount of sense and decency and ordinary respect for the decencies of private life could draw a line very clearly indeed. This is not a new point that I am making at all.
I go back again, if I may, to America, and I read this from the American Law Reports of 1905:The fact that recognition of a right of privacy would involve many cases near the borderline between the right of the individual on the one hand and the right of the public on the other, and that numerous cases would present perplexing questions, is not a good ground for denying the existence of any right of privacy, or refusing to give a remedy where it is clearly shown that a legal wrong has been done.This difficulty, the difficulty of drawing the line, is readily accepted, by and large, by the responsible newspapers. They seem to have found no difficulty in finding out where that line should be drawn. Of course, if you enter public affairs you must be prepared to take a few hard knocks; you must not be too squeamish. I think it was Lord Birkenhead who said that the trouble with Lord Rosebery was that he was always prepared to accept the laurels of the political battle, but he would not go down into the arena and fight for them amid the dust.
One must readily admit that there are some people who over-seek, and deserve, publicity. And, as I have said, those who enter public life must not quarrel if they get it—for instance, actors, broadcasters, sportsmen, writers, politicians, and even London County Councillors. By their "position or conduct" (I am now quoting the words of my Bill) they are entitled to a little less protection than was Colonel Hunter or Mr. and Mrs. Kriek. But, even so, the most public of public figures is entitled to some privacy. There was no more controversial or more public a figure than Mr. Aneurin Bevan, but he was 613 surely entitled to the privacy of his sickbed. I admit that there are people who can perfectly well look after themselves, and can take care of themselves better than others. What worries me, and what I am principally concerned with in my Bill, is the fact that simple people are often made to look silly and unhappy. There is the growing habit of the television camera viewing people who do not realise they are being photographed, and then putting them on the screen to make fun of them. Whether they ask for permission or not, I do not know. I noticed this particularly only the other day, when I saw a film on television of a crowd queuing up to buy the first copies of Lady Chatterley's Lover. In mitigation, I can only say that I derived some comfort when I noticed in the crowd a former commanding officer of mine whom I particularly disliked.
I agree, therefore, that the distinction between public and private persons may be a narrow one Such distinctions are always narrow, but surely the basic question we have to ask ourselves—and this is the question I am asking your Lordships to decide this afternoon—is this: Is this mud that the public ought to know about, or is it mud for mud's sake alone? That is the question I am going to put to your Lordships this afternoon. I call in aid once again the American Law Reports:So thoroughly satisfied are we that the law recognises, within proper limits, as a legal right, the right of privacy that we venture to predict that the day will come when the American Bar will marvel that a contrary view was ever entertained by judges of eminence and ability, just as in the present day we stand amazed at Lord Hall who, with perfect composure of manner and complete satisfaction of soul, imposed the death penalty for witchcraft on ignorant and hapless women".I see the noble Viscount, Lord Hall, in his place. I hasten to assure him that this reference is not to him. I have checked this carefully, and it is a misprint for Sir Matthew Hale, who lived some many hundreds of years ago, and who differed from the noble Viscount, Lord Hall, in many other respects as well.
§ VISCOUNT HALL
May I inform the noble Lord that I have never had the pleasure of meeting this gentleman, so I cannot give any description of him.
§ LORD MANCROFT
My Lords, I felt at the time I read that misprint that it 614 was the very familiar case of the House of Lords always getting the worst of the doubts.
One comment on my Bill has been put forward by an Irish commentator, who suggests that I ought to insert an Amendment to exclude your Lordships' House from the Bill, on the ground that the House of Lords is always "fair game". I am afraid that this is well known, because, whenever we appear in the newspapers, we invariably find our names are followed by a flattering but extremely exaggerated estimate of our income, and usually, for some reason that I have never been able to understand, with the motto from the bottom of our coat of arms. If we have been in trouble with the Police for careless or dangerous driving, our motto always turns out to be something embarrassingly inappropriate, like "Steady and Sure" and if we are in matrimonial trouble it is a guinea to a gooseberry that our motto will turn out to be, "Faithful unto death". I noticed the other day, when my noble friend the Foreign Secretary was having some little local difficulty with a rhinoceros in India, that he was fortunate enough not to have his motto put in the newspapers. He would have been less fortunate to have it included if he had shared the motto of the noble Lord, Lord Biddulph, "Let us aim at loftier things".
The next difficulty I have to deal with is the difficulty of definition. I readily admit that difficult points of definition may arise, but I am going to suggest to the House that the fact that they may arise is poor ground for criticism. For instance, the Larceny Act was not thrown out simply because it was found difficult to define the expression "intention to deprive permanently". I have been asked what is meant in my Bill by the expression "consent" being given to a reporter. My Lords, this is a difficult point, but the criminal law already accepts the necessity for defining "consent"; and if a reporter discloses his identity and then asks a question he is entitled to assume that consent is given to publication. My Bill is designed to deal with reporters who do not reveal their identity, or who publish when permission has clearly been refused. That is once again the Kriek case, when a reporter said that if he was not given some information he would make it up; and did.
615 Your Lordships know how difficult it is, if it is subsequently denied, to have the denial received with as much publicity as the original statement. Similarly, as one knows only too well, when one reads something in some papers about which one is oneself informed, far too frequently it is wrong. Therefore it has been suggested to me that definitions such as, "reasonable public interest", or "reasonably necessary", may give trouble. My Lords, of course, they often do. But it is very rarely, I suggest, that a judge sums up in a case such as this without having to ask a jury to define such flatters, and I myself am perfectly content to leave this matter to a jury.
I turn now briefly to the actual clauses of my Bill. My Bill is designed to strike a balance between the essential freedom of the Press and the equally essential rights of the individual. Clause 1 prevents publication without a person's consent of his private affairs in a newspaper, in the cinema, on television or on the radio. I pause for a moment to remind your Lordships that, for the sake of convenience, I have been using the word "Press" to cover all organs of communication: I do not mean any particular emphasis to be given to the word "Press". Clause 1 must be read in conjunction with the second clause, which accepts the freedom of the Press in full measure, and recognises the vital right of the Press to inform the public about matters which the public ought to know. I acknowledge that the field of legitimate news is a wide one. I admit that the public have the right to know about many different persons and many different facets of their lives.
Broadly speaking, my Bill considers three types. There is the obvious public figure—the Cabinet Minister, the Churchman, the Forces' leader and so on. There is then the person who avowedly seeks publicity. Here I am thinking particularly of Mr. George Formby, or someone like Dr. Barbara Moore. Then, thirdly, there is the private individual who, by reason of some event, has publicity thrust upon him—the victim of a rail smash, or a person standing his or her trial, both of whom, whether they like it or not, are properly in the public eye at the moment.
616 But the mere fact that a man is a public figure does not, in my submission, mean that everything he does must of necessity be a matter of public interest. The nature of the facts that can be disclosed must be measured against his fame or notoriety. Therefore, I would particularly ask your Lordships to note paragraphs (c) and (d) of Clause 2. Paragraph 2 (c) says that it shall be a defencethat at the time of the publication the plaintiff was the subject of reasonable public interest by reason of some office or position then held by him or by reason of some conduct of the plaintiff, and that the words published related solely to matters which, having regard to such office, position or conduct of the plaintiff, were the subject of reasonable public interest or were fair comment thereon;My Lords, they are pretty sweeping words. The second defence is,that at the time of the publication the plaintiff was the subject of reasonable public interest by reason of some contemporary event directly involving the plaintiff personally, andClause 2 therefore gives the Press and other organs of communication enormous protection, and rightly so. Everything which is of reasonable public interest must be measured against the individual's conduct or position at the time of publication. The third clause deals with the badgering reporter or the importunate cameraman. That is again the case of Miss Kriek or Colonel Hunter. It is intended to protect the individual against the unhappier practices, fortunately not very common, of the man in search of news at all costs.
- (i) that it was reasonably necessary to disclose the identity of the plaintiff, and
- (ii) that the words published related solely to matters which having regard to the event and the position of the plaintiff were the subject of reasonable public interest, or were fair comment thereon."
Now to sum up my points. I submit to your Lordships that the law lags behind enlightened public opinion and that there is a definite demand for this Bill, though I readily realise not an uncontested demand. I suggest that the present law does not prevent conduct which is generally regarded in a civilised community as indecent or offensive. The Press Council does its best, but on one or two occasions I am afraid it has looked liked trying to clean the Augean stables with a feather duster. I am not attacking the freedom of the Press; I am attacking the freedom of some Pressmen to play with mud for mud's sake.
617 Of course, there are difficulties of definition and distinction; but those difficulties are already met, and met satisfactorily, by a large number of responsible newspapers in this country. They have no difficulty in overcoming these distinctions; they act in accordance with the terms of my Bill. These difficulties have been overcome in other countries, countries with much the same social outlook as ours. May I remind your Lordships of the words of Mr. Justice Ashworth, when summing up in the Ortez-Patino case? This is what he said:Those who had in their hands the enormous weapon of publicity and propaganda contained in a newspaper, had also a measure of responsibility to those about whom they chose to write.I contend that my Bill is needed, because some organs of communication fail to accept that responsibility. I suggest that there is a gap in our law because the existing laws of libel, trespass and nuisance are inadequate to put right what I am submitting to the House is a serious social wrong. That is the gap I am seeking to fill and I ask your Lordships to help in filling it. I beg to move.
§ Moved, That the Bill be now read 2a.—(Lord Mancroft.)
§ 3.13 p.m.
THE EARL OF ARRAN
had given Notice of his intention to move, as an Amendment to the Motion, to delete all words after "Bill" and insert "be read this day six months." The noble Earl said: My Lords, I put down an Amendment to this Bill simply in order to give notice that I intend to divide the House at the end of the debate. This purpose having been served, I do not propose to move my Amendment. In speaking today—and I shall find it very difficult indeed to do so after the truly brilliant speech of the noble Lord—I must, first of all, declare my interests—we are all very conscious of our interests these days. I am an employee of Associated News papers and a director of the Daily Sketch and the Daily Graphic Limited. But of course, in your Lordships' House I represent no one but myself.
I am sure we all have great sympathy for the high principles of this Bill. We love our privacy; it is one of our dearest possessions, and we deeply resent any intrusion on it. And let us not imagine 618 that such intrusion does not take place; it does. I can speak only with some minor authority about the Press, but I have noticed that this intrusion has been recently brought in on television, too, particularly in a programme called "Candid Camera", which the noble Lord, I think, had in mind. I therefore would personally welcome any legislation which would give us an effective defence against attacks upon our private lives. But is this Bill the right instrument against such attacks? Would it not muzzle free speech? Would it not stop journalism as we know it to-day? Let us look closely at what it proposes to do.
The Bill lays down that a person shall have a right of action—presumably legal, not physical action—against any other person who publishes, without his consent, any words or pictures relating to his personal affairs or conduct. There are four qualifying clauses to that. The first two are unexceptionable, but the third and fourth, in my submission, would lead to immediate and enduring difficulty. Put in simple terms, they say that if you are of reasonable public interest, because you are an important man or woman, or because you have done something good or bad, or because you are "in the news", then it is permissible to photograph you or to write about you—hut only about what concerns your job or position, or about the good thing or bad thing you have done, or about your reason for being in the news; nothing else. "Of reasonable public importance", my Lords. What does that mean? Am I of reasonable public importance? And if I am, what about a doctor, or a tram-driver, or a prostitute? Are we going to have a list of reasonably interesting persons? If so, I should like to know who will be on it. I should like, still more, to know who will not be on it.
Then, what does "public interest" mean in this context? I imagine not what is usually meant by the phrase "public interest". I presume it means "of interest to the public". My Lords, who are the public? Is it the whole population? Is it the majority of the population? Is it 10 per cent.? What constitutes a quorum? And is not the public divided up into many sections, each with its own particular interest? 619 Some like football; some like cricket; some like all-in wrestling; some prefer knitting. Some are interested in ladies' fashions, others, including myself, are not. Therefore, would it be permissible to photograph the frocks and hats of ladies at Ascot Race Meetings? Would that be a matter of public interest?
I can see no satisfactory answers to these questions. What I can see—whatever the noble Lord may say—is the prospect of endless litigation. I can see learned counsel arguing for hours and hours, and days and days, about who are the public, or about the relative importance or unimportance of their clients. Mr. "X", for the plaintiff, w ill say, "My client is a humble fellow of no account". "Not at all", Mr. "Y" for the defence will retort, "he is a man of the highest importance". The arguments will be endless; the situation will be farcical. It will be a lawyers' banquet. Then, again, so far as I can see, it would be permissible, under the terms of the Bill, to mention only the person or persons immediately concerned, not the relations or friends. Now you may say that that is a very good thing; but, as I see it, it would mean that if, for instance, a man were awarded the George Cross, you could not say that he had a wife and 15 children. You could not say that he had a brother who owned a pub.
I doubt whether we could even report that the Prime Minister's grandfather had been a crofter, let alone photograph the croft. Worse still, I doubt whether we could quote from the noble Lord's brilliant after-dinner speeches unless we could prove that it was reasonably necessary to disclose his identity. Think what we should lose! More seriously, I doubt whether it would even be possible to print a photograph of a country wedding in a local newspaper unless the consent of the bridegroom, the bride, the bridesmaids and the pages had been obtained in advance. We should be hindered in printing many simple things which many people want to see and hear.
Last of all, I come to this question of consent, which I will deal with very briefly. Under the Bill, you may not do this, that, or the other without the consent of the person concerned. What sort of consent is it to be—written or oral? 620 If written, then I can only say that newspapers work at enormous speed, and if you have to wait for signed agreements in every case, then you will have Monday's news on Thursday. If it is a question of oral permission, what is to prevent some unscrupulous person from saying, "Yes", first of all, and then subsequently suing on the ground that he had said "No"? My Lords, I defy anyone to draft a Bill which will bring about the excellent purposes of the noble Lord without infringing the freedom of the Press. And this is not just a catchword, but is with us, I believe, a dearly loved word.
Are things really as bad as the noble Lord has made out? Perhaps I may quote from a report of the Press Council on the subject of intrusion. It says:The small number of complaints to the Press Council compared with the number of journalists in the country and the number of what are called human interest stories in the Press has a marked significance.That was in 1958. Since then, I am glad to say, there has been a steady diminution in the numbers of complaints to the Council about intrusion into privacy. Of the last 70 complaints, only two concerned intrusion. Further, I think that, if your Lordships are fair, you will agree that there has recently been a marked improvement in the general tone of the Press, at any rate as regards evil and hurtful things, which we all mind so much, and to which I called your Lordships' attention in our previous debate on the Press. I would not go so far as to flatter your Lordships by saying that this improvement dates and derives from the day of our debate, but I like to think that perhaps we have helped.
In particular, this improvement applies to the gossip columns, where the greatest damage was formerly caused. To-day they are almost all harmless—dull, if you like, but harmless. And that is all to the good. If your Lordships do not believe me, may I quote from a letter of Mr. John Osborne who, I believe, is known as an "Angry Young Man" and who wrote an angry young letter to the New Statesman last week. He said, among other less friendly things, in his rather picturesque English:For some time the sick prattle of many a column, with its network of hired confidence men, its tin-off pimps and tittle-tattling call-girls and boys, has been severely cleaned up, even going back to the dull desperation of toadying aristocrats"—621 that is you, my Lords—and millionaires.A lot of adjectives, a lot of words, but what, I think, Mr. Osborne means is that things are better. I agree with him.
I think myself that things are going to be better still. I think that what Mr. Arthur Christiansen, a former editor of the Daily Express, said is true:The foot in the door technique is no longer tolerated in Fleet Street.I think that the reading public—and never forget that it is the readers who in tile last resort dictate the tone of the Press—have been sickened by some of the former extravagances of the popular Press. They have had enough, and they are forcing the newspapers to think again. But it is no use trying to hasten this process by legislation. You simply cannot do it, and if you try it you will only bring about worse evils than those which already exist.
I like the intentions of the noble Lord's Bill and heartily applaud them, but l will leave your Lordships with this final thought. If I were a dictator—and, of course, the noble Lord must not think that I am thinking of him in this context—seeking to control the Press of my country but with a Parliament to which I still had to pay lip-service, this is exactly the kind of Bill I would introduce, as a first step.
§ 3.25 p.m.
§ LORD GODDARD
My Lords, I hope that your Lordships will give this Bill a Second Reading and that it may be considered in Committee. I dare say that no Bill has ever been introduced into your Lordships' House which is not capable of improvement and it may be that, with the assistance of your Lordships, this Bill can be improved.
It has always seemed to me to be a blot on our jurisprudence that there is no remedy for a person whose privacy is invaded in the way that gossip writers and unscrupulous reporters too often do. My noble friend Lord Mancroft, in moving the Second Reading, gave your Lordships instances of their shocking character, and it is idle to pretend, as the noble Earl who has just addressed your Lordships says, that there is not a real danger that this sort of thing will go on. He took up a good deal of time in saying, and I have heard it in 622 other quarters, that this Bill will be unworkable. I do not see why it should be unworkable.
In libel actions at the present time judges have to rule over and over again what is a matter of public interest, because where the defence in an action for libel is fair comment, it must be fair comment upon a matter of public interest and the judge has to rule whether the comment is or is not on a matter of public interest. One thing that the draftsmen of this Bill have been at pains to do is to introduce, where it can be introduced, the word "reasonable", and the reason why hat has been put in is that once it has to be shown that it is of reasonable public interest or that the comment is reasonable in the circumstances, it is left to the jury, if there is one, to decide what is reasonable.
I may also point out that a certain amount of common sense may be expected to be introduced into this matter. Most people have common sense, even judges—though often it is said that they have not. If a judge is trying a case without a jury, he will have to decide. But it seems to be forgotten that in many branches of the law—for example, in actions arising both out of contract and in tort the commonest question a jury or a judge may have to decide is what is reasonable. Of course we know the jokes that have been made about this. It is said that there is no such thing as a reasonable man, still less a reasonable woman! But the courts have never found any difficulty in deciding what is reasonable, though sometimes one court may have decided one thing to be reasonable and a higher court may have taken a different view: or vice versa.
But this Bill is intended, as I think your Lordships will see, to prevent offensive invasion of privacy. It does not create any offence. There is no penalty provided. It only gives a person, who considers that his privacy has been offensively invaded, the right of action. He can decide for himself, or she can decide for herself, whether or not to bring an action. It does not oblige anybody to bring an action. It does not enable anybody to prosecute a news paper. It only gives a person a right of action if he considers that his privacy has been improperly invaded.
Again, I think that we can assume that a certain amount of common sense 623 will be brought into the matter. I saw it said in The Times that this Bill would prevent one from saying that the Chancellor of the Exchequer prepared his own breakfast or that the Prime Minister had gone to shoot grouse in Scotland. Who would ever think that anybody holding these offices—or anybody else—would consider that that would be offensive and take any action? Then the noble Earl, Lord Arran, suggested that it would prevent the newspapers from commenting on a lady's costume at Ascot. I think that it would be much more likely that a lady would want to bring an action because her costume had not been commented upon. I think that she certainly would not bring any action because it had been.
I cannot see at present how it can be said that this Bill cannot work. It should be left to the common sense of a jury to decide whether or not there has been unreasonable comment upon a person's affairs. It is true that the Bill starts oil by saying that a person has a right of action, if his privacy had been invaded, but the defences that are then set out, which will enable a newspaper to escape, will be whether or not the comment in all circumstances was reasonable. I think that the person who is the subject of comment has done something which has brought him into the public eye and therefore it is a matter of public interest. If it is a matter of public interest, it is right that a comment should be made upon it, but only in respect of that which is of public interest.
Suppose that some person in a considerable position of life had got into some trouble at school, or at university, which might have been a serious matter at the time, and twenty or thirty years had gone by and his life ever since had been all that that of a man in public life should he. Would it be right to drag up this unfortunate incident which may have happened years ago? It is for that reason that the Bill provides in Clause 2 (d) (ii):that the words published related solely to matters which having regard to the event and the position of the plaintiff were the subject of reasonable public interest, or were fair comment thereon".It would not be fair comment or reasonable to drag up things about people after many years.
624 As I have said, I am not going to weary your Lordships by repeating many of the instances which we all know and have seen in the newspapers in recent years, which really outrage decency and decent conduct. My noble friend Lord Mancroft has given your Lordships quite enough instances. No one wants to stop the Press from commenting on matters which are of reasonable public interest, and the best place to decide what is reasonable is in a court of law. If this Bill should become law, I have no doubt that the Rule Committee will consider whether an action under the Bill may not be added to those in which either party has the right to demand a jury. At present there is a right to demand a jury in an action for libel or an action for slander; but it may be considered whether, if an action of this sort could be brought, it would be right to give a person the right to demand a jury. But anybody can always apply for a jury, and I confidently feel that if an action of this sort were brought, and either the plaintiff or the defendant wanted a jury, then one would be granted.
I am not so sure that the newspapers would always want to have a jury, because juries are apt, as instances have shown lately, to come down very heavily in the way of damages, and probably much more heavily than a judge would. I remember a case which I tried not long ago, when I was still in office, in which I did my best to keep the damages to what I thought would be a reasonable amount; but the jury came back and awarded very heavy damages in favour of two Members of Parliament and another person who, as I thought, had been scandalously defamed in the newspapers. This sort of case would not be one in which one would expect heavy damages, but it would be a brake upon unwarranted and offensive invasion of privacy.
As I say, if your Lordships give the Bill a Second Reading it can be carefully considered in Committee. But this claim for definitions about what is reasonable and so forth presents some difficulty. It is impossible to give a definition of what is reasonable; it must be left to the common sense of the tribunal which has to try the case. I submit that this is a Bill to which your Lordships ought to give a Second Reading.
§ 3.34 p.m.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, it would not be possible for me to feel anything but sympathy with the object of my noble friend Lord Mancroft in introducing this Bill, which he did, if he will allow an old friend to say so, in a most moving and brilliant speech. We have all seen examples in the Press where reports have been published of the private affairs of unfortunate people which have appeared to us to be in the worst possible taste, and if it were feasible to ensure by legislation that the Press never erred in matters of taste I should be the first to promote that legislation. But, my Lords, I do not believe that this can be done. With the greatest regret and diffidence I disagree with my noble and learned friend Lord Goddard as to the workability of the Bill. So, while appreciating the force of the arguments advanced in favour of the Bill, I am hound to advise your Lordships against giving it a Second Reading.
It is not so many years ago that we had the Report of what is known as the Porter Committee on the Law of Defamation. That was a very powerful Committee, and on it were represented all shades of experience and opinion: riot only were there Judges, like the noble and learned Lord, Lord Porter, my noble and learned friend Lord Birkett and Mr. Justice Slade, but barristers, solicitors and representatives of the Press and other interests. That Committee dealt with this very issue that is raised by this Bill. I was very impressed by what they said on this point, and I should like your Lordships to have the benefit of it. Paragraph 24 of their Report says:The complaint which is summarised in the expression 'Invasion of Privacy' consists in the alleged practice upon the part of representatives of certain organs of the Press, of which evidence was tendered to us, of intruding upon those who have suffered bereavement, or cross questioning those who are related to or otherwise incidentally connected with persons who have committed crimes Or attained notoriety, and of publishing in sensational form details the private lives and affairs of such persons.They went on to say:In so far as the complaint relates to the publication of details of the private lives and affairs of persons who have no desire for such publicity, the matter so published, however offensive it may be to good taste, is not nor- 626 mally defamatory. If it is, and it is also untrue, it is actionable under the existing law.I have quoted that only to show—and I think my noble friend would be the first to agree—that they had fully in mind the same problem as he is now putting before the House. Their conclusion is this:We think that there are great difficulties in formulating an extended definition of criminal or civil libel which, while effective to restrain improper invasion of privacy, would not interfere with the due reporting of matters which are of public interest. It appears to us, however, that the difficulties which confront this Committee should not form an obstacle to action by the Press itself or prevent it from dealing with the problem as one of external discipline.…That was the consideration given to this question, as I say, by a strong Committee a few years ago, and they said, as we should all agree, that the offence is primarily one against good taste.
I believe that there is some difficulty in creating a new legal right which would restrain the improper invasion of privacy without at the same time interfering with proper reporting of matters which ought to be reported. I am sure my noble friend Lord Mancroft will not mind if I say that I do not think he has overcome these difficulties in the Bill. I hope he will forgive me if I point out to the House where I think the Bill falls down. I hope I am not over-simplifying too much when I say that the principle of the Bill is to make all newspaper comment on anyone's personal affairs or conduct actionable unless the newspaper can show that the publication was on a privileged occasion or was related to a matter of reasonable public interest.
That is the essence of the Bill, and is the effect of Clause 1 and paragraphs (b) and (c) of Clause 2. The first difficulty is that one really cannot define what are, "personal affairs or conduct." All conduct is personal to some extent. I am acting personally when I address your Lordships, but at the same time my action is of a public character. That seems to be a real difficulty which would confront the courts at the outset of any action based on the Bill: what are personal affairs or conduct? Secondly, I see great difficulty in defining what is a matter of "reasonable public interest."
I am well aware, of course, as Lord Goddard has just reminded us, that in actions for defamation, whenever the defence of fair comment is raised, the courts 627 have to consider whether a comment is on a matter of public interest. But it is notoriously difficult to say whether any particular topic is a matter of public interest, and I note that the learned editor of Halsbury's Laws of England starts his passage on this subject in this way. I selected this particular book not only because it has the imprimatur of my noble and learned friend Lord Simonds, but because one of the consulting panel was the noble and learned Lord, Lord Goddard, himself. What they say is quite clear:It is not possible to give a precise definition of a matter of public interest.They take as an example—I quote it only to show that it is a point of real difficulty:The contents of a newspaper are a subject of public interest but not its circulation.That shows the difficulty that the courts have had. The books give us many examples of cases which have fallen on one side or other of the line. I, for one, should feel no real confidence in saying, for example, that the matrimonial affairs of a film star, or the financial misfortunes of a clergyman are or are not matters of public interest. I should find it even more difficult to say whether any such interest is reasonable. After all, opinion differs enormously between different sections of the community, and from individual to individual, as to what is an interesting subject. I think it is putting too great a burden on our courts and going beyond our objective of certainty in the law to legislate in this way.
That is one aspect. If your Lordships desire to put restraint on the Press then surely it must be an effective restraint. Yet the defence provided in paragraph (d) of Clause 2 would give a defence—and this is unarguable—where the Press has been guilty of the very type of conduct which is usually the, subject of criticism: intrusion into the private grief of somebody connected with some contemporary public event. The fact is that, rightly or wrongly, many members of the public are interested in the private sorrows of those involved in all sorts of public events, whether tragic, sordid or merely exciting. How is the court to say, and what test would your Lordships apply in deciding, whether that interest is or is not reasonable?
I draw attention to the point which my noble friend Lord Mancroft had in mind, 628 which has been reinforced by my noble and learned friend Lord Goddard. It is sometimes said to-day that our present laws of libel give unique scope to an undesirable type of action. I am bound to say that, just as we heard from Lord Goddard, it has sometimes appeared to me that the awards of damages in the last five or ten years have seemed somewhat disproportionate to the harm that has been suffered. But I am bound to point out that, if this Bill becomes law, it seems to me that the opportunities for actions of this type will become much more numerous. I think it is clear—and I understand my noble and learned friend Lord Goddard to agree: he says "usually", I would say "always"—that there would be a demand for trial by jury, and the effect of that would inevitably be to make it difficult to achieve what my noble and learned friend wanted: that the damages should be reasonable, and could be controlled in the way in which he would wish.
In references to this matter in the newspapers (and if my memory is right the noble Lord, Lord Rea, once referred to it, I think in supporting a Question of the noble Lord, Lord Windlesham) I have seen allusions to the Universal Declaration of the United Nations and the European Convention on Human Rights. In view of that reference, I hope your Lordships will bear with me if I say just one word about it. It is true that the Universal Declaration of Human Rights said:No one shall be subjected"—I ask your Lordships to note the words—to arbitrary interference with his privacy, family, home or correspondence, nor to attack upon his honour and reputation. Everyone has the right to the protection of the law against such interferences or attacks.Then the European Convention on Human Rights, which I myself had the honour to pilot through the Council of Europe, said:(1) Everyone has the right to respect for his private and family life, his home and his correspondence.(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, for the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others.629 I think the noble Lord will realise that the framers of the Universal Declaration were aiming mainly at physical interference, such as the activities of secret police and other officers of a public authority. That is clearly brought out by the version in the European Convention which is expressly directed at "interference by a public authority with the exercise of" the right of privacy. That Convention, of course, was dealing with another aspect which is very much in our minds after the totalitarian periods of power before and during the war, and not really dealing with the point we are on to-day.
The noble Lord, Lord Mancroft, was anxious to point out, in fairness, that he was dealing with broadcasting and television as well as with the Press. I believe that the British Broadcasting Corporation and the Independent Television Authority would sympathise with attempts to eradicate breaches of good taste. I should like to make it clear that already the duties laid down in Section 3 (1) (a) of the Television Act are to ensure thatnothing is included in the programmes which offends against good taste…or contains any offensive representation of or reference to a living person.Thai is what the Act lays down for the I.T.A. Most of your Lordships would agree—I certainly readily do—that the British Broadcasting Corporation has always shown itself anxious to co-operate in maintaining standards of good taste, apart from the sanction of Article 17 of its Charter. I made inquiries on this point and I am told that the Bill would have a very limiting effect on programmes presented by both of the Authorities. I need not go into the examples, which are present in your Lordships' minds.
I hope your Lordships will at any rate show me this sympathy. There is no more difficult task for anyone than to have to say that a Bill which every one of your Lordships would favour, in so far as its objects are concerned, is, in my view, one which would be unworkable, and one which moreover, would be loose legislation of a kind that fails to give guidance to the courts and leaves them with issues which are of the utmost difficulty to solve. I am aware that what I have said must cause disappointment, but I do say to your Lordships that it is better to put up with actions in thoroughly bad taste rather than to 630 create legal remedies which either would be ineffective or would be contrary to the real interests of a legislative assembly. They are matters of taste and opinion. They are so much matters of taste that they are not really—and I think my noble friend Lord Mancroft would agree—matters that one could put to a committee on law reform. This is a question of whether the actual machinery and proposals made are appropriate and in accordance with our view. I have no doubt that there is a real problem here. It may be that we shall have to begin to approach it on a less ambitious level. But, although I recognise the problem, I deeply regret to have to say that I do not think that my noble friend has solved it, and I think it would be disastrous if a Bill in the form which I have attempted to describe went out from your Lordships' House as being the considered opinion of that body.
§ 3.55 p.m.
§ LORD SILKIN
My Lords, I rise first of all to explain that in pressing a view of this Bill I am speaking entirely on my own behalf and not necessarily on behalf of any of my colleagues. I should also like to congratulate the noble Lord, Lord Mancroft, on having introduced this Bill, which is a matter of great public interest, and on having introduced it in the charming, delightful and capable manner in which he has done so. He has rendered a public service in drawing our attention to an evil which undoubtedly exists and which, whether we support the Second Reading or not, everyone agrees is an evil.
We have had four speeches with con-dieting views, and it is going to be exceedingly difficult for Members of your Lordships' House, in view of the eminence of the opinions expressed—that of the noble and learned Lord, Lord Goddard, and the contrary view expressed by the noble and learned Viscount, the Lord Chancellor—to form a judgment. I personally agree with almost every word of the criticism of the Bill offered by the noble and learned Viscount. Indeed, he has forestalled, not for the first time, practically everything I was going to say by way of criticism.
I say "practically everything" because there are one or two other things I would have said: one, for instance, as 631 to the lead which is given in the Bill by way of damages. A person who brought an action under this Bill would have little hope, in my view, of getting damages because, there is a clear lead given in Clause 4, that "In awaiting" (and the noble and learned Viscount will recognise that as a printer's error):In awarding damages in an action…regard shall be had to the conduct of the parties and to any mental distress or humiliation caused to the plaintiff by reason of the publication of the words.Many persons would not necessarily suffer mental distress or humiliation, but they might well have a strong objection to their private lives being disclosed without any particular reason and without any particular interest. It seems to me that Clause 4 of this Bill is a pretty clear indication that in those circumstances the damages would be nominal, if anything at all. So, apart from the criticisms which the noble and learned Viscount has offered to this Bill, I would say there are several others to which he has not referred.
Having said that, however, I ask myself, has the noble and learned Viscount really destroyed this Bill? Are his reasons conclusive for not giving the Bill a Second Reading? I would say at once that if this were the Bill which we were asked to approve on Third Reading before it went to another place I would unhesitatingly vote against it, for the reasons given by the noble and learned Viscount. But I have by no means given up hope of being able to find Amendments, reasonable Amendments—and the word "reasonable" is used so often that the noble Lord will not mind my using it once more—which might make the Bill work; I do not know.
The noble and learned Viscount says it is impossible—by implication, at any rate. At the moment I am inclined to think that there are certain respects in which it could be made workable. For instance, Clause 1 is certainly vague at the moment, so vague that I imagine that nobody would want to chance his luck in taking proceedings in the light of its vagueness. He might just as well put his money on a number in a casino as bring an action. The noble and learned Lord, Lord Goddard, does not give much encouragement when he tells us that some judges take one view of 632 what is reasonable and some take another, and the decisions of those who take one view are liable to be reversed by the Court of Appeal. So I certainly think that, as the Bill stands, it does not constitute much of a remedy for any person who feels himself aggrieved. But I think that Clause 1 is capable of closer definition; and so are the remaining Clauses. For those reasons, I would myself advise the House to give the Bill its Second Reading.
This is an evil. I believe there is a maxim in English law that there is no evil without a remedy, or at any rate there ought not to be. I do not think it would be satisfactory to this House to accept the position which everyone who has spoken so far does accept, that here is an evil which we have either to put up with or try to remedy, and that there is no way of remedying this evil by law. I would further say that if, when we are asked to approve the Third Reading, we find that the Bill is no better than it is to-day, then certainly I should myself vote against the Third Reading and recommend every other Member who is interested to do the same.
Having said that, I wonder to what extent this evil is really as great as has been made out. The noble Lord, Lord Mancroft, went back some years in order to find half a dozen examples of it. He not only looked round this country; he actually went abroad to find one. I do not know whether he could have produced many more. But all the examples that he has given us are well known; everyone who would try to argue in favour of doing something would know about these particular cases. But are there many more? Do we not perhaps run the risk of exaggerating the evil of interference with privacy? There are many people who have no particular objection to this publicity. I agree that those people would have no remedy under this Bill, but in dealing with the question whether it is a great evil or a very small one, I think we should take into account that there are many people who have no objection at all to the details of their private lives being reported in the Press, even though they are not particularly important. A good many people would rather be adversely reported upon than be totally ignored. That may even apply to noble Lords in this House, who in many cases hate being 633 ignored and would rather have unfavourable comment on their speeches than no comment at all.
The gossip column in the Press has become an institution. I observe that practically every newspaper in the country has a gossip column in one form or another, although it is not always called a gossip column. Even highly reputable papers, highly self-righteous papers, like the Observer, have a gossip column, and people are very glad to get into it. I would agree with the noble Earl, Lord Arran: I do not find many of the gossip columns particularly interesting. Perhaps I do not find them particularly interesting because, like most other people, I enjoy a bit of gossip, and if in fact there were more details about the private lives of people one would find it more interesting. It is not so interesting as it might be because they do not give sufficient details about the private lives of sufficiently interesting people. Most of the people they talk about are people that I, at any rate, have never heard of.
I say all this to indicate that perhaps the evil is not as great as the noble Lord, Lord Mancroft, would lead us to believe; and that there is something in the point that, where they do occur, these are matters of taste which could, and ought to, be dealt with by the Press themselves. Is not one of the troubles that they are not dealt with sufficiently by the Press Council? Of course, the trouble is that the Press Council is itself constituted of Pressmen, and you are asking the Press in certain instances to be judged by the particular people who themselves ought to be in the dock. If there were outside people on the Press Council who could take an objective view, and if one could be assured that these breaches of good taste (because that is all they are) would be taken up seriously and dealt with, then there would be far less case for this Bill. Let us remember that if papers go beyond bad taste, if they make imputations against peoples' characters, or even, in my view—I speak subject to correction —if they go so far as to humiliate a person, he will have a cause of action for libel. There is a case for libel where a person is, held um to hatred, ridicule or contempt, and it may well be that in some of the cases that the noble Lord has in mind in Clause 4 of the Bill an 634 action for libel would be the appropriate remedy.
I think I have said enough to indicate that I have grave doubts as to the workability of the Bill, but I should like to give it a fair chance. I would recommend, therefore, that it be allowed a Committee stage. I hope the noble Earl, Lord Arran, will agree to this. Then if, at the end of the day, it is found that the Bill cannot be made sufficiently workable, we all have our remedy on Third Reading, and I should be the first to say that we ought to vote against the Third Reading.
§ 4.8 p.m.
My Lords, a very old friend of mine, an old Scots lawyer, now long gone to his rest, leading a case before the Court of Session, laid out his client's wrongs in a particularly clear way, and, when the Court asked him what ought to be done, said in the very words of the noble Lord, Lord Silkin:My Lords, I have shown you that my client has suffered a wrong. It is for your Lordships to find me the remedy.Their Lordships put their heads together and did a bit of thinking, and they found a remedy for his client. I hope that your Lordships will take that view on this Bill.
My noble friend Lord Arran pointed out to your Lordships that of recent years the Press has improved greatly. I hope and believe that that is true. It reminds me of the boy who, when the master appeared with the cane behind his back, pointed out that he was going to be good in the future. I hope that the noble Earl's clients will behave better in the future. The noble Lord, Lord Silkin, has said that he thinks the wrong is not perhaps as great as we think.
I do not think that everybody writes to the Press Council. I will forbear to mention any cases that have affected my own family. I will go right back in time far my particular reference. I am glad to see the noble Earl, Lord Longford, is in his place, because this is a case that may be known to him. I think it is perfectly fair to bring forward a case of this kind; it is almost historic now. The late Lady Jersey died in 1944 at the age of 96. She was giving a dinner party at her house in Montagu Square when she was called urgently to the telephone. 635 The person on the telephone told her that her grandson had had an accident in Royston with his motor car and been killed, and asked what was her reaction. Being a woman of great character and courage, she made no answer but returned to her dinner party and finished the evening. It was known to her that her grandson had been at Cambridge, and that he was motoring back that night and always came through Royston. But until the end of the dinner party she did not know whether or not he had got back safely.
Now I take it that that was a freelance journalist and I imagine it is freelance journalists at whom this Bill principally strikes. But that case shocked me so much that I went to a friend of mine in this House who was connected with the Press and pointed out what a horrible thing it was to have done. His reply to me was curious. He brought two arguments. He told me of the short time there was between the winning of the Derby and the time at which papers containing that news were on sale at Charing Cross. He also said, "You have no idea how interested members of the public are in the emotions of a person in that position on the death of her grandson." I should like to ask my noble friend Lord Arran whether that is the kind of public interest that ought to be served. I half thought the noble and learned Viscount on the Woolsack said it ought. At least it almost seemed to me that he said so.
I have mentioned that case and have said that I think it is mainly freelances who are concerned, because I want to take the opportunity of saying that I am deeply grateful, and shall always be deeply grateful, to the Press for the tact. consideration and good taste they showed at the time of the Broughty Ferry lifeboat disaster. The behaviour of the Press on that occasion was quite exceptional and I shall always hold them in respect in connection with it. This morning there was a leading article in The Times newspaper on this subject. and the first part of that article appeared to me to favour the Bill of the noble Lord, Lord Mancroft; but it then went on to say that your Lordships ought to reject it principally on the following 636 grounds—and I am going to quote them because I think they are of interest:…the amount of distress caused by this kind of ' human interest ' reporting is easily exaggerated. Certainly there is some, and it can be acute.Those lines remind me of a man who has run over another man in his motor car trying to persuade the victim that he is not as badly hurt as he thinks he is. The article goes on:But there is often mixed with it a pleasurable glow of self-importance. The itch for personal publicity, even of a not very flattering kind, is a common failing.The argument there is that there is a large number of people in this world who are thoroughly vulgar-minded, and that people who are not, and who have delicacy of mind and character, are to be sacrificed to give pleasure to those who are thoroughly vulgar-minded. If the passage means anything else, I have failed properly to understand it. There are plenty of delicate-minded people in the world and in all walks of life. The widows of our lifeboat men at Broughty Ferry are an example. I cannot imagine anything that would have given them more pain than "human-interest" reporting on the occasion of that disaster. Another relative of the noble Earl, Lord Longford, has put it better than anyone else. Writing to his brother Hercules, from the Peninsula, on the occasion when the College of Arms gentlemen wanted him to have honorific supporters in his arms, he said:Under our happy rules of government and society a gentleman is expected to conduct himself with the exertion belonging to principle, whatever his calling may be; and perhaps one of a man's first personal attentions should be, by proper restraint, neither to show himself off nor allow other people from folly or sinister motives to do so.I do not think that that gentleman always wrote very good grammar, but nobody could put that better than he has done. And one of my points to-day is that those people exist in all walks of life and all grades of society, and I do not think they should be sacrificed to the itch of other people for news.
One of the greatest difficulties about the whole matter is that, so far as I can see, there is no remedy unless, perhaps, that suggested by the noble Lord, Lord Man-croft, in his Bill. I will give your Lordships an example. There is a newspaper that I believe would call itself a leading newspaper of the country; and a great 637 many people would agree with that. Certainly it is a very important daily and one that is justly respected. A noble Lord drew my attention one day to an article in this paper about a group of people whom I have known well during the whole of my life, the women who follow the herring round the coast and prepare them for canning or curing. These are girls or older women, arid the girls are nearly always accompanied by aunts or mothers. They go round the coast into very rough places and they are persons of the highest rectitude. They are extremely well conducted and, what is more, they know how to defend themselves—a fact which, I believe, once rather shocked my noble and learned friend. Lord Simonds, when he was Lord Chancellor.
This newspaper article made them out to be drabs of the worst, most horrible kind. It was written without any great knowledge of these women. Many of the details were wrong, as would have been clear to anybody who knew about them. But the article labelled these people in a most horrible way. I wrote a letter to the newspaper. I had that very carefully "vetted" by a friend to ensure that I had said nothing improper, and in due course I got a letter from the editor to say that the article was certainly "near the knuckle" but that it did not exceed the licene given to an old and valued contributor of twenty-five years, and so my letter would not be published. If that comes from a newspaper which I believe everyone would acknowledge is one of the leading papers in Britain, it shows that very often there is great difficulty in getting matters of that kind remedied. If this Bill has a Second Reading and can be amended to suit the noble Lord, Lord Silkin, and find a place on the Statute Book, it may do something to remedy an evil which I believe is far greater than most people actually realise.
§ 4.19 p.m.
§ LORD DENNING
My Lords, if the law of England gives no remedy for an infringement of privacy then it becomes a duty at once to implement some Bill to put it right. Furthermore, if this Bill itself is not workable for the purpose then let us, in Committee, make it workable; because this problem has been with the courts for well over 100 years and our lawyers, 100 years ago and more, indicated a remedy, particularly in 638 regard to the intrusion on the privacy of Royalty.
When King George III was ill it was said by Lord Eldon that if his physician had made notes in a diary of the King's illness, and what he had seen and heard, and had kept those notes and threatened afterwards to publish them, then the courts would have stopped him. Then later, there was the case when Prince Albert and Queen Victoria made a number of etchings, 63 in number, of their private lives, concerning their friends, their family, and children and dogs. A publisher managed to get hold of them and made a catalogue describing all these etchings, and threatened to publish them and to put a facsimile of Prince Albert's and Queen Victoria's signatures upon them. Thereupon Prince Albert brought an action to restrain the publisher. In that action it was held by the judges that the publisher ought to be restrained, and the Vice-Chancellor laid down a principle to protect privacy in these words. He said it was:an unbecoming and unseemly intrusion, offensive to that inbred sense of propriety natural to every man; a sordid spying into the privacy of domestic life, into the home of a family entitled to the most marked respect in this country.The decision was confirmed by the Lord Chancellor, who said that privacy was the right invaded. So, in 1848, the courts of this country were ready to give a remedy for the infringement of privacy.
In 1890, two lawyers in America (the noble Lord, Lord Mancroft, has mentioned them) wrote an article in the Harvard Law Review built on this very case of Prince Albert's, in which they said that this was just a single instance of the general right of privacy; and on that basis the courts of the United States, applying also Common Law, have founded a complete doctrine of the right of privacy. Just a little while ago a photographer surreptitiously took a photograph of a husband and wife in a loving embrace as the husband was leaving, and a periodical published it without consent. The Court of the United States gave a remedy in damages, and enunciated the principles of the right of privacy in a way which would surely do justice to anybody at Common Law. They said:the unwarranted…Publicising of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion 639 into one's private activities, in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities …".That is the law as evolved in the United States from our Common Law. Why cannot we have something similar? I am not in despair. The Judges may well do it. There is nothing in any decision of this House, judicially, which prevents it, in that whenever any grievous cases come up we find that the lawyers produce a remedy.
Your Lordships may remember the case of Mr. Tolley, the amateur golfer. Fry's, the chocolate makers, used an advertisement showing Mr. Tolley putting off on a drive, with a caddy with a packet of Fry's chocolate sticking out of his pocket. Mr. Tolley brought an action for defamation. He got £1,000 damages because it was said that, by putting in the advertisement in that way, without his consent, it gave the impression that he was lending his name for money, which was defamatory and might injure his amateur status. A remedy was given by this House, which reversed the Court of Appeal's decision and said that Mr. Tolley had a remedy in damages. I ask myself this question: supposing it had not been an amateur golfer but a professional golfer whose name and photograph was taken in that way, would he not have been given a remedy? Would not our courts, even to-day, give him a remedy? It is doubtful. There was defamation in the case I have referred to.
Then I would take a case which came before the court only last year. It was a case in which a bridegroom and his bride married and a photograph was taken of the wedding group and—mark you!— the photograph was ordered by the bridegroom but was paid for by the bride's father. Two years later the bride's father was murdered. Newspapers got hold of the photographer, got him to supply them with the photograph, and put it into the newspapers with a full description of all the parties to it—the bride and bridegroom and so forth. The bride was having a baby at the time. As it happened, the bridegroom sued the photographer for infringement of copyright and was awarded £1,000 damages. If the copyright had not been the bridegroom's but that of the father, who paid for the photograph, there would not be any remedy in copyright. But would not our 640 courts give a remedy in infringement of a right of privacy? If they would not, then they ought to. If the law is that there is a limitation to defamation, or if we have to have a case within defamation or within copyright infringement, then the sooner it is remedied the better.
This right of privacy, my Lords, is only one aspect of fundamental human rights which we have enunciated and put our name to, not only in the European Convention of Human Rights but in our very Constitution which we have framed, and also in that which we have helped frame for Nigeria and that which we are now helping to frame for Sierra Leone. We have the words:Every person has a right to respect for his private and family life, his home and his correspondence.Have we not any such right in England when it is being enunciated for us in countries overseas? Let us consider the question (it does not come into this Bill) of telephone-tapping, opening correspondence and so forth. Have we not a right to prevent infringement of privacy in that connection? All I would say is that if the law does not give the right of privacy, the sooner this Bill gives it the better.
I would not suggest that this Bill is unworkable or that, if it is, it cannot be remedied. It may be that the word "offensive" ought to be in, because it is the offensive intrusion into privacy which is the real wrong. It may have to be extended beyond the scope of newspapers which are for news. It may have to be extended—and should be—to weekly periodicals, and, if need be, to Punch, though I would not suggest that that periodical ever offends. That is not a newspaper within this sense. But these are small Committee matters. If the Bill is not workable, let it be made workable. But the real point worthy of consideration is this: if the law of England does not give a remedy for infringement of privacy, the sooner this kind of Bill does it the better.
§ THE EARL OF LONGFORD
My Lords, may I ask the noble and learned Lord a question? I have come here with a completely open mind, but is there not a great ambiguity in the use of the word "privacy" or the words "private life"? By "private life" one may mean life lived within one's home; and to invade that would offend most of us. But if 641 one goes to a race meeting or into a restaurant, is one still living a "private life"? It seems to me that the words can be used in two senses which may easily be confused.
§ LORD DENNING
My Lords, the Bill refers to the word "personal" and not "private". It is true that it is difficult to have the words "personal" and "private life". But I do not despair of that being worked out by the courts as a matter of interpretation. To get the point by way of definition is certainly difficult.
§ 4.28 p.m.
§ LORD FREYBERG
My Lords, I rise to support the Bill proposed by my noble friend Lord Mancroft. As your Lordships are aware, this Bill is designed to give protection to private individuals from any unjustifiable publicity, and the aim of many of those of us who support the Second Reading is to give every individual such further protection against the invasion of his privacy as may be desirable for the maintenance of human dignity. At the same time, it is essential that the public should be informed in all matters in which they may be reasonably concerned.
While the Bill in its present form is designed to deal with publication in newspapers, periodicals, cinematograph or television exhibitions or sound broadcasts which can be said to invade personal privacy in an unjustifiable manner and to the detriment of personal dignity, I should like to move that the Bill should also include similar publications in pamphlet or book form. I myself am in a peculiar position. At the moment, as I understand, a book called Frevberg—General has been written and is being prepared for issue to the public, without anybody having consulted me or any of my friends. As soon as I knew, about a fortnight ago, I instructed my lawyer to write to the alleged printers, and we got back a most extraordinary letter. They did not deny that they had produced a book, but they said that I had the whole thing wrong because it was not the sort of book I thought it was. The letter said that in fact the writer was a man who has the greatest affection and esteem for me. But the fact remains that I have not been approached on the subject of the 642 book in any way, either as to the writing or as to the publication.
Some people might regard it as flattering that their activities should be considered interesting enough to give a book of this character an appeal sufficient to make publication worth while. I hope, however, that there is still another body of opinion in this country which will regard such an unsought invasion of personal privacy as a breach of elementary courtesy and good manners. I understand that, under the laws relating to publication as they now stand, there is no protection for the subject of such a book unless the matter published can be proved to be either inaccurate or libellous. I therefore hope your Lordships will give this Bill a Second Reading; and, if you do, I propose to move an Amendment on Committee stage that will make it illegal to continue the invasion of personal privacy in pamphlet or book form.
§ 4.33 p.m.
§ LORD ARCHIBALD
My Lords, I will not detain the House for more than a few minutes, for I have only two points to make. I want to say first of all that I welcome the Bill which has been presented by the noble Lord, Lord Man-croft. I do not believe that if this Bill, perhaps in some amended form, becomes law, it is at all likely to lead to a great flood of litigation. I say that for two reasons. We have been told this afternoon that the Press is getting better. I think that if this Bill were on the Statute Book, the Press would be a great deal better, and there would be much less reason for people to complain or to take action. In the second place, I do not believe that anyone would bring an action, courting the additional publicity that that action would involve, unless he had been very seriously hurt and damaged by a really offensive publication.
The noble Lord has given us a number of striking examples of what I might call bad behaviour on the part of the Press, but (and here I must declare an interest) though he has included in his Bill cinematograph exhibition, he has not given us any indication of a cinematograph exhibition ever having been an offender in this respect. The industry has been in existence some 60 years. I have been associated with it for nearly 50 years of that time, and I do not 643 believe that a cinematograph exhibition has ever been an offender in the sense of the offences that have been spoken of this afternoon. If the noble Lord could show me any examples, then I should be quite willing that he should continue to include these words in the Bill. But, strangely enough, although cinematograph exhibition is included, other fields of entertainment which might be included are not—for example, music halls and night clubs. I am told by those who frequent them that what might be called the "patter artistes" in these establishments are often guilty of the most malicious personal comment on people in public or semi-public life. If the noble Lord, Lord Mancroft is unaware of that situation, perhaps I might invite him to do a little research—and I hope he would not find such research entirely repugnant.
The final point that I want to make is that I wish there were some way in which we could extend the protection against an invasion of personal privacy to the protection of the privacy of organisations. I have here a cutting from The Times of March 3, the first line of which refers to its being a report of a private meeting. When does a private meeting cease to be a private meeting? When there has been some leakage and the Press report it—a most dangerous tendency in modern life, because almost always the leakage comes from one side or the other of the contestants at the meeting, with the result that the report is partisan. I hope that, if the noble Lord finds it possible, he will consider the inclusion of the right of privacy of organisations as well as of individuals.
§ 4.37 p.m.
§ LORD DENHAM
My Lords, I should like to support my noble friend Lord Mancroft in his Bill. I am not so much concerned with the writings of gossip columnists, although these can sometimes lead to embarrassment and unhappiness to the people concerned. Newspaper speculation as to whether "A" is going to marry "B" while they are still in fact, and not in "quotes", good friends, might well be the deciding factor against such a union ever taking place. Nobody who is worried by publicity given to a small matter in his private life would want to expose himself to the greater publicity of a law-suit under this Bill.
644 I should like to say here that on one point I am in disagreement with both my noble friend Lord Mancroft and my noble friend Lord Arran, and that is over a television programme called "Candid Camera", which has been mentioned in this debate. I must confess that I find this programme extremely amusing. We are told—and I see no reason to disbelieve the producers—that everybody who appears on it has his permission asked first, and also that many of the people concerned laugh the loudest on seeing themselves on it. I should have thought that a programme of this kind is not something of which we should disapprove, but that it rather demonstrates what we like to think is our habit—of being able to laugh at ourselves.
My greater concern is over the invasion of privacy on occasions of serious illness, accident or death. It may be a legitimate matter of public concern when a well-known man or woman is dangerously ill, but I do not think it can possibly be necessary to publish a photograph of the patient being carried into hospital on a stretcher. It may be in the public interest to publish a picture of a very bad road accident, because such a picture may make people drive more carefully, if only for one day. On the other hand, there can be no justification for publishing a picture of a bad crash on a race track which results in the death of the driver. Some pictures, I remember, have even shown the driver being thrown from the vehicle to his death. When the public are saddened by the sudden death of one of their idols, they may well want to read an obituary, and even details of his or her last illness. But there can be no justification for reporters pestering the widow with telephone calls or interviews a few hours after the death, so that her views can be published in the next morning's paper. There is surely a point that must be possible to define, when the private sorrow of individuals should come before the need to inform the public; also a distinction can surely be drawn between news that is published to attract the legitimate sympathy of the public and that which caters for the morbid curiosity of a few sensation-seeking readers.
There are two points I should like to ask my noble friend and your Lordships to consider. Does the Bill, as it now 645 stands, give the right of action to the next-of-kin when the individual concerned is dead? Photographs of people who are lying on a bed of sickness have been mentioned. If the person concerned in fact dies and his next-of-kin does not have a right of action under this Bill, I am afraid that this Bill will not do anything against taking photographs of this kind. Let us take a hypothetical case of a journalist who goes into a hospital or private room and takes a photograph of a man lying on his deathbed, or thought to be lying on his deathbed. If the next-of-kin have in fact no right of action under this Bill, you are going to get the situation where, if the man dies, the newspaper will be able to publish the picture with impunity, whereas if he gets better, they will not be able to publish the picture. That seems to me to be the wrong way round.
The other point I should like to put is on Clause 3. Would it be possible to amend this clause so as to cover cases where the individual concerned is on premises owned or occupied by him and the photographer is not? It seems to me just as bad for a photographer to take a photograph of somebody who is desperately ill by artificial means, such as using a ladder to look over a wall, or looking through a window, or by using a telephoto lens, which enables one to take pictures from a very long distance, as to trespass on private property. This Bill may need some amendment, but surely we are all agreed that the principle is right. What is or is not of reasonable public interest may well, as some of your Lordships have found, be very difficult to define. It may be difficult for a jury to decide, even after listening to the careful summing-up of a learned judge; but should this admittedly difficult decision then be left to a sub-editor to decide?
If this Bill is passed into law, I am afraid it may not be a totally effective deterrent. It is said that some newspapers look upon fines for libel which they sometimes incur as occupational risks well justified by the publicity obtained. The same, unfortunately, may be true with fines under this Bill. But that does not alter the fact that those who suffer from persecution by the Press, where persecution does take place, should have protection, if possible, and, if not, 646 a right of action. I beg to support the noble Lord's Bill.
§ 4.45 p.m.
§ LORD TAYLOR
My Lords, a good democracy is a very difficult thing to work, and our democracy depends on two factors, among others: it depends on the rights and freedoms of the individual, and on the rights and freedoms of the Press. This Bill comes at the point where these two may conflict, and therefore it is right that it should be subjected to close scrutiny. I felt great sympathy for my noble friend Lord Silkin when he was speaking of the Bill and giving his views about it. The job of the Press is a very difficult one. It has to hold up a mirror to life, to the doings not just of great people and good people, but also of wicked people and bad people. It has to show the small folk as well as the big. It has to show their joys, their laughter, their sorrows and their tears, if it is to do its job properly. None of that is easy, and it may sometimes inevitably cause distress to some people.
The offensive situations arise, I think, in two sets of circumstances. The first is the need for all of us, whether we lead public lives or not, to have our off-duty times. We must be allowed to have our quiet off-duty periods, when we have not got to put on a show, if we are to live at all and to do our public service. Secondly, we must be free from intrusion at time of private grief, and I think that applies to everybody. They are fundamental rights for ordinary human beings to enjoy. The newspapers, in the telling of their human stories, have to tread warily, but they can do it without causing distress and misery. I think it was about two years ago that Mr. Cecil King, the Chairman of the Daily Mirror, gave instructions to his reporting staff that they were not to obtrude into personal grief, and that they were not to offend in the kind of way against which this Bill provides action. Since then, I believe one journalist on the staff of the Daily Mirror has transgressed in that way and was instantly dismissed without any question of appeal. The Daily Mirror nevertheless produces an exceedingly lively human journal, and if that can be done under provisions which are identical, or as near as makes no difference identical, with those achieved by 647 this Bill, surely we should not worry about its interfering seriously with the freedom of the Press to picture ordinary life.
The noble Lord, Lord Saltoun, thought the offenders were the free-lance journalists. I do not think that is so. We know who the offenders are. There is one newspaper group which has a strange habit. Instead of sending one reporter or two reporters to investigate a matter, it sends six or eight, so that these people are competing one with another for the story, for what is called the "by-line"; that is to say, the attribution of authorship of the article which appears. It is this intense competition among people working for the same person which is responsible for almost all these offensive cases of intrusion. It is well known in Fleet Street—I do not think there is any secret about it—and certainly it should be dealt with quite satisfactorily if this Bill is passed.
There is one risk which the Bill carries with it, and that is the creation of a new kind of "ambulance chaser". I think the noble and learned Viscount on the Woolsack had that in mind. Your Lordships are familiar with "ambulance chasers", as are all of us who have worked in hospital casualty departments. They are the thugs of unscrupulous lawyers who collect details of casualties as they are brought into the hospital in order to persuade the person concerned to bring an action for damages as a result of the accident. The kind of "ambulance chasing" which might arise under this Bill, unless we are very careful, is that these unscrupulous people would look through every newspaper each day to see whether there was a possible intrusion into privacy, and then would go to that person and say: "Look here, there is a chance that you might be able to get quite a lot of money by bringing an action against the newspaper for intrusion of privacy". That is the risk. I think that is the only risk, but I am sure we must look at the Bill very carefully to see whether we can cope with it. Perhaps the noble Lord, Lord Mancroft, can comment on this when he comes to reply.
§ LORD TAYLOR
I really do not know. But it may happen. It will probably be immoral or illegal, but I think it is a risk. Reference has been made to Professor Winfield and his desire that a new tort should be created—namely, invasion of privacy—and perhaps that is what we are starting to do to-day. I very much hope that your Lordships will give the Bill a Second Reading, knowing that, by so doing, your Lordships will be remedying some unpleasant evils and making the unpleasant part of the Press a little less unpleasant.
§ 4.51 p.m.
My Lords, several noble Lords have considered that this Bill is a serious intrusion into the liberty of the Press. I can only say that any member of the Press who considers that his publications would be liable to action under this Bill is tacitly admitting that he publishes exactly the kind of thing that we are trying to prevent. In these days, when individual liberty is gradually being eroded away, liberty over one's property, one's actions, even one's very person, I think that this Bill is very necessary.
However, before I go any further, being conscious of the fact that not only the eyes but also the ears of the Press are upon me, I should like to say that the task of the reporter is not an easy one. If he wants to earn his living, he has to find news of some sort—of the sort that is going to please his sub-editor, so that often it is more the sub-editor than the reporter who is to blame. What is more, when the reporter has handed in a version of the news that he has obtained it may be altered by the sub-editor and may appear in a totally different form, sometimes in even a damaging form. As things are at the moment, a person has no protection whatsoever.
The noble Earl, Lord Arran, said that complaints to the Press Council have been very much reduced. I do not doubt that he is right, because he is speaking from authority. But I wonder whether that is not largely because people realise that it is of little use if they do complain. It is very hard to prevent the Press publishing what they wish to, and if one makes complaint and the newspaper is of a less scrupulous 649 nature, which is the only department of the Press affected by this Bill, perhaps they will publish something even worse about one. I am all in favour of a free Press, as naturally we all are; but, as my noble friend Lord Mancroft said, there is all the difference between liberty and licence. There is no such thing as complete freedom: all there is is freedom under the law. I am thankful that that is the case, because if we had such a thing as complete freedom, I should be afraid of some heavy article being dropped on my head from the gallery and I should have no legal redress.
A good deal has been said about the question of reasonable public interest. The noble Earl, Lord Arran, has said that the Press caters for many different sections of the public; and of course he is right. What is interesting to one section is not interesting to another. But it is the papers who cater for what one might call interest in "mud" that we want to control by this Bill. Papers who publish perfectly innocent social interest or personal information will not suffer prosecution; and if they do, they will be perfectly able to defend themselves. But it is highly unlikely that they will ever get so far as that. As the noble and learned Lord, Lord Goddard, said, what lady would object to being photographed at Ascot? And there are many other similar examples of which one can think.
I think that it might be necessary to define a little more clearly the word "consent" in Clause 1. On occasion I have been rung up by the Press and asked various questions. Does the fact that I answer those questions constitute my consent? Because sometimes when an article has appeared in the paper it appears in a very different form, not exactly insulting, but in rather bad taste. I think that that is the kind of thing against which one has to be protected; but it will be difficult, because one cannot ask for a proof of what is going to be published before one gives consent. I must leave that difficulty to be overcome by those more experienced in this than I am.
Coming to the question of what is reasonable public interest, I am perfectly willing to accept the higher authority of my noble and learned friend Lord Goddard about that and leave the question to the judge. Surely "reasonable" 650 must mean "reasonable within the bounds of good taste;" and no judge would call anything outside those bounds reasonable. Many remarkable cases have been quoted of reporters who have either forced their way physically into houses or telephoned and obtained information which was unwillingly given. I think that these are the cases that we should be able to restrain. For instance, would it be reasonable public interest for all the sordid details of the divorce of a young couple, of whom nobody has ever heard, who are not public figures, a young couple who live in some obscure part of London to be published, together with pictures and quotations from their remarks? Is that reasonable public interest? I sincerely hope that if that were raised in court the judge would say that it was not. Therefore, although possibly the Bill may need some amendment in Committee, I sincerely support the Second Reading.
§ 5.0 p.m.
THE DUKE OF ATHOLL
My Lords, having been abroad for the past fortnight I am rather nervous about addressing your Lordships on this subject, because I have had limited access to what has been happening in your Lordships' House only through the popular newspapers as opposed to my usual perusal of Hansard, and I do not quite know how I stand about declaring an interest. I gather than one or two words have been said on this subject in your Lordships' House, and before I go further I hasten to declare that I am connected with a group of provincial newspapers—no national or London newspapers—and anything that I say will be probably slightly coloured by that fact. I am at one with everyone who says that where reporters do intrude on the privacy of people in grief or sorrow this should not be allowed. I am also at one with those who think that much of what is published to-day ought not to be published. But I am afraid I disagree with virtually every other speaker as to the practicability of this Bill, and I personally cannot see how it could be made to work.
I should like first to draw your Lordships' attention to the wording of Clause 1, which refers to the publishing ofany words relating to his personal affairs or conduct.651 Let us suppose that during my schooldays I had gone to Ascot, and that a reporter had taken a photograph of the noble Lord, Lord Mancroft, for the sake of his carnation, and that Lord Mancroft had given his permission for the photograph to be published in the newspapers the next day. If I happened to be the next person queueing up to have a word with my bookmaker and appeared in the background of the photograph, and if my housemaster had seen this photograph, with the result that I suffered severely as a result of going to Ascot, then under the Bill, so far as I can make out, I should have a perfect right to sue the newspaper and get what I trust would be substantial damages, because Clause 4 refers to "mental distress or humiliation". I feel that there would have been a great deal of this—and possibly of physical, too! But I do not think we can hold the newspapers responsible for something like that.
I feel also that in some cases it may make intrusion into privacy more difficult to stop. It gives the intruders a defence if the victim is in the public eye, and it is framed so loosely that it will rouse not only the opposition of people against whom it is aimed, but also the opposition of the great bulk of the Press (as I think it has done already), of radio and, presumably, television interests, who have no wish to encroach upon anyone's privacy but will see their quite legitimate business menaced. The Bill makes it possible for anybody not in the public eye to bring an action for the publication of any personal statement, whether there is damage or not—and I think that is important—whether the statement is harmless or not, and whether it is useful and interesting or not. This is flinging the door wide open for completely frivolous and vexatious actions. I do not say that the people concerned would get large damages—probably they would not—but they could still bring, and win, a case under the Bill.
I should like to give one or two other examples of why I think the Bill would not work. Local newspapers consist largely of reporting local events, and that is what sells them. Some of the main local events reported are weddings. In the photographs of the weddings you have a very nice group, and in the background you probably have other people standing around. Not only those in the wedding 652 group are named in local newspapers, but they also say that so-and-so and so-and-so were there. It would be physically impossible for the local newspaper reporter to get the consent of all the people named.
To give another example, on a rather higher plane, there are certain magazines devoted entirely to reporting who was at a certain dance, and particularly charity dances; they give a column of names, with extreme dullness and great boredom; and after the name, quite often, they give, inaccurately, what the people do. I cannot see that that does any great harm to anyone, but for that to be legal under this Bill the reporter would have to go round and get the consent of all the people whom he proposed to mention. I do not think that would be practical.
May I interrupt the noble Duke? Does he not agree that in that case the only action that could be taken would be by those whose names were not reported, as the noble and learned Lord, Lord Goddard, suggested?
THE DUKE OF ATHOLL
I think that might well be true. Nevertheless, the people whose names were reported would have power under the Bill to take action, and I think there is a definite danger that they might. For instance, if same noble and learned Lord told his wife that he was going to a conference, and then it was reported that he was seen walking on the beach at Brighton, or something like that—
THE DUKE OF ATHOLL
Perhaps not on the beach—but if it was reported that he was seen at Brighton, his wife might put a false construction on the report and the noble and learned Lord might easily suffer for it and get some damages from the newspaper. I do not think in that case you could really blame the newspaper for reporting that fact.
Newspapers, on the whole—in fact, almost entirely, with the exception of local newspapers—report the activities of people in the public eye, and therefore they have the defence under Clause 2. But local newspapers suffer more severely, in that the people about whom they report are not so much in the public eye and, therefore, they might not be covered by Clause 2. I suppose that the winner of the whist drive, or even the winner 653 of the booby prize at Little Twissleton is in the public eye, so far as Little Twissleton is concerned, and therefore perhaps there would be a defence if it were reported that the booby prize was won by "Mrs. Snooks". But I think there would he a danger if the newspaper circulated outside Little Twissleton, because "Mrs. Snooks" might then say that she was no longer in the public eye and the fact that she won the booby prize did her damage in that it showed that she was not a very skilful whist player.
With Clause 3 I am in complete agreement: I think it is scandalous when reporters try to get information by force or threats, or try to get information from employees or from members of the family. I should be quite happy if the Bill were not given a Second Reading, and if the noble Lord, Lord Mancroft, could then introduce a much shorter Bill—which would only cost him 4d., as the previous one did, instead of 6d., as this one does—containing only Clause 3, slightly re-worded. I think that the risks of giving this Bill a Second Reading are too great to take, and I would ask your Lordships to reject it. At the same time, I should like to make it quite clear that I am in complete sympathy with what I think to be the objects of the Bill, and if, as I say, the noble Lord, Lord Mancroft, could think of a Bill which consisted only of Clause 3 slightly re-worded, I should be delighted to support it and would hope that it would go through both Houses as quickly as possible.
§ 5.10 p.m.
§ LORD CONESFORD
My Lords, by agreement with the noble Lord, Lord Shackleton, I intervene very briefly at this stage in order to lend support to the Bill. May I say at the outset that this is not due to the fact that I do not think that in many respects we have a very good Press, nor is it based on any general quarrel with our Press. May I also say that I agree with the noble Duke who has just spoken, to this extent? I believe that if this Bill receives a Second Reading it will, as the noble Lord, Lord Silkin, also pointed out, require some Amendment in the interests of the legitimate activities of the Press, with which none of us wishes to interfere.
654 The reasons why I support the Bill are briefly these. I have always thought, from the first moment that I studied law, that the law of England should provide for some protection of privacy. I noticed that the noble and learned Lord, Lord Denning, pointed out that this House as a judicial assembly has never decided that that right to privacy does not exist. Well, I wish my noble and learned friend Lord Denning luck when the matter comes before this House as a judicial assembly. I would much rather have a Statute on which my hopes could more certainly he based. The noble and learned Lord mentioned the case of Tolley v. Fry. Counsel in that case happened to be in my chambers at the time during my early days at the Bar. I can only say that all of us believed that, in order to succeed in that case, the plaintiff had to succeed in libel. I do not think it crossed the mind of any of the counsel engaged in that case that he might have succeeded on the ground of a Common Law right to privacy. Nevertheless, I listened with the greatest interest and enchantment to what the noble and learned Lord said.
My noble friend Lord Arran remarked as a reason against this Bill—or one of the reasons he adduced against it—that, after all, the readers dictate the tone of a newspaper. I do not know whether that is always true, but I am willing for the moment to assume that it is. But assume that the tone dictated to the newspaper by its readers implies the sort of conduct that every speaker in this debate detests. Then, notwithstanding that these things may represent the wishes of the readers, I would still provide the victim with a right of action at law. A good deal has been said about taste—that there is some intrusion against good taste. Does it not go further than that? Do we not all know that it sometimes amounts to persecution? What about people in the public eye? Perhaps, because they are engaged to be married, they cannot even have a peaceful week-end with friends in the country, because the Press can use helicopters, can mount ladders on adjoining property, can use a telephoto lens, and can do all these things in such a way as to deprive the injured party of any peace whatsoever during that weekend.
655 Do we really wish that conduct of that sort should be without remedy in English law? I believe it is the universal wish of this House that such a remedy should be provided. The noble Earl, Lord Arran, says "No". I had forgotten or overlooked for the moment that he does not wish to give a remedy. I think he will find that a great many people do desire to give such a remedy. For those reasons, I shall certainly vote in the Division that this Bill shall receive a Second Reading. That does not mean that I have wholly overlooked some of the difficulties pointed out by my noble and learned friend on the Woolsack and others. I am sure that there are objections of substance which will have to be met but, as the noble Lord, Lord Silkin, pointed out, there will be another opportunity of voting on this Bill if in the Committee stage we are unable to improve it.
May I mention one other matter raised by my noble and learned friend on the Woolsack? He dealt with the point of the mention of the right to privacy in the Universal Declaration of Human Rights and in the European Document, and pointed out that the protection of privacy—I am giving a general description—conferred by those two documents was clearly directed against the tyrannical action of Governments. I agree with him in everything except his conclusion. Would it not be very strange indeed if we thought it necessary and proper to provide in any Universal Declaration of Human Rights against the tyrannical action of Governments but left the victim entirely without remedy if the injuring party was not the State but a newspaper? It seems to me a most odd conclusion. I should have thought that if there were a case for this Universal Declaration of Human Rights to protect the injured party against the action of Governments, a fortiori there should be a right of action against a private individual or a newspaper that invaded such rights.
I am sorry to have delayed the House so long, but I have given the reasons why, without having any general quarrel with the Press, I think we ought to provide, although it is very late in the day, that the law of England shall give some right of privacy, and I think for that reason this Bill should be supported.
§ 5.18 p.m.
§ LORD SHACKLETON
My Lords, I think it is quite clear that this Bill is about to receive its Second Reading, and I should like to congratulate the noble Lord, Lord Mancroft, not only on the skill with which he introduced it, but on his success in picking another winner so far as the Second Reading hurdle is concerned.
I do not think there is any need to recapitulate all the arguments, but I think we should recognise straight away that those of your Lordships who say that this is not a great evil must realise that Governments are always reluctant to deal with minor evils, especially when it brings embarrassment in its train. I think this is a typical Private Member's Bill which, in whichever House it starts, should probably start from the Back Benches; and I hope that after it has had its Second Reading the Lord Chancellor and the Government may change their tune a little and will seek possibly to make such improvements as may be necessary.
This Bill, of course, arises out of the failure of the Press Council to do its job. I do not propose to develop that theme any further, but certainly many of us had hopes that some restriction on the intrusion of privacy and breaches of taste would be brought about by a more effective Press Council.
THE EARL OF ARRAN
My Lords, I must interrupt at this stage. The noble Lord is not being accurate. I have already pointed out that of the last 70 complaints to the Council only two have been on the matter of intrusion.
§ LORD SHACKLETON
The noble Earl has made his speech, and I am going to deal with some of the points he made. He made one of the most unsatisfactory criticisms of this Bill that could be made. He set up a number of thoroughly unlikely propositions of the kind of cases that might come before the courts. The noble Earl dealt with what I can only regard as a ridiculous suggestion that cases might arise because people's dresses have been described at Ascot. The noble Earl also mentioned the possibility that, in referring to a George Cross winner, it would be too dangerous to mention his family. It would be perfectly in order. Nobody seriously considers for one moment that 657 such an act might give rise to an action in the court, unless there was an intrusion of an improper kind and an attempt to find out details of a personal nature.
THE EARL OF ARRAN
Under the terms of the Bill it would be perfectly legitimate to bring such an action.
§ LORD SHACKLETON
All I say is that the noble Earl should study the Bill again. He cannot seriously believe, in the face of the advice he has already been given, that anybody is going to bring an action which is going to bring no benefit in its train. What is the possibility of damages arising out of a report of that kind? I do urge the noble Earl to look again at the Bill and to listen to the opinions given by noble Lords who are more learned in the law than I am on this point.
He went on to say that if he wished to take a step towards a dictatorship this would be one of the first measures he would take. I am thankful to say that the noble Earl is not made of the stuff of dictators; he is the last person to wish to introduce a dictatorship, and for that reason he is unsuited to judge the steps which a dictator would take. This Bill gives no right to the Government whatsoever; it gives merely a right of action in a civil court, and a judge or jury will decide whether the grounds are reasonable or not. Therefore, I am not, and I am sure your Lordships will not be concerned over this particular argument.
I should like to say something about this question of personal publicity. It has been frequently said and implied that everybody likes personal publicity. I do not, and I think there are many people, including many in public life, who regard personal publicity as distasteful and frequently in bad taste. I do not think, therefore, we ought to accept the view that people who are so frequently reported in this sort of way are secretly gleeful about it. My own experience of personal publicity is that it generally enhances the fury of your enemies and arouses the jealousy of your friends, and I think many of us would be very glad to be without it. But clearly there are matters which are of public interest, and those are the matters which are properly dealt with in the Press.
658 I am glad that this Bill covers the subject of broadcasting. There are a number of programmes on which permission is obtained, some of which, despite what the noble and learned Viscount the Lord Chancellor said, do, in my opinion, offend against certain canons of good taste and come very near to invasion of privacy. There is the programme, "This is Your Life". Certainly permission is obtained, and many people like it. But we know the case of Mr. Blanchflower who refused to allow it to go on. He spoiled his gesture a little later by appearing on commercial television the following week. There is an even more objectionable programme, and that is "Candid Camera". This has been referred to, and I must say that it is one of the most offensive types of programme one could see. I urge any of your Lordships who may not have seen it to see whether you can stand the sight of simple people being made fools of for the delight of those people who might begin to develop the very sadistic type of humour about which we have had so many criticisms with regard to America.
When the noble and learned Viscount on the Woolsack spoke about television and broadcasting seeking to maintain good standards, I noticed that he said that the B.B.C. did maintain them, but I think he did not say anything about the commercial television people maintaining them. But if he does think they are maintaining them, then I can only say that his standards and mine are different. I found some difficulty in understanding the arguments of the noble and learned Viscount—I am sorry if I misinterpret him. He referred to the Porter Committee. I do not think that reference threw any light at all upon this particular discussion. They indicated that there were difficulties in the matter. We know that there are difficulties in the matter. He referred also to the Declaration of Human Rights. Here again, I think we all have a very clear view as to what we regard as human dignity. We also have a clear view that things are done by the Press and others of this particular kind which we regard as an invasion of human dignity. This is not an attack on tile Press, and I hope that the Press and those who are interested in the welfare 659 of the Press will realise that it is not an attack on them.
The only possible charge that I think can be brought against this Bill is as to whether, in fact, it will achieve all it sets out to do. It cannot be denied, and I do not think it has been denied, that there is a need for something of this kind, provided that it can be found. We have the support of two very distinguished noble and learned Lords, both with deep experience in this field, and both saying that it is desirable; and, furthermore, saying that it is perfectly possible, as all of us know, to decide what is and what is not reasonable in a particular issue. It is very difficult when you are confronted, as some noble Lords have attempted to confront us to-day, with a hypothetical issue, but once you have a case in front of you, once the matter has been argued out, then surely it is possible to arrive at a decision, and damages will be related to the damage done and the harm done. I hope that this Bill will receive its Second Reading, and that we shall take it through its Committee stage and that it will ultimately form part of the law of our land.
§ 5.28 p.m.
§ LORD MANCROFT
My Lords, we have another important debate ahead of us, and I will not take up any more of your Lordships' time. I should like only to thank those noble Lords who have been kind enough to come and support me to-day in this debate. I think at the moment I am leading 12 to 3. There
|Ailsa, M.||Conesford, L.||Hughes, L.|
|Ailwyn, L.||Cork and Orrery, E.||Jessel, L.|
|Airedale, L.||Craigmyle, L.||Latham, L.|
|Alexander of Hillsborough, V.||Crathorne, L.||Lindgren, L.|
|Allerton, L.||Croft, L.||Listowel, E.|
|Amulree, L.||Crook, L.||Lothian, M.|
|Amwell, L.||Denham, L.||Lucan, E.|
|Archibald, L.||Denning, L.||Macpherson of Drumochter, L.|
|Attlee, E.||Derwent, L.||Mancroft, L. [Teller.]|
|Auckland, L.||Dynevor, L.||Massereene and Ferrard, V.|
|Birdwood, L.||Elliot of Harwood, B.||Meston, L.|
|Bossom, L.||Ferrier, L.||Milverton, L.|
|Boston, L.||Freyberg, L.||Morrison of Lambeth, L.|
|Bridgeman, V.||Goddard, L.||Newall, L.|
|Buchan, E.||Goschen, V.||Rea, L.|
|Buckinghamshire, E.||Grantchester, L.||Saltoun, L.|
|Burden, L.||Grenfell, L.||Shackleton, L.|
|Cholmondeley, M.||Hatherton, L.||Silkin, L.|
|Colville of Culross, V.||Horsbrugh, B.||Somers, L.|
|Colwyn, L.||Howard of Glossop, L.||Spens, L|
|Colyton, L.||Howe, E.||Stonham, L.|
§ the matter cannot rest, because although the majority of your Lordships are clearly in favour of the general principles of my Bill the Government have advised your Lordships that it is not a workable measure. I bow with the greatest respect to my noble and learned friend on the Woolsack, who treated my speech with the utmost kindness and consideration. I bow with equal respect to the noble and learned Lords, Lord Goddard and Lord Denning, who treated my speech with the greatest kindness and consideration but were in favour of it. That encourages me to ask your Lordships whether the Second Reading of this Bill should not be granted and the chance given to you to amend it—I should be the last person in the world to claim that my draftsmanship is anything like perfect—to see whether we cannot do a little more to improve the law of our land in a way which I think at the moment your Lordships clearly wish it to be improved.
§ On Question, Whether the Bill shall be now read 2a?
§ Their Lordships divided:
§ LORD MANCROFT
My Lords, I understand that I am in duty bound to inform your Lordships that the noble Lord, Lord Freyberg, has voted in the wrong Lobby. He asks me to inform your Lordships and to ask that the necessary adjustment may be made.
Ordered (pursuant to Standing Order 48), that the Division Lists be amended accordingly.
Contents, 74; Not-Contents, 21.
|Strang, L.||Taylor, L. [Teller.]||Tweedsmuir, L.|
|Strathalmond, L.||Teviot, L.||Williams, L.|
|Summerskill, B.||Teynham, L.||Wise, L.|
|Swinton, E.||Torrington, V.|
|Arran, E. [Teller.]||Hawke, L.||Mills, L.|
|Atholl, D. [Teller.]||Home, E.||Newton, L.|
|Carrington, L.||Jellicoe, E.||Perth, E.|
|Chesham, L.||Kilmuir, V. (L. Chancellor.)||St. Aldwyn, E.|
|Craigton, L.||Lansdowne, M.||St. Oswald, L.|
|Hailsham, V. (L. President.)||McCorquodale of Newton, L.||Waldegrave, E.|
|Hastings, L.||Merrivale, L.||Wolverton, L.|
§ Resolved in the affirmative; Bill read 2a accordingly, and committed to a Committee of the Whole House.