The Right to Privacy and the Value of Legal Reform as a Left Strategy

http://republic-of-teesside.blogspot.com/2009/03/right-to-privacy-and-value-of-legal.html

Friday, March 20, 2009


Traditionally in the UK, a key feature of the common law protection of civil liberties was the absence of a right to privacy. Indeed even today such writers as Noam Chomsky regard the comparative weakness of liable laws in the USA as an example of domestic freedoms and protection of democracy.

However, the right to respect for private and family life has been a part of the European Convention of Fundamental Freedoms and Human Rights since the 1950s, and since the passing of the Human Rights Act 1998 in this country incorporating it has become enshrined in our law.

What should be immediately striking to any layperson who reads Article 8, where that right is contained, is that it is subject to a long list of qualifications and restrictions. Interferences with the exercise of the right by a public authority are permitted under Article 8(2) provided they are in accordance with law and necessary in a democratic society in the interests of ‘national security’, ‘public safety’ or 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 freedoms of others.



The first four of these justifications are obviously going to ring alarm bells when viewed through a pair of left-wing spectacles. In 1978 the European Court of Human rights held that the mere existence of legislation in Germany allowing telephone tapping by state authorities involved ‘a menace of surveillance that strikes at freedom of communication’ and therefore constituted an interference with the right to privacy contained in Article 8, however as it contained safeguards they held that it was both lawful and proportionate.

In Malone v UK in 1984, the Court held that as UK domestic law on telephone tapping was obscure and open to differing interpretations it did not satisfy Article 8(2). In sharp response to this the Thatcher Government passed the Interception of Communications Act 1985 in order to place the practice on a statutory footing.

Article 8 is therefore toothless in terms of protecting, for example, trade unionists, anti-war or other demonstrators, and anyone else MI5 might consider undesirable from being spied upon by the state. It was appalling, though not remotely surprising, when earlier this month it was revealed that major construction companies had paid for information on their employees as part of a rampant blacklisting culture.

What, however, of the justification on the grounds of ‘protecting public morals’? This appears to serve two functions:

Firstly, the requirement of capitalism to control workers by dividing them along social grounds. This has always been done on many grounds, notably nationality, religion, sex, age, sexual orientation and even minor drug users have been painted as ‘the undeserving poor’. This is essential to create cheaper pools of labour, and to ‘play-off’ one set of workers against another in order to drive down wages and conditions. It is important, therefore, that not only employers are able to discriminate within the law, but also that other Establishment players such as the media should be free to push such agendas.

Even in Naomi Campbell’s famously successful action against the Daily Mirror for printing the details and photographs of her attendance at Narcotics Anonymous, it was still nevertheless held that there was a public interest in publishing the fact that she was a drug addict.

Let’s consider for a moment Daily Mail editor Paul Dacre’s incredulous reaction to Max Mosley’s successful lawsuit last year. In a speech to the Society of Editors’ Annual Conference denounced Mr Justice Eady for coming to an ‘arrogant and amoral’ judgment, which ‘inorexably and insidiously’ imposed a privacy law on British newspapers. Also, Tom Crone, the legal manager of News International, who was of the opinion that ‘these judgments risk outlawing the traditional role of the media in exposing the moral shortcomings of those who wield power’.

Compare however the Daily Mail articles covering the Moseley affair, which included screaming headlines such as ‘What Price Morality? Judge Champions Max Moseley’s right to hold S&M Orgies’ and ‘A Man without Shame: How Can Sex Scandal F1 Boss Max Moseley paint himself as the Injured Party?’ ,with the generally more sympathetic tone towards privacy rights in an article covering the leaking of BNP members’ personal details.

Second is control, through out and out blackmail having already defined a framework of morality and having established a so-called public interest as above. This is not simply a fictional conspiracy, even though this is precisely a tactic employed by the protagonists in A Very British Coup. We have seen very real attempts to bring down controversial (i.e. left-wing) politicians through the exposure of their private lives, including notably Tommy Sheridan, George Galloway and John Prescott.

What is also notable about Article 8 is its ambiguity, which in turn leaves it with flexibility. The state, for example, was happy to prosecute a group of consenting homosexual adults in the Brown case for engaging in sado-masochistic acts, and in its eagerness to resist the removal of the DNA records of hundreds and thousands of innocent people from police records, and in the reclassification of cannabis. Within the language of Article 8, it can do so legally. Yet at the same time Article 8 has been invoked to prevent any intrusion into family life to deal with domestic violence and child abuse, with public authorities insistent on an individualistic prognosis.

What this shows is that we should never seek to depend on laws written by and for capitalists. But is that to say there is no value in attempting to reform the law and bringing legal challenges in the courts? Certainly not, and in fact where necessary left groups and unions should devote resources to doing precisely this. We should simply do so having acknowledged that laws can be interpreted in many ways and that the power to do this lies with judges, who are political appointments and thus represent the domestic power base (capital). Rather than legal action we should rely instead on political movements. This has been the historic method of achieving successful reform by the labour movement. As explained in Raymond Challinor’s brilliant biography of W.P. Roberts (the miners’ attorney):

“How was this accomplished? Not on the basis, at least directly, of the strength of the workers’ case. Rather it was on the strength of the workers themselves...”


Posted by Joe at 12:06 PM