Privacy laws make scandals like the Post Office disgrace more likely

Even if we wanted to know if a senior married politician was having an affair, if the head of a large company had sexually harassed his female staff, or if a highly paid Premier League footballer was under police investigation, the chances are we would never find out if the protagonists were determined to keep the matters secret.

READ MORE: Scottish Post Office staff: in court without any corroboration?

There are those, including some high-profile and vocal celebrity campaigners, who prize privacy over freedom of speech, who believe that’s as it should be.

What does it matter how many women Boris Johnson slept with or how many children he fathered? Do we really need to know how many female underlings accused clothing tycoon Sir Philip Green of fondling their bottoms and breasts?

For a start Sir Philip denied any wrongdoing (his alleged victims were asked to sign non-disclosure agreements, which prevented them discussing their cases).

But, more importantly, the only information Top Shop customers or Arcadia shareholders should have access to, is that which relates to the performance of his companies, privacy campaigners would argue.

Johnson should be judged on his work as an MP and Prime Minister, not on whether he had sex with Jennifer Arcuri on the sofa of his family home while his wife was at work.

Irrespective of how you view such behaviour, the reality is that we are far less likely to read about it than we were a generation ago.

Creeping privacy law; use of expensive legal tactics such as lawfare and super-injunctions by wealthy individuals; a trepidatious and comparatively impoverished print media; and a more restrictive and punitive culture of journalistic regulation; have all conspired to usher in a new era of secrecy and deference.

Former Post Office boss Paula Vennells (Image: free)

The sexual peccadilloes of politicians and businessmen may seem like a relatively trivial hook upon which to hang such a weighty cloak, but consider this: would the Post Office scandal have developed over almost two decades if it had happened in the 1980s or 1990s, with well-funded newspapers and skilled and experienced journalists – at local and national level – free to investigate without fear or favour?

Would so many sub-postmasters and post-mistresses have gone to jail, lost their livelihoods and had their lives ruined, had Post Office management not been able to use the kind of modern lawfare tactics more usually associated with Russian oligarchs, to silence journalists?

One of the few news organisations bold and well-resourced enough to pursue the story was the BBC. Its 2015 Panorama programme was broadcast despite the best efforts of expensive, external lawyers hired by the Post Office at public expense to threaten journalists with legal action and to send intimidating letters to senior BBC managers and experts who took part in the programme. The only other outlet that pursued the story doggedly was the campaigning investigative magazine, Private Eye.

READ MORE: Scotland's Post Office victims have been failed by legal establishment

The time and resources needed to expose a scandal on such a scale is now beyond the scope and budget of most news outlets. Even pursuing the story at a local level is prohibitive if news organisations and their journalists fear being sued and having to defend expensive legal actions.

Along with the financial impact on news outlets of online competition and the atomisation of information distribution over the past two decades, the Leveson Inquiry – held in 2012 in response to the News of the World phone hacking scandal – has had a deadening effect on the media and its ability to expose wrongdoing.

A corollary of the balance-of-power shift, in favour of individuals who wish to keep damaging information about them out of the public domain, is the amount of self-censorship by journalists and in-house media lawyers.

I recently investigated a story in which four international rowers were accused of gang raping a 19 year-old female student at an English university. The woman reported the alleged assault to police, who concluded there was not enough evidence to make a conviction likely – an outcome that is depressingly normal in accusations of rape.

The university held its own investigation and expelled three of the four rowers after concluding they had breached student conduct rules governing ‘sexual harassment, violence or abuse.’ One of the three had been admitted to the university while under investigation over two further claims of rape at a university in the US.

Given that the names of the three men were included in official documents that were a matter of record, and that reporting of the case was clearly in the public interest, I felt confident of being able to name them.

However, the newspaper’s lawyers concluded they had a right to privacy and that there was a potential risk they may sue the newspaper for defamation if it did so.

While the risk of the latter was comparatively slight, it was not one the paper was prepared to take, as the onus would then be on it in defending a legal action, to prove each of the allegations contained in the documents.

Privacy law is perhaps the most alien to people in Britain who recognise the historic importance the country and its institutions have placed upon freedom of speech.

Rather than being passed by an act of parliament in response to public demand, the law on privacy has developed as a result of a series of decisions made by single judges in civil cases.

In 2018, Sir Cliff Richard secured victory in a legal battle against the BBC. The case stemmed from the broadcaster filming a police raid on his property and wrongly naming the renowned singer, who was entirely innocent.

Cliff Richard was wrongly accused by the BBC (Image: PA)

In 2021, a Court of Appeal upheld a High Court ruling that the Duchess of Sussex ‘had a reasonable expectation of privacy’ following the Mail on Sunday's publication of substantial portions of a letter she had written to her estranged father, Thomas Markle.

While everyone has a right to their opinion about whether privacy should trump freedom of speech or vice versa, few people, I’m sure would argue that decisions about what we, as the public, have a right to know should be made by unelected judges, rather than politicians acting on our behalf.