As the media is accused of 'hunting' Princess Diana to her death, the demand grows for some kind of a privacy law to protect the rights of people in Britain. Helen Searls argues that such legislation threatens to undermine some of the few freedoms we have left

The rights and wrongs of privacy

When the Article was first framed in the late 1940s, with the experience of fascism fresh in the mind, it was presented as a measure to protect people from the intrusive power of the state. In 1997, however, lawyers, politicians and journalists credit it with a different meaning. Article Eight is today widely interpreted to mean that people should now be protected from press intrusion into their private lives.

The long-running controversy over the press and privacy has become more heated in recent months. When the News of the World revealed that Robin Cook, the Foreign Secretary, was having an affair with his parliamentary assistant in August, Lord Irvine recommended that parliament introduce its own privacy law rather than wait for judges to interpret the ECHR. The calls for privacy legislation reached a new peak in September, after the press was blamed by many for hunting Princess Diana to her death.

Of course, the press has been threatened with privacy legislation before, notably in 1993 after the tabloids published transcripts of inane phone calls which revealed that Diana had the pet name 'squidgy' and Prince Charles dreamt of being a tampon. Today's debate, however, differs in one important respect.

In 1993 the call for a privacy law was met with opposition from the press and civil rights campaigners. Broadsheet and tabloid editors recognised it as an attack upon press freedom and orchestrated a campaign of resistance. In 1997 the opposition to a privacy law is weaker. Some of the old opponents have even swapped sides. John Wadham, director of the civil rights group Liberty, now says that 'journalists have nothing to fear' from the proposed legislation (Guardian, 4 August 1997). Alan Rusbridger, Guardian editor, has even led the way in calling for a privacy law. Andrew Marr, editor of the Independent, Richard Addis, editor of the Express, and other leading journalists have publicly voiced their agreement with him.

Despite the furore surrounding the paparazzi's alleged role in Diana's fatal crash, there is no evidence that the media has been getting more intrusive into people's private lives. Tim Toulmin from the Press Complaints Commission (PCC), the industry's self-regulatory body, told me that only about eight per cent of all of the complaints that the Commission receives relate to matters of privacy. Most of these complaints are about regional newspapers rather than the national tabloids. And although Toulmin assured me that the PCC is 'especially concerned' about unwarranted press violation of personal privacy and treats complaints in this field more seriously than those in any other, the vast majority of privacy complaints are not upheld.

You could argue that as a self-regulatory body, the PCC would say that, wouldn't they? But there is other evidence that they are right. It is widely recognised that the press has become more restrained in recent years, tightening self-regulation in order to ward off the threat of government legislation. So why do so many now favour privacy legislation?

Alan Rusbridger's own explanation for his recent conversion is unconvincing. In his view the courts, the government and media need to do a little horse-trading in order that 'responsible journalism' can flourish and prurient intrusion is punished. This could happen if the three parties concerned make concessions. It would mean, says Rusbridger, 'The courts giving a little on defamation. The government giving a little on freedom of information. And the media giving a little on intrusive journalism' (Guardian, 23 May 1997).

Rusbridger claims that a privacy law which allowed the press to investigate financial impropriety, but prevented it from reporting sex scandals and other personal matters, would do little to hinder serious journalism and might even raise the standard of investigative journalism in this country. The idea that a privacy law of any kind could raise the standard of investigative journalism is the kind of contorted logic that one might expect of lawyers but not from the editor of a national newspaper. Experience should tell us that trading a privacy law for a bit more leniency in the libel courts would get us nowhere. Journalists have long argued that this would simply replace one law that the rich can use to silence their critics with another.

Investigative journalist Tom Bower, Robert Maxwell's biographer, is one who says he would never want to rely on a judge to decide what could be printed. His own experience indicates that privacy laws could be even worse than libel laws. Tom Bower spent years in the libel courts fighting for the right to publish his book exposing the nature of Maxwell's business empire. On four occasions Maxwell tried to prevent the book's publication through use of the British libel law. He ultimately failed. In France, however, where there are tough privacy laws, Maxwell successfully sued Bower. His hard-hitting investigative book was deemed to breach privacy for revealing correct details about Maxwell's ailing health.

Rusbridger is simply kidding himself in imagining that a privacy law would allow investigative journalism to flourish. He imagines that all the problems in journalism lie with the tabloid press. He laments that the libel courts do not distinguish between the thorough investigative journalism into areas of public concern (ie, the Guardian) and salacious stories about minor celebrities (ie, the tabloids). A privacy law with what he calls a 'sex/money split' would, he argues, allow them to make such distinctions.

The tabloids however cannot be made to carry all of the blame for the demise of serious investigative journalism. For a 'quality' paper like Rusbridger's Guardian, investigative journalism has been reduced to reporting the rather boring minor financial misdemeanours of yesterday's politicians. Fine, if that is all that they want to do; but it hardly justifies Rusbridger's holier-than-thou demand for a privacy law.

At present several different issues are being mixed up in the discussion of the press and privacy, which makes it hard to work out what is really at stake. Liberty for example insists on confusing issues of personal protection from state intrusion - which are perfectly reasonable - with issues of restricting the press - which are not. The debate is also muddied by the fact that today it seems that the only staunch opponents of a privacy law are a few journalists of the old school like Tom Bower and tabloid editors and gossip columnists.

The arguments for and against a privacy law are often caricatured as the interests of 'respect and decency' against the naked commercialism of the tabloid press. Press freedom is reduced to little more than the right of tabloid journalists to spread scandal unhindered and the rights of newspaper owners to print whatever copy or pictures sell the most papers. If opposition to a privacy law is reduced to merely supporting the rights of the tabloids to pry in a sensationalist fashion into people's private lives, then it is little wonder that support for a privacy law is growing.

Defending press freedom, however, means a lot more than this. In defending his call for a privacy law Rusbridger rather sanctimoniously asked do we really need to know about the sex life of a weather forecaster? While some might argue that depends on which weather forecaster, of course Rusbridger is right, we would be no worse off if we knew nothing about the sex life of the weather forecaster. But that is not the same as saying that we would be no worse off with a privacy law that prevents the press even looking into this question. The two things are not the same at all.

A privacy law would undermine the freedom of the press and the important right upon which that freedom is founded - free speech. These freedoms are continually undervalued in the debate. A privacy law would demarcate whole areas and issues as being 'out of bounds' to public discussion. This is a potentially dangerous restriction on freedom and democratic debate.

Distasteful though it might sometimes be, we need the right to discuss people's personal lives. This is not just a right for the titillation of a few journalists and their puerile readers. It can benefit society as a whole, since it allows us to partake in the fullest and frankest debate possible on any issue. To rule that only certain things could be reported means that the parameters of public debate are already constrained even before the discussion begins.

Public figures in fact often invite us to look at their private lives when it suits them. In many instances their only complaint is that we catch sight of things they would rather we did not see. But on other occasions they flaunt their private lives as a means to preach and moralise at us. The royals are particularly guilty of this. As Mirror editor Piers Morgan said in opposing a privacy law, the royals are 'happy to dance with the devil when it suits them' (Guardian, 9 June 1997). They were the ones who encouraged the media to present them as a 'perfect family', in a cynical strategy to perpetuate support for the monarchy. They can hardly complain now that their strategy has blown up in their faces. Politicians also use their personal life as a way to make themselves more popular - see the carefully staged family shots of the smiling Blair family arriving in Downing Street, going to church, holidaying in Italy etc. Public figures cannot have it both ways If they make their private life a matter of public interest, they cannot then complain when people ask questions about it.

In the recent debate about privacy legislation, a number of 'ordinary people' have complained that they too have suffered unwelcome intrusion from the press. Sometimes people quite understandably complain that they are persecuted by a prying press that seeks to expose every sordid detail of their personal life. But even looking at these kind of cases there is still no convincing case for a privacy law. In framing any kind of privacy law the dangers of excluding a legitimate arena of discussion far outweigh the fact that individuals can suffer at the hands of a salacious press.

Take for example one particularly harrowing case that was discussed on a recent chat show devoted to the issue of privacy. A guest on the show complained that the press invaded his privacy after he assisted in the suicide of a close friend. Details of his actions and both his and the dead man's private lives were splashed across a national paper without his permission. Certainly we can all sympathise with his desire to get the prying press off his back. But does our sympathy at such a time mean that the entire incident should have been protected by a privacy law?

Assisting in a suicide is currently against the law in this country. Since the man chose to break the law is it not reasonable that society should want to examine the very personal reasons that led him to do so? Of course there is no reason why this meant that the press had to pry into irrelevant aspects of his sex life, but it is simply impossible to frame a law that allows us to look into certain aspects of his personal life and not others. Every case will be different. To have a law that draws an arbitrary line between, say, money matters and everything else is simply too rigid to allow full discussion on matters of public interest. The fact that the press acts in a tasteless and thoughtless fashion cannot be a reason for drawing strict boundaries around what we can and cannot discuss.

Another case highlighted by John Wadham of Liberty raises difficult problems. He complained that one of Liberty's clients was caught on a CCTV camera trying to commit suicide in a public place. Rescued by somebody who spotted him, he then tried to put the incident behind him and get on with his life. A television station later obtained the film and screened the incident on the local news. This seems to be particularly cruel; but even in this case the argument that the man's privacy should have been respected in law is a difficult one to sustain. Certainly there are questions to be asked. How for instance did the TV station got hold of the film? But to say that there should be a law in place to prevent this type of intrusion goes too far.

Imagine that the film had been obtained by, say, a TV crew secretly filming rather than CCTV. Would it be wrong to film an incident that anybody in the public space could have witnessed? How is society to legislate for what would be legitimate to film in public and what would not? Some say you should have to gain people's consent but this is not always a good criterion. In 1991 somebody with a camcorder famously recorded the LAPD beating up Rodney King in a public place. The police did not consent to the filming. Nobody however could seriously argue that this film should not have been shot or shown. It is very easy to imagine that, once society has rules about what personal behaviour could and could not be shown, then powerful sections of society like the LAPD would have another censorship law to hide behind. To rule that anything which takes place in public is out of bounds for the media sets some dangerous precedents.

Why should the royal family, politicians, the courts or even Alan Rusbridger be allowed to determine in advance what is and what is not a legitimate matter for public debate and discussion? All these characters have their own motives for limiting public discussion. In elevating the right to privacy, most of these people are telling us that they value their own privacy and privacy for their kind over and above free speech. That may be good for them but it will not serve the interests of society as a whole.

Rusbridger appears to have more noble motives but when it comes down to it, I think it is no accident that he too now sees the merits of a privacy law. Cynics might assume that he simply wants to protect his mates in government, but that is a misreading of his motives. News of the World editor, Phil Hall, was surely closer to the truth when he observed that 'Alan Rusbridger and the rest are imposing their own tastes in journalism on everyone else'. Rusbridger has his own agenda, one that is in its own way just as petty and scandal-mongering as the tabloids. For the Guardian, serious journalism and politics now seem to be reducible to the issue of sniffing out 'fat cats' and exposing financial sleaze. If that is what serious public debate is reduced to, then why should they care if the press is prevented from reporting anything else in which the rest of us just might be interested?

Why are we all so defensive about what we report?

Princess Diana's death prompted bitter infighting and recriminations among the different sections of the media. The tabloids blamed the paparazzi 'scum', the broadsheets blamed the tabloids for creating a 'thirst' for salacious pictures, television people accused press people of showing no respect, press people accused television people of hypocrisy. Everybody in the media is accused of being in some way to blame, and everybody accepts that the media must act more 'responsibly'.

The fact is, however, that investigate reporters are already tied up in legal knots, and there is already a powerful safety-first mood among editors and reporters alike, who are increasingly unwilling to tackle controversial stories. With a 'free' press like this, you might ask, who needs privacy laws?

The BBC's own internal 'Producer guidelines' warns reporters that their work must not be 'intimidatory or unreasonably intrusive', and must not 'harass people unfairly with repeated tele- phone calls or repeated knocks at the door, or by obstructing them as they come and go'. Independent TV companies adhere to similar rules under the Independent Television Commission (ITC) code. The National Union of Journalists has rules on intrusion as does the Press Complaints Commission, whose code of conduct states that journalists should not obtain information or pictures through intimidation or harassment. Such regulations always have to be read before asking your editor if you can use secret cameras, hidden microphones, telephoto lenses and TV cameras aimed at gathering information on individuals.

Laws governing journalists who wish to publish serious allegations against public figures include 'D' Notices, court injunctions, the 1985 Interceptions Act and the 1924 Telegraphy Act. You know you are on dangerous ground when the programme lawyer returns your call and reminds you of the finer points of the law on trespass. To 'publish and be damned' is a thing of the past. The current vogue is more like 'check with your lawyer, then check again, and perhaps publish a watered-down version after very careful consideration at senior editorial level'.

You can find your story is almost dictated by the lawyers. In consumer journalism, lawyers will tell you what kind of laws are being broken by the subject of your inquiry (which can give the story a harder edge if you know x is breaking y law), before getting to the punchline: the media laws which govern how you can go about reporting such activity. You heed their advice.

Working on several investigative programmes, I constantly had to chase the lawyer to find out what kind of evidence was sufficient, in legal terms, to air a story. Your editor expects this, your producer expects this, and the channel controller would look dimly on your journalistic credibility if you did not do it. It is called being a 'responsible' journalist.

However, it is infuriating to find, say, that certain allegations about influential people cannot be broadcast even if you have done the homework, because the media company does not wish to risk a costly legal case or you might have an overcautious editor. On one occasion I was told that my programme had enough 'angles' to be watchable and the extra allegation (although backed up by facts) was seen as offering little reward in terms of audience figures and high risk in terms of the law. Such is the 'chilling effect' of all media laws.

Many journalists claim they want to broadcast a story but their hands are tied by the rules. It is a risky business as an investigative journalist to wonder whether a story is worth breaking if it means losing your job or ending up in court. Yet a safety-first mentality damages investigative work. Journalists end up self-censoring their own work. It means that more stories are being stopped before investigation begins.

Martyn Gregory, maker of the award-winning Channel 4 documentary The Torture Trail (which revealed the trade in electroshock batons by British companies) has witnessed the increasing timidity of the major TV channels as a result of new laws and regulations. 'Not all of the rules are aimed at investigative journalists', he explains, 'but most of the laws have been used against us'.

The words 'privacy laws' immediately invoke fears of censorship. However 'media harassment' is becoming a more acceptable reason to curb the media, especially among media people themselves. But what is to stop investigative journalists being stopped the moment somebody points the accusatory finger in the name of 'harassment'? The result would be the same: a news blackout on more areas of life. Some people deserve harassing, particularly if they are public figures evading serious allegations.

It is as if journalism is imploding on itself. Before, you had external authorities - the law courts, regulatory bodies, MPs - to deal with. Now all kinds of journalists who you would think might be against such laws have voiced their support for further restrictions. Reporters are fighting among themselves to defend their brand of journalism at the expense of another.

I used to think that at least those working in the media were united in defending the freedom to write or broadcast what they wanted, in the spirit of enquiry and public knowledge. The decline in self-belief among journalists is now accelerating. At this rate, the Fourth Estate will soon become the Fawn Estate.

Tessa Mayes has worked as an investigative journalist for the BBC, ITV's The Cook Report and Carlton TV. She is currently researching the impact of a privacy law on journalism for The Freedom and Privacy Project commissioned by the London International Research Exchange media group.