Public battles over privacy

Media lawyer Mark Stephens might not be worried about the grannies, but he is about the legally obscure nature of the denial of service (DoS) war by hackers such as the members of Anonymous, allegedly in the name of freedom of speech.

When he sits down for a conversation at the University of Strathclyde on Thursday, Stephens brings with him the expertise of being at the front of many of the privacy and media battles of the past year. And he sees greater challenges ahead.

“In the old days, we used to go to court and somebody would have to issue a writ and present evidence, and an independent tribunal would assess it and make an order,” he says. “Now we have this bizarre situation where it is much more difficult because all these activities are taking place outside the judicial process. Those are the challenges – and, frankly, a bit of misguided hacking by misguided journalists and newspaper owners is going to pale into insignificance.”

The threats from shadowy groups cannot be discounted, says Stephens, especially should the government pursue the idea of shutting down the BlackBerry Messenger or social networking services amid future riots.

He says: “The UK embassy and most Nato-member country embassies were handing out untraceable mobiles for SMS purposes in Iran for the so-called Twitter revolution. It seems to me that we’ve got to talk about the double standards – what’s good for provoking change and democracy in Iran and the Arab Spring, and what’s happening here.”

Stephens, 54, who was awarded a CBE in June, studied law at North East London Polytechnic before further education in Brussels. He was admitted as a solicitor in 1982 and found fame in 1987 for successfully defending an artist who reproduced bank notes. With the title of ‘the patron solicitor of previously lost causes’, he has represented the leaders of miners’ strikes to Julian Assange, and has become a commentator on media law, human rights and intellectual property.

His representation of WikiLeaks founder Assange ended this summer when he was replaced for last month’s extradition appeal hearings, reported by the Guardian as “part of a more conciliatory approach by Assange”.

Stephens, a partner with Finers Stephens Innocent, would not talk about WikiLeaks, but the case has been part of the wide-ranging debate about privacy this year. From ‘private’ diplomatic cables, to social media and riots and the use of superinjunctions by celebrities, many of the biggest stories of the past 12 months have been about the flow of information. Is anything private any more?

“If you go to a dinner party or chat down at the pub, people’s sexual activities are regularly discussed, more so when it’s celebrities,” he says. “That sort of scuttlebutt is the meat and drink of the dinner tables and pubs of this country, and also the dinner tables of north London and the chattering classes.

“The information the courts said must be secret was never going to be secret because, in the words of Bernard Shaw, ‘a secret is something you only tell to one person’. Once everyone has told one person, it’s no longer a secret; in fact it probably never was a secret in the first place. Then you have the information breaking out on Twitter. You can never put the genie back in the bottle. As soon as you have had a sexual indiscretion it is going to be known to others, at which point the story is out. Whether it’s out in America or in Scotland, where these injunctions don’t bite, is another matter.”

As Stephens explains, privacy laws have been gradually invented by Strasbourg since the Princess Caroline case in 2004. He said the European Convention on Human Rights was never intended to protect privacy the way it has come to be used.

“It was recognised that free speech was a cornerstone of democratic society, that people should receive all shades and colours of opinion and information so they can make up their minds on moments and issues of the day,” says Stephens. “We’re now in this rather bizarre situation where we had a series of superinjunctions which seemed to be the vogue way for sexually incontinent footballers to protect their wives and girlfriends.”

Stephens says the superinjunctions may still have a place, for example if protecting the nation from threat, but adds: “To have a superinjunction to prevent anyone from discussing it does seem to be heavy-handed and is the sort of justice which is effectively a rich-man’s justice.”

He has a healthy respect for the freedom of the press and, although he says he has had his voicemail hacked, believes deception is sometimes necessary by reporters in the public interest. Rather than this being an issue of protecting individual privacy, Stephens turns the argument on its head to ask what protection there is for health and well-being – such as Trafigura’s attempt to use a superinjunction to prevent reporting of it dumping toxic waste off the Ivory Coast.

“It seems wholly iniquitous for the courts to connive for whatever reason in the covering up of that information without giving the people from that country the right to know that information,” he says. “Where health and well-being is at stake, you have a right to know, the public has a right to know – must know.

“If, however, the material is of more limited circulation and we talk about the sexually incontinent footballers, if they’ve had unprotected sex with a number of different partners, then their other sexual partners have a right to know before the courts grant a monopoly, which is what they’re doing, on information and the ability to disseminate that information on pain of imprisonment. It seems the courts are failing in their duty to ensure people who have a proper interest are notified of a potential hearing and the contents of that hearing.”

While the public debates the privacy of their Facebook accounts, and governments consider the privacy of BlackBerry Messenger, it will be left to the courts to decide the delicate line between free speech and protection of the individual.

Stephens shows no signs of holding back on testing that line. Are courts in the business of delivering sexual health warnings? “It causes the courts to confront, for the very first time, the morality of giving complete protection,” he says. “It may be right, but it may not be.”

Meanwhile, raging grandmothers in America, and groups of ‘hacktivists’, will voice their own opinions on that debate, whatever the courts or Mark Stephens say.

l Mark Stephens is in conversation with Professor Peter Watson at the University of Strathclyde on Thursday at 6pm.