What the Mosley privacy decision really means

Where does this leave effective protection for privacy?

This morning the European Court of Human Rights rejected Max Mosley's contention that the United Kingdom should ensure that those who are about to have their privacy intruded upon by the media be notified in advance. (There is an excellent legal analysis of the decision already at the INFORRM website by Hugh Tomlinson QC.)

There are three main points of significance to this decision.

First, the substantive English law in respect of the misuse of private information remains unchanged. Mosley would still be able to bring his case and the News of the World would still have to pay substantial damages and costs. There is nothing in this decision that actually changes the law as it stands.

The unhappy consequence of the decision is that in situations like the case of Mosley, where there was no public interest in the intrusion, the victim's only remedy will still be to bring an action for damages after their privacy has been irretrievably lost.

This means that only individuals as wealthy and resilient as Mosley have a remedy for the breach of their legal rights. The cheaper, speedier and effective remedy of an injunction, which would allow the enforcement of privacy rights by those not rich and famous, has been held by the Strasbourg Court to be not a requirement.

So, contrary to the misleading spin of the mainstream media about how "prior notification" would favour the rich and famous, continuing with the status quo means that expensive and lengthy damages actions for privacy can only really be threatened or taken by someone of the attributes of a Max Mosley.

Second, this decision may not be the final word in this case. It is open to Mosley to appeal to the Grand Chamber. Indeed, had Mosley won this round, then the UK government may have made such an appeal. If so, this is a matter that will not go away and, just as no one could predict how the Court would rule today, no one can predict confidently what the Grand Chamber may decide, and then there would then be no higher appeal for any party.

Third, it leaves open the difficult question of what protection should there be in the meantime for individuals who face having their right to privacy irrecoverably lost for no good reason.

Such intrusions, without a public-interest justification, will continue to be an infringement of an individual's legitimate right to a private life. The "Hackgate" scandal has shown that tabloids are indifferent to the legal and voluntary restrictions to their intrusions. The commercial desire to publish the private details of individuals when there is no public interest is not a serious "free-expression issue". Obliging the press to have a public-interest justification before publishing such information cannot seriously be called censorship: it is simply decency and fair play. In 99 per cent of cases, the press contacts the subjects of stories in advance, and that is not "censorship" either.

However, given the welcome and impressive development of privacy law since the introduction of the Human Rights Act 1998, today's adverse decision is only mild setback for those seeking a more civilized and respectful society.

 

David Allen Green is legal correspondent of the New Statesman and a practising media lawyer.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

Getty
Show Hide image

Should feminists talk about “pregnant people”?

Two writers present the arguments for and against.

NO

“I’m not sure what the public health issue is that would require a focus only on those who become pregnant, as opposed to any of those involved in pregnancy, either becoming pregnant or causing someone else to become pregnant,” Dr Elizabeth Saewyc, a Canadian professor in nursing and adolescent medicine at the University of British Columbia, recently told journalist Jesse Singal when he asked her for clarification on a study she conducted into trans youth and pregnancy.

Her statement is, on the face of it, extraordinary: unlike those who “cause someone else to become pregnant” (males), those who “become pregnant” (females) actually, well, become pregnant, with everything that entails from the risk of varicose veins and pre-eclampsia, to having an abortion or being denied abortion, to miscarriage or giving birth and living with the economic strain and social discrimination that come with motherhood.

As absurd as Saewyc sounded, her position is the logical endpoint of “gender neutral” language about pregnancy. Pressure on reproductive rights groups – especially those in the US – to drop references to “women” and instead address themselves to “people” have been growing over the last few years, and the American body Planned Parenthood now regularly mentions “pregnant people” in its communications. In theory, this is supposed to help transmen and non-binary-identified females who need reproductive health services. In practice, it creates a political void into which the female body, and the way pregnancy specifically affects women, simply disappears.

The obscuring of the female body beneath obscenity and taboo has always been one of the ways patriarchal society controls women. In 2012, Michigan Democratic representative Lisa Brown was prevented from speaking in a debate about abortion after she used the word “vagina”, which Republicans decided “violated the decorum of the house”. Now, that oppressive decorum is maintained in the name of trans inclusion: in 2014, the pro-choice organisation A is For was attacked for “genital policing” and being “exclusionary and harmful” over a fundraiser named Night of a Thousand Vaginas.

Funnily enough, trans inclusion doesn’t require the elimination of the word vagina entirely – only when it’s used in reference to women. A leaflet on safe sex for trans people published by the Human Rights Campaign decrees that “vagina” refers to “the genitals of trans women who have had bottom surgery”; in contrast, unaltered female genitals are designated the “front hole”. And it’s doubtful that any of this careful negation of the female body helps to protect transmen, given the regular occurrence of stories about transmen getting “unexpectedly” pregnant through having penis-in-vagina sex. Such pregnancies are entirely unsurprising to anyone who knows that gender identity is not a contraceptive.

It does, however, protect from scrutiny the entire network of coercion that is cast over the female body: the denial of abortion rights in the Republic of Ireland, for example, affects the same class of people who were subjected to the medical violence of symphysiotomy — a brutal alternative to cesarean, which involves slicing through the cartilage and ligaments of a pelvic joint to widen it and allow a baby to be delivered — the same class of people who were brutalised by Magdalen Laundries (institutions established to house “fallen women” which operated from the late 18th to the 20th centuries), the same class of people who are subject to rape and sexual harassment. That class of people is women. If we give up the right to name ourselves in the service of “inclusion”, we permit the erosion of all our hard-won boundaries.

Sarah Ditum is a journalist who focuses on feminism.

YES

No matter who you are and how straightforwardly things go, pregnancy is never an easy process. It might be a joyous one in many ways, but it’s never comfortable having to lie on your back in a brightly lit room with your legs hitched in stirrups and strangers staring at parts of your anatomy some of them hesitate to name. Then there are the blood tests, the scans, the constant scrutiny of diet and behaviour – it may be good practice for coping with a child, but the invasion of privacy that takes place at this time can have a dehumanising effect. And that’s without having your gender denied in the process.

If you’ve never experienced that denial, it might be difficult to relate to — but many women have, at one time or another, received letters addressing them as “Mr” or turned up at meetings only to discover they were expected to be men. It’s a minor irritation until it happens to you every day. Until people refuse to believe you are who you say you are; until it happens in situations where you’re already vulnerable, and you’re made to feel as if your failure to conform to expectations means you don’t really deserve the same help and respect as everyone else.

There is very little support available for non-binary people and trans men who are happily pregnant, trying to become pregnant or trying to cope with unplanned pregnancies. With everything geared around women, accessing services can be a struggle, and encountering prejudice is not uncommon. We may not even have the option of keeping our heads down and trying to “pass” as female for the duration. Sometimes our bodies are visibly different.

It’s easy for those opposed to trans inclusion to quote selectively from materials making language recommendations that are, or appear to be, extreme – but what they miss is that most trans people going through pregnancy are not asking for anything drastic. We simply want reassurance that the people who are supposed to be helping us recognise that we exist. When that’s achievable simply by using a neutral word like people, does it really hurt to do so? I was always advised that manners cost nothing.

Referring to “people” being pregnant does not mean that we can’t also talk about women’s experiences. It doesn’t require the negation of femaleness – it simply means accepting that women’s rights need not be won at the expense of other people’s. We are stronger when we stand together, whether pushing for better sex education or challenging sexual violence (to which trans men are particularly vulnerable).

When men criticise feminism and complain that it’s eroding their rights, this is usually countered with the argument that it’s better for everyone – that it’s about breaking down barriers and giving people more options. Feminism that is focused on a narrow approach to reproductive biology excludes many women who will never share the experience of pregnancy, and not necessarily through choice. When women set themselves against trans men and non-binary people, it produces a perfect divide and conquer scenario that shores up cis male privilege. There’s no need for any of that. We can respect one another, allow for difference and support the growth of a bigger feminist movement that is truly liberating.

Jennie Kermode is the chair of the charity Trans Media Watch.