I hope that Lord Justice Leveson is making the most of his break from inquiring into press standards. The tribe of tweeters who have transcribed almost every word of cross-examination certainly deserve a rest. Perhaps Leveson is enjoying some of this season's bestselling books with his mince pies – they would make a change from the kinds of tabloid journalism that prompted his inquiry. But there is a real danger that Leveson's recommendations to support "the integrity and freedom of the press while encouraging the highest ethical standards" will have unexpected consequences for publishing, striking another blow at an already beleaguered industry.
Whatever Leveson concludes about the future of press regulation, he is undoubtedly going to recommend changes to the law of privacy. He has heard some shocking evidence about intrusive practices across the newspaper industry. The existing laws in this area are incoherent and unevenly applied, failing to prevent grotesque invasions of privacy but hampering serious investigative journalism. So I agree that we need to make some changes – and it would make sense to do this in the context of a statutory privacy law that clearly sets out the rights and wrongs on the issue. But if Leveson bungles this, he will leave us with a settlement that works for a narrow group of investigative journalists, but causes new and serious problems for authors and publishers.
Why is this? For a start, the law in this country is notoriously bad at distinguishing between different kinds of publisher. Look at libel. A law that was intended (through the Reynolds defence) to penalise defamation, while protecting investigative journalism, has done the opposite. Libel law has not prevented newspapers from traducing the McCanns and Christopher Jefferies – but it has silenced scientists, academics, biographers and even novelists. According to the Publishers Association, 60% of publishers have avoided producing books about people or companies that have previously sued for libel. If Leveson creates a new privacy law by cutting and pasting our existing libel law, he may make life even harder for book publishers.
A statutory privacy law could allow claimants to drag authors to court because they are harmed by the memoirs of a former lover. Perhaps this sounds like a good thing. Even the celebrity biographer Jonathan Margolis was unhappy when his sister-in-law published an allegedly unreliable memoir of her family. He complained (in print and at length) about the absence of a right of reply for the subjects of such memoirs). Again, the problem here is not the principle, but the law.
We might well object to an ex-lover or family member publishing their one-sided account of our shared past. But who owns memory? All life-writing depends in whole or in part on our subjective memory of things that happened in private. Do we really want the courts to stop us spilling the beans on our own lives? Constance Briscoe's mother sued her for libel when she published an account of her miserable childhood. The suit was defeated – but it might have been a different story if she had sued on the basis of privacy. Briscoe's memoir undoubtedly invades her mother's privacy, for which, legally, truth is no defence.
So how can we avoid these risks? Well, there is some difference between deliberate invasion of privacy (as Brian Cathcart has memorably described it) by journalists whose only interest is commercial, and the revelations that we choose to tell about our own lives.
Some intrusions may be justified in the public interest. But there shouldn't even be a case to answer when the events in question were a shared experience. And that goes as much for Imogen Thomas as for the most innocent autobiographer. Whether you are publishing your own sensitive account of a long and blameless life, or granting an explicit interview to a popular newspaper, you have a right to express yourself honestly – whether or not you cause harm to others in the process. It comes down to who is speaking: the law has no business dictating terms on shared memories. But it can legitimately seek to deter journalists and others from intruding into experiences that do not concern them.
The risk is that the wrong kind of privacy law could add millions of pounds to the legal bills of Britain's publishers, undermining literary fiction and non-fiction in this country. Morally, we may well object to the contents of some memoirs and kiss-and-tell stories. But, legally, we need to accept that it is better for such stories to be published, and for their authors to risk being damned, than for all of our memories to be muzzled.
