A somewhat more sympathetic test case ...
Even though the public interest claim is pretty thin. But really, if it's "anti-democratic" to have a "judge-made" privacy law in the UK, is it much more democratic to have that law subverted by unelected peers using absolute privilege?
Clearly the whole thing needs to be put on the basis of UK statute law, rather than courts' interpretation of the European Convention. But I am increasingly coming to the view that this needs to be a Privacy Act, not just "get rid of superinjunctions!". It's more in the "the media industry is an industry" vein - like any other industry it produces pollution, and like any other industry, it lobbies aggressively for that pollution to be completely unregulated if possible. I don't think that we should necessarily go along with that.
Um why clearly? Since the Convention is incorporated into UK law then it has become a UK statute, and any further UK statute would also need judicial interpretation. No?
ReplyDeleteIn principle yes but in practice things always get very messy and confusing if you don't pass "implementing" domestic legislation to translate the European law into domestic legal language and to clearly delineate what the Convention right to privacy means in terms of English and Scottish law. That was the purpose of the Human Rights Act (before which there were a whole lot of messy case-law issues with respect to a load of other ECHR issues), and it is beyond me why they didn't grasp this nettle at the time. There is scope for Parliament to get involved in defining what the ECHR right to privacy means in a British context and I wish they would because it is a bit of a democratic deficit to have this wholly carried out by the courts directly interpreting the Convention, with the elected officials avoiding their responsbility, seemingly out of pure cowardice and disinclination to upset the Sun.
ReplyDelete(when I worked in financial regulation we used to refer to "Italian implementation" because of the then Italian government's habit of implementing Directives with a one-line bill saying "This Bill Implements the Capital Adequacy Directive". It used to cause untold amounts of confusion and inconsistency because it incorporated-by-citation a load of European language directly into domestic law, with no obvious way of interpreting the significance of the different language and legal concepts used. The UK always used to be in the vanguard of doing implementation properly in commercial law and I am a bit amazed & horrified that we don't seem to do it in any other area).
ReplyDeleteWhen I was looking at the history of terrorism legislation, ECHR compliance always seemed to take the form of the government passing whatever law they wanted to, not giving a shit whether it was compliant or not and waiting to be sued (which they generally were, eventually). HRA compliance, on the other hand, took the form of the government passing whatever law they wanted to, issuing a one-line statement to the effect that it was compliant, then waiting to be sued. Not sure if this is better or worse than the 'Italian' approach, which I guess would be to pass a bill saying "We will deal with terrorist suspects by doing what the ECHR says we ought to, honest" and then do what they were going to do anyway.
ReplyDeleteI'm sure I had a comment here earlier?
ReplyDelete"it lobbies aggressively for that pollution to be completely unregulated if possible.I don't think that we should necessarily go along with that."
ReplyDeleteI wonder if you feel equivalently about the shit house of an industry that you work in?
You pulled a similar stunt writing about teacher's performance related pay just after the "crunch" which was about as ill timed, arrogant and twatish as is possible to imagine.
I'd be far more interested in hearing your views on how to tackle the huge and immenslely corrosive negative externalities the rest of us have to live with, as a result of your industry being largely self regulated. Do you think the rest of us should "just go along with that"?
I've got a fiver on you just telling me to "fuck off", or some such, rather than dealing with the question, but one never knows.
The UK always used to be in the vanguard of doing implementation properly in commercial law and I am a bit amazed & horrified that we don't seem to do it in any other area
ReplyDeleteThat's because given the nature of the U.K. economy, doing implementation properly in commercial law is much more economically important than anything else.
Anon: I think the DD policy is either insults at the mgmt. with a recognizable moniker, or non-insults at the mgmt with no moniker. You've managed insults at the mgmt. with no moniker there.
"Anon: I think the DD policy is either insults at the mgmt. with a recognizable moniker, or non-insults at the mgmt with no moniker. You've managed insults at the mgmt. with no moniker there."
ReplyDeleteIndeed. As I said, my money is being told to "fuck off". The reason for this is likely to be for something as spurious as not having added a moniker, so I've added one. Happy now?
Older readers may remember the letters pages of the New Musical Express, in which there were often found epistles which ended with "I BET YOU WON'T HAVE THE GUTS TO PRINT THIS", usually appended to an embarrassing emo rant about how the Smiths were just poofy mopers whose pathetic dronings had nothing to do with punk and would never CHANGE THE SYSTEM. They tended to get short shrift from the editors.
ReplyDeleteAnd so, Emo Dave (for this is how I think of you; perhaps you are David Aaronovitch in which case I will attribute your tetchiness to the eye operation, get well soon mate), I think it is not really incumbent on me to start talking about financial regulation in comments to a post about the media.
Financial services is an incredibly tightly regulated industry; I worked for five years as a regulator myself. Your actual question related to whether I thought that it should remain self-regulated and so is based on a misconception. Regular and careful readers are already aware of my views on tightening financial regulation because I've expressed them elsewhere and I'm not really in the mood for doing unpaid research assistance today, so you can chase them up yourself.
This is, by the way, the perfectest example of argumentum ad hominem; "You say this about education and media, but you work in financial services, so you must be an awful individual and you must be wrong". Fuck off, Emo Dave.
Typical, windy, rhetorically clever bullshit that doesn't really address the point.
ReplyDelete"You say this about education and media, but you work in financial services, so you must be an awful individual and you must be wrong". Fuck off, Emo Dave."
I don't think you're an awful individual or that you're wrong. You're clearly a very bright guy who thinks hard about things.
I guess my objection, admittedly an inchoate one, is that, at a time when folk are losing their jobs and houses, having an investment banker publicly worrying about negative spillovers from the media industry strikes me as being errr...a bit fucking rich. It's entirely consistent that I can think you're right about something, but that you're a total tosser for saying it, given the context. To remind on the context, the negative externalities from the financial sector are so fucking huge the rest of us will have to cop a decline in living standards for ten years to pay for it.
I have been a fairly (silent) reader of this blog over the years and, if memory serves, as soon as any specific questions financial come up you tend to offer a "no comment, I'm compromised", answer, rather than anything particularly insightful or interesting. General implorations that you'd like tighter regulation sound like the sort of thing you say to keep John Quiggan sweet.
As to your assertion that the financial industry is "heavily regulated". Fucking, please. I'm sure there's endless paperwork, but if you're going to try and convince me that the attack dogs of the FSA are the stuff of nightmares, you can piss off. I've got friends who worked at the FSA during the crisis, it was a joke then and it's not much better now.
Finally, I take back my point that the banking industry is self regulated, rather that it's impossible to regulate in the current political/economic climate. And so will continue another cycle of rent seeking, mis-allocation of resources, asset price ramping and the brain drain from more productive sectors of the economy, that the rest of us will, inevitably, have to pay for. On this last screed, perhaps you can point me in the direction of an academic paper that analyses the added value to the wider economy of the financial sector? I'm thinking of a rebuttal to Andrew Haldane's 2009 "Banking on the State" paper, perhaps?
having an investment banker publicly worrying about negative spillovers from the media industry strikes me as being errr...a bit fucking rich
ReplyDeleteIf you regard anything that an investment banker says as compromised by the fact that he's an investment banker, I'd suggest that you aren't going to get a lot out reading the investment banker's blog.
Since I was not involved in the CDO bubble and regularly warned against it, I think it would be a bit unfair if I were to be disqualified from commenting on anything else ever because of it. I do regularly write about financial issues too, and I even do reader requests, although frankly I am not keen to set the precedent that the way to get one is with sweary and offtopic abuse.
ReplyDeleteI'm entertained by the quote in your Telegraph link that "In a secret hearing, Fred Goodwin has obtained a super injunction preventing him from being identified as a banker". Given his performance at RBS you could argue that this is simply a defence of the truth. Felicitously worded, in any case.
ReplyDeletechris y, who can't be arsed to log on.
If it helps drag this exchange away from matters of locus standi and back to the subject, I'm a journalist - I'm not giving my name because I don't write about the legal system professionally, but DD knows who I am -and I concur with him on this one.
ReplyDeleteJudges IMHO have shown themselves largely incapable of developing a consistent and reasonable public interest test for privacy (or indeed for libel if you look at the uncertainty and back-and-forth over the Reynolds defence) through case-law, and so it would benefit from legislative guidance. There is a lot of woolly commentary (ironically in the media) suggesting that privacy is a two-dimensional issue and that "the media" is for less of it and Mr Justice Eady is for more of it.
That depends which bits of the media you ask. Grown-up reporters who want to be able to report on Trafigura but don't really give a flying toss about Ryan Giggs (Fred Goodwin is a middling case IMHO) should welcome proper privacy and libel laws with a public interest carve-out.
"If you regard anything that an investment banker says as compromised..."
ReplyDelete"I think it would be a bit unfair if I were to be disqualified from commenting on anything else ever "
Phil and DD, you both use the word "anything", as though this has some meaning in the context of what I actually said. I made two very specific objections that you've conveniently extrapolated out to encompass "anything".
Well yes, Emo Dave - but you're only an occasional and usually silent reader, who apparently reserves the right to flare up into sweary off-topic insults on any subject where you decide, on the basis of no very clear criteria, that it's inappropriate for someone who works in financial services to comment. In the circumstances the extrapolation seems sensible. Fundamentally, you're not getting a response from me because you aren't taking part in the conversation, you're being personally hostile and in as far as you're making a point at all it isn't clear and doesn't look like one I regard as valid.
ReplyDeleteIt interests me that David Allen Green, a stalwart of the libel reform campaign, is quite conspicuously not getting involved with the "superinjunction" issue.
OK, I'll rephrase that. "If you regard anything that an investment banker says as potentially compromised by the fact that he's an investment banker, I'd suggest that you aren't going to get a lot out reading the investment banker's blog." You seem to be nursing a smouldering resentment against all investment bankers, and turning it on Daniel when it seems appropriate. This doesn't strike me as a good frame of mind for reading this blog.
ReplyDeleteOlder readers may recall this was once a thread about privacy law.
ReplyDeleteYes indeed. I think the redtops have bitten off more than they can chew here - viz Tugendhat's basically telling them to do one when the Sun went to court with its "well, now it's come out in the Commons, surely all-in-come-free". I don't think Cameron fears them anything like as much as Blair did - fifteen years of declining circulation will do that to you - and the eventual Privacy Act will be quite a nasty surprise
ReplyDeleteI've seen a Guardian article in which it was pointed out that this is really a toxic byproduct of the _litigation_ industry, as well as the newspapers.
ReplyDeleteI don't think Cameron fears them anything like as much as Blair did - fifteen years of declining circulation will do that to you - and the eventual Privacy Act will be quite a nasty surprise
ReplyDeleteHe fears Murdoch, who doesn't seem to want a privacy act.
I don't think he fears Murdoch. I'm reminded of Montgomery's remark along the lines of "I banned all mention of Army Co-operation. There are not two plans, Army and Air, but one. When you are one entity you cannot co-operate!"
ReplyDeleteI don't think he fears Murdoch but not for the same reason as Alex. I don't think Murdoch's as scary as he was. Neither the Times nor the Sun are anything like the force they used to be in terms of shaping either elite or proletarian opinion. News Corporation is in the entertainment business these days, not the news business.
ReplyDeleteAfter all, he is 80 now, and News International makes (fingers in the air) < 5% of News Corp's profits. None of his children seem to be quite as politically astute and driven as he was either, beyond the generic HNWI position that it's their money for which they've worked bloody hard, and they don't see why taxes should be so high.
ReplyDeleteIntriguingly, James has very little sympathy for Israel and all the children seem to dislike Fox News/Aisles.
ReplyDeleteAnd I agree, they shouldn't fear him. The craven reaction to the Sky deal sorta suggested that they do.
If anything, just like Blair and (particularly) Brown, he probably fears Paul Dacre more from an editorial judgment POV than the Murdoch papers.
ReplyDeleteI suspect whether he fears Murdoch or not will depend on whether the bugging revelations are going to effect a permanent change in that particularly aggressive form of dirt-gathering journalism - a practice which, ironically enough, the loopy libel laws encourage, because if you want to stop someone litigating the best way to do it is to dig up as much dirt as you can and hold some in reserve. The Murdoch papers can inflict much more damage gathering dirt on MPs and ministers than through editorialising or skewing news coverage to pursue a particular policy position.
Come on, this is the government that actually integrated Andy Coulson directly into 10 Downing St while Rebekah Wade married posh so as to be the PM's constituent. Meanwhile, one of its ministers wanted to "declare war" on News Corp.
ReplyDeleteOne way or the other, they care deeply and intensely.
Hmm, I don't think that Coulson was brought in for his ability to square the Sun any more than Campbell was brought into New Labour for his connections with the Mirror.
ReplyDeleteI wouldn't necessarily be so sure about that:
ReplyDeletehttp://www.independent.co.uk/news/people/profiles/andy-coulson-blueeyed-boy-451358.html
Also, AB, Dacre and Brown are apparently good friends.
Neither Dacre nor Brown have friends: they have interests. Dacre would have never have let a personal rapport stop him whacking away at Brown on drugs'n'immigration'n'single mothers'n'gypsies'n'POLITICAL CORRECTNESS GONE MAD (née "civil liberties"). Fortunately for their friendship, though not for the country, Brown rarely gave him occasion to.
ReplyDeleteNeither HAS, not neither have. Singular verb form with "neither". Jesus. Getting old.
ReplyDelete