Privacy, Libel and the Case of Dominique Strauss-Kahn

Privacy, Libel and the Case of Dominique Strauss-Kahn

The French keep secrets.  The British stifle the press.  America runs a perp-walk escapade. 

Some things come straight out of the blue. The arrest of Dominique Strauss-Kahn on charges of attempted rape was news, the real, live, red-hot thing that sends an electric thrill through every newsroom, as unforeseen as an air crash or assassination.

But then some things are as predictable and foreseeable as day following night. From the moment that story from New York broke, and then unfolded with more revelations about the personal character and conduct of “DSK,” it was absolutely certain that a polemic would be published in the Daily Mail. I was only surprised that it didn’t appear earlier, and that the headline was so temperate, by Mail standards: “A sexual satyr, a conspiracy of silence and why we must NEVER have privacy laws like the French.”

As we all intone, the legal charges against DSK are as yet unproven, and most Europeans are truly startled by the American criminal justice system, from the ritual humiliation of the “perp walk” to the complete absence of anything like the English law of contempt of court. Here we pay more than lip service to the idea that someone is presumed innocent until proved guilty against all reasonable doubt with the burden of proof on the prosecution, that legacy of English Common Law which is one of the few things still to be proud of. Within living memory an editor of the Daily Mirror was sent to prison for transgressing the law on contempt when a case was still sub judice, and even now the most outrageous London cheap press would never publish the lurid detail the American tabs have bestowed on their readers about this particular “perv perp” or “frisky Frenchman.”

At the same time, everyone inside French political life had long heard stories about DSK’s “predatory" behavior toward women and his "aggressive sexual pursuit of them, from students and journalists to subordinates,” as the New York Times belatedly reports. But not only does France have a fierce law protecting privacy, there is also a code of omertà governing French public life which has allowed public men—and I do mean men rather than persons—to behave in a way which would nowadays end any political career in Westminster or Washington.

Perhaps Frenchmen are more ardently amorous than the rest of us, though I doubt it. But it’s universal human nature to succumb to temptation when you know you can get away with it. It was another open secret among the political and media elite that François Mitterand not only had a second family of mistress and child but that he would make a pass at almost any reasonably attractive female journalist. She wasn’t obliged to accept his advances, but she wasn’t supposed to mention them either. And the similarly abrupt approach of Jacques Chirac earned him the nickname among the Élysée staff “Three minutes and a shower”.

To be sure, there may not have been a great deal to choose between the attitude to women displayed by Presidents Mitterand and Chirac and by Presidents Kennedy and Clinton, but things have changed, at any rate among les anglo-saxons. That’s partly because the Anglo-American media are, as they boast, less deferential and secretive. The French problem is “their stringent privacy laws,” claims a Daily Mail columnist. These “have precluded the kind of forensic examination to which he would have been subjected had he been a leading English or American politician. Were Mr Strauss-Kahn a British or American prospective leader, his apparently gargantuan sexual appetites would have been publicised, and considered in the media.”

Such strictures must be seen in the context of an angry legal and political debate in London. The appallingly oppressive English libel laws have become so outrageous as to prompt the New York state legislature to pass a law protecting American citizens from their depredations. Beside that, a legal right to privacy has now crept in sideways, from when the Blair government incorporated wholesale the European Convention on Human Rights.

This grandiose document, largely drafted by British lawyers and politicians sixty years ago, has one article which says, “Everyone has the right to freedom of expression,” and another, “Everyone has the right to respect for his private and family life.” These two "rights" can plainly conflict, and in recent years English judges, ignoring what Americans would call First Amendment principles, have used the latter right to create a very wide-ranging concept of privacy. One judge in particular, Mr Justice Eady, has almost single-handedly invented a new concept, the Orwellian “super-injunction” which not only prohibits in advance any publication of unhappy details about the person seeking it but forbids any mention that such an injunction exists. These have been granted to numerous people, not politicians so much as sporting and entertainment celebrities.

And bankers. The one way any such proscriptions can be circumvented is under parliamentary privilege. Members of both houses of Parliament, Commons and Lords, may say what they like in their chambers without fear of any legal restraint, and Lord Stoneham, a Liberal Democrat peer, has just bust open one such super-injunction by which Sir Fred Goodwin had silenced reporting of an extracurricular relationship with a senior colleague. Goodwin is the former head of the Royal Bank of Scotland which would have collapsed during the crisis in late 2008 if it hadn’t been baled out with public money, after which he himself, in the manner of modern financiers, walked away with a handshake of £3 million and an annual pension of £700,000.

Hence the rage of the Daily Mail. Some newspaper people are a little shy about invasion of privacy, but not Paul Dacre, that paper’s fiercely puritanical editor. “Since time immemorial public shaming has been a vital element in defending the parameters of what are considered acceptable standards of social behaviour,” he has said, “helping ensure that citizens—rich and poor—adhere to them for the good of the greater community.”

Well, whether or not the good of the community has been served, he can’t complain that there has now been any shortage of public shaming for DSK. And if Dacres’s words aren’t quite those that high-minded journalists would choose to justify their trade, one has to admit that this case does look like a strong argument against those French privacy laws, and that omertà. Even some French journalists now admit as much.

“We felt that we were superior to the Americans and the British by upholding the principle of protecting private life,” says Pierre Haski, the well-known French political commentator and co-founder of the political Web site Rue89. “But we journalists haven’t done our job properly. We were used and abused in keeping secrets. We need to define our role in a more aggressive way—and say that not everything private is private.” If DSK has done nothing else, he may have advanced the cause of a free—not to say completely unbridled—press.