One solution would be to abolish gagging injunctions — to ban all "prior restraint" — but to allow exemplary or aggravated damages to be awarded by juries if publication of genuinely private material goes ahead. This would be the solution most consonant with free speech: editors could not be stopped from publishing intimate personal details, but by doing so would take the risk of having heavy damages awarded against them if their public interest defence failed. To use the language of the Duke of Wellington, they would be allowed to publish and be damned, so long as damnation came after publication, and not before it. This rejection of prior restraint would be in keeping with US Supreme Court precedents (notably the Pentagon Papers case) and with Blackstone's celebrated statement of the free-speech principle, now honoured by UK judges in the breach rather than in the observance:
Post-publication damages will not, of course, put the genie back in the bottle. The victim of privacy invasion will never be the same again — his or her (usually his) secret will be out, and money will never compensate for the humiliation. This is true enough, but the courts cannot perform miracles. They cannot be like King Canute, policing the electronic waves of incoming allegations about the names and information that the courts are suppressing. Do we really want Scotland Yard to spend our tax money on a "Twitter squad", arresting those who indulge in internet speculation about the goings-on in secret courts?
A law that made invasion of privacy a civil wrong, with damages of up to (say) £200,000 awarded by a jury, would operate in time as an effective deterrent. Jury verdicts are publicly acceptable, whereas decisions on such subjective moral issues by middle-class and usually male judges can always be criticised as unrepresentative or out of touch.
It is not clear whether Max Mosley would have won his case before a jury (depending, perhaps, on whether they thought him a deplorable lecher or not bad for his age) but had he done so the verdict would have been much more acceptable. The point is that over time, if juries award heavy damages against tabloid intrusion, tabloids will think twice — or three times — about intruding. They will take care to ensure they have a public-interest rationale before they do it again.
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