Super-injunctions and the right to privacy


Free speech is one of the few liberal totems that has been adopted across the political spectrum, but sadly only nominally. The current debate around “super-injunctions” – gagging orders that prevent the press from even reporting the injunction, let alone the person involved – highlights this. (For anybody wondering who has taken these out, a quick Twitter search should be helpful.)

The right to privacy is usually invoked to justify this gagging of speech, but what does this right actually constitute? The logic of the injunction-backers implies that the right to privacy should mean that we may not say true things about people if it will embarrass them. Well, ok – I’ll be sure to remember that next time someone reminds me of any silly things I’ve done while tipsy. Or maybe it means you can’t say it to an audience of a certain size – so soft talkers might be OK, whereas loud talkers are in trouble. Or maybe it’s just famous and/or rich people that have this right. I don’t fully understand the logic, possibly because there isn’t any.

Talk of a right to privacy is like the right to be loved in the UN’s Convention on the Rights of the Child. Both are noble sentiments, but meaningless without a description of how they’re enforced in the law. Under a libertarian system, people derive protections of their privacy from private property. For example, nobody should be able to find out what I get up to in my bedroom without my permission, but if I did the same thing in a public park, I wouldn’t be entitled to the same protections. The crime would be in bugging my room (or whatever journalists and governments do to spy on people), not in embarrassing me by reporting something I’ve done.

The same goes for the right to free speech. If I’m in your house and I start saying things you don’t like, you should have every right to eject me at any time – to do so would not be a violation of my rights, because it’s your property. I only have a right to speech on my property or that of a consenting party (in a newspaper, for instance).

So, back to super-injunctions. A gagging order is, simply, the use or threat of violence to shut people up from saying embarrassing things. To add insult to injury, this is only available to people with a lot of money. The state is a mercenary, after all. 

It would be nice if footballers’ affairs weren’t reported on, absolutely. But using state violence to shut people up isn’t how we should achieve that. No, we should not have a right to spy on people’s private property, but nor should people have a right to avoid embarrassment or hurt feelings.