The Leveson inquiry: Who defines the public interest? Do the press decide the public interest?

National Security Action Memorandum Number 231

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One of the central problems raised by the Leveson inquiry is how the public interest is decided.

  • What is the public interest?
  • Who decides what is in the public interest?
  • How is it decided?

These are not just questions for the journalists.  They are questions that the public need to ask because they get to the heart of democracy.  The public need answers to these questions because when something is done in the public interest it is done in your name. At the same time, the public interest is all that protects you from the press.  If the press decide to drill into your life and turn it inside out, this is the only defence a person has because the “public interest” can justify *any and all* press intrusion into any aspect of your life.

The Press Complaint’s Commission Editor’s Code of Practice presents a view of the public interest.  The Cod says that the public interest can be described as including but is not limited to the following:

 1. The public interest includes, but is not confined to:

i) Detecting or exposing crime or serious impropriety.

ii) Protecting public health and safety.

iii) Preventing the public from being misled by an action or statement of an individual or organisation.

 2. There is a public interest in freedom of expression itself.

3. Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest and how, and with whom, that was established at the time.

4. The PCC will consider the extent to which material is already in the public domain, or will become so.

 

On the surface, they seem to offer a way to restrain the press and make sure they act for the highest motives.  Instead, they become an enabling device that breaks down any barrier to their work.  One sees a similar defence in politics where a government can justify any act as being in the interest of national security. Now in the national security situation one would expect that the authority to do so has come from a democratically mandated source with due process followed to restrain any abuses.

In the press, their action is justified as being in the public interest, but their source of authority is not a democratically mandated.  Moreover, they never have to explain to the public what they have deemed to be in the public interest nor how they have come to that view. The use of the public interest defence means that the public interest reflects their view of the public interest and not a public interest as independently established.

If you are subject to press investigations and stories, the only way to limit their public interest defence, and the only way to have the press define it objectively, is to take them to court. In that arena, the Court can then decide the press have defined the public interest appropriately.  The immediate question though is to consider whether the average private citizen has the money to go to court. As Zac Goldsmith MP pointed out, one has to have huge financial resources and the willingness to fight the press to get them to that point. He stated in the PM Privacy Commission Report the cost to stop the press from publishing was high.

Mr Goldsmith explained that it was only through his own personal wealth he could pursue and obtain an injunction to protect illegally obtained details of family emails: “the whole episode cost an absolute fortune.”

For the average citizen, the price will be too high. They will have to endure and suffer until the reporters and editors lose interest. The average person faces a situation that Thucydides explored 2500 years ago. “The strong do as they will; the weak do as they must.”

What remains unanswered is the central question “What is the public interest”?  A variety of definitions and approaches are offered that seem independent, rational, and realistic.  Yet, what happens instead, is that the public interest quickly devolves into what the press, the publisher, and the owner determine are in their interest. Their interest is to sell papers. They say what the public will want and what they do is automatically in the public interest. In effect, as various commentators and phone hacking victims have pointed out, the public interest is reduced to the economic interest of the newspapers in selling their papers, selling their content, and promoting their interests. In a word, it is just business.

The argument for the press is that they create the public interest because they have a high circulation. The public are interested in their stories, otherwise why do they have such a high circulation, and therefore the stories are in the public interest.  The argument, then still leaves undefined what is in the public interest.

The Information Commissioner, a key regulator within the area of privacy and access to information says the following.  “Something which is “in the public interest” may be summarised as something which serves the interests of the public.”  In coming to that conclusion, they suggest an organisation has to balance the factors for disclosure against the factors for withholding the information in each case.

The question then becomes “what serves the interests of the public?”  In the United Kingdom, the question of the public interest is problematic because of the way the political regime is structured.  As a unitary state, the parliament reigns supreme.  In that regard, there is nothing higher than parliament and it can define what are the interests of the public.  In a democracy, the people could decide what is the public interest.  In a republic, the idea was based upon the res publica the public thing.  Yet, the UK is not a republic. As such, the definition of what is the public interest becomes complicated because the public do not have a direct say in how parliament decides what is in the public interest.

The idea of public interest is difficult to define because it is for all people.  Thus, the public interest may mean something different depending on its context.  However, what is clear from the attempts to define the idea, is that it has to be a benefit for the public.  Here is how the law dictionary defines public interest.

“The people’s general welfare and well being; something in which the populace as a whole has a stake.”

When we see that definition, we immediately see the problem for the press and their use of the public interest.  How can the populace have a stake in the hacking of a murdered schoolgirl’s phone?  How can the populace’s welfare rest on knowing the mother of Steve Coogan’s children?  How can the people’s well-being rest on the drug rehabilitation of Naomi Campbell?

All of these, and more, were stories justified as being in the public interest.  They were justified and defended to the high court as being in the public interest.  In some cases, the argument is extended to the point where any attempt to define the public interest is seen as an argument for limiting the freedom of the press.  Yet, the underlying question is not press freedom. Instead, it is how the press justifies its freedom. How it acts with the explicit public mandate that it claims when it uses the public interest.  If it is acting in the public interest, then it can be regulated in the public interest. If it is justifying its work in the public interest, then it must behave in the public interest. The press must show that the public interest is more than its interests. It must also show that the public interest is more than what it defines as the public interest being its interest.

The public interest will remain a difficult concept to apply to decisions and this is why the public need to know more about it.  The public need to know what is being done in their name. They need to know as well what is being justified as for their well-being.  Perhaps then we will be better able to answer the question posed at the beginning of the Leveson Inquiry “Who guards the guardians?”

What is to be done?

  1. For each story, the press must prepare a public interest statement that is filed with a public regulator so that the public can check it.
  2. For each story, the writers must declare their interests as on that story.

 

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About lawrence serewicz

An American living and working in the UK trying to understand the American idea and explain it to others. The views in this blog are my own for better or worse.
This entry was posted in censorship, FOIA, privacy, transparency and tagged , , , . Bookmark the permalink.

8 Responses to The Leveson inquiry: Who defines the public interest? Do the press decide the public interest?

  1. Andrew says:

    Lawrence, this statement in a 1956 Law Lords decision also neatly encapsulates the fundamental tension between the government and the Information Commissioner/Tribunal when it comes to the public interest and (potential) use of the veto under FOIA:

    “The interests of the government…do not exhaust the public interest”

    Lord Radcliffe in Glasgow Corporation vs Central Land Board 1956 SC (HL) 1, 18-19.

    See here.

    • lawrence serewicz says:

      Andrew,
      Thanks very helpful point. Therein lies the challenge as we have to decide what is the public interest and how it is defined. In the UK, the public interest is limited in some ways because the country lacks a bill of rights or a written consititution. To be sure, a bill of rights would not change things overnight nor would a consititution. However, both would show a basis for determining the public interest based upon an agreed standard rather than, potentially, the interests of the stronger or better resources.

      Thanks for the link, I will have to track down the original legal case.

      Best,

      Lawrence

  2. Andrew says:

    I think I prefer Hailsham’s ‘the categories of the public interest are not closed’ (or something very similar to that) in NSPCC v D. While I don’t dispute that a constitutional document would be useful, I’m not sure that we should trammel what can be ‘in the public interest’. But you’re right that at the moment, too often it is the powerful, or the rich, that have the upper hand in disputes where the definition of public interest is at stake.

    • lawrence serewicz says:

      Andrew,
      Thanks again for a useful link. I will track that one down. The need for a bill of rights becomes more apparent as the disparity of power emerges. For example, Max Mosley had the resources to fight his case, which created a profound defence for the average person. Yet, the average person would still be hard pressed to mount a similar defence. Will this happen overnight? No. However, the times are changing for the UK and it will have to adapt if only to save its democratic soul.

  3. Andrew says:

    You can probably find these, and more, on the publications page of the CFOI website.

    • lawrence serewicz says:

      Thanks. I have come across them in google but i was not aware of them at that source. Thanks again for your help on these.

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