Over the last few weeks, we have seen the Sun newspaper publish photographs of a naked Prince Harry. They justified publishing the photographs as being in the public interest. Their defenders supported the decision by arguing that Prince Harry is a public figure. His upkeep and security are paid for by the public purse. As the third line to the throne, his status is important to the UK public. Perhaps most importantly, he is seen as a celebrity best known for who is rather than what he does. The argument is that he is a public figure and public figures should expect their privacy to be reduced when the public interest demands it. When the newspapers publish the photographs, they do this in the public interest. They are providing the public with information that they had a right to know and the newspaper had a duty to inform public debate.
What lies beneath the surface of the public interest?
On the surface, the argument is compelling. The ordinary individual has an interest in how the public money is spent. They have an interest and a right to know information that will inform public debate, which the newspaper provides. However, there is a deeper issue with the way the media use the public interest to justify their work. The media’s use of the public interest can have a damaging effect on democracy. The power of the public interest (what is done in the public’s name for the public’s good) can deter ordinary individuals from entering and remaining in the public domain. The press can, and have, used the power that the public interest provides to devastate and destroy individuals. If the power is not controlled, restrained or directed appropriately, then it can be used in ways that hurt the public interest. In contrast to ordinary individual, public figures have become habituated to the loss of their privacy by the media’s attention and interest. However, such scrutiny can deter ordinary individuals from speaking up, participating, and entering the public domain. An ordinary individual may not want to lose their privacy and become a potential target for the press using the public interest to investigate them as the price for participating it he public domain. If ordinary individuals are deterred from participating in the public realm for fear of the consequences, then the public realm is only available to “public” individuals. Because of the unregulated power of acting in public interest, the press only allow public individuals to access democracy while ordinary individuals remain spectators.
Does the press serve the public interest or a private interest?
In a democracy, a free press use the public interest power to help to guard the public. In this role, they support the public good. For this to be work effectively, they have to maintain the trust the public give them to act in their interest. The trust is based on the belief that the press will serve the rule of law, the public good, rather than the whims of an individual. As the guardians of the regime, they are required to have a higher level of integrity. They are given the public’s trust because they claim to act in our interest to protect our liberty and our lives. If they do not serve the public good or the rule of law then the public interest power can be corrupted by the arbitrary whims of an individual.
How the public interest can be corrupted.
When those who act in the public interest lack integrity, they will abuse the power the public has delegate to them. When this occurs, we should take an interest because it is done in our name. Guardians (even self-professed ones) should be required to justify their actions, which allow the public to regulate their behaviour. If we are to be a democracy, guardians like the press have to be held to account to explain how they serve the public interest rather than the public appetite. When their work harms the public interest, by abusing it for private interests, then they damage democracy.
The following items illustrate how the public interest can be used to justify acts by the press that can undermine the public trust. They show what the unlimited power inherent in the public interest, what can the public interest not justify, and how they can damage people when used indiscriminately. The first escaped the headlines because it was a written submission to the Culture and Media and Sport Select Committee. The story, although upsetting, should be read because it shows how the press use the public interest to justify their work. When reading the testimony you have to remember that everything done by the press was justified as being in the public interest. We can see how they punish a public figure can deter an ordinary individual from entering the public domain. The second item is taken from witness testimony at the Leveson Inquiry. The testimony shows how the public interest can be used to justify any activity by the press. Moreover, it shows how an individual can be corrupted from acting with that unchecked power, when they lack integrity. The reporter described his ethos, which he claimed to be the ethos of all press who act in the public interest. As he explains, anyone can be investigated because what he does is always in the public interest. He makes this point explicitly on page 39 of his testimony. He was acting in the public interest so anything he did was automatically justified. He could hack a phone, dig through someone’s bins and betray story subjects because the end, publishing the story, justified the means. Such a view means that if an editor believes that someone should be investigated because it is in the public interest (there is no agreed criteria to define the public interest) they can be investigated. The editor will pay people such as the reporter mentioned to go through anything and everything in their life because the public interest demands it. Three things usually keep this from happening.
Three things that keep the public interest from being used on you.
The first is the cost-benefit analysis associated with the cost of pursuing an ordinary citizen as against their value to marketing the newspaper. As the reporter explains on page 79, the newspaper demand value for money in the stories it pursues. If you are not newsworthy, that is a topic that will sell newspapers; it will be unlikely that you will be in the press.
The second is threat of losing a court case on defamation. While the press can and have lost cases, the court will defer to the editor’s public interest judgement in the first instance. At the same time, the press can rely on the Reynolds defence, which provides a qualified privilege for publication of defamatory statements. The key criterion is that the statements are done in the public interest. In this case, it was about the alleged corruption of a public official. The public interest was not used to justify or defend salacious news that feeds the public appetite. The public interest is more than a concern for defamation as set out in the Chase principles.
Once you are in press and you wish to seek damages for distress caused by newspapers using the public interest to invade your privacy, you have to take the newspaper to court. The court will decide whether the public interest has been used appropriately. Max Mosley took this step when he took a legal fight to the News International. The legal costs are high. Zac Goldsmith explained this and he is a relatively wealthy, powerful, and politically connected individual see page 13 of the PM (Radio 4) report on privacy.
The courts may not want to decide the public interest, but they are its final arbiter. In particular, the court expresses concern that it would be seen to be regulating the press. In Flood v. Times, (This upheld the Reynolds defence). The Court stressed on paragraph 194 that the first decision about the public interest is left to the editor to decide. However, there is a third defence that the court believes exist. As they explain in paragraph 195, the Court believed that “ordinary individuals” would not be targeted by a trial by press. However, like the public interest, the court did not define an “ordinary” individual. We have to begin by what an ordinary individual is not. They are not public figures or in the public domain. How the press use the power of the public interest to justify their work can give then a perverse incentive to make an ordinary individual into a public figure. To put in the language of the News of the World’s behaviour, if you upset the editor, you will not remain an ordinary individual. To quote Rebekah Brooks, the former editor of the News of the World, MPs do not scare easily.
What is the limit to the public interest?
When we consider the Prince photographs being in the public interest, we have to consider how far that public interest extends to ordinary individuals. Where does that stop? If the courts see your only defence as being an “ordinary individual”, who will want to be an “extraordinary individual” or a public figure? Moreover, if you are an ordinary person then the press has an interest in making you “extraordinary”, if you enter the public domain. In the way that the press use the public interest to justify their work, they control the public domain and they can determine who is a public figure. If an ordinary individual enters the public domain to participate in democracy, how do they resist the pressure to become a public individual? Once they have been turned into a reluctant “public figure”, where will they turn to defend their privacy. Must we surrender our privacy to participate in democracy?
How the press have used the public interest power has had a chilling effect on democracy. They are an undemocratic body patrolling the public domain. An undemocratic power that can decide who is in the public domain and can be pursued with the power of the public interest will stunt democracy. They make the price for speaking up and losing your claim to being an “ordinary” person too high for many to take part. What needs to be answered in the post-Leveson era is whether it is healthy for public debate needed to sustain a democracy to have an undemocratic body acting as its arbiter.
- Public Interest (newkilpatrickblog.typepad.com)
- Prince Harry pictures: publication was ‘demonstrably in public interest’ (guardian.co.uk)