Report on privacy and the public interest

The Oxford University based Reuters Institute for the Study of Journalism has published a report written by Stephen Whittle and Glenda Cooper on the theme on Privacy, Probity and the Public Interest.

Its an interesting enough read, and its key findings offer a useful precis of the state of the debate at present. Ultimately, the authors recommend that media investigations should be proportionate to what is being investigated and clearly targeted. They conclude that journalists should hold or deploy:
- a clear sense of what the public interest justification might be
- some justifying evidence to take an investigation
forward so that it is not a ‘fishing expedition’
- the minimum amount of deception
- very clear rules about when secret recording takes place
- a clear set of authorisations from within the editorial line management
chain;
- a robust rationale for what is eventually put into the public domain
and how.

BBC research on taste and standards

The BBC has published the report of research conducted over the last year into public attitudes to morality, values and behaviour in UK broadcasting. One strand of the underpinning work was undertaken by Prof. Sonia Livingstone of the LSE Media Department.

The report detailed sixteen key findings, including the following:
- standards of morality, values and behaviour in the media in particular are
not a top-of-mind issue for the majority of the public.
- the BBC overall performs well in the audience's perceptions of standards
of morality, values and behaviour, compared; the audience also has higher expectations of the BBC.
- in general terms, the public do not want increased censorship or
regulation
- a significant proportion of the audience have various
concerns about standards of morality, values and behaviour in the media
as a whole, including newspapers, magazines, broadcasting and online
content.
- there is little public consensus or agreement about what constitutes
offence
- context in which potentially offensive content is placed is of
paramount importance to audiences
- sexual content on television and radio was a matter of relatively low
concern for audiences.

Inevitably, press coverage of the publication of the report focused on specific issues, including swearing and the 'Sachsgate' angle (1,2, 3)
* Commentoon sourced at: Women's eNews

Nick 'Harry Potter' Davies triumphs over the dark arts

The Guardian yesterday broke a tremendous follow-up to the Operation Motorman and Goodman hacking and blagging scandals with the disclosure of previously unseen data arising from one of the earlier investigations. There is much comment on the Guardian webpages (1,2, 3), and elsewhere. Cravenly (?), at the time of writing neither TimesOnline, nor the Sun was carrying the story (at least on their first pages). SkyNews did have it. Does this say anything about the relative interest in 'proper' news of the three Murdoch platforms?

This year's black?: celebrities, the paparazzi and the fashion for harassment orders

Earlier this month, lawyers acting for Amy Winehouse confirmed that she has been awarded a court order to prevent the paparazzi from following and photographing her. She is not the first celebrity to take this route in recent months. Both Sienna Miller and Lily Allen have likewise received the protection of the courts. This development amounts to the opening of a new legal front in the battle between the media and public figures keen to preserve their privacy. At a time when press standards and regulatory structures are subject to Parliamentary scrutiny, it begs the question of where the Press Complaints Commission has been in all of this.

For many people, the spectacle of the massed horde of photographers jostling on street corners waiting to descend on some willowy blonde – the ‘media scrum’ - has become the leitmotif of media malpractice. It is the snarling mask of the metaphorical ‘feral beast’ lambasted pointedly by Tony Blair during his last speech as Prime Minister. Type the name of any female celebrity in the search box on YouTube and you’ll likely be faced with scenes of truly oppressive, ‘stalkerazzi’ behaviour. Matters have been exacerbated by the ubiquity of high-specification digital cameras that allow all-comers to join the fray. Keira Knightly has complained, repeatedly and bitterly, that the paparazzi exercise “a very predatory force”. Kate Middleton’s experiences surrounding her twenty-fifth birthday resulted in a select committee investigation.

Courts too have expressed a visceral distaste for the manner in which media organisations sometimes acquire their content. In Von Hannover v Germany, for example, the European Court of Human Rights lamented that “photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion… or even of persecution”. It may have been this perception that prompted the court to deliver what some see as an over-generous ruling to Princess Caroline.

The court orders obtained by Winehouse, Miller and Allen are based upon the Protection from Harassment Act 1997, legislation ostensibly introduced to counteract ‘stranger stalking’. The Act criminalises engagement in a ‘course of conduct that amounts to harassment’. It also allows victims to sue for damages and other remedies in the hope of preventing recurrence. Thus, it sits alongside the emerging privacy law that has been used to great effect by Max Mosley, Naomi Campbell and others. Where the tort of misuse of private information is focused on harms caused by publication, however, this use of the anti-harassment act is concerned more with the distress caused by more physical intrusions.

It was always expected that the very general terms of the harassment law might be used against the more outrageous elements of the press pack. Princess Diana was said to have welcomed the prospect before her untimely, and in this sense ironic, death. The Act has been used to deter violent spouses, jilted lovers, and animal rights protestors, but – strangely - never the paparazzi. Until now.

This begs the obvious question of ‘why not’. One explanation is that the alternative regulatory solution offered by the PCC has been largely effective. Since the late 1990s, the Commission has adjudicated on around fifty complaints based on Clause 4 of the Editors’ Code of Practice that deals with harassment. It has also helped resolve a further eighty similar complaints. It enjoins newspaper and magazine editors not to use material acquired by staff or freelancers in circumstances where the subject has been harassed. Further, the PCC has instituted a pre-emptive system of ‘desist notices’, which it issues to editors at the request of press-embattled individuals in the hope that they will ‘call off the dogs’. The PCC is rightly proud of these aspects of its performance, and cites its commendable successes in protecting personalities such as Natasha Kaplinsky.

One criticism of the PCC’s role, however, is that it can’t secure damages (although its Director maintains that ex gratia payments are often made in resolution of complaints). Another more chastening critique is that desist notices don’t always work. Sienna Miller’s experiences in 2008 are instructive. After a warning was circulated to editors by the PCC, the actress was still moved to sue when the Daily Star published photographs depicting her in a distressed state: the result of a paparazzi hounding. Moreover, the harassment she faced didn’t stop and she was forced back to court to deploy the 1997 Act. Both cases were settled.

To its credit, the PCC has recognised and sought to explain its limitations. It agrees that its capacity is limited, but explains this by reference to the fact that much of the content acquired by photographers is sold to overseas publishers over which it has no influence. It wouldn’t accept that sometimes British newspapers and magazines may simply choose to ignore its requests.

Now that it has been proved a reality, the risk of actions based upon the 1997 Act will exercise a constraining influence on photographers and newspaper editors. Its use in fact may prove to be limited to occasions on which either no publication has yet occurred and the prospective publishers are unknown, or where the publishers are based overseas. There is no reason in law, however, why a harassment action should not - assuming the requirements of the Act are satisfied – also be brought in other circumstances. Indeed, should those suffering from harassment have limited faith in the ability of the PCC to curtail harassment or deliver an adequate remedy, then the statute-based legal route could become the preferred one. In the main, though, we might expect that privacy laws and regulators, like houses, will lean on one another.

'Tis the season... to be clamouring for libel reform

Much has been happening on the defamation/libel reform front in recent days...

First, Elton John's case against the Guardian collapsed after a ruling on meaning by Mr Justice Tugendhat 'clarified' the approach to be adopted towards irony/satire (this is discussed in more depth elsewhere by the excellent Daithi).

Secondly, Nicolas Sarkozy has been calling for reform of French defamation law, and speifically its decriminalisation.

Thirdly, English PEN and Index on Censorship have launched an inquiry into the state of UK libel law (to some extent emulating that recently announced by the Commons Select Ctte chaired by John Whittingdale MP).

Finally, the House of Commons (Westminster Hall) yesterday held a very interesting adjournment debate on the state of libel law at the behest of Denis McShane MP. Two focuses for attention were particularly noteworthy: the call for a small-claims court style determination of libel actions, and derision of the 'libel tourism' trade with reference to developments in the US Congress and New York state. Both of these are interesting from the LSE perspective. In the former regard, research into the ramifications of the Article 8 recognition of reputation rights that I am currently working on may highlight an unexpected jurisprudential basis (or at least added political impetus) for such a shift. In the latter respect, together with Polis, the Law Department is to host a stakeholders' policy workshop on just this theme in the New Year.

A Sting in the Political Advertising Tale?

More on a pet pre-occupation... many thanks to Russ Taylor of OfcomWatch and Oxford Uni for highlighting a very interesting development in Strasbourg today where a Norwegian ban on political advertising has been overturned by the court (TV VEST AS & ROGALAND PENSJONISTPARTI v. NORWAY). Its an analogous case to the recent ADI litigation in the UK that ended up unsuccessful in the House of Lords. I haven't had time to read the judgment in full, but it seems that the court was unimpressed by the argument that the ban was necessary to avoid subversion of the public sphere by wealthy interests. Rather they seem to have seen it - perspicaciously - as precluding voice opportunities for marginalised groups.

Rays of light from the Dark Lord of Mordor: Dacre on privacy and more

Paul Dacre, editor-in-chief of Associated Newspapers, has entered the fray on the judge-made law of privacy, criticising the 'inexorable' and 'insidious' imposition of new law on the British Press. Speaking at the Society of Editors conference, he warned that the new law was "allowing the corrupt and the crooked to sleep easily in their beds" while also undermining the ability of mass-circulation newspapers to sell newspapers in an ever more difficult market.

Dacre had two key criticisms. First, the substantive contention that the law was based upon "amoral judgements". The amoral component was deemed to be the closeting of 'unconventional', perhaps depraved - certainly commercialised - sexual practices and/or of adulterous relationships behind the screen of personal privacy (protected by Article 8 ECHR). Dacre was concerned that the law appears to make no moral distinction "between marriage and those who would destroy it, between victim and victimiser, between right and wrong".

There are two points at which these comments might bite. On one hand, the law has to determine when a privacy interest is invoked. Dacre might argue that a commercial relationship with a prostitute does not engage privacy interests, and/or that any confidences purportedly entered under the 'contract' should not be enforced. Currently, the law does not agree with this approach. On the other hand, the law leaves room for the exposure of errant behaviour in circumstances where the interest in privacy is outweighed by some public interest in the matter. Here adultery committed by John Doe may remain private, whereas adultery committed by John Prescott might not. There is scope for debate, of course, on the question of quite when this public interest arises. Dacre complained that in both areas, the law is developing in an undesirable manner: that it "seems to be ruling out any such thing as public standards of morality and decency, and the right of newspapers to report on digressions from those standards".

Dacre's second criticism concerned the allocation of most media law cases to one judge: Mr Justice David Eady. He complained that "while London boasts scores of eminent judges, one man is given a virtual monopoly of all cases against the media enabling him to bring in a privacy law by the back door". Media law, he complains has in effect become 'Eady's law' when it should reflect "the collective wisdom of many different judges over the ages".

There is a lot in this point, accepting that judgments at first instance will always be open to appeal to higher courts. When a large proportion of cases at first instance are decided by one and the same judge - whomever that might be - it becomes increasingly likely that any worldview, predilection or leaning on the part of that individual will influence the decisions made on arguments put. For Dacre, Judge Eady's perspective is marred by "an animus against the popular press and the right of people to freedom of expression". In the privacy and other media law contexts, there is plenty of room for 'political' decision-making where incommensurable social values come into conflict (1). This leaves open entirely the question of whether the actual raft of decisions that Judge Eady has delivered are correct or appropriate.

So how far does all this matter? For Dacre, hugely. He sees the obvious and direct correlation between content and sales figures, and warns at length that if stories cannot be told about the misdeeds of "the crooks, the liars, the cheats, the rich and the corrupt sheltering behind a law of privacy" then the Press cannot be a sustainable commercial enterprise. In short, we need the Press and the Press needs to be free to tell these stories. He cites eminent judges in support of this view. It is a powerful warning.

There has been plenty of (valuable and other) commentary, complaint and (attempted) rebuttal (1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13).

There is obviously the risk that Dacre's comments will be rejected on the simplistic 'you would say that wouldn't you' basis. He is open to the critique that he simply doesn't like what the law prescribes. Perhaps unfortunately, Dacre's speech came close to personalising the issue with its direct references to the purported failings of Judge David Eady. He described the judge as "arrogant", and as possessing a "dessicated" and "highly relativist" moral sense. On this, Dacre implicitly gets his defence in first. He would contend that the personalised story is much more appealing than the "ponderous, prolix and achingly dull". Who wouldn't agree - and on this ground, for this post, apologies!

This is an important speech. It raises questions over (a) the allocation of cases in the High Court, and (b) the appropriateness of asking judges alone to determine how the framework within which journalists operate should be fashioned. The irony of course, is that after decades of warding off legislative oversight, newspaper executives seem now to be making a plea for Parliamentary intervention.

Aside
The speech also touched briefly on freedom of information, open justice, data protection restrictions on journalists' investigations, and conditional fee arrangements (CFAs) and their impact on newspapers' willingness to fight actions and perhaps to publish (here he cited a recent case lost by the Mail on Sunday in which Associated’s costs bill was £520,000 costs in a case that awarded damages of just £5,000 in a dispute over a simple matter of fact - Dacre also indicated that the ministry of Justice is set to unveil proposals to reform CFAs, including capping lawyers’ fees).