Media regulation extends to journalism content; newspaper ownership or control; and technology, as well as the regulation of journalism practice. Self-regulation is also only one form of control, but with regards to the press it is the most important. The PCC drew up a code of practice that states: “all members of the press have a duty to maintain the highest professional and ethical standards.” It is very similar in content to the National Union of Journalists’ Code of Conduct, another self-regulating body along with the National Association of Press Agencies and the Ombudsman.
In the debate on speech regulation, the quality of speech, or what is in the public interest, is used to justify what should be allowable. Supporting free speech does not require endorsing the content of what is being said. However, in reaction to increasing privacy claims for example, some speech content is certainly important. For many years, journalists based what they believed should be published on the dictum “what may be interesting to the public is not necessarily in the public interest.” Chris Frost believes that a free media does not necessarily mean the media has a right to publish anything they like:
“People, including journalists, should have the right to spread information and ideas which can be justified morally in order to support the public’s right to know. In other words, information published in the public interest, not merely information to sate the public’s curiosity or desire to be entertained.”
However, nobody seems to be able to agree on the definition of the public interest. Professor David Morrison and Michael Svennevig recently surveyed the public and the media about what was considered to be in the public interest. Over 30 per cent thought it referred to information that the public should know, such as mistakes by government officials. 17 per cent thought stories about the cosmetic surgery of a member of a leading pop group were in the public interest. The authors concluded that: “There did not seem to be any one firm definition of the term… [and] at the popular level, the term gives rise to some confusion.”
Both the PCC and the NUJ define the public interest as follows:
1) Detecting or exposing crime or a serious misdemeanour.
2) Protecting public health and safety.
3) Preventing the public from being misled by some statement or action of an individual or organisation.
The NUJ further adds to this:
- Exposing misuse of public funds or other forms of corruption by public bodies.
- Revealing potential conflicts of interest by those in positions of power and influence.
- Exposing corporate greed.
- Exposing hypocritical behaviour by those holding high office.
Both self-regulators then insist “there is a public interest in freedom of expression itself.” This means the extent to which material has, or is about to, become available to the public will be taken into account. They also add that in cases involving children, editors must demonstrate an exceptional public interest to over-ride the normally paramount interest of the child. However, the public interest is not that simple to define. Therefore, the PCC states the following rule:
“In any case where the public interest in invoked, the Press Complaints Commission will require a full explanation by the editor demonstrating how the public interest was served.”
Despite the differing definitions of the public interest, the term does encapsulate the cultivation of editorial standards – that somebody can exercise free speech, but that they should talk about what they think is in the public interest. Invoking the term “the public interest” recognises an aspiration to distinguish between speech that is merely fact or opinion, and speech that is important for public debate.
Thus the PCC Code of Practice covers the need for accuracy; the opportunity to reply; intrusion into grief or shock; victims of sexual assault; discrimination; financial journalism and confidential sources. For example, the press must not identify victims of sexual assault or publish material likely to contribute to such identification unless there is adequate justification and, by law, they are free to do so. However, and of significantly more importance, there are other clauses that have exceptions if they can be demonstrated to be in the public interest.
The first of these is privacy. The code states that:
“Everyone is entitled to respect for his or her private and family life, home, health and correspondence. A publication will be expected to justify intrusions into any individual’s private life without consent.”
Since 2000 the Human Rights Act has given the British people what most of the European Union’s citizens already had: a legal right to free speech and a legal right to privacy. There are two competing articles: Article 8, the Right to Respect for Private and Family Life, which states exactly the same wording as the PCC Code of Practice; and Article 10, the Right to Freedom of Expression, which states that:
“This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
Judges have the task of balancing the two articles when hearing cases in which they come into conflict. There have been many occasions when public interest coincided with the prurient inquisitiveness of the public. Press disclosures about their private lives crippled the political careers of David Mellor and Tim Yeo because they contradicted John Major’s “back to basics” policy on family values, and Major himself would also have been crippled if Edwina Currie had been less discreet at the time. Bill Hagerty ponders an unanswerable question: “Which was poking its collective nose into private matters – the press or the government?”
The notion of privacy has been so much compromised by the cult of celebrity – in which the media and its subject matter are equal participants – that private lives have become articles of commerce. In October 2001 The People published naked pictures of Radio One DJ Sara Cox and her husband on holiday in the Seychelles. Cox took legal action under Article 8 of the Human Rights Act. The PCC obtained a page-three apology for the couple, but Cox went on to sue regardless and received a record £50,000 payoff. Although the settlement was reached out of court and no legal precedent was set, it was still seen as a blow to the power of the PCC. Cox’s lawyer, Keith Schilling, said it had created a commercial precedent:
“One issue it raises is the role of the PCC in these cases. One of the reasons why claimants bring proceedings is they don’t think it’s acceptable that the tabloids can avoid censure by publishing an apology. It will make people more aware, particularly the stars, that they have got another racecourse.”
The second area within the Code of Practice that is open to the public interest argument is harassment. PCC guidelines set out by the former Chairman, Lord Wakeham, stipulated that the press must show restraint with regard to Prince William’s university education. In a letter he requested that editors “desist from publishing any material, without a legitimate public interest, which might lead to harassment or the creation of a paparazzi market”. The press felt very much vindicated over the intrusion into Royal life after the scandals and marital break-ups of the 1990s. Although Prince William has shown no signs of providing similar stories, there would surely be a public interest issue if a scandal materialised involving the future King.
The third area within the code to allow for the public interest defence is stories regarding children. The press is already regulated in this regard by the law, but the PCC adds that:
“The press must not, even when the law does not prohibit it, identify children under the age of 16 who are involved in cases concerning sexual offences, whether as victims or as witnesses.”
The naming of juvenile criminals has caused the press many problems in the past, the most notable being the two young murderers of toddler James Bulger – Robert Thompson and Jon Venables. Although their names were published upon sentencing their new identities upon release from prison have been kept secret. The Manchester Evening News was recently criticised by the PCC for revealing the youths’ new location. Similarly, two teenagers who tortured a boy and left him brain damaged were granted anonymity by a judge in 2001 after warnings about the climate created by the Bulger case.
The PCC also stipulates that “journalists must not obtain or publish material obtained by using clandestine devices or by intercepting private telephone conversations.” Tied to this is the Official Secrets Act, which currently helps prevent telephone taps being used as evidence in court. Questions regarding the OSA resurfaced last week when violation charges against former GCHQ translator Katharine Gun were dropped. There is a journalistic dilemma between acting legally and acting ethically – state secrets may occasionally be in the public interest. In light of this, the NUJ called for a “public interest” defence to protect whistleblowers who give stories to the media to expose lies, dirty tricks or corruption. General secretary Jeremy Dear said:
“At the very least there should be a public interest defence, but this affair has shown that the act is untenable. There is an accused person who admits her guilt but they can’t prosecute her. It’s time to get rid of the OSA altogether.”
Section nine of the code deals with hospitals and the reporting of individuals in hospitals. The most recent breach of this clause occurred in 2002 when a journalist from The Eastbourne Gazette interviewed a severely injured coma victim. The PCC approved of the sacking of the reporter. The News of the World was similarly chastised in the 1980s for taking photographs of an injured footballer in hospital without his permission.
The PCC exercises little jurisdiction over the conduct of investigative journalism. The Code of Practice decrees that journalists must not "generally" seek information by misrepresentation or subterfuge, and that this can be justified "only in the public interest and only when material cannot be obtained by other means". The Commission has accepted the public interest claims of cases involving England rugby captain Lawrence Dalgalio and, more recently, audiotape conversations with the Countess of Wessex. Her company offered Royal gossip in order to curry favour from a reporter posing as a wealthy client. Anthony Whitaker believes that the public interest defence was justifiable:
“In a world of intense competition, a PR company with royal cachet has a considerable advantage over its rivals. Every PR company needs to demonstrate its "Caesar's wife respectability"; and if the truth is otherwise, it can be said that the public interest requires it to be made known.”
The final clauses of the PCC Code of Practice deal with the messy area of crime reporting. This includes avoiding identification of relatives and friends of convicted or accused persons, as well as the payment to any person who may be called as a trial witness. The code also states:
“Payment or offers of payment for stories, pictures or information, must not be made directly or through agents to convicted or confessed criminals or to their associates… except where the material concerned ought to be published in the public interest and payment is necessary for this to be done.”
The Daily Mirror recently paid convicted killer Tony Martin £125,000 for his story, but the PCC decided that it did not break the Code of Practice. The Commission ruled that the interviews were in the public interest because Martin “had a unique insight into an issue of great public concern.” Questions remain whether the payment was necessary to secure publication and Roy Grenslade believes that editor Piers Morgan was more interested in sales than ethics:
“He will have calculated that he could publish and be damned, because the Press Complaints Commission is in disarray after recent decisions in which definitions of the public interest have become clouded to the point of opacity.”
The issue was further complicated because it occurred around the same time the PCC rejected The Guardian’s public interest defence with regards to the standard reporter’s fee paid to Jeffery Archer’s cellmate. The paper subsequently threatened to pull out of the PCC should they be censored. In another instance only weeks earlier, the Commission thought there was a public interest justification in a News of the World payment to a convicted criminal who engineered a fake plot to kidnap Victoria Beckham. This resulted in five innocent men spending seven months in jail.
Therefore, although “the public interest” may encapsulate the cultivation of editorial standards as previously mentioned, in practice the term has come to denote a moral definition of what is or is not acceptable speech. It can imply that what the public is interested in is trivial, and what a judge deems is in the public interest is necessarily of a higher value. As such it has often been used as a justification for censorship.
Those in favour of regulation believe that journalism is a public service in which market considerations are irrelevant. What is important is to maintain journalistic standards. Others believe that no regulation should be in place at all as journalism is a commercial activity that must produce goods to be sold in the market place. Readers are sovereign and the news products must therefore be manufactured to meet their interests, whilst regulation is an imperfection that will distort the market. Kelvin MacKenzie, the former Sun editor took this point of view:
”Tabloid journalism cannot be condemned simply because it is brash or noisy or declamatory. It must only be called to order if it is false, irresponsible, or reports untruths.”
There is no clear answer or definition of the public interest. Press freedom and press regulation have gone through many changes and both the PCC and NUJ have attempted to identify the true meaning of “the public interest.” Yet even they cannot always be sure and have to ponder long and hard over individual cases. The reason why the public interest is so important is because of everything mentioned in this essay. So much can be written about a concept that we all know is important, but we don’t quite know what that concept is.
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