At Leveson Round One last week, “public interest” featured almost as much as “values” in Ed Miliband’s address to his party conference. As might be expected there were two essential views on offer.  For Trevor Kavanagh of the Sun, the issue is, as might be expected, pretty clear cut: “Everything under the sun is of interest to the public, from a local fête to a sex-and-lies political scandal or the secret location of a nuclear device. One may be simply interesting while the others bump up against the sometimes contentious definition of “the public interest”.

He went on

“Frequently, the latter are stories someone wants to conceal but are too big to hide. All news should, with certain exceptions, be judged on the public’s right to know. The only point where the two collide is when a story is deemed NOT to be in the public interest. And therefore not suitable for the eyes of ordinary folk. Another word for this is censorship.”

“Contentious definition?” Brian Cathcart of Hacked Off was equally clear in another direction:

“The argument is made that it is impossible to define the public interest. In fact every relevant body has done so: Ofcom, the BBC and the Press Complaints Commission to name just three. Some definitions are fuller than others, but they are remarkably similar in spirit. Journalists act in the public interest, they all say: first, when they expose wrongdoing and injustice, and when they protect the public from danger; second, when they prevent the public from being misled; and third, when they reveal information which helps the public make decisions of importance.

It is true that none of the definitions provides absolute clarity for all journalists in all circumstances. But that is asking too much. The most carefully crafted contracts can be disputed in the courts, as can Acts of Parliament – in fact such disputes are expected. Yet we still write contracts and pass Acts of Parliament. That there can be no perfect definition of the public interest does not mean that we can’t have a workable one in most circumstances.”

The challenge facing the Inquiry is not just to look at what went wrong around phone hacking and other dubious journalistic practices but also how we move forward in a way which commands confidence and trust on both sides of the editorial and public divide.

We need to protect the freedom to report and opine without fear or favour while recognising that that right carries with it certain responsibilities to the public good. There is a public good in private space (which is crucial to human integrity and relationships); whether people seek to commoditize it is irrelevant. There is also a public good in exposing wrong doing and corruption, the misuse of funds and incompetence. But the infringement of privacy requires an impact test: does it impact the lives of the many or is it simply interesting to the prurient? What will be the effect: will it cause good or harm?

Broadcasters, who do as much if not more investigative journalism than the press, have to meet a two stage test set by Ofcom: first, is the infringement warranted; second, can you justify what you broadcast? There is no pre-broadcast censorship but a requirement to explain and defend your approach to the public interest in the circumstances of the case.

In a study for the Reuters Institute for the Study of Journalism, Privacy, Probity and Public Interest, we found no evidence that the requirement has either hindered or prevented hard hitting and important investigations. There is every reason in such a sensitive area to require the same standard of broadcast and written media.

Whatever is done has to be proportionate to what is being investigated, that implies:

  • A clear sense of what the Public Interest might be
  • Evidence that justifies taking the investigation forward so that it is not a “fishing expedition”
  • The minimum deception necessary
  • Clear rules about secret recording
  • A clear editorial audit trail

This approach is similar to that set out by Sir David Omand, formerly of the security services, and now adopted by the Guardian as part of their editorial principles. The test is always whether a private act has a demonstrable impact on public responsibilities. As readers of this blog site will know, and as Alan Rusbridger noted at the Levenson seminar, the number of times newspapers have pleaded the public interest defence in privacy actions is close to zero.

Would this slow down newsroom? Perhaps. But as Brian Cathcart pointed out, not much in the electronic age. If society thinks this is important for the police, doctors, lawyers, and airline pilots ( you can go on adding to the list) why not the media?

Stephen Whittle is a director of Salomon Whittle and member of the GMC.  He is a former Controller of Editorial Policy at the BBC and the joint author of “Privacy, Probity and the Public Interest” published by the Reuters Institute for the Study of Journalism in 2009 (and discussed by in posts us here and here)