Debate about the public interest has frequently been marked by attempts to distinguish it from ‘what interests the public’ or the ‘merely interesting’.  Thus, for example, in Jameel v Wall Street Journal Europe SPRL ([2007] 1 AC 359) Baroness Hale argued that the public have a right to know only if there is

“a real public interest in communicating and receiving the information. This is, as we all know, very different from saying that it is information which interests the public – the most vapid tittle-tattle about the activities of footballers’ wives and girlfriends interests large sections of the public but no-one could claim any real public interest in our being told all about it”.

And in the same case, Lord Bingham noted that ‘it has been repeatedly and rightly said that what engages the interest of the public may not be material which engages the public interest’.

However, there have also been attempts to argue that the public interest and what interests the public may be linked. One of the best known examples of this point of view was that advanced by Lord Woolf in A v B plc [2003] QB 195, (the Gary Flitcroft case), in which he argued that ‘any interference with the press has to be justified because it inevitably has some effect on the ability of the press to perform its role in society. This is the position irrespective of whether a particular publication is in the public interest’. And whilst he admitted that in the case of many stories about celebrities’ private lives ‘it would be overstating the position to say that there is a public interest in the information being published’ he also argued that:

“The public have an understandable and so a legitimate interest in being told the information. If this is the situation then it can be appropriately taken into account by a court when deciding on which side of the line a case falls. The courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest. The same is true in relation to other parts of the media“.

This was meat and drink to the popular press and was much quoted at the time. But although, this kind of approach did not survive Von Hannover in the courts, it is still one which is favoured, entirely unsurprisingly, by certain newspaper editors, in particular Paul Dacre, who argued in his Hugh Cudlipp Memorial Lecture, 2007, that popular papers

“need to be sensational, irreverent, gossipy, interested in celebrities and human relationships and, above all, brilliantly entertaining sugar coated pills if they are to attract huge circulations and devote considerable space to intelligent, thought-provoking journalism, analysis and comment on important issues … We live in a world where, frankly, many electors are more interested in Celebrity Big Brother than in affairs of state. And any paper that manages both to entertain and engage millions of readers with brilliantly written serious journalism on the great issues of the day is playing an important role in democracy“.

He also pursued the same line in his speech to the Society of Editors, 2008, arguing that:

“If mass circulation newspapers, which, of course, also devote considerable space to reporting and analysis of public affairs, don’t have the freedom to write about scandal, I doubt whether they will retain their mass circulations with the obvious worrying implications for the democratic process … If the News of the World can’t carry such stories as the Mosley orgy, then it, and its political reportage and analysis, will eventually probably die“.

There are, however, several substantial objections to such an approach. Firstly, and most obviously, albeit it with the considerable benefit of hindsight, the News of the World died entirely because of its addiction to scandal and the illegal methods employed to research its privacy-busting stories. Second, those papers which carry the most soft news also carry the least hard news, thus badly denting the ‘subsidy’ argument. Third, what hard news there is in popular papers is frequently so polluted by bias, partisanship and editorialising as not to count as news at all. And finally, one suspects that Dacre’s whole approach to the issue of what is in the public interest and what interests the public is based on a very particular conception of journalism, one with which many might disagree profoundly.

Broadly speaking, most journalism with any pretensions to seriousness adheres to the Enlightenment model. As John Lloyd argued in his Alistair Hetherington Memorial Lecture 2007, serious journalism is itself

a product of the Enlightenment. It assumes a secular world, in which there is such a thing as objective truth, which can be searched for and should be searched for without hindrance from authorities who claim their higher knowledge from divinities or ideologies or even the people. Journalism as presently conceived cannot do other than that, for otherwise it has no basis for its stories – that is, they become a different kind of story, the stories that writers of fiction write … To make a stab at the truth is to enter into complexity. No account of an event, or an accident, or a war, or an individual which attempts to both tell a narrative and provide context is other than complex

The values of such journalism are those which have come to be associated with the idea of journalism as the Fourth Estate. Nowhere have these values been more effectively summarised than in David Randall’s book The Universal Journalist, in which he argues that the role of journalism is to:

  • Discover and publish information that replaces rumour and speculation.
  • Resist or evade government controls.
  • Inform, and so empower, voters.
  • Subvert those whose authority relies on a lack of public information.
  • Scrutinise the action and inaction of governments, elected representatives and public services.
  • Scrutinise businesses, their treatment of workers and customer, and the quality of their products.
  • Comfort the afflicted and afflict the comfortable, providing a voice for those who normally cannot be heard in public.
  • Hold a mirror up to society, reflecting its virtues and vices and also debunking its cherished myths.
  • Ensure that justice is done, is seen to be done and investigations carried out where this is not so.
  • Promote the free exchange of ideas, especially by providing a platform for those with philosophies to the prevailing ones.

One strongly suspects that  most people who become journalists do so precisely because they want to fulfil this kind of role in society.

However, in the English press at least, there is also a different, and indeed competing, conception of journalism, although it’s one which tends to remain implicit and which rarely sets out its stall in the public arena. It is one particularly associated with the Daily Mail, but it actually underlies a great deal of what appears in the Sun, the Express, the Star and the Telegraph, which together constitute what I would call the illiberal press. Unsurprisingly it finds its most vocal champion in Paul Dacre, who explained this particular conception of journalism in his Society of Editors speech quoted above:

“Since time immemorial public shaming has been a vital element in defending the parameters of what are considered acceptable standards of social behaviour, helping ensure that citizens – rich and poor – adhere to them for the good of the greater community.  For hundreds of years, the press has played a role in that process.  It has the freedom to identify those who have offended public standards of decency – the very standards its readers believe in – and hold the transgressors up to public condemnation”.

Equally unsurprisingly it also features in Melanie Phillips’ endless jeremiads against human rights, for example in an article headed ‘The Law of Human Wrongs’ in the Mail, 6 December 2006, in which she argued that:

Scorn or shaming are important in reaffirming the boundaries of what is considered acceptable behaviour and helping ensure that people adhere to them. Centuries ago, this function was performed very effectively by the stocks. Today’s Press fulfils much the same function. It allows individuals to identify those who they feel have wronged them and hold them up to public ridicule and contempt.

But perhaps rather more surprisingly, this conception of journalism has also found an academic proponent in the shape of Tim Luckhurst, Professor of Journalism at the University of Kent.  Thus is an article headed ‘Read All About It: Britons Have Always Loved Scandal’, in the Guardian, 25 May 2011, he claimed that:

In the 115 years since the birth of professional, popular journalism ordinary readers have chosen to use their favourite titles to censure and regulate the conduct of people who have grown rich on their wages. Hostility to privacy injunctions is not, as Lord Prescott fondly imagines, a conspiracy by newspapers to preserve profits. The sanction of public opinion is being applied to hypocrisy of which millions disapprove. Many Britons resent celebrities who treat publicity as a tap they can turn on and off. They accept these people as role models and brand ambassadors. They demand in return the right to scrutinise their lives.

He expanded on this theme a few days later, in the Mail, 31 May 2011, in a piece under the headline ‘Why Twitter Knows More About Morality Than High Court Judges’, which was quoted at length by Paul Dacre when he appeared before the Leveson Inquiry on 6 February 2012. Here he argued that:

The notion that moral failures such as adultery are entirely private and do not matter to the wider world is an affront to the very idea of community. A taste for titillation must explain some people’s interest in Ryan Giggs’s alleged extramarital activities. But for many others, cheap thrills were the last thing on their mind when they rebelled against privacy injunctions and remote, arrogant judges. This admirable majority resent public figures who think they can turn publicity on and off like a tap. We reserve the right to scrutinise and censure the conduct of people who have grown rich on our wages or claim authority over our lives. And, in asserting democratic accountability, we are proclaiming our loyalty to a virtuous principle.

This principle turns out to be the ‘sanction of public opinion’ which creates ‘an incentive to behave responsibly’ on the grounds that people tempted to stray from the bounds of conventional morality might be dissuaded by the thought that their friends and neighbours would think less of them if they did so.

In Luckhurst’s view,

‘the community’s interest in private wrongdoing delivers an emphatic public good’. For decades, he argues, the law took a similar view concerning the private lives of public figures, being unwilling to suppress reporting of private immorality and instead leaving it exposed to the sanction of public opinion. But, of course, this was before European Convention on Human Rights (inevitably the villain of the piece) made it easier to obtain injunctions against privacy-busting stories. The other villains (again unsurprisingly, given where this piece was published) are the ‘elite liberal dimwits’ and ‘foolish elitists’ who ‘fail to grasp the value of morality’ and to understand that ‘respect for fidelity and integrity … is the cement that keeps Britain decent and tolerant’.

Luckhurst concludes that:

An artificial distinction between the public interest and what the public is interested in makes sense only to isolated occupants of ivory towers and wealthy enclaves. To most Britons, public virtue demands knowledge of significant private vice because the consequences of the latter can damage lives and set atrocious examples …. We are not wrong to believe that our courts should expose private immorality by public figures to our scrutiny. By doing so they can support standards that enhance life for a great many people.

The conception of journalists as scourges of private (as opposed to public) immorality is an unusual one, to put it mildly, and one seriously doubts that most journalists see their role as policing the private moral sphere and acting as a cross between Mary Whitehouse and a latter-day Witchfinder General. But the problems with such a conception of journalism go far deeper than this empirical objection.

Implicit in it is the idea that generally accepted moral standards should determine the extent to which private information can be published. But do such standards actually exist? Confident and sweeping invocations of ‘what are considered acceptable standards of social behaviour’, ‘ordinary readers’, ‘public opinion’, ‘majority opinion’, ‘the wider world’, ‘this admirable majority’, ‘most Britons’ and ‘British people’  are completely meaningless, except as rhetorical devices, when employed without a shred of empirical back-up.  But, of course, all the reliable evidence (for example, that collected annually by the British Social Attitudes Survey) suggests that views about sexual morality vary greatly across the population, whilst the research carried out by David Morrison and Michael Svennevig for their report The Public Interest, Media and Privacy demonstrates that many of their respondents are nothing like as prurient and judgemental as Phillips, Dacre and Luckhurst think they are (or would like them to be). And as for that egregious ‘we’ invoked no less than three times by Luckhurst in his Mail piece, you can count me out for a start. Indeed, as the then Sir David Eady put it in a speech given at Gray’s Inn on 12 December 2002:

There is no longer, if there ever was, a generally agreed code of sexual morality. Marriage no longer appears to have the particular status it used to be accorded. We are not courts of morals. Nowadays many people, particularly young people, lead lives which in the old days what would have been called ‘promiscuous’. Now it is simply known as a ‘sexually active’ or ‘fun loving lifestyle. If a sportsman or model does not presume to preach to the general public, why should he or she have imposed upon them by anyone, let alone judges or tabloid journalists, the standards which used to be applied from behind the twitching curtains of suburbia half a century ago—on pain of prurient exposure?

What is really being invoked by Dacre et al is our old friend the ‘silent majority’, always a handy populist stand-by when it comes to attempting to marginalise and de-legitimise liberal opinion by presenting it as the preserve of an out-of-touch elite, a tactic which lies at the very heart of the Mail project, but one which also flies in the face of much of the available evidence. In this view of things public opinion simply equates with the opinion of the Daily Mail and its readers. This is obviously self-serving nonsense, but it is, unfortunately, a fiction into which successive governments have bought, either willingly or unwillingly, with very definite consequences for policy, as Malcolm Dean has recently illustrated at length and in detail in his book Democracy Under Attack. But viewed thus, it is not the dastardly ‘liberal elitists’ who have imposed their views on an unwilling populace but a democratically  unaccountable newspaper which has imposed its views on an elected government and thence on the electorate as a whole.

However, the most profound question raised by Dacre, Phillips and Luckhurst’s conception of journalism is whether one believes that journalism should really be a form of public shaming for private behaviour.  Across Europe, rituals used to be enacted against traditional targets of communal resentment or hostility – lechers, promiscuous women, nagging wives, adulterers, swindlers, misers and so on. These rituals were known in different parts of England as skimmington rides, skimmity, rough music, and riding the stang, in France as charivari, and in Germany as Katzenmusik. In a skimmington ride:

The victim would be visited by a boisterous crowd who would sometimes have their faces ‘blacked’ or disguised, terrifying effigies might be paraded or burned, stink-bombs released and missiles thrown – all to the accompanying racket of “rough music” played on crude instruments … In full cry the ‘Skimmington’ would parade an effigy of the ridiculed victim seated backwards on a donkey or a wooden pole; or the victim’s person would be hauled about and made to ‘ride the stang’, in which case he or she might be roughly treated or ducked into a convenient pond or dung-heap. (Pearson 1983: 197).

In modern times, some of these functions have undoubtedly been taken over by forms of journalism, not least crime reporting in the popular press. As Steve Chibnall has pointed out, crime news ‘illustrates most effectively the system of beliefs, values and understandings which underlies newspaper representations of reality … Nowhere else is it made quite so clear what it is that newspapers value as healthy and praiseworthy or deplore as evil and degenerate in society’. He continues:

“Crime news may serve as the focus for the articulation of shared morality and communal sentiments. A chance not simply to speak to the community but for the community, against all that the criminal outsider represents, to delineate the shape of the threat, to advocate a response, to eulogise on conformity to established norms and values, and to warn of the consequences of deviance. In short, crime news provides a chance for a newspaper to appropriate the moral conscience of its readership … The existence of crime news disseminated by the mass media means that people can no longer need to gather together to witness punishments. They can remain at home for moral instruction”. (ibid.: x-xi)

Now I’ve always taken these passages to be implicitly critical of the populist and authoritarian thrust underlying much crime reporting, indeed much reporting per se, but clearly this is a conception of journalism with which Melanie Phillips would feel perfectly happy, given her drawing of a parallel between the stocks and the modern press. But is this really desirable in a modern democratic society, particularly one which is deeply divided, tangibly uneasy and all too readily prone to demonising those perceived as Other by the likes of the Mail? I would argue that it is not, and would strongly endorse two judgements which were made on 24 May 2011 at the height of the frenzy of Super-injunction Spring.

The first is from Terence Blacker in the Independent, who complained that ‘the debate is now a perfect combination of all that is least attractive in contemporary Britain: a furtive interest in sex, a bogus and self-important moral argument, and mass bullying of individuals through the press and the internet’. And the second is from Polly Toynbee in the Guardian who, in an article entitled ‘Superinjunctions: How the Rightwing Media Makes the Political Personal’, argued that:

The phoney moralising and loathing of rich stars comes from newsrooms where editors like Paul Dacre are paid millions, and whose politics decry high taxes or curbs on top earnings. Spreading jealousy taps into the social dysfunction of extreme pay inequality. Pressing everyone’s nose up against impossible lifestyles, editors like to stir envy, while diverting political impulse to personal revenge.

Doubtless Luckhurst would condemn all this as ‘liberal elitism’, but if the alternative is populist demagoguery and putting people in the stocks – albeit metaphorical ones – I certainly know where I stand, and I believe that most journalists would stand with me.

Julian Petley is Professor of Screen Media and Journalism at Brunel University, Chair of the Campaign for Press and Broadcasting Freedom, a member of the advisory board of Index on Censorship and of the editorial board of the British Journalism Review. He has written widely on the press. 

This is an edited extract of a paper to be presented at a conference on “Media and the Boundaries of Disclosure: Media, Morals, Public Shaming and Privacy“, at the Reuters Institute, University of Oxford, 23 to 24 February 2012.