As the froth dissipates it is worth reflecting on what lessons the saga of the Prince Harry photographs has for the media regulation debate. There is a natural tendency to conclude that this is another passing “silly season” story – with as much wider significance as the Essex lion. After all Prince Harry holds no public office and the invasions of his privacy were relatively minor in the scheme of things. Such a conclusion would be too hasty. The absurd affair of Prince Harry’s bum is nevertheless a very clear and illuminating example of what remains wrong with the tabloid press and, we suggest, provides five important lessons for the media regulation debate.
First, there is no limit of logic or rationality to the bad public interest and press freedom arguments which the media is prepared to employ to justify (forgive the pun) naked self-interest. The publication of photographs of private party was, apparently with straight face, compared to Spycatcher and the abdication crisis. Our particular favourite was the argument that Sun readers had to be allowed to see the images because they had already seen them. Behind it all the basic, and obviously specious argument that anything available on the internet should be published in the press.
Second, the media does not understand privacy. The basic points are not very difficult. What happens in private is, er, private – it should not feature in the media unless there is some public interest justification for publication. Not just Prince Harry’s photographs but also his party did not meet that basic test. A party behind closed doors – to which the public is not invited – is something that the press should not be writing about without good reason. A generation of journalists and editors, brought up on a culture of casual privacy invasion just don’t get the point.
Third, and perhaps most obviously, the press pay no attention to the PCC or its editors code. Despite their public protestations of fidelity, when it comes to the commercial and titillation crunch the PCC is a dead letter. Everyone wrote about the party – in breach of clause 3 – for good measure telling people where to find the photographs on the internet (a further breach of the clause). The Sun chose to ignore an “advisory notice” from the PCC – on the grounds of “press freedom” (see lesson one).
Fourth, no opportunity will be lost to blame Lord Justice Leveson. His evil influence was, apparently, responsible for the shocking (and rare) phenomenon of editors obeying their own code. This absurd message was trotted out by the BBC – peddled by former tabloid editor Neil Wallis (arrested in the phone hacking investigation and awaiting a charging decision). We were told, without a shred of evidence, that there were numerous public interest stories that had been suppressed as a result of the Inquiry. There is a lot more of this nonsense to come over the next few months in the run up to the Leveson Part 1 Report. The riposte will need constant repetition: the Inquiry is not, and never has been, about shackling public interest journalism and its practitioners have nothing to fear from media regulation.
Fifth, when it comes to media regulation, the press wholly fail to reflect the views of their readers. Shortly after publication a poll indicated that 68% of readers thought that the Sun was wrong to publish the photographs. The Sun’s sister paper, the Sunday Times published a poll showing that 61% of respondents thought the Sun was wrong to publish the pictures and that 68% thought Harry’s behaviour was acceptable. However, as Brian Cathcart pointed out in a post on Inforrm, this did not impact on the way that the same newspaper reported the story:
“Like almost all of the national Sunday papers, with the exception of the Independent on Sunday, the Sunday Times chose to report and comment upon the Harry affair without giving any editorial space to anyone who expressed the opinion which, its own poll showed, 61 per cent of the country holds. Hardly a quote appeared from anyone giving what appears to be the majority view”.
The overall lesson of the Prince Harry story is that the British press still cannot be trusted with privacy. The message of phone hacking has still not sunk in. Press freedom is something to be used responsibly, for proper purposes. It is not a universal justification for misconduct and invasion of privacy. This silly season story tells us, once again, that effective media regulation is a necessity.
Blaming Leveson still makes no sense to me. How can an inquiry that is yet to publish a report and its recommendations affect the practice of newspapers? Publishing pictures is either right or wrong and the inquiry is about making what’s right clearer and easier to follow for all publishers.
I think the Leveson-bashing was grabbing at straws on a day that would usually be filled with discussions of private photos. Very peculiar indeed.
The coverage of this issue on the Inforrm blog has been very curious. For instance, in this piece there is reference to the “obviously specious argument that anything available on the internet should be published in the press”.
This seems to be a wilful misunderstanding of the point put by many people (including Don Murdoch himself – and very clearly by the Wolfman on Newsnight) to the effect that material that is in the public domain is by definition not private. As regards republication by the Sun, there is no reasonable expectation of privacy, and no need for any sort of public interest defence (which is obviously not the case in respect of the original publication).
Being in the ‘public domain’ is not the same, merely, as being available to the public (ie just being on the Internet). Rather it means being very widely accessed and/or known. Quite when material is properly described as being in the public domain is perhaps moot, but there can hardly be a clearer case than that of Harry’s bum. Or of the Mosley video.
By way of analogy, imagine that a politician is ‘outed’ on Newsnight as homosexual. By the logic of the Hacked Off campaign, no further mention of that event could be made, for instance, in the broadsheet newspapers. Or to draw a wider parallel (between the public domain and consent negations of reasonable expectations), if a rock star himself explains his recurrent illness by disclosing his HIV+ status but subsequently regrets this disclosure, he would be able to sue for continued reference to this ‘private’ information.
Hence, while it may have been commercially motivated or all about sticking two fingers up to Leveson, the Sun is entirely free in law to publish. After all, freedom of expression includes the right to shock, offend and disturb, and cannot be restricted without good reason. This is why the whole issue has been about free speech and a free press. Those who argue that the Sun should not have been free to publish are really asking that the media act always as a public interest or public service media, and that they ignore news stories that are significant but which don’t include some public interest component. That would be a constrained media indeed.
We would make three points in response:
1. The point being made by the media was not a public domain point but rather one about wide accessibility on the internet which, as you recognise, is not the same thing. “Public domain” is now recognised as admitting of degrees.
2. It is doubtful whether “public domain” can be relied on by those who placed the material there unlawfully in the first place. The media generated widespread access in the UK by telling people that the photographs were there and by naming the US website that was publishing.
3. Most fundamentally, public domain does not work the same in privacy cases as it does in confidence cases. “Public domain” may be an answer to a claim for an injunction but not to a claim for damages. Each fresh publication of private information is an actionable intrusion. Privacy is about intrusion as well as secrecy. As Tugendhat J put it recently in EWQ v GFD ” even if information concerning the issue was not secret, it would not follow that the Defendant would be entitled to publish it in an unrestricted way”.