Professor Arday is not the first to be viciously hounded by the rabid press. I doubt he will be the last. To end this brutal cycle of tragedy, we need politicians brave enough to overcome their cowardice and implement mandatory, independent press regulation that tackles press malpractice but preserves press freedom.
This is entirely possible and the Editors’ Code of Practice is a good start. It lacks, though, a provision to outlaw the kind of intense fixation that Professor Arday and others have endured.
Such a clause might frame the obligation in the following terms:
‘Journalists must not fixate on specific individuals without good reason.’
Fixation has an ordinary meaning: to obsess; to take an unnaturally strong interest in someone; to have an unhealthy interest or focus. Such fixation creates an unbearable pressure for the object of constant press attention. The awesome glare of concentrated press scrutiny is akin to living in a furnace. The subject will feel unable to breathe.
What sort of obligation is this? As I said, in my last post, IPSO has an identity crisis – it can’t work out if it’s meant to speak the language of law or of ethics. This sort of clause could be understood as either and the degree of severity of the breach would determine what sort of consequences should follow.
The worst instances of this breach would engage the Article 8 privacy right. Since that right recognises that individuals have a right to be left alone, to live their lives in public, without constant press scrutiny, as cases like Von Hannover v Germany establish, a breach can signal interference in need of an Article 10 (free speech) justification.
The most obvious, and pressing, justification arises when the press acts as a public watchdog role. At such times, the press uses its immense powers of scrutiny to bring serious public interest concerns to widespread public attention. Through such reporting, important, valuable social goals are accomplished, such as signalling serious consumer, civic and criminal wrongs.
This, though, is a matter of proportionality that takes in both the scale of the wrong and the individual’s societal position. Those in public office with responsibility for, say, public spending, etc, are most likely to be captured by the justification. Likewise, those with corporate power whose malpractice endangers the lives of others (personally, socially, financially) would be included. Proportionality analysis recognises that there is a balance to be struck between two qualified rights: press freedom and privacy. This requires IPSO to take into account the individual’s societal role: pertinent differences relate to whether the individual is a public office holder or source of corporate power as against an ordinary member of the public. Established public figures might be excluded from this latter category but only if they satisfy the Gertz v Welch standard (which requires that public figures, including voluntary role models, must reach a high level of fame or notoriety before their rights to reputation – and, by extension, privacy – are lessened). In other words, the greater the degree of public accountability in the target’s role, the more justified persistent coverage will be.
Journalists (as well as politicians and the wider public) should be aware that persistent reporting about named individuals can be extremely harmful to their physical and mental well-being. This clause will be breached when the actual or potential harm to an individual outweighs any conceivable public interest in continued coverage on the issue(s) raised in the original reporting or issue. The actual or perceivable vulnerability of the target and whether they have exercised their right to be left alone should be recognised. Consistent with the spirit of privacy laws, the Editors’ Code recognises a right to be left alone and to quiet enjoyment of lives. This should be respected regardless of the perceived public interest in the information at stake. The more vulnerable the target is or is likely to be, the greater the justification required to persistently report about them.
A serious (or systematic) breach of this legal obligation should provide grounds for regulatory investigation. In appropriate cases, sanctions would be necessary and compatible with press freedom under Article 10.
Alternatively, or additionally, such a breach would be an ethical violation. If we are to hold the press to high standards, as IPSO claims it does, then it is entirely appropriate that IPSO should step in. Safeguarding both rights and high standards should not be a matter for targets individuals alone. They should not be burdened with ensuring legal obligations are met and standards raised either through complaint to IPSO or the costly (and risky) process of pursuing a legal claim through courts. IPSO should be strong enough to shield victims of press malpractice, actively intervening when it detects a breach of this clause (or, frankly, any other) is underway. If it was the tough regulator it claims to be, it would actively and effectively protect the public (not just its members).
This sort of intervention is both necessary and appropriate because, if it is to work, it should apply not merely to individual titles, but to the collective. In other words, IPSO should feel compelled to intervene when it detects what might be called a ‘pile on’ by titles who are giddily fuelling the toxic atmosphere without contributing anything new to the discussion. Journalists, themselves, should take responsibility here and be cognisant of the degree of coverage across titles. They should be satisfied that their reporting does not amount to a ‘pile-on’ in which multiple titles are fixating upon a target. Repetition of coverage found elsewhere provides a weak justification for covering it again.
Thus, IPSO should take into account the frequency of coverage over a set period of time. The greater the frequency, especially across a short period of time, the greater the justification required for continued coverage by titles. Likewise, when this frequency is apparent, the degree of contribution to the public interest debate should be appraised. Repeated or marginal claims – marginal, that is, relative to the original claim – ought not to be deemed to advance the public interest. Such repetition or marginal advancements call for a greater level of justification for the persistent coverage they represent.
Likewise, IPSO should have regard to whether an official investigation is currently underway. In Professor Arday’s case, the object of intense scrutiny – though I hate to indulge abject racism with the veil of legitimacy – was, ostensibly, to pressure his employer to investigate the claims of plagiarism and exaggeration. Cambridge buckled: they were investigating him. He, himself, unable to bear the scrutiny had resigned. There was nothing more to be said; at least, not until the investigation had concluded. It is one thing for the press to monitor whether an investigation is taking place, quite another for it to bully investigators into the answer it wants to hear.
One may ask whether such a clause is necessary given that the Editors’ Code of Practice already contains a harassment provision that is phrased in similar terms. Remember, though, that that clause only applies to newsgathering techniques, not stories themselves. Likewise, the Protection from Harassment Act 1997 is practically useless in this sort of scenario. Courts are so enamoured with their romantic tropes about the press that they just will not apply it to journalists, even when the terms of that Act are manifestly breached. I know of only one instance where it has been applied against a journalist, and only then because the harassment transcended journalism, amounting to something of a ‘personal vendetta’. Similarly, as Professor Arday found to his cost: the police just are not interested in such cases.
The anti-fixation clause I describe here could be formulated into a clause provision (as above) and accompanying guidance to provide clarity about its nature and purpose. I am not suggesting that public office holders or sources of real corporate power might evade public scrutiny through this clause. That is not its purpose. It is, once again, a measure that speaks to Lord Justice Leveson’s clear message that rampant and unrestrained press malpractice causes real harm to real people. That lesson has yet to be learnt. How many more lives must be lost before it is?
Paul Wragg, Professor of Media Law, University of Leeds
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