What has been interesting to watch is how the Sun has used the public interest. As data protection practitioners we should be interested. We work within the confines of the public interest and we are "ordinary individuals" (see below.)
I believe in a free press as well as an effective police force as long as they serve the rule of law. As the guardians of the regime, they are required to have a higher level of integrity. We are asking them, in many ways, to protect our liberty and our lives. To that end, I am quite keen to see the rule of law sustained because it protect us against the arbitrary whims of individuals.
Individuals who act with the mantle of the "public interest" can, if they lack integrity, abuse the power the public delegate to them. When that occurs, especially as it is done in our name, we should take an interest. More to the point, such guardians (even self-professed ones) should be required to justify their actions, which in turn regulates their behaviour. They should, must if we are to be a democracy, be held to account to explain how their story serves the public interest rather than the public appetite.
Here are two links to stories that will give one pause about the dangerous power of the public interest that the press can use. The first escaped the headlines because it was a written submission.
http://www.publications.parliament.uk/pa/cm200203/cmselect/cmcumeds/458/458w126.htm
(The story can be upsetting and it is worth reading because of the principles regarding the power of the press in using the public interest.)
The second is testimony to the Leveson Inquiry. The reporter explained his ethos (which he claimed to be the ethos of all press (as acting in the public interest)). He explains that anyone can be investigated because what he does is in the public interest.
http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-Afternoon-Hearing-29-November-2011.pdf
The material starts on page 8, with p.36 explaining the "get the story at any cost". On p.39 he explains that anything he does is in the public interest.
If an editor believes that you should be investigated as being in the public interest (there is no criteria for this by the way) they can begin to investigate you. They can pay people such as the reporter mentioned to go through anything and everything in your life. There are two things keep this from happening.
The first is the cost-benefit analysis associated with the cost of pursuing you as against your value to marketing the newspaper. (See the reporter explaining on p.78-79 his concern with not getting value for money (rather than its legality) regarding the hacking.)
The second is limits of the Reynolds defence. However, the court will defer to the editor's public interest judgement in the first instance.
Once you are in the press and you wish to seek damages for distress caused by their use of the public interest, you have to take the newspaper to court. The court will determine whether the public interest has been used appropriately). The Max Mosely case illustrates this point. The legal costs are high. Zac Goldsmith explained this and he is a relatively wealthy, powerful, and politically connected individual. See page 13 of the PM (Radio 4) report on privacy http://www.bbc.co.uk/blogs/pm/PM_Privacy_Commission_Report.pdf
The Reynolds defence http://en.wikipedia.org/wiki/Reynolds_v_Times_Newspapers_Ltd gives the press a qualified defence when using the public interest to justify their story. In this case, it was about the alleged corruption of a public official . This was not salacious news to sate the public appetite. The public interest is more than a concern for defamation as set out in the Chase principles. http://www.bailii.org/ew/cases/EWCA/Civ/2002/1772.html
The courts are not sure they are the best place to decide the public interest. In particular, they expressed concern that the courts would be seen to be regulating the press. In Flood v. Times http://www.supremecourt.gov.uk/docs/UKSC_2010_0166_Judgment.pdf (This upheld the Reynolds defence). The Court said that the initial decision regarding the public interest is left to the editor to decide. (see paragraph 194) The Court seemed to accept that "ordinary individuals" should not be targeted by a trial by press (p.195). They did not define an "ordinary" individual. (If you upset the editor will you remain an ordinary individual?)
The Court said the public interest had to consider the effect of publication as against the unjustified harm against the individual (See paragraph 177). I wonder how that is calculated with regard to the public interest when you consider p 92-94 of the Leveson evidence mentioned above.
The question that still remains what is the limit to the public interest?
We may consider the Prince photographs as in the public interest. However, where does that stop? If the courts see your only defence as being an "ordinary individual", who will want to be an "extraordinary individual?" If you are an ordinary person then the press have an interesting in finding a way to make you "extraordinary". When that occurs, where will you turn?
When such power is exercised, it can create chilling effect because there is a price for speaking up and losing your claim to being an "ordinary" person. Is this healthy for public debate needed to sustain a democracy?
When unelected power is unaccountable, where is democracy? Where is freedom?
Just some thoughts on a sunny Friday afternoon.
Lawrence
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