Blimey, it would take more than a sunny Friday afternoon to do
Lawrence's disection of this issue justice. Mesmerising.
I like the final bit of the discussion, this is a clash between
2 unelected, anti-democratic groups with lots of power, the press and the Royal
family. The Royal family nearly pulled it off, they have protection under FOI
(Royal Household, whatever that is) but no special protection under DP as far
as I know. Harry is a special person with special priviledges and special
protection paid for by us all. In this case I think the Sun got it right, may
be for all the wrong reasons and those are words I thought I would never speak.
Chris
Chris Tinsley | Information Management
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From: This list is for those interested in Data
Protection issues [mailto:[log in to unmask]] On Behalf Of Lawrence
Serewicz
Sent: 31 August 2012 16:37
To: [log in to unmask]
Subject: Re: [data-protection] The Fresh Prince The public interest vs
the public appetite
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.
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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