Privacy, the Duchess of York and the Public Interest

25 05 2010

On Sunday 23 May 2010 the “News of the World” published what it described as “Cash for Royal Access Sensation”.  In a story by its “investigations editor”, Mazher Mahmood (the so-called “fake sheikh“), it reported that the Duchess of York was “shamelessly plotting to sell access to her trade envoy ex-hubby Prince Andrew for £500,000″. The paper had video footage of the Duchess taking money.  She had been the victim of a classic “sting”, with a reporter posing as a “rich businessman” who was seeking access to her former husband, Prince Andrew, and paid US$40,000 down-payment in cash.The “News of the World” story has been reported by the media all round the world and has led to almost universal condemnation of the Duchess.   The “Daily Mail” headline is not atypical: “Greedy and needy, the Duchess has blown any chance of future happiness for a fistful of dollars”.  The Duchess issued a statement (reproduced in the Daily Telegraph) in which she said

“I very deeply regret the situation and the embarrassment caused.

It is true that my financial situation is under stress however, that is no excuse for a serious lapse in judgment and I am very sorry that this has happened”.

But was this “News of the World” publication justified in law?  There can be no doubt that the Duchess had a reasonable expectation of privacy in relation to the conversation she had with the “businessman”.   The publication of the video and of the Duchess’ conversations with the undercover journalist clearly engaged her Article 8 rights to respect for private life and needed justification.  In the older terminology, the newspaper need to show some “public interest” to justify the publication.  What is the public interest in this case?

Most people’s instinct would clearly favour the existence of a public interest in this case, but what exactly is the public interest involved?  The News of the World’s Royal Editor is quoted as saying

What is very serious here is that she’s so desperate that she’s prepared to jeopardise the reputation of her ex-husband and of the country, and of an important international ambassadorial role, which is, after all, funded in terms of the expenses by the taxpayer

So, the public interest is the “exposure of desperation” – not entirely promising – or the exposure of the fact that she was prepared to risk Prince Andrew’s reputation.   The difficulty with this is that the “News of the World” does not suggest that Prince Andrew was going to do anything improper – so where is the risk?

The issue is discussed on Roy Greenslade’s blog under the headline “Why the News of the World was right to expose the Duchess of York“.  He sets out three reasons why he is supportive of the publication of the story and the methods used to obtain it.  The first is that this was not a “fishing expedition” – “that the Duchess was “already cashing in on unknowing Andrew by setting up deals with foreign businessmen“.  Secondly, he says that

though I suspect from the video that the Duchess might have drunk more than was good for her, she did convict herself several times over without much obvious prompting“.

These are both good points but neither directly relevant to the issue of public interest.   On this issue Mr Greenslade says this

“because, despite being divorced from the Prince, they remain close friends (well, until yesterday) and her continuing close proximity to him and his family places an extra onus on her to be squeaky clean.

Similarly, there is a pressure on him, especially given his somewhat mysterious globe-trotting quasi-governmental role, not to be involved with a loose cannon”

This is not straightforward.  How can proximity to the Royal family place someone under a general obligation to be “squeaky clean”?  There may be a public expectation that the former wives of members of the Royal Family do not offer to sell access to them but is there a duty on the former wives to live up to that expectation?   Isn’t it generally known that the Duchess of York has taken full advantage of the fact that she was formerly married to Prince Andrew?   Mr Greenslade recognises the difficulty

“I accept that the Duchess has made a career of trading on her royal connections and, in a sense, this is merely another, if extreme, example of her undignified willingness to do almost anything to make money.

But this kind of sordid hole-in-the-corner activity is very different from entertaining American audiences with harmless tales of visits to Buck House”.

The public interest can’t really be “the exposing of hypocrisy” because, as far as we are aware, the Duchess of York has never publicly declared that she will not take money for access.  There is no “exposing of wrongdoing by public officials” because the Duchess of York is not one and anyway, no actual “wrongdoing” is alleged.

Nevertheless, it seems to us that there is a proper justification for the publication of the story.   What the Duchess was offering was “access to a public official”, for a payment which appears to be wholly disproportionate to the “monetary value” of the service offered.  The size of the sum can only be explained by an assumption that the businessman was going to get something of great value – something which, as a matter of obvious inference, could not be obtained by approaching Prince Andrew through proper channels.  The fact that neither the Duchess nor the businessman had any specific wrongdoing in mind does not matter.  The whole transaction was “tainted” and its exposure was, we suggest, justified for that reason.

However, although there was a legitimate public interest in publication, it is clear that the “News of The World” did not notify the Duchess in advance of the publication. It is unclear to us why the “News Of The World” did not give such notification, especially since it appears to be the position of the media from their submissions to European Court of Human Rights in the Mosley application that pre-notification is the norm.

There is an interest “comment”, apparently from a journalist, on the Press Gazette report of the Duchess of York’s apology which sums up the unease that many feel about this kind of story

“The newspaperman in me says great scoop … the private me worries about the nosedive towards the ‘entrapment’ style interviews. It is hugely damaging to the already riddled body of journalism. My conscience would not let me sleep at night if I was in Mahmood’s shoes, so I guess it’s as well I am not a newshound. Who’s next? Nick Clegg must be a tempting target. I am sure there are no boundaries that the magnificent Mahmood will not cross. But does he sleep well? And will our troubled profession benefit from the cesspool journalism?”

As a footnote, we note that the “ethics of journalism” issue also concerns the American media.  The “Washington Post” reported the point in this way (without comment – and note the inverted commas)

“As for the ethics of a journalist impersonating a businessman, [the News of the World spokesman] said that there was “a legitimate public interest” in the story and that this is “common practice” in the United Kingdom”.

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5 responses

25 05 2010
David Kirke

Kind regards. As a benevolent liberal and admirer and client of Steven Heffer of Collyer Bristow, this ordinary citizen believes the News of the Screws should be fined an amount sufficiently colossal to hurt iUncle Ruperts minions badly and modify their behaviour. Would we could see lawyers with that skill and courage. Quite apart from the industries of Public Relations, Sport, Academia and Arms Sales I have some familiarity with, I hardly know of anybody who at some time or other hasn’t ‘taken a drink’ to meet someone, as the legally lucrative criminal class would say.

25 05 2010
Andrew Scott

Although in light of the preceding paragraphs it was something of a surprise to see it, this piece offers a persuasive and articulate public interest justification for what was done in this case and for the subsequent publication. I doubt anyone hearing this story would seriously suggest that there was no public interest on the facts here, even if they couldn’t nail down precisely what it was. Describing elephants ain’t easy.

Is it really ‘unclear’, though, why the NoW did not give notification?

First, obviously and at least for the meantime, they are under no obligation to do so.

Secondly, if they did give notice they would face an interim hearing before the court based on the section 12 / Cream Holdings test and not a version of Bonnard v Perryman.

Thirdly, even if an injunction was refused – which you’d think would be likely here – they could see an appeal against the refusal to grant relief with a temporary injunction imposed pending the later proceedings which could tie the matter up for months (eg Napier v Pressdram).

Result: cost, delay, but still publication – and this on a case where it is obvious to everyone that there is a public interest justification.

If one aim here is to push the need for a prior notification obligation, then it should be recognised that any such obligation (for which, in principle, there is a good argument) would come with costs that also have to be appreciated.

25 05 2010
David Kirke

Bemused regards. I think the ordinary citizen might be a trifle sardonic about this restriction on the ambiguities of the term ‘public interest’, both in the ordinary uses and legal definitions of the term. He, and especially she, might even hark back to the time when the Englishman’s home ceased to be his castle as a result of the powers that came and went offering Customs and Excise entry to any home in pursuit of cider brandy. I suggest that entry by deception might statistically find more disfavour with the general public than what they might perceive to be the interests of the powers that be or those who earn a crust defining and upholding public and national interest. Back to basics chaps: too many ordinary citizens get stitched up with no fall back, mais quand meme, veuillez accepter mes compliments les plus sinceres, meme encore pour l’addition.

30 05 2010
Law and Media Roundup 30 May 2010 « Inforrm's Blog

[...] sting.  The issue of the public interest justification for this operation was discussed by us in a posting, which was subsequently republished on the “Guardian Legal Network”.  This was, in turn, [...]

30 08 2010
Journalism, Entrapment and the Public Interest « Inforrm's Blog

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