hypocrisyThe RPC Privacy Blog has a post about an interview in the Financial Times where Max Mosley, challenges the notion that there might be a public interest in exposing hypocrisy.  The interviewer asks Mr Mosley whether people in the public eye are role models and therefore have a duty to behave in a certain way.  Mr Mosley replies:

“If someone is a role model and they’re doing something they shouldn’t do, the last thing you want to do is expose that.  You have to ask, does what this person say achieve the objective of persuading people to behave better?  Whether he’s actually doing it or not is beside the point as long as it doesn’t come out”.

When the interviewer suggests that’s a bit hypocritical, Mr Mosley says:

“In the end people are hypocritical.  What’s so wrong with hypocrisy?”

Case Law On Hypocrisy

While the reported decisions suggest that judges are inclined to be wary of according role model status to people in the public eye, they are concerned about statements which mislead the public.  Perhaps the clearest example of that is in Campbell v MGN where it was generally accepted that there was a public interest in exposing the glaring inconsistency between Ms Campbell’s actual drug use and her public statements to the contrary.

However there is a distinction between lying and hypocrisy. The point was considered in the seminal decision of Eady J in McKennitt v Ash [2006] EMLR 10.

“That background is important, Mr Browne submits, because there is no reason to suppose that, where the public interest justification for publishing confidential material is the misconduct of the claimant, it is appropriate to apply any significantly lower threshold than that which operated under the traditional “iniquity rule”. Has the particular claimant behaved so “disgracefully or criminally” that the public interest requires that his or her behaviour should be exposed? As I have already pointed out, in Campbell v MGN Ltd the public interest was said to arise from the fact that Ms Campbell had publicly lied to conceal her drug habit. I have little doubt that, more generally, where a claimant has deliberately sought to mislead the public on a significant issue, that would be regarded as a sufficient reason for putting the record straight, even if it involved a breach of confidence or an infringement of privacy. Such an approach would be consistent with the test applied by the Press Complaints Commission.[96]

I am prepared to acknowledge that a court nowadays might not apply quite so strict a test to that laid down by Ungoed-Thomas J in Beloff v Pressdram [1973] 1 All ER 241, 260: “… the disclosure justified in the public interest, of matters carried out or contemplated, in breach of the country’s security, or in breach of law, including statutory duty, fraud or otherwise destructive of the country or its people, including matters medically dangerous to the public; and doubtless other misdeeds of similar gravity”.

I would nevertheless accept that Mr Browne is broadly correct when he submits that for a claimant’s conduct to “trigger the public interest defence” a very high degree of misbehaviour must be demonstrated. Relatively trivial matters, even though falling short of the highest standards people might set for themselves, will not suffice. All of us try to behave well, no doubt, for most of the time but hardly anyone succeeds in achieving that ideal. The mere fact that a “celebrity” falls short from time to time, like everyone else, could not possibly justify exposure, in the supposed public interest, of every peccadillo or foible cropping up in day-to-day life.” [97]

The Judge ( and later the Court of Appeal ) also considered and effectively distinguished the 1977  case of Woodward v Hutchings, which was often relied upon by the media seeking to justify intrusive publications. The Court of Appeal in McKennitt , in unanimously upholding the decision of Eady J,   specifically dealt with the issue of hypocrisy in the following terms:

“Hypocrisy

This is the charge brought against Ms McKennitt, which is said to justify telling the world about her private behaviour and attitudes. Much of the book (for instance the matters about health or bereavement) does not fall into this category in any event. The complaint is that Ms McKennitt treated Ms Ash, and others, badly in two main respects, in the Irish cottage and in connexion with the property dispute, and that that was inconsistent with her public position about proper behaviour and respect for others.[67]

Once again, this argument simply fails on the facts. The Judge made findings in his §§ 98-100 about the material on which Ms McKennitt’s alleged announcement of her principles was based, the “compass points”. He found them, as I do, a fragile basis for any public interest defence; and indeed said, at §100, that they were simply being used as an excuse by Ms Ash to enable her to escape her obligations of confidence and, in her own phrase, “unqualified loyalty” And the Judge concluded that in any event Ms McKennitt had not behaved disreputably or insincerely in any way.[68]

Some criticism is made of the Judge having said in his §97 that “a very high degree of misbehaviour must be demonstrated” to trigger a public interest defence. As an entirely general statement, divorced from its context, that may well go too far. But the Judge was speaking of the particular situation argued before him, where not the conduct in itself, but the fact that it had previously been lied about or treated with hypocrisy, was said to be the basis for disclosure. In Campbell it was the fact that Ms Campbell had not merely said that she did not take drugs but had gone out of her way to emphasise that she was in that respect unlike other fashion models that deprived otherwise private material of protection: see per Lord Nicholls of Birkenhead, [2004] 2 AC 457[24]. By contrast, as the Judge clearly thought in his §97, the conduct complained of in the case of Ms McKennitt fell well below the level that would justify complaint on the ground of hypocrisy.”[69]

Commentary

In a 2006 LRB article entitled “Towards a Right to Privacy” Stephen Sedley discussed the “hypocrisy defence” in the context of the Flitcroft case  in these terms:

As for the customary claim … that the revelations served the high purpose of exposing the flaws in a young persons’ role model, one has to wonder what our moral custodians imagine goes on in young people’s minds. Possibly – just possibly – a certain number of boys want to grow up playing football like Garry Flitcroft. Is the revelation in the family’s Sunday paper that he has been sleeping with a lap-dancer going to make them switch to, let us say, Wayne Rooney as their preferred role model? Or is it going to suggest to them that the great thing about being a professional footballer, or any other kind of media star, is that you can sleep with just about anyone?

In another context the Cambridge academic David Runciman has written  a book about hypocrisy entitled  “Political Hypocrisy” [2008] Princeton University Press where he argues that we should accept hypocrisy as a fact of politics and stop trying to search for ideally authentic politicians. Instead he argues ( similar to the Judges in McKennitt ) that we should try and distinguish between harmless and harmful hypocrisies and should only worry about the most damaging varieties.