Public interest and the Prince – the Sun fails the responsibility test

24 08 2012

So, finally, the “Sun” has come up with a public interest argument to justify writing about and publishing illegally taken photographs of a party in a private hotel room.  Under the headline “We fight for press freedom” the “Sun” bootstraps for Britain – justifying its publication of private photographs by reference to the “debate” which it, and the rest of the media have generated.  The public interest in publishing the photographs is, apparently, “in order for the debate about them to be fully informed“.

And then there is this curious version of the “argument from the internet”: everybody has already seen the photographs so  “Sun” readers need to see them too.  The photographs are described as the “Pics of Harry you’ve already seen on the internet” – that is, they are in the public domain.  But also, these are the pictures who those who get their news in print and don’t have internet access “could not see”.   It this clear?  The “Sun” is publishing both because everyone has already seen the pictures and because millions have not.

These are, you will recall, the pictures which the Leveson censorship agency had terrorised the press into suppressing.  They don’t appear to have been very scared.  But his Lordship does appear to have forced the “Sun” to go through the difficult and humiliating process of thinking up arguments to support their position.  They have had to come with something to justify what would otherwise be cheerful, carefree, titillation. The product of this effort is not impressive.  No amount of empty sounding off about the “free press” can disguise the fact that this is a good, old fashioned, invasion of privacy to put on the front page.

But the “Sun” and its cheerleaders have managed to muddy the waters of public debate.  It is useful to get back to basics for a moment.  Let’s begin with the provisions of the PCC Editors Code (something  which the “Sun” claims to accept and be bound by):

  • “Everyone is entitled to respect for his or her private and family life, home, health and correspondence” (see, for example, clause 3(i) of the Code).  Contrary to the impression conveyed in recent days this doesn’t just cover photographs – the fact that someone holds a private party, who goes to it and what happens at it is, well, private.
  • Intrusions into private life must be justified (see clause 3(ii) of the Code).  In other words, there must be some justification for writing about the Prince’s Las Vegas party at all – not just for publishing the photographs.
  • It is unacceptable to photograph individuals in private places without their consent (see clause 3(iii)).  This obviously covers not just taking but also publishing photographs taken improperly by someone else.
  • All this is subject to the “public interest” which the Code says includes but is not confined to:  “i) Detecting or exposing crime or serious impropriety. ii) Protecting public health and safety. iii) Preventing the public from being misled by an action or statement of an individual or organisation”.

These provisions are, in substance, reflected in the law of misuse of private information: if there is a “reasonable expectation of privacy” then there needs to be “justification” for publication.

Note, the Code (and the law) does not contain an “everyone else is doing it” exception.  The fact that others round the world publish private information and photographs does not justify their publication in England.   There are large numbers of photographs available on the internet which are private, offensive or criminal which the press does not re-publish for very good reasons.  The reason why the photographs of Harry have been seen by so many on the internet is simple: the press has told people that they are there, and for good measure has named the site. Reliance on the fact that they have been seen by millions is another bootstraps argument.

So the basic position is clear.  The press should only have published stories about the Prince’s party if there was a public interest in doing so.  The public interest arguments would have to be stronger in relation to the photographs because, as everyone recognises, photographs are more intrusive.

What is the public interest in publishing the story (as opposed to the photographs)?  No question of health and safety or misleading the public.  What about “wrongdoing”?  The “Sun” does not suggest that Prince Harry has done anything wrong.  It tells us today, in terms:

The Sun is NOT making any moral judgement about Harry’s nude frolics with girls in a Las Vegas hotel. Far from it. He often sails close to the wind for a Royal — but he’s 27, single and a soldier. We like him.

So he has “sailed close to the wind” but he has not actually broken any law or broken any rule.  No public interest there then.

We note, in passing, that there has obviously been impropriety here: by the photographer and those who have published the products of his or her wrongdoing.  Strangely enough, the “Sun” (and the rest of the British press) has said almost nothing about this person.  But these people’s wrongdoing cannot justify invading the privacy of their victims: the others at the party.  At best, it would justify a story to the effect that someone has supplied photographs of a private party attended by Prince Harry to US gossip websites.  But it would not be necessary to publish private information – much less to publish the photographs – in order to discuss the issues which arise.

In other words, the publication of the story itself – details of the party – was a breach of the Code (and of the law).  The fact that it was published by the media and others worldwide does not alter the position and does not make the publication of story (or photographs) lawful.

So how does the “Sun” counter this? What are their public interest arguments in favour of publishing the photographs?  They do seek to rely on the three heads of “public interest” explicitly identified in the PCC Code: no crime or wrongdoing, issue of public safety or “hypocrisy”.  They put forward four arguments.

First, that their publication is needed to “fully inform” the debate which has resulted from the media’s own stories – and complaints that they could not be published.   The media cannot generate public interest by its own conduct.  Anyway the argument doesn’t wash.  Any debate can plainly be had without seeing the photographs: nothing turns on the way they look (and if it did, they could be described, as the New York Times has done).

Second, it is said that the photos have “potential implications for the Prince’s image representing Britain round the world”.  The use of the word “potential” is a give away: it means that the “Sun” can’t actually think of any implications right now.  And if there were any such implications they hardly need the actual photos to be published.

Third, there are  said to be “questions over his security during the Las Vegas holiday. Questions as to whether his position in the Army might be affected”.  But no actual security questions have been identified – and none are suggested by the “Sun”.  If there were any such questions that might be a justification for publishing information about the “party” – but again, not the photographs.

Finally, the “Sun” relies on a decision of the PCC in relation to photographs where it said

“The Commission felt that the images were so widely established for it to be untenable for the Commission to rule that it was wrong for the magazine to use them.”

This was a May 2010 adjudication involving the re-publication by “Loaded Magazine” of photographs which the complainant had originally uploaded herself to Bebo in 2006.  In other words, the issue was not one of using photographs which were taken privately without consent but of re-using photographs which had been voluntarily placed in the public domain (and had circulated on the internet for several years).   The case could hardly be more different.  The Prince Harry party photographs were taken without consent and had been illegally placed on the internet a few days earlier.  The “Loaded” ruling does not assist the “Sun” at all.

Put shortly, the “Sun’s” public interest arguments do not bear serious scrutiny.  There is no public interest in the publication of these photographs and the fact that they have been published, without consent, by others on the internet provides no justification for breach of the Editors’ Code.

The “Sun” tells us that

“The Prince Harry pictures are a crucial test of Britain’s free Press”.

They are right.  These photographs were a crucial test as to whether the British press can be trusted to exercise their right to freedom of expression in accordance with the “duties and responsibilities” which, Article 10(2) reminds us, the right carries with it.    The “Sun” has demonstrated, once again, that the press cannot act responsibly.   The desire to titillate and sell more newspapers will always trump the respect for the rights of others.   The case for statutory regulation of the press has been eloquently made out by the “Sun’s” own actions.

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10 responses

24 08 2012
Nawied Jabarkhyl

This is a fairly unbalanced response. His behaviour in the photographs does impact upon Harry’s image when representing Britain around the world. He sat in for the Queen during the Olympic Closing Ceremony. Had these photos come out the day of that occasion, would the Sun have been justified then?

Also, you’re selectively using captions of the PCC code; and more importantly, not giving a fair weighting to the Sun’s reasoning as to why they published the photos.

After all, the third in line to the throne does not ordinarily warrant the same degree of privacy to which others are allowed (and to which the PCC code generally refers to). That is the key point here – to which your article has given little, if any mention.

24 08 2012
sam

“the third in line to the throne does not ordinarily warrant the same degree of privacy to which others are allowed”

Which bit of “everybody” don’t you understand?

24 08 2012
Julian Petley

So, yet again, exactly as in the Mosley case, the Murdoch press produces utterly threadbare and entirely opportunistic ex post facto arguments about the \’public interest\’ in order to \’justify\’ a story whose only reason for existence is circulation boosting. Except this time there\’s the added ingredient of putting two fingers up to the PCC, Leveson, and any new system of regulation which he proposes. And if history is anything to go by, the next stage in this campaign (which is what this is, make no mistake) to terrify the government out of heeding whatever Leveson proposes will be a re-run of the David Mellor scandal – doubtless at this very moment grubby hands are rifling the \’blackmail\’ files which certain newspapers keep for occasions just such as this.
As for the argument that because something is on the Internet, then newspapers must be allowed to run it, this is too palpably absurd for words. There\’s paedophile porn and \’extreme porn\’ on the Internet (both regular targets of the Sun\’s ire), so by the logic of their argument their pages should be full of it too.

24 08 2012
INFORRM

Two points:
(1) It is not entirely clear what “impact upon Harry’s image” means in this context. Does it mean that some might argue he would be less suitable for the role? If so, they don’t need photographs to make this point. The “Sun” publication has not contributed to any debate about Prince Harry.
(2) It is difficult to see how being “third in line to the throne” (which is not an elected position or indeed any kind of public office at all) has any impact on the extent of privacy rights. But even if it did, it cannot seriously be argued that simply being “third in line to the throne” Prince Harry loses all his privacy rights (there is no question of the public assessing his suitability for the role and deciding whether or not he should continue to occupy it). Activity of the kind photographed is obviously private whatever standard is applied.

24 08 2012
Nav

“there is no question of the public assessing his suitability for the role and deciding whether or not he should continue to occupy it”

Equally, the public have no right in assessing the suitability of a footballer as captain of the England football team (which is also NOT AN ELECTED OFFICE OR A PUBLIC OFFICE AT ALL)… So why do we find that footballers rights to privacy are often reduced?

29 08 2012
Frankie

Footballer’s rights to privacy are not reduced in the case law. Being captain sometimes provides a public interest argument in favour of publication (see Ferdinand) – but taking on the job of England captain is a choice – the job can be refused. Prince Harry did not put himself forward for the job of third in line to the throne.

24 08 2012
Daryl Champion

There is the issue of press freedom, and the issue of the press’ abuse of press freedom. Those with a vested interest in trading in the privacy of others, of course, will tout the former while denying the existence of the latter issue. The wholesale denial of any right to privacy – for anyone at all, when it suits – has been the modus operandi of the (mainly) tabloid press in Britain for a very long time: it is a well-established business model. Expect every manner of bankrupt argument, and even less edifying means, to be pressed into service in the attempt to maintain it.

24 08 2012
Nav

Which bit of “everybody” don’t you understand?

Sam, I suggest you read up on media law.

25 08 2012
Cheryl C (@twistywillow)

Prince Harrys reputation has not in anyway been damaged by this story. He is a single young unattached man on holiday having fun. The damage is not to the crown or his family, though he might have raised an eye brow and gran might be unamused but by and large the main damage is to the press and their failure yet again to regulate themselves. This wasnt about freedom of speech or about public interest, lets be clear about this, it was solely about a gutter rag sticking their middle finger up at the UK in defiance for the punishment meted out over the hacking affair which closed its sister rag the news of the world. The sun seek to sit as judge and jury over everyone, except themselves. If their circulation went up today then I suspect a backlash by the british will happen later on. We Brits are tollerent of the Royals (unless one is a rampant republicanist) and Harrys job and work gives him more kudos than most of the lesser royals.
What I have objected to is that when going shopping, the sun was plastered all over the shelves in view of children and young adults. I choose not to buy any papers anymore, that way I can choose what I read and what I see, but seeing that rag today like that turned my stomach, for no other reason than it took away my freedom of choice -not to see. The sun can bang on all it likes about freedom of the press, well frankly I would like to see it neutered, or better still, gone, and dare I say, Murdoch with it.

16 09 2012
Inforrm: End of the Summer Break « Inforrm's Blog

[...] “The Mail and the Naked Prince“.  And the next most popular was the post on “Public Interest and the Prince: the Sun fails the responsibility test“.   Our other posts on the subject “This is not about Harry’s bum“, [...]

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