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.