In an age of modern technology, a world of globalisation and with the spotlight firmly fixed on the Leveson Inquiry it is a simple mistake to forget the value of something written in 1890. I said simple, not forgivable. The current situation media law finds itself is similar to the position of financial regulation. Both are highly complex and rest upon a careful balancing act, making reform difficult in both areas.
However, like the way in which we have chosen to ignore the lessons to be learnt from economic history, it is also deeply frustrating that they’ve chosen to ignore the lessons on offer in a 120 year old seminal paper. Much of what the great Warren and Brandeis reflected on is alarmingly relevant today – the recent publication of the topless images of the Duchess of Cambridge has us returning to old questions.
Proponents of a strong, diverse and free press that can find safety behind a cloak of “public interest”, often rely on presumptions of the often unspoken question: what does most media content consist of? It is when this almost metaphysical question is examined that fundamental problems in the realities of a completely liberal approach begin to surface.
Journalism that reports on legal, economic and political issues continues to diminish, whilst the rise and dominance of entertainment conglomerates continues. Celebrity culture has spread like a contagion occupying the minds of the general public, who are becoming more concerned with who to vote for on X Factor than the General Election. An increase in the focus on entertainment based content has undoubtedly led to an increase in economic success for media outlets. The impact of business pressures on editorial decisions is very telling. Meanwhile the Press Complaints Commission in the U.K. have proved to be something of a toothless tiger.
The tabloid strand of the media is a prime example of the over zealous focus on entertainment, such outlets cannot be stated to promote truth and morality, rather, they actively militate against the prestigiousness of the profession. This shift in focus serves a more disturbing purpose. There is also something slightly hypocritical of the general public: seemingly very quick to be vocal of their outrage at such invasions of privacy and yet these stories trend in online searches, and tabloid newspapers continue to be the biggest selling newspapers in the country. We desperately need a cultural change. The results of the media, regarding the respect for privacy, have been terrible, but it’s more or less what we should have expected. As long as the demand remains, media outlets will be more than willing to satisfy these prurient tastes – the potential profits far outweigh any kickback for media outlets. Although the prospects of this change seems, at best, slim. We must therefore look at other means to protect privacy.
Firstly, in order to protect the individual and society, we must recognise the individual’s rights. As Paul Bernal’s brilliant recent blog post suggests, rights should be for everybody and it’s about time we seriously recognise that.
If we glance at Germany’s notable Soraya  case, analysis indicates there needn’t be an all or nothing approach to the legal protection of the tabloid strand of the media. As the Court in Germany showed, it is willing to countenance limits; a tabloid paper cannot claim free speech or free press rights when its story is made up and contributes nothing of value to public discourse. This model benefits from corresponding with the European Court of Human Rights analysis of freedom of speech. Insofar as, it emphasises the vital function of the press as a “public watchdog” in imparting information and ideas of public interest (Observer and Guardian v U.K. ). Furthermore, this model recognises that journalists have “duties and responsibilities” in performing this role (Jersild ). British Courts could do more in this area and draw similar explicit limits. Of course, discretion and contextual reasoning is important, but there could be more of a hard line approach when it comes to British Courts imposing such limits and the effective communication of such limits to the media. If we look at the results to date, they haven’t been encouraging. If legislation is to be avoided then British Courts have to do more in this area. There has to be a sense of public confidence that the Courts are up to this.
An alternative approach can be found in the U.S., where similarly, celebrity culture is rife, but at least they have attempted to establish boundaries. An environment within which the individual’s emotional well-being is protected has been established. This has been supported by the creation of a civil offence should embarrassing private facts enter public discourse, providing such facts are non-newsworthy, private and offensive to a reasonable person. Whilst the state of California have gone as far as articulating this as an “inalienable right” and in Montana personal privacy “shall not be infringed without the showing of compelling state interest”. Of course debate still surrounds the meaning of “newsworthy”, and tensions continue to exist between those in the public eye and the media outlets wanting the freedom to publish details of their lives. Furthermore, debate still ensues among those who do want reform regarding what is “essential”.
On the face of it, an example of a more hard line approach lies in France, whose early recognition towards the right to privacy caught the attention of Warren and Brandeis. However, editors can be seen to be influenced by “business pressures”, when deciding what to print. Indeed it is not uncommon for there to be an allocation of a budget for Court costs, as they are usually significantly dwarfed by the revenue generating when printing. This was certainly the case in the release of topless images of the Duchess of Cambridge. Although the French Courts did respond quickly, the internet provides a much more difficult outlet to police – the Duchess succeeded in getting an injunction, however the images are still only a web search a way. Digital outlets allow too easily, private information being “shouted from the rooftops”. This was something that Dario Milo and Emma Sadleir touched upon in their recent post along with an excellent comparative analysis with the position in South Africa. Unfortunately, this brings us back to this article’s leitmotif: the need of a cultural change in our society.
There is a real danger that, one day a historian will one day have to retrace the steps by which hostility to speech that enriches public discourse obtained so strong a grip on a profession which once was held in high regard. This is a pivotal moment in the history of the media, we find ourselves very much at the center of a crossroads. We need to rediscover the lessons that Warren and Brandeis taught us all those years ago and reaffirm the kind of values they advocate. However, with the tensions that arise in attempting to distinguish the different types of content, and in the absence of a clear cultural shift, establishing a new model for the legal protection afforded to the media will be a formidable, if not impossible, task.
I leave you, with what I consider to be one of the best pieces of writing on the subject, an excerpt that eloquently describes our cultural problems. I still have to remind myself that it was written in 1890. There’s a strong sense of irony with all the technological advancements that have occurred in the past 120 years that there are some things that seemingly never change:
“The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. Nor is the harm wrought by such invasions confined to the suffering of those who may be the subjects of journalistic or other enterprise. In this, as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in the lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things. Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence.” S. D. Warren and L. D. Brandeis, ‘The Right to Privacy’ (1890) IV. Harvard Law Review (5) 129
Richard Ridyard is a B.C.L. student at the University of Oxford