Privacy and Injunctions: the Press does not speak for the People – Steven Barnett

17 05 2016

privacy-policy-mainWhen the Court of Appeal overturned a judge’s refusal to grant an injunction to a married celebrity about an alleged “threesome”, much of the British press could barely conceal its fury. 

With the couple’s identities published in the United States, Scotland and Australia as well as some social media, the Daily Mail banner headline screamed “WHY THE LAW IS AN ASS” with a strapline that read “Countless Americans can read about a married celebrity dad having a threesome with another couple. So why are our judges banning YOU from knowing his name?”

Its editorial railed against the “hypocrisy” of celebrities and ended with a rhetorical question: “Whatever happened to the public’s right to know?” Echoing the Mail, the Sun launched a “Your right to know” campaign complete with email and postal address.

Since then, the editor of one American publication has promised to continue “exposing” celebrities, recently naming an actor who successfully won an injunction five years ago. He justified his position by arguing that “we believe our readers have the right to know about the professional and personal lives of these types of celebrities and we are not going to shy away from that.”

Ten days ago, the Sun took up the battle cry with a double page spread headed “Revealed: staggering number of celebs who have banned you from reading about their sleazy antics” with an outline of those “antics” which their readers had been denied. Once again, just as we saw immediately before the phone-hacking scandal broke in 2011, it appears that the British tabloids are declaring war on celebrity privacy in general and injunctions in particular.

With the Supreme Court due to give judgement on Thursday 19 May 2016 on the “celebrity threesome” case, it is worth considering two of the empirical pillars on which the British press – at the tabloid end, at least – appears to base its argument: first, that they are tribunes of the people, representing the weight of public opinion and campaigning on behalf of the British public’s “right to know”. And second, that the internet has obliterated the domestic law on privacy because other jurisdictions allow publication of the names which can easily be accessed on laptops, iPads and smartphones.

Let’s take each of those arguments in turn.

Are newspapers representing the will of their readers? Public opinion surveys suggest quite the reverse: that large majorities of the British public do not think the private lives of public figures should be exposed, and have a very developed sense of the “public interest” in journalistic scrutiny. I reported in an earlier post  on research I conducted for the British Journalism Review four years ago which presented eight different story lines to a representative sample of the population. In each case, respondents were asked whether or not the story should be published.

Results showed conclusively that the British public understands the distinction between watchdog journalism which holds power to account and celebrity journalism which has little public value (even if some of it might be fun to know).

To give just two examples, when asked about a story involving “a leading politician’s daughter found drunk in public”, just 24% said that it should be published while over two thirds – 69% – said it should not. More surprisingly perhaps, when asked about “a well-known England footballer, who is married with young children, having an affair”, just 36% supported publication while well over half – 58% – opposed it.

More recent surveys support these findings. Last month, Ofcom reported on its annual attitudes survey [pdf], which included the statement that “TV broadcasters should be free to show programmes that scrutinise the lives of celebrities, politicians or other public figures without them giving consent”. Just one third (34%) agreed with this statement, while exactly half disagreed. This, remember, was concerned with attitudes towards a news medium which consistently rates far higher than newspapers (or online) for trustworthiness.

For most people, therefore, the journalistic imperative of “telling truth to power” does not entail exposing the details of infidelity or revealing the kinds of salacious material which are a routine element of kiss and tell stories.

Tabloid editors commonly dismiss opinion surveys and respond with “why are people buying our newspapers in such large numbers?” It is worth remembering that newspaper circulations are in fact declining rapidly (particularly at the tabloid end) and are read today by a small minority of the population. In just six years, from 2010, official ABC figures show that the Sun’s circulation has nearly halved from 3m to 1.8m, the Daily Mail has lost a quarter, from 2.1m to 1.6m, while the Mirror, Express, and Star have each lost over a third (respectively down from 1.2m to 800,000, 675,000 to just over 400,000, and 780,000 to 470,000). Between them, those five newspapers have dropped in just six years from a total circulation of 7.8m to just over 5m out of an adult population of nearly 50 million.

They will all, of course, have picked up online readers, and Mail Online in particular has established itself as a popular international brand. But the argument that these stories are driven purely by popular appetite and the public’s clamour to know about celebrities’ private lives are not supported by the evidence.

What, then, about the technological determinist argument that the global march of online and social media renders English injunctions worthless? It is certainly true that anyone desperate to know the identity of PJS (in the current case) or anyone else involved in injuncted stories will find their names after a few clicks of the mouse. In that sense, of course, the “right to know” is not impaired.

What they will not find, though, is the screaming front page splash and the salacious details of the “five times a night love rat” or whatever other scandalous material the tabloid editor has bought and is desperate to sell on the newsstands.

It is the volume, power and intensity of the printed word – invariably accompanied by titillating sexual detail and “reconstruction” photos – that surely represents the real potential damage to those seeking to protect their privacy, rather than simply how many individuals around the globe happen to know their identity. And, again, there is simply no evidence that the British public would prioritise their own “right to know” above the considered opinion of a court which has heard all the evidence of potential harm to those involved.

In short, whatever the legal and philosophical issues about privacy versus free speech, there is little evidence to support press arguments that they speak for the general public. Publishers’ commercial self-interest is probably a rather more pressing motive than any altruistic commitment to truth-telling.

Steven Barnett is Professor of Communications at the University of Westminster. @stevenjbarnett


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