2. The Press Reform Debate

Issues relating to press freedom, the public interest, privacy and media ownership feature regularly in debates about press standards. That is because these issues can be linked to laws and policies that have been put in place to promote peaceful co-existence, prevent anarchy in society, uphold human rights and sustain democracy. For instance, privacy and press freedom relate to Articles 8 and 10, respectively, of the Human Rights Act 1998. Where they are violated, the structures that hold a democratic society together are weakened and the impact can be disastrous ranging from the press losing its ability to hold power to account to citizens committing suicides because of the pressures emanating from invasion into their private lives by journalists. Poor handling of any of the issues mentioned can result in the demise of democracy and peaceful co-existence. It is, therefore, not surprising that these themes are recurrent in debates about media standards. Because they were significant in the media policy debate that followed the NoTW phone hacking scandal, this chapter provides background knowledge on these key issues. The concept of political economy is used to explain the debate on the issue of concentration of media ownership. All these will equip the reader with the information needed to understand my analysis of how journalists covered the media policy debate that arose from the NoTW phone hacking scandal and the Leveson Inquiry. I will begin with the issue of press freedom.

Press freedom refers to “that degree of freedom from restraint which is essential to enable proprietors, editors and journalists to advance the public interest” (Royal Commission of the Press 1977, cited in Frost 2007, p. 43). It is essentially the creation of an enabling environment for the media to express opinion or publish articles without censorship. The history of press freedom in the UK is largely linked to the struggle against state suppression (Curran and Seaton 2010, p. 1). Significant among the steps to press freedom in the UK were the abolition of the Court of Star Chamber in 1641, the end of press licensing in 1694, the Fox’s Libel Act of 1792 and the repeal of the “taxes on knowledge” (tax on advertising, stamp duty, tax on paper) in the period 1853–1861. Some analysts claim that the press became free only at the tail end of these reforms (ibid.). However, there are still debates about whether the British press is truly free from both state and corporate influence. At the time of writing, press freedom in the UK was based on the human right to free expression. The right to free expression in the UK as spelt out in the Human Rights Act of 1998 was derived from the European Convention on Human Rights (ECHR). Article 10 of the ECHR states:

Everyone has the right to freedom of expression. The right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interest of national security, territorial integrity or public safety.

This Article protects the right to express as well as receive opinions and information. Freedom of expression is the foundation of a good number of democratic rights. For instance, it empowers the public to express their views in debates that could influence policy decisions. Freedom of expression, and by extension freedom of the press, also enables journalists to investigate and expose corrupt practices by the powerful in society. Examples are the BBC’s Panorama exposure of abuse of patients at Winterbourne View in Bristol, UK (BBC News2011), and the role played by Guardian newspaper in exposing the extent of phone hacking at the News of the World (Davies 2014). Thus, freedom of expression is integral to the sustenance of democracy and good governance.

As shown in Article 10 (2) of the Human Rights Acts 1998, freedom of expression comes with responsibilities for all concerned. For democracy to thrive, each beneficiary must not overstep his or her bounds in freedom of expression. The state must not censor the press needlessly and must protect the right to freedom of expression by the media. This is very important if the media is to fulfil its role as the watchdog of society (checking on the powerful to ensure they are accountable to society). The media must be free to access relevant information from public office holders, private organisations and other people in positions of authority, and should disseminate the news gathered to members of the public (Frost 2007, p. 40). The right of members of the public to express their views on this matter should also be protected. Protection of press freedom by the state must be accompanied by a commensurate protection of the right to freedom of expression by individuals. The press, for its part, must respect the citizens’ right to privacy.

However, as mentioned earlier in this book, the press has often been accused of abusing its freedom by way of invasion of privacy and defamation of character. Many have asked whether “the media have gone too far, too often” especially since the death of Princess Diana in August 1997 (Sartore 2000, p. 49) and, more recently, with the hacking of the phones of some members of the public by the News of the World. There are laws in place for the protection of the freedom of others. For example, the law on defamation allows the award of compensation if a person’s reputation has been dented (e.g. Lachaux v Independent Print [2019] UKSC 27). The law on defamation was reformed, resulting in the creation of the Defamation Act 2013. There is also a law against the interception of private communication through covert means such as hidden cameras and computer hacking (Regulation of Investigatory Powers Act 2000). These laws, though not solely for the press, are being used to ensure that the media do not overstep their bounds in the exercise of their freedom. However, the media can be exempted from obeying these laws when their actions are in “the public interest” (Editors’ Code of Practice 2016, Clause 10). This is where the controversy lies: what constitutes the “public interest”?

In democratic societies, the duty of the press is often articulated in terms of “the public’s right to know” (ibid.). For instance, if government officials are misappropriating funds under their control or a business outfit is defrauding its customers, the press has an obligation to let the public know about it. If the only means of getting this information is through covert means, then the media would not be considered as having broken the law by using such means. That is because the news gathered was in the public interest (for the benefit of the public). Journalists are, by the Editors’ Code of Practice and by law, allowed to indulge in some otherwise unlawful acts when they are being done in the public interest. However, this “public interest” clause that journalists fall back on has often been “used and abused” (Leveson Inquiry 2012). Over the years, the public interest has come to mean things that are of interest to the public; in other words, things that satisfy the public’s prurient interests and thereby boost the sales, viewership or readership of the news product (Frost 2007, p. 37). The debate is on where to draw the line in the public interest defence. So, what is the public interest? The meaning of the term has been the focus of a good number of journalistic debates. Some attempts have been made towards making the term clearer in order to prevent its abuse.

The Guardian updated its editorial code in the aftermath of the phone hacking scandal and came up with a list of principles on what can be classified as being in the public interest. The list which was drawn up by Sir David Omand, the former head of security and intelligence at the Cabinet Office, states thus:

There must be sufficient cause—the intrusion needs to be justified by the scale of potential harm that might result from it.

There must be integrity of motive—the intrusion must be justified in terms of the public good that would follow from publication.

The methods used must be in proportion to the seriousness of story and its public interest, using the minimum possible intrusion.

There must be proper authority—any intrusion must be authorised at a sufficiently senior level and with appropriate oversight.

There must be a reasonable prospect of success; fishing expeditions are not justified. (Guardian Media Group 2011, p. 4)

The guideline acknowledges that much of journalism is essentially intrusive and urged its staff to avoid invading people’s privacy unless there is a clear public interest in doing so. The newspaper stressed that “proportionality is essential, as is proper prior consideration where privacy issues may be involved” (Guardian news and media editorial Code, August 2011, p. 4). The lists of guidelines on the public interest by the press, though helpful in checking the abuse of the public interest, still leave a lot of room for controversy. It is not in all cases that a journalist can correctly ascertain “the seriousness of story”. For example, while the use of long focal lenses to take shots of a topless princess in a private holiday environment is obviously not a serious story (and not in the public interest), it is not that clear to ascertain whether a journalist ought to be prosecuted for hacking the phone of a Member of Parliament, if he claims that he had strong reasons to suspect that the MP was involved in a criminal offence but only found out his suspicions were wrong after intercepting his phone messages? Similarly, while hacking telephone messages is a criminal offense, the public interest defence would have protected a journalist if, for example, Milly Dowler was found alive through information received from hacking into her voicemail.

Although it would be reckless to suggest that all covert investigations carried out by journalists should be excused based on claims that they are in the public interest, it is worthy of note that some stories of major public interest have been exposed by means of long focal lenses, deceit, bugging devices, false identities, trickery and even computer hacking. An example is the exposure of patterns of serious abuse at the Winterbourne View care facility which was revealed through secret filming by BBC Panorama (Panorama2011). The public interest clause exists to make room for such coverage.

The version of the Editors’ Codebook that was in operation at the time of the phone hacking scandal stated, “the public interest is impossible to define (Beales 2012, p. 86). So, the code does not attempt to do so”. What it did instead was to list out what it described as “a non-exhaustive list” of what is in the public interest. A later version of the Editors’ Code of Practice (2016) which came into effect in July 2019 also pointed out that there may be exceptions to specified clauses in the Editors’ Code of Practice, where it can be demonstrated that they are in the public interest. It stated:

The public interest clause also states that “the regulator will consider the extent to which material is already in the public domain … or will become so” and that “editors invoking the public interest will need to demonstrate that they reasonably believed publication … would both serve, and be proportionate to, the public interest and explain how they reached that decision at the time”. To give the Editors’ Code of Practice the benefit of the doubt, these are measures aimed at ensuring that the press does not abuse the “public interest” defence. However, the inexhaustible list as well as the scope of “reasonable belief” makes the meaning assigned to the term very broad such that the term remains fluid. The statement that “the regulator will consider the extent to which material is already in the public domain” has proven to be problematic, especially as the internet can make materials available across geographical locations even when such materials are restricted by law in other locations. For instance, if a story on the private life of an individual has been published in another country’s media, does that make it acceptable for the same material to be published in UK’s mainstream media since it is already in the public domain?

An example is the 2019 case of the English cricketer Ben Stokes and The Sun, which belongs to News Group Newspapers (NGN), where Ben Stokes and his mother sued the paper for publishing in England and Wales what the newspaper described as Ben Stokes’ family tragedy. NGN anchored its argument on the fact that the information had been widely published in New Zealand 31 years earlier—before the birth of the player. Nonetheless, UK’s Supreme Court ruled in favour of Ben Stokes on the grounds of damages caused by further intrusion into the English cricketer’s family’s privacy, thus stirring up a debate about the “availability in the public domain” aspect of the code’s public interest guideline. The case of PJS v NGN [2016] UKSC 26 is similar to Ben Stokes’ where information in the public domain (published in the USA and internet sites) was insufficient reasons to publish in the UK, and The Sun lost the case. The focus of this chapter is not to analyse the impact of internet on the “public interest” defence but to show how definitions of the “public interest” have been ambiguous in the practice of journalism and this ambiguity has made room for its use to defend kiss and tell stories. Scholars have queried the fluidity of the press’ definitions of the public interest, arguing that it is designed to make room for the use of this privilege for self-interested purposes such as intruding into the lives of members of the public (Petley 2013; Harding 2012). Many references to the “the public interest” were made in the journalistic metadiscourse on the media policy debate (see Chaps. 9 and 10).

Much of the debate on the public interest relates to invasions of privacy. How to strike a balance between protection of privacy and journalism in the public interest is one of the controversial issues in debates about media policy. Since the death of Princess Diana in 1997, there have been arguments in the UK about the extent to which the press report on the private lives of people (Petley 2013, p. 59). Aggravated by the News of the World phone hacking scandal, these arguments sought to answer the question, “how far can the press go in publishing private information about individuals and how far can the individual go in claiming the right to privacy”? Privacy is recognised both legally and philosophically as a basic human need (Barendt 2002). In the words of Barendt, privacy is important because:

It provides a space for individuals to think for themselves and to engage in creative activity, free from observation and supervision … personal relationships could not develop if the participants felt that every move was watched and reported … Privacy is an aspect of human dignity and autonomy. It enables individuals to exercise a degree of independence or control over their lives. Privacy therefore entails rights to be alone and to keep confidential correspondence and other documents, and to ensure that intimate activity is not filmed or reported. (Barendt 2002, pp. 14–15)

Human dignity requires the ability of people to control information about themselves (Frost 2015, p. 93). If individuals are to have a right to dignity, then they will need a right to respect for privacy. Respect to privacy is a fundamental human right that is guaranteed by Article 8 of the Human Rights Act (1998). The Article states:

Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedom of others. (Human Rights Act 1998, Chapter 42, Schedule 1, Article 8)

This means that a person whose privacy is invaded has the legal right to sue the culprit for invasion of privacy. Invasion of privacy refers to an intrusion into the private life of another person, without a justifiable reason (Human Rights Act 1998). Invasion of privacy can be applied to different forms of private information dissemination including internet privacy, data collection and workplace monitoring. Although there is no clear-cut privacy law in the UK, there are ways in which privacy is protected (Fenwick et al. 2007, p. 171; Hoffman 2011, p. 148). The most popular is the law of breach of confidence, which allows for the protection of confidential information (Kenyon and Richardson 2006, p. 154). Other laws used to protect privacy include laws on defamation, malicious falsehood, trespass and nuisance.

There are also statutes that protect privacy in certain situations. These include the Protection from Harassment Act 1997, the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000 (Joint Committee on Privacy and Injunctions 2012, p. 10). Many scholars have argued that there may be a need for an outright privacy law in the UK but the courts appear to be reluctant to create one based on the argument that existing laws would suffice (Hoffman 2011, p. 137). Supporting this view, the report of the 2012 Joint Committee of the House of Commons and the House of Lords on Privacy and Injunctions states:

A privacy statute would not clarify the law. The concepts of privacy and the public interest are not set in stone, and evolve over time. We conclude that the current approach, where judges balance the evidence and make a judgment on a case-by-case basis, provides the best mechanism for balancing article 8 and article 10 rights. (Joint Committee on Privacy and Injunctions 2012, p. 5)

Celebrities are not often granted privacy protection because they are considered to have voluntarily placed themselves within the public eye (Frost 2007, p. 91). For instance, in the case of Ferdinand v. Mirror Group Newspapers, Rio Ferdinand, a one-time captain of the England national football team, took legal action against the Sunday Mirror for infringing his right to a private life and misusing his personal information. In this case, Ferdinand’s public image and role model status meant there was a public interest in the newspaper’s disclosure, sufficient to justify the publication, and Ferdinand lost the case. However, between 2017 and 2020 a good number of celebrities won their claims for privacy (e.g. Ben Stokes v The Sun [2019]; PJS v NGN [2016]). Much earlier in 2004, Naomi Campbell won her privacy case against Mirror Group Newspapers (MGN).¹ The judgement left the Mirror facing a total legal bill of more than one million pounds (BBC News2004; Gibson 2004). The European Court of Human Rights later ruled that the legal cost Daily Mirror had to pay was too high and that a balance be struck between privacy and press freedom (Halliday 2011).

One of the contentions on the issue of privacy is that high legal costs of privacy cases are an impediment to freedom of expression. The argument is that it could impede investigative journalism and restrain the press from fulfilling its watchdog role in society (Joint Committee on Privacy and Injunctions 2012b, p. 5). The Joint Committee on Privacy and Injunctions stated, “excessive costs limit the ability of newspapers and broadcasters to respond to threatened legal action and can result in them not challenging an injunction on the ground of cost” (Joint Committee on Privacy and Injunctions 2012, p. 36, para. 138). In relation to members of the public who need to claim their right to privacy, the argument is that only the rich, including celebrities and political office holders, have access to privacy protection because of the high legal costs involved (Equality and Human Rights Commission 2012, p. 332). The question is, “what is the best action for the government or other relevant authorities to take (or not take) to protect both the individual’s right to privacy and freedom of the press?” The Leveson Inquiry discussed high legal costs on the part of both journalists and citizens. Its proposals on these costs formed part of the issues of contention in the press reform debate. The press reform debate also featured arguments on the impact of media ownership on press standards, particularly its effect on the press’ ability to fulfil its role in a democracy. The following section x-rays key arguments on the relationship between media ownership and the sustenance of democracy. Media ownership is one of the issues discussed during the media policy debate. Its impact on the coverage also makes it one of the key issues examined in this book.