Monday, 23 May 2011

Super-Injunctions, Phone-Hacking, Public Interest and a Free Press

Amid the online rumours of unnamed footballers doing unnamed things with unnamed women who they may be unmarried to, the trivia momentarily stopped and a serious story broke out on Monday. Four more 'famous' people, including former Met Deputy Assistant Commissioner Brian Paddick and Lord Prescott, have won the right to a legal challenge against the News of the World over claims that their phones were being hacked, conversations listened to and texts spied on.

Here's something to consider. Imagine 'newspapers' like the News of the World without the celebrity scandal headlines for which they have become renowned. What would the media world be like if instead of glancing at the front page to read of the (alleged) sexual exploits of a sportsman or musician, there was something on the Middle East, albeit written in a style aimed at an individual with the reading age of an eight-year old?. My suspicion is that readers would flock in droves, and the newspaper would be forced to fold within about six months.

It must be said that knowing many people who read such publications, and finding most of them to be intelligent, well thought out people, the success of the News of the Screws, the Sun and others owes itself to a part of our culture and national psyche more than any outbreak of mass stupidity. Even to millions who could not reasonably be described as lacking in grey matter, these stories sell. Sex, death and scandal always seem to equate to a rather loud cha-ching from the cash register.

This is why they compete as hard as they do for the latest extra-marital affair or act of dishonesty, and it is therefore the only viable explanation for their foray into phone-hacking, which is believed by some to have had thousands of victims. As is the case with politicians, people sometimes get the newspapers they deserve, and like in any sector of commerce the answer is simple. Sickened by footballers' salaries? Don't pay for Sky. Think phone-hacking is a national disgrace? Choose not to read the offending newspapers. I sometimes muse as to how many people will strike up a conversation at work about phone-hacking, and how terrible it is and then go home to flick through one of the rags whose employees practice the art.

However, this bunny has got a niggle of his own. The ability to listen in on someone's phone calls or read their texts would appear to be one of the few state monopolies I'm comfortable with, as long as there is an evidence-based reason for doing so. However, the leak which gave the data behind the MPs expenses scandal to the Daily Telegraph in 2009 was no more legal than one private citizen bugging or hacking the phone of another. Yet most of us, myself included, have no problem lionising the people responsible for bringing this mass-extortion of the taxpayer to light. So why do we hold them up as heroes? Ah, because in their case the ends justified the means - it was in the public interest, which I'll pick up again later.

Being totally honest, I'd suggest there is a more simple and less civic-minded reason behind the double standard we chose to apply. Seeing the little guy topple so many high-profile politicians with a solitary misplaced hard drive was such a glorious upturning of the applecart that we really did not care that the means by which it was achieved happened to be illegal. The trouble is that the big, bad red-top bullies formerly of Fleet Street would also mount the defence that they have uncovered dishonesty that was 'in the public interest' by what were also criminal methods.

The other major argument for the practice that I have heard is that the wealthy and the famous, having armed themselves with better legal advice than ever and the blanket of the super-injunction, found themselves with an unfair advantage in the game of celebrity cat and mouse. The newspapers had to do something to make it a fair fight again, even if it meant risking a jail term to do so, as Clive Goodman and Glenn Mulcaire found to their cost. If we can dismiss the MPs expenses as a one-off where we laughed or cried first and chose not to ask questions later, it is worth taking on these two lines of defence separately.

Arguing that newspaper phone-hacking is justified as it uncovers information in the public interest falls down immediately on two levels. Firstly, this is remarkably similar to the line used to defend the practice of torture and waterboarding, but does not even have the benefit of suggesting that is potentially saves a single life. The problem as is often the case is the fast and slippery slope that follows from permitting unlawful behaviour on the basis of isolated cases. If phone-hacking is ok, then how about breaking into your MPs house (or second house) because you think he might be on the make, or snooping into a footballer's bedroom? As long as you find out something that is in the public interest, then all is forgiven, yeah?

The italics will no doubt have annoyed some, but have been there for a reason. The central problem, as has been the case for years has been defining what the public interest is. I remember once reading an inadvertently hilarious Sun editorial, in which, "the Sun has promised not to take any pictures of Princes William or Harry - unless it is in the public interest." Once the smile fades at reading this, we are left with two questions - define public interest and then who gets to decide whether a story falls within it or not?

Living in an age as we do where Brussels appears to be the starting point for the majority of our laws, it is no surprise to see the European Convention on Human Rights making a cameo appearance in this tale. Under the convention, the right to a private and/or family life is enshrined in law, as is the right to a free press. Now, given the contradiction and 'competing rights' issue that stems from this, it is surely time we established exactly what the public interest is so that a balance can be struck between the two. Surely it cannot mean, as the papers themselves would have you believe, tittle tattle and gossip that some people may be interested in hearing about? Let's have a go at defining this clearly and see how far we can agree.

First up, the easy bit. Phone-hacking, breaking into property or any other criminal activity can never be justified, regardless of the information uncovered by it. Now - public interest - anything which uncovers acts of dishonesty, theft, fraud or other criminality by public officials will always fall into this category. Allowing the media to witness court cases is part of having a free press, and therefore any well-known individual convicted of a crime cannot then hide behind their 'right to privacy'. It is with regard to the sexual conduct of the famous that most of the issues and applications for super-injunctions appear to have occurred, and from a distance it appears to come down to a couple of simple questions.

Has the person attempted to tell the rest of us how to live our lives (ie the serial-philandering 90s Tory government and their 'Back to Basics' campaign), and/or attempted to use their family, along with the media in the past to portray the image of a clean-living family man (or woman)? If the answer to either of these questions is yes then from where I'm stood the individual involved is fair game. If they have never made any claims to potential sainthood or lectured the rest of us about 'family values', then I struggle to see what public interest the story actually achieves beyond giving a few people something to gossip about upon return to work. 'Random Footballer fucks Random Bimbo in Random Hotel'. Who really cares?

This sort of framework would at least give the courts something clear and consistent to refer to when considering the validity of a super-injunction. Hopefully, it would lead to fewer of them being used because all involved would know precisely what would and would not qualify for one. This would negate the necessity for the tabloids to use phone-hacking as an equaliser, or at least take away their rather pathetic excuse for doing so. To address this point very quickly, I'd love the right to walk the street with a concealed weapon to equalise the game against potential muggers. I wish it was legal and believe it should be, but it isn't so I don't carry a gun or a knife. End of argument.

This story appears to be one that has considerable mileage to run, with estimates of exactly how many phones were hacked varying from a low end of a few hundred to what appears to be a wildly pessimistic (or optimistic, depending on your take) 7,000. With a string of public figures having received substantial out-of-court settlements. and two prominent journalists having gone to jail, MPs in particular appear to be enjoying their revenge against a section of the press. Danny Alexander recently announced, almost optimistically that "further arrests will soon be made". Whatever smugness you may detect from such comments, one cannot help but think that he is right.

In the early 1990s, the Screws' sister paper, the Sun ran a rather annoying add with a particularly horrific jingle. One of the lines read, "How do they get their stories? Now all can be revealed." The feeling that this really has happened with the re-opening of the phone-hacking case serves to illustrate that the many interpretations of 'the public interest' have led to some dire and thoroughly avoidable consequences. The legal contest of interpretation that is the super-injunction, the arms race between trashy tabloids trying to out-scandalise each other, and the criminal activities to which they have stooped to hold up their circulation.

Given that we acknowledge the competing rights of both personal privacy and a free press, only by establishing in law exactly what the public interest is can we define the areas in which one takes precedence over the other. Very few of us would wish to succumb to the French attitude where public figures are almost untouchable regardless of how crooked and duplicitous they might be. The trouble is that given what we now know. many have no interest in following the British attitude either.

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