Defining the public interest: it’s not as hard as some would have us believe

Via the ever-excellent Fagburn, I got to hear of an article in which The Guardian’s readers’ editor had attempted to discover if there is a consensus definition of ‘the public interest’ as it relates to journalism.  The phrase has seen a great deal of use of late, with the Leveson Enquiry focussing attention on questions of whether, and in what circumstances, journalistic behaviour that might otherwise be illegal can be justified because it serves to expose news stories that are in the public interest.  Despite all the attention it has received, the actual meaning of the phrase remains notoriously vague and it was for this reason that Chris Elliott produced his article – to see whether, at least among that subset of the public that writes for and reads The Guardian, there is any agreement about what ‘the public interest’ might be.

The article’s findings are, for the most part, unexceptional. So, for example, we learn that

Both inside and outside the Guardian there is a widespread recognition “that ‘in the public interest’ should by no means be synonymous with ‘whatever interests the public’, which is how most newspapers have chosen to interpret it”.

Well, stone the crows.  We also learn that, while many of The Guardian’s readers would place stories about the sex lives of celebrities in the category of things that are interesting to the public rather than in the public interest, they would make an exception for ‘family values’ politicians whose private behaviour demonstrates clear evidence of hypocrisy.  Again this, while valid, is not exactly a breathtakingly new idea.

Some of the contributions from Guardian journalists seem a little dodgy to me.  For example, one of the paper’s junior editors, Martin Wainwright, is quoted as arguing that serving the public interest means ‘telling the truth about individuals’ who are in the public eye for any reason.  Personally, I think ‘telling the truth’ is so vague as to be virtually meaningless.  Revealing that someone had an uncomfortable bowel movement after eating a curry would be ‘telling the truth’ about them, but I doubt even Mr Wainwright would argue that the public interest requires that this aspect of ‘the truth’ must be published for anyone with a public profile.  It seems to me that this is little more than an attempt to wrap some vaguely noble-sounding words around the cynical hacks’ definition of the public interest: any story that sells papers is automatically in the public interest.

The article is closed by a quotation from Andrew Sparrow, who writes a political blog for The Guardian:

our view of what the public interest entails changes quite dramatically over time and I think, as journalists, we should be willing to fight the public-interest battle on a case-by-case basis. For example, 50 years ago it was assumed that there was a public interest in knowing that an MP was gay, but little or no public interest in whether he drove home drunk, hit his wife or furnished his house using wood from non-sustainable sources. Now, obviously, it’s the other way round. Society does – and should – constantly redefine what the public interest entails and journalism should be part of that.

The implied argument in these comments, it seems to me, is that the definition of the public interest should not be enshrined in legislation because it’s too variable and subject to change.  We’re encouraged to think that, if ‘the public interest’ had been statutorily defined 50 years ago, present-day journalists would be required to produce articles denouncing gay MPs who have sex and prevented from reporting on straight MPs who beat their wives.  This is, clearly, abject nonsense – and it seems to me little less than extraordinary that both Sparrow and Elliott could think something so obviously muddled could conceivably constitute ‘the final word’ on this subject.

For a start, any attempt at defining the public interest would certainly begin by making it clear that stories that revealed illegal activity are always in the public interest.  So 50 years ago, when male homosexual acts were still illegal, a story revealing that an MP had an active gay sex life would have had a watertight public interest defence – but that defence would no longer have been available once male homosexuality was decriminalised.*

Drawing up an exhaustive list of which activities journalists are allowed to report on would be prohibitively complex, and any such list would become rapidly outdated, but that doesn’t mean that the public interest cannot be defined in more general terms.  As the gay MPs example makes clear, a public interest defence that permitted stories that revealed illegal activity would be automatically updated every time the law changed.  There would be no need to maintain a separate and detailed list of which activities journalists could report on, it would be enough simply to identify certain categories of story as protected under a public interest defence.

Off the top of my head I can think of four such categories.  Media stories that reveal

  • illegal activity
  • activity that violates professional ethics
  • abuse of position

should automatically be treated as being in the public interest.  In addition,

  • media reports revealing the private behaviour of persons in a position of authority should attract a public interest defence, but only where the behaviour revealed is at odds with their public position on such behaviour.  (I think it’s important both to stress that someone has to be in a position of authority and their behaviour has to be at odds with their public position so as to prevent such non-stories as ‘sportsman has affair’ (which is a big deal for him and his family, and for no-one else) or ‘MP in secret gay lover shock’, where said MP has never been publicly hostile to the interests of gay people.)

Some of these categories may need a little explanation.  The second – activity that violates professional ethics – would cover things like media investigations that reveal behaviour that would result in someone being struck off a professional or trade register – so things like gas-fitters who carry out unsafe work, or doctors who form sexual relationships with their patients.  The third – abuse of position – I would anticipate to cover situations where someone used their position to secure unfair advantage for themselves or their families, which would mean not just straightforward nepotism but also, for example, the MPs’ expenses scandal (where MPs abused their positions twice over: once in deciding on their own perks and benefits, and again in using their law-making powers to hide the details from public scrutiny).

This way of defining the public interest obviously puts quite a heavy emphasis on the right, even of famous and important people, to privacy, but that seems right to me – not only for those people, but also for wider society.  To use one of Sparrow’s examples, I think we should only get to hear that an MP has bought wood from non-sustainable sources if that action was against the law, or if said MP had publicly criticised people who buy non-sustainable wood.  If neither of those circumstances apply then there might still be a public interest in the general story – “40% of all furniture sold in the UK is non-sustainable” kind of thing – but not in naming particular individuals.  It’s the fact the wood is being sold at all that’s the problem, not that a famous person has bought some.  On this as so many other issues, a legal definition of the public interest along these lines would go some way towards requiring the media to focus more on the substantive and less on the trivial.

* – Actually, 50 years ago the culture of deference was still in full swing, and the press would have been quite unlikely to publish stories about politicians’ private lives, even if they were gay.  Gay scandals did make it into the papers, but ‘the great and the good’ (as they used to be known) were routinely shielded, both from press attention and criminal charges; the conviction of Lord Montagu of Beaulieu in the 1950s caused such a huge scandal precisely because it was almost unheard of for establishment figures to be pursued in this way.  I also suspect the culture of deference had as much as changing social attitudes to do with newspapers keeping quiet about MPs who beat their partners or drove drunk – both were socially disapproved of enough to be against the law, even 50 years ago.

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