Is there anyone who sincerely believes The Sun had a genuine public interest defence for publishing the naked picture of Harry Wales (or Prince Harry of Wales, or Prince Henry of Wales, or Captain Wales, or Air Commandant Wales, or Commodore-in-Chief Wales, depending on which of his many aliases you prefer)? I’m not making allegations of unlawful activity – they may have a defence in law, and there certainly seems to be one, or the potential for one, in the PCC code (see below). I’m talking about ordinary people, and the everyday understanding of the concept of public interest. Is there anyone who thinks that the decision to publish was actually motivated by a noble commitment to lofty ideals of press freedom rather than a combination of prurience and profit motive? It really doesn’t help that the suggested grounds for a public interest in the pictures seem (on the face of them, and to this non-expert) to be so flimsy a child could for the most part demolish them.
Take the idea that there’s a public interest because the existence of the photos raises questions about the effectiveness of Harry’s security. Really? Because I would have guessed that the role of his security team is to protect his physical safety, not steer him away from moral hazards (assuming you see naked partying as a moral hazard; I don’t). I mean, they’re royal protection officers, not chaperones, and I’d have thought they were discharging their duty perfectly adequately provided they had established his room was secure, and that none of his ‘companions’ (don’t you just love that euphemism?) were armed. I will freely admit that I’m not up to speed when it comes to mobile phones, but I don’t believe they come with an assassination app as yet, so I can’t see there was a security risk in allowing the ‘companions’ to take their cameraphones into his room. And if royal protection officers have a general duty to prevent heirs to the throne getting naked in the presence of other people – well, all I can say is it’s going to be a long wait for William and Kate’s baby.
I have a similarly hard time accepting that there’s a public interest defence because his actions may be relevant to military discipline. What Harry did was perfectly legal (both here, and where he did it), he was on leave so it seems unlikely it compromised operational effectiveness, and it wasn’t insensitive to local customs or taboos – quite the opposite, in fact; Vegas is expressly set up to facilitate this kind of thing, and skim off a profit in the process. I suppose there may be general rules about not engaging in behaviour that brings the army into disrepute (though I couldn’t immediately find any that seemed relevant in a quick scan through the army’s Values and Standards document), but I’m not sure how enforceable they would be in this case. We live in the age of the digital camera, and there must be millions of people who have had naked pictures of them taken in private and uploaded onto the internet. If the army routinely disciplines people for it then they must have to discipline an awful lot of people, and if they don’t discipline everyone then it hardly seems fair to single out one particular individual just because naked pictures of him happen to garner more attention than naked pics of his fellow officers.
There’s maybe a whisker of merit in the argument that Prince Harry receives taxpayer funding via the civil list, and that there is therefore a public interest in knowing how this money is used. But this presupposes that the stripping generated additional costs that wouldn’t have been incurred if the prince and all his guests had kept their clothes on. Even if we were paying for the holiday, there would still only be a public interest in publishing details of those bits that cost us money: the rental of the hotel suite, the travel costs, the bar bill – yes, potentially; the amateur strip show that cost us nothing – no. (And I say that as someone who would welcome the abolition of the monarchy, even if I don’t regard it as a particular priority.)
One of the things that interests me most about this whole situation is that this isn’t a question of The Sun standing up to new, more onerous demands placed upon them in the wake of the Leveson Inquiry, even though some people have argued that it is. This is a question of Murdoch’s paper failing to adhere even to the provisions of the discredited system of light touch self-regulation administered by the Press Complaints Commission. That organisation’s code of practice states at Section 3 ii) that
It is unacceptable to photograph individuals in private places without their consent
and appends a mote to the effect that
Private places are public or private property where there is a reasonable expectation of privacy.
There’s perhaps a debate to be had about whether Harry had ‘a reasonable expectation of privacy’, given that he invited at least one person with a camera to join him in his hotel suite, but on the face of it this would seem to preclude the publication of photos taken at a private party in a hotel room.
I don’t think there are many people who expect any part of the PCC’s code or advice to be worth the paper it’s printed on, given that the institution is unable to compel compliance, but it is perhaps a little surprising that The Sun should provide such a high-profile example of their own blatant disregard for institutions they have pledged to uphold and ethical principles they have agreed to honour. There is little appetite in the UK for a completely unregulated press, and if The Sun is (as I understand it is) opposed to statutory regulation, then it would seem unwise for the paper to publicly signal its unwillingness to submit to self-regulation. These really are the only three games in town – no regulation, self-regulation, and statutory regulation. If one option is completely off the table, and they find one of the two that remains wholly undesirable, then surely simple logic dictates that The Sun would do what it could to make the least objectionable option workable? To do the opposite seems curiously like the corporate equivalent of cutting off your nose to spite your face.
I mentioned earlier that The Sun would seem, so far as this non-expert can tell, to have a potential public interest defence within the terms of the PCC code. Provision number 4 in the section of the Code headed ‘The public interest’ states that
The PCC will consider the extent to which material is already in the public domain, or will become so.
Clearly, the photos in question were not only in the public domain but very widely available, having been published on very many websites, cached on search engines (I checked within a few hours of the story breaking and the pictures in question were already within the top ten results on a google image search for the string ‘Prince Harry’), and even published on ‘old media’ outlets in other countries. As quasi-legal provisions go it strikes me it’s a little odd (it essentially amounts to allowing “everyone else was doing it too” as a defence for violating the code) and it’s certainly vague (what does ‘will consider’ actually mean in practice?), but it would seem to offer The Sun at least a partial defence for their decision to publish.
Faced with a situation like this, where the public interest in publishing a story seems to be greatly outweighed by the commercial interest in doing so, it’s quite tempting to call for a tougher regulatory regime that would make this kind of thing impossible. Speaking personally, I have an instinctive distaste for this kind of delving into a person’s private life where it has no relevance to what they do in public. I just don’t care that Prince Harry has been partying naked, in exactly the same way that I don’t care if someone in the public eye has a thing for getting spanked, and it seems hugely unfair to me that they should have to suffer indignity and embarrassment just to prop up the profits of a media organisation. I think the country – and the world – would be a much better place if we stopped obsessing over what other people get up to in their private lives.
And yet, and yet, and yet…
The idea that a newspaper or a journalist or a blogger could be punished by the state just for reporting on (or publishing pictures of) something that actually happened is genuinely worrying. Even if I don’t believe that the public has a right to know everything that happens in a famous person’s life (and I don’t), I’m far from comfortable at extending that into a right for the famous person to prevent the public from finding out about it. There’s a real danger, I think, that the desire to kill the disease of intrusive celebrity journalism might lead us to enact a cure that would actually be worse. I’m increasingly coming to wonder if, when it comes to questions of privacy, something a little like the status quo might actually be the least worst solution: that individuals have a right to privacy, that a number of techniques that a journalist might use to pry into the private life of an individual (like phone hacking, email hacking etc) are illegal, but there is no absolute ban on publishing stories about an individual’s private life, even if there is little or no public interest in doing so.
Those of you’ve who’ve been reading this blog for a while (you poor, unfortunate gluttons for punishment) may spot that my position on this has, in politician doublespeak, ‘evolved’ or, in plain English, changed. I first wrote about regulating the press a little over a year ago, and more recently I re-stated my position with regards to a workable definition of the public interest. In the first post I barely touched on the issue of invasion of privacy – I was far more concerned with curbing the tendency of the press to write articles that were factually untrue – while in the second I endorsed a fairly strong right of privacy. I don’t exactly disagree with myself. In particular, I still think that defining the public interest is not as hard as some journalists make it out to be, and that there wouldn’t be any insurmountable practical obstacles to creating a legal definition of the public interest as it relates to the invasion of privacy. What’s changed is that I’ve stopped concentrating on the ‘how’ and started thinking more about whether doing so would actually be a good idea – even given the antipathy that I, and apparently many other people, feel for newspaper stories that needlessly invade the privacy of famous people.
The conclusion I’ve come to (provisional conclusion, at any rate) is that the thing that should really concern us is newspapers printing things that are untrue, and that’s what regulation of the press should focus on – providing a mechanism for the prominent correction of stories that are untrue. The naked pictures of Prince Harry are distasteful, and unnecessary, and prurient, but they also represent a truthful account of something that actually happened. Reporting accurately and truthfully on things that have happened is the job of the media, and while I might deplore their focus on celebrity trivia like ‘young man on holiday gets drunk, takes off clothes’, I just don’t see a way of restricting the media’s freedom to report that doesn’t risk causing more harm than good.