The ruling by Mr Justice Briggs in the Ned RocknRoll Facebook photos case puts the Press Complaints Commission’s definition of public interest firmly in the spotlight.
The Code’s definition of public interest is narrow and contradicts the fundamental right to free speech. The public interest definition is critically important, because it determines whether a publisher is entitled to breach the code in certain circumstances. The stricter the definition, the more restricted our free press becomes.
At the moment, public interest includes (but is not limited to):
i) Detecting or exposing crime or serious impropriety.
ii) Protecting public health and safety.
iii) Preventing the public from being misled by an action or statement of an individual or organisation.
This definition is 'taken as read' during the ongoing discussions about press regulation. But now is the time to question it.
It first reared its head in 1990 when the Editors' Code was published for the first time.
Up to then, the press had followed a broad definition, set out by Lord Denning, then Master of the Rolls, in 1969. He said public interest should not to be confined to narrow limits, and defined it as ... "Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or others; then it is a matter of public interest ..."
In fact the right to free speech on matters of public interest was regarded by the common law as a basic right, long before the emergence of the ECHR.
In 1863 Crompton J. observed in Campbell v. Spottiswoode: "It is the right of all the Queen's subjects to discuss public matters."
It is astonishing that our 'free press' signed up to the much stricter definition in 1990, rather than fight to preserve the one that had served our democracy well for generations. To make matters worse, the PCC’s definition of public interest was made even stricter with changes that came into force in 2010.
Now, an editor must justify what the public interest was in a story from the time an investigation starts.
The defence now says: "Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest and how, and with whom, that was established at the time."
This means that if there’s a complaint, an editor must provide a paper trail to prove what the public interest was in pursuing the story in the first place. This is certain to curtail investigative journalism. Sometimes a journalist has to ‘fish’ to see if a story is worth investigating. This ‘pre-investigation’ may draw a blank, even though the reporter was convinced the story was genuine. Gut instinct and experience count for a lot and cannot be demonstrated with written evidence and a nice, neat paper trail.
And the ‘with whom’ element has serious implications for the confidentiality of a journalist’s sources. Denning's definition of public interest is still used effectively in countries like Australia.
Who made the decision to abandon it in this country, and why?
It is astonishing that such a fundamental change to our common law right to free speech was not debated in Parliament.
Now is the time to have that debate.
This is the definition I would like to see – but don’t hold your breath it will be used!
Public interest includes (but is not limited to): Any matter that affects people at large, in which they have a legitimate interest or concern about what is going on in society; or what may happen to them or others; provided investigation or publication is not motivated by malice.