What is really a matter of 'public interest"? Recent cases have shown a stiffening in attitudes towards how a defence of publication in the public interest should be used.
Freedom of expression is problematic, in that it is capable of interfering with a variety of interests. This freedom has to be balanced with matters such as national security, public safety, due process, and the right to reputation and privacy. An often-decisive factor is the presence of a public interest in publication. As freedom of expression is vital to democratic debate, speech that serves the public interest will often trump any conflicting claim.
The public interest in free speech is often reflected in domestic law. For example, in the law of defamation the defence of qualified privilege allows the defendant to publish what turns out to be defamatory material if the court feels that such publication refers to a matter of public interest and that the defendant, usually the press, has carried out its duty to inform the public by following responsible standards of journalism (Jameel v Wall Street Journal).
Such defences are also evident in areas such as contempt of court (s.5 Contempt of Court Act 1981); although in the delicate area of official secrets the courts have denied such a defence (in the David Shayler case).
In the law of confidentiality, the courts will allow publication of otherwise private and confidential matter where publication would be in the public interest. In A v B plc and another, the Court of Appeal held that the public had an understandable, and so a legitimate, interest in being told that a Premiership footballer was having an extramarital affair. This seemed to suggest the test of public interest would be led by the public's desire to access that information, irrespective of its political or social importance. However, subsequent cases have drawn a distinction between what is in the public interest and what the public are interested in.
This change of approach was sparked by the European Court's decision in Von Hannover v Germany, where it was held that the public did not have a legitimate interest in the harassment and photographing of the former Princess Caroline of Monaco, even when she appeared in public places. This heralded greater protection for celebrity privacy, and in one recent case it was stressed that there was no public interest in allowing the publication of details of adultery for no better reason than spite, money-making or for spreading 'tittle tattle'(CC v AB).
In another case, it was noted that a person's popularity did not place her private life in the public domain and justify any public interest in the disclosure of details of her private life (Mckennitt v Ash). The test is what we as the public should be, rather than what we are, interested in. So we should be interested in national security, abuse of power and the discovery of untruths, but not the intimate details of a person's private life – even though it is the latter we crave and are prepared to pay for.
But we are interested in the maintenance of press freedom and the rule that journalists and the media generally can retain confidentiality of their sources. In domestic law, no court can require a person to disclose their source unless that disclosure is necessary in the interests of, for example, justice or national security.
The law protects the public interest in terms of dissemination of information and ideas from the press. But between a judge and the general public there is little common ground over what public interest actually means – and any publication will be wise to look hard at the differences.
Steve Foster is principal lecturer in law at Coventry University
This prevents such disclosures having a chilling effect on press freedom and the public right to know, and in a recent case the Court of Appeal refused to order disclosure of a press source who had divulged the private medical records of a mental health patient to a press officer (Mersey Care NHS Trust v Ackroyd).