Book Chapter: Privacy and the Freedom of the Press: A False Dichotomy

Media and Public Shaming_book cover

Here’s a link to the publisher’s page for Julian Petley’s (ed.) Media and Public Shaming: Drawing the Boundaries of Disclosure (published by I.B. Tauris in 2013), which includes my chapter ‘Privacy and the Freedom of the Press: A False Dichotomy’, and below is about half of it reproduced by kind permission of The Reuters Institute for the Study of Journalism and I.B.Tauris.

Privacy and the Freedom of the Press:

A False Dichotomy

Simon Dawes

 

More than just the actions of a single rogue reporter, the alleged behaviour of journalists and editors of the News of the World (NOTW) has raised questions about the ethical standards of the rest of the British press and about News International’s multimedia and international interests…

[ section removed from website version: for an alternative overview, see: https://smdawes.wordpress.com/2014/04/22/article-press-freedom-privacy-and-the-public-sphere/ ]

 

…More particularly, it has focused interest on the balancing of the right to freedom of expression and the right to respect for private life, and on the definitions of privacy and of the public interest enshrined therein. As such, the News International phone-hacking scandal shares characteristics with the earlier MPs’ expenses scandal in the UK and the Dominique Strauss Kahn affair in France and the US, in that all of these raise the question of where we draw the line between public and private life, and of how where that line is drawn can be to the benefit of private interests as well as of the public interest.

I argue, however, that the distinction between public and private is important in another sense, and that reducing this issue to a question of balancing the right to a free press and the right to privacy fails to address the underlying issue — the distinction between public and private in terms of the relation between the market and the state in liberal democracy…

[ section removed from website version: for an alternative overview, see: https://smdawes.wordpress.com/2014/04/22/article-press-freedom-privacy-and-the-public-sphere/ ]

 

 

 

THE LEGAL APPROACH TO PRIVACY AND THE FREEDOM OF THE PRESS

[ section removed from website version: for an alternative overview, see: https://smdawes.wordpress.com/2014/04/22/article-press-freedom-privacy-and-the-public-sphere/ ]

 

 

LIMITS TO THE LEGAL APPROACH

But over and above the legal effectiveness of balancing people’s rights to privacy and the freedom of the press, there are normative implications in constructing an antagonistic dichotomy between competing public interests. Both rights are significant for free speech and are in the public interest, and it should not be assumed that they are immutable or always in conflict. As Michael Tugendhat told the DCMS Select Committee in 2003, there are many circumstances in which it is impossible to have freedom of expression without privacy; “the most obvious examples of that”, he explained, “are when people give information to newspapers and need to protect their identities’ (quoted in Rozenberg 2004: 4). People may also feel that they require privacy if they wish to express controversial or unpopular beliefs. Again, if an individual believes that his correspondence is likely to be opened, that person cannot be free to express themselves and there can be no free exchange of ideas (Tugendhat and Coppola, 2002: 66). And sometimes the right to privacy advances the rights of others to freedom of expression, as when the whereabouts of an individual are kept secret to prevent them from harm so that they can express themselves freely and the public can receive their information (ibid.: 44). Furthermore, neither article is absolute, and in cases involving one or both of these rights, the courts have to take into account the requirements of democracy. As Article 10 itself puts it: “freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress’. It is on these grounds that the courts have, albeit belatedly, come to accept that journalistic sources are confidential. As the European Court put it in the case of Goodwin v United Kingdom in 1996: “without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result, the vital public watchdog role of the press may be undermined” (quoted in Robertson and Nicol 2008: 73)

That being said, it is a common mistake to conflate freedom of expression with the freedom of the press (Lever, 2012). The latter should be regarded as an instrumental good rather than as an intrinsic good (although the extent to which privacy and freedom of expression have intrinsic values is also a source of debate), where it is “good insofar as it causes the press to act in the public interest and reinforces democratic ideals, but not good insofar as it…impoverishes public debate” (Petley, 2011). Nor is it an unconditional good. There is a difference in scope and scale between an individual’s relatively unrestricted freedom of expression (which ends only where another’s begins) and the freedom of an institution to disseminate commercial speech to a large audience via mediated communication (Petley, 2011). As Onora O’Neill has argued, if newspapers act as if they have “unrestricted rights to freedom of expression, and therefore a licence to subject positions for which they don’t care to caricature and derision, misrepresentation or silence”, then they would also have rights to “undermine individuals’ abilities to judge for themselves and to place their trust well, indeed rights to undermine democracy” (2002: 94). Placing more obligations and limits on the freedom of expression of the press than on that of individuals could actually help to make the press accountable, without conflicting either with freedom of expression or freedom of the press, because “the classic arguments for press freedom do not endorse, let alone require, a press with unaccountable power” (ibid.: 93).

What is more, when we expose how the two rights are reductively read from the perspective of liberal theory, both the pre-2000 approach that saw them as antagonists, “locked in a zero-sum game, in which gains to the one can only come at the expense of costs to the other” (Lever, 2012: 41), and the post-2000 approach that has sought to find an appropriate balance between them, seem equally ineffectual. This is because within liberalism and behind the debate over market self-regulation and government intervention (Weintraub, 1997: 8) there is an implicit assumption of the “naturally” self-interested character of individuals.   Both privacy and the freedom of the press foster the same kind of individual; an individual that too often resembles a consumer more than a citizen. In contrast to the liberal conflation of citizenship with passive community membership and the freedom to make individual choices, citizenship from a civic republican perspective entails the active participation and collective decision making of equal members of a ‘willed community’ (ibid.: 13). Approaching both privacy and the freedom of the press from this perspective, and evaluating them in terms of their importance for the political sphere of social life — whether understood as Tocqueville’s ‘political society’, Arendt’s ‘public realm’ or Habermas’ ‘public sphere’ — would avoid the trap inherent in the liberal approach of conflating them with what are in fact the private interests of the powerful.

 

 

 

THE FREEDOM OF THE PRESS

[ section removed from website version: for an alternative overview, see: https://smdawes.wordpress.com/2014/04/22/article-press-freedom-privacy-and-the-public-sphere/ ]

 

 

 

PRIVACY

Privacy is also a concept that can serve self-interest, keeping secret what it could be inconvenient to make public, and effectively excluding certain areas of life and types of information from the public realm.

In the UK, the Freedom of Information Act 2000 has redrawn the boundaries of public and private information. But while the public interest in the use of taxpayers’ money, for example, is relatively uncontroversial, the extent to which it is in the public interest to know about the private sex life of a public figure is less straightforward. The Dominique Strauss-Kahn affair, for instance, highlights the differences between French and Anglo-Saxon approaches to this issue. In France, the individual’s right to a private life tends to outweigh the rights of the press to expose that life, so that rumours and allegations about Strauss-Kahn’s private life remained off- limits to the French public until criminal proceedings in the US made the self-censorship of the French press untenable. It is hard to imagine the equivalent behaviour of a figure in British public life escaping the scrutiny of the tabloid press and celebrity magazines of this country. That being said, although clearly of interest to a large proportion of the tabloid-reading public, the consensus of their broadsheet-reading contemporaries would probably be that exposure of such matters are not generally in the public interest, even when they concern politicians. The contrasting ways in which different parts of the UK press reported the fall from grace of Conservative MP Liam Fox in October 2011, for example, illustrate the different approaches to the public interest of tabloids and broadsheets. When commenting on the impropriety of a secretary of state being accompanied so often on ministerial trips by a personal friend and business associate, broadsheets like the Guardian focused on the distinction between Fox’s government and business interests, while tabloids such as the Sun were more interested in investigating the personal relationship between the two men. The two newspapers were investigating the same story, but from different perspectives and with different objectives in mind, and if there is a public interest in the broadsheet’s investigations, the tabloid could make the same argument. Similarly, although it might be unconvincing to claim that exposure of a footballer’s extra-marital affair is in the public interest, there are times when the sex lives of individuals in positions of power can take on public significance. The Profumo Affair of 1963, for instance, where Christine Keeler’s simultaneous relationships with a British government secretary of state and a Russian spy posed a national security threat at the height of the Cold War, or the relationships in the late 1980s between Pamela Bordes and several British MPs and newspaper editors, as well as a Saudi Arabian arms dealer and a Libyan security official, are both key examples of why proscribing a certain type of newspaper content could in certain circumstances potentially harm the public interest.

Although the line has to be drawn somewhere between public and private, where that line is actually drawn is a matter for permanent contestation. Some have argued against any restrictions on the type of content that can be considered to be in the public interest (Benhabib, 1992), stressing the exclusionary potential of such restrictions and the capacity of any matter to become of public concern. Women’s, workers’ and minorities’ rights have all in the past been excluded from the public sphere because of rigid distinctions between public and private. Other material has been excluded because it has been thought to be offensive. But as John Stuart Mill (1995) argued, any criticism of the status quo or of those in power (in his example, the Church) would no doubt be considered offensive by some, especially by those subject to such criticism, but this is absolutely no reason to censor it. There should therefore be a degree of openness and flexibility regarding both the content and form of media content when it comes to considering what may or may not be in the public interest.

However, while obviously of interest to the public, the sort of information that the NOTW allegedly broke the law to obtain and publish, and the type of content that makes up much of the tabloid press, could barely be defended as being in the public interest. Although citizens must be free publicly to describe their lives and affairs, as well as, by extension, the lives of those with whom they’ve had affairs, kiss ‘n’ tell stories, in particular, provide “an excellent vehicle for personal grudges” (Lever, 2012: 42). It is often in the self-interest (and frequently in the financial interest) of the source of information for such stories to be published, as well as in the commercial interests of the newspaper and its publisher to chase and solicit such material, treating the private lives of individuals as nothing more than material for the entertainment of others. Rather than prohibiting such content, it has been suggested that the frequency and intensity of the pursuit of personal information should be limited, and that the details of the fees paid for the story and whether or not it was solicited should be disclosed in the published story itself (Lever, 2012: 42-43). This would highlight the commercial motives of the industry in invading privacy in the name of the freedom of the press, and help the public to determine the difference between one newspaper’s investigations into a matter merely of interest to the public and another’s investigations into a matter of genuine public interest. It would also emphasise that the threat posed to privacy can be by a commercial entity as well as by the state.

The liberal theory of privacy, however, tends to limit itself to an elaboration of the right to conduct one’s personal life as one chooses free from interference or regulation by the state (Rössler, 2005: 10). In contrast to a totalitarian view, for instance, which would see the public or political realm as all-inclusive, the liberal view designates an area of life as private and not responsible to the state (Benn, 1984: 239-240). In legal discourse, particularly in the US (where recognition of the right to privacy has a longer history than in the UK, even though it has frequently been overridden by the First Amendment (Tugendhat and Coppola, 2002: 62), particularly in cases concerning the freedom of the press, this equates government and the state with ‘public’, and individuals and corporations with ‘private’. Consequently, many protections of privacy in the US, coming indirectly from amendments to the Constitution and the Bill of Rights, have tended to protect citizens from government but not from corporations (Nissenbaum, 2010; Solove, 2008). The importance given in liberalism to freedom of expression over the right to a private life is therefore difficult to separate from that given to the rights of a corporation over those of an individual. When that corporation owns a newspaper and is further shielded from ‘the Government’ by the rhetoric of the freedom of the press, it is also difficult to see, from such a blinkered perspective, how privacy can be protected.

While the liberal value of privacy lies in respect for the individual and their autonomy, a civic republican approach would argue against an individualist conception of privacy, stressing the harm which it can do to the public good; instead, it would emphasise the political importance of privacy for the public good and as a shelter from the individualism of the market (Dawes, 2011). For Hannah Arendt (2003), for instance, although the personal could never be political, there was a need to stress the profound connection between public and private areas of life. Although the private realm can function very well without the public realm, the latter is founded and dependent upon the former; without a foundation in privacy, there can be no public realm of politics, no public interest, and therefore no freedom (Kumar, 212-213). Such an approach would distinguish between public (state) and private (market) influence on society, and explore the ways in which privacy should be protected from the market as well as from the state. And in emphasising the public interest in privacy and its importance for democracy, it would also avoid the other tendency in liberalism for privacy to be used individualistically as a shield for keeping from the public what it is in the private interests of a few to keep secret.

 

 

CONCLUSION

The dichotomy between the freedom of the press and the individual’s right to privacy therefore does not stand up to scrutiny, and is particularly inappropriate as a framework within which to understand the issues raised by the News International phone-hacking scandal. The behaviour of journalists, the content of tabloid newspapers and the routine invasions of privacy are the result of commercial forces, the consequences of a ‘free press’ as envisioned by liberal fourth estate theory. In the name of this theory, the power of the unions has been weakened, the training of journalists has been watered down, and the converged media sector has been progressively deregulated to create levels of market concentration unimaginable 150 years ago. While concepts such as press freedom and privacy (and indeed the public interest) have been used to maintain or further press proprietors’ self-interest, their redundancy is more fundamental than their misuse. The very theories behind the concepts are under the spotlight. Theories of both press freedom and privacy see freedom in terms of freedom from the state, with freedom from the state being guaranteed by the operations of a free market. What the phone-hacking scandal demonstrates, however, is the lack of freedom of both the press and of individuals from a deregulated market, and that what is required is a little less freedom from the state — that is, from a certain level of state intervention—in order to curb the threat to press freedom posed by the market. Unlike liberal theory, which seeks to limit and check state power only, the civic republican perspective that sees freedom in terms of both the state and the market, appears to be more appropriate to understanding and remedying the current crisis in press regulation. Rather than having recourse to empty fourth estate rhetoric, the freedom of the press can better be defended by reference to the concept of Habermas’ public sphere, a realm free from both state and market influence, in which the democratic role of the media is privileged over its commercial function, and the public is seen as being composed of people who are first and foremost citizens. Crucially, this emphasis on citizenship and the deposition of market logic and private interests would also have the effect of casting privacy in light of the private realm’s importance for the public realm, avoiding the tendency to reduce privacy to an individualistic and depoliticised value. Instead of seeking to strike a balance between two liberal rights that are both equally blind to the inadequacy of the market as a guarantor of freedom, approaching the scandal in terms of its effect on the public sphere would recognise that the market is the cause of the crisis, and would enable remediation by casting in a different light many of the arguments made in the name of the freedom of the press, turning attention to the lines of accountability between media, state, society and market.

The reluctance of politicians to regulate the press industry does little to benefit a truly free press. Allowing commercial pressures and the private interests of media owners to have such an unfettered influence over journalism, politics and the private lives of public figures is detrimental not only to privacy but also to the freedom of the press and, ultimately, to democracy itself.

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