Where should the line be drawn?

In recent years, the debate over British journalism and whether it invades individual privacy has become a high-profile one, in the wake of incidents ranging from the phone hacking scandal to the death of TV presenter Caroline Flack, in which media intrusion was said to play a part; equally, Prince Harry and wife Meghan have intimated that media behaviour was behind their decision to leave royal life and the UK in 2020.

But the issue dates as far back as the 1990s, 1980s and earlier. The discussion on privacy and press behaviour, in the mid-1990s, for example, focused on the media’s treatment of Diana, Princess of Wales. A 1995 interview with broadcaster Martin Bashir on BBC’s Panorama led some journalists to claim the princess had surrendered any right to privacy. However, after her death two years later, the Daily Mail agreed to stop using paparazzi photographs in the light of strong anti-tabloid sentiment.

At the inquest into Diana’s death, the paparazzi were declared partially to blame, although the nine photographers then charged with manslaughter were later acquitted.

But its ‘no paps’ pledge  certainly wasn’t one the Mail adhered to, with images of model Yasmin Le Bon ‘suffering an embarrassing fashion faux pas’ being just one example of this, as the most cursory glance at its website’s ‘sidebar of shame’ will reveal. Admittedly, though, many of these stories are just as likely to be taken from celebrity social media accounts, where words and photos can reasonably be said to be in the public domain.

More recently, the phone hacking scandal led to the closure of the News of the World newspaper in 2011. The discovery of widespread telephone hacking left many feeling there’d been no progress since the 1980s. The scandal’s low point was, of course, the revelation that murdered teenager Milly Dowler’s mobile was among those hacked.

Following Diana’s death, the Press Complaints Commission (PCC) tightened up its guidelines to journalists. Equally, the Levenson Report of November 2012 followed the inquiry of the same name, which reviewed the British media’s culture and ethics. It recommended setting up a new, independent body to replace the PCC.

Former prime minister David Cameron established the inquiry, led by judge Sir Brian Levenson, which took more than six months and heard from 184 witnesses as well as accepting dozens of written submissions.

It was intended to take place in two phases, but in 2018 the government dropped the second one, describing it as ‘costly’ and ‘time-consuming’.

In the 2019 Conservative manifesto, the party again stressed it would not be proceeding with the second stage of the inquiry. While the first part of the inquiry looked at media culture, practices and ethics, the second part was to investigate the relationship between journalists and the police.

This decision not to proceed drew criticism, including from Hugh Grant, whose phone had been hacked, while former deputy Labour leader Tom Watson described the move as ‘a bitter blow for the victims of press intrusion’.

The Press Complaints Commission, the main press regulator since 1990, was replaced in 2014 by the Independent Press Standards Organisation (IPSO). A string of titles including The Sun, Mail and Telegraph have signed up to this regulator, while the Financial Times and The Guardian are independently regulated.

IPSO handles complaints, investigates editorial standards and compliance, and does monitoring work (publications must send yearly compliance reports). It can force the printing of corrections, and it also has the power to impose fines.

Its Editors’ Code of Practice covers a broad range of issues – from harassment to reporting suicide, to stories involving children, to accuracy, discrimination and reporting from hospitals.

Interestingly, however, it doesn’t specify that a journalist must contact every individual or organisation it writes about in all circumstances.

That perhaps would justify, for example, the widely used photo of a shocked Duchess of Cornwall being driven with Prince Charles to the London Palladium in December 2010. The royal couple’s vehicle was caught up in a crowd of student loan protestors, and the resulting image was a strong illustration of a genuine news story.

The code does say that everyone is entitled to respect for private and family life and that editors will be expected to justify intrusions into any individual’s private life without consent. It also says there should be a ‘reasonable expectation of privacy’ in private places.

However, the ‘public interest test’ (as opposed to ‘of interest to the public’!) lifts protection if:

  • A report exposes crime or serious impropriety
  • A report protects public health and safety or stops the public from being misled by someone’s actions or statements.

Key to all this is understanding that the UK has no separate privacy laws as such, unlike, say, France, where the editor, publisher and photographer who released topless photos of the Duchess of Cambridge back in 2012 were arrested.

However, the European Convention of Human Rights (ECHR), currently implemented here, does afford UK citizens ‘a right to respect for private and family life’ – sometimes also known as the ‘Article 8’ right. Its decisions aren’t strictly binding, although many decisions are considered so important that they do become part of EU law. This, however, conflicts with another right – freedom of expression – which the press commonly uses to defend itself in high-profile legal cases related to privacy.

Equally, the UK’s future in this convention remains uncertain after PM Boris Johnson refused in March to sign up to human rights protection as part of any future EU trade deal, leaving open the possibility of our departure from the ECHR.

Of course, social media has – to an extent – removed the privacy of anyone who uses it, blurring the boundaries between what’s private and what isn’t. Everyone has a camera phone; everyone is a ‘citizen journalist’. We all may feel at times we have far too much information about people whom we barely know and may not even have met.

Celebrities who need the media to survive, and who consequently plaster selfies all over their Instagram and other social accounts, are often accused of crying foul when they protest that their privacy has been invaded.

But people are perhaps more aware now of privacy and social media, with Facebook recording its first yearly fall in profits at the start of 2020 as its efforts in responding to related concerns began to affect its bottom line.

In conclusion, the Editors’ Code is generally robust, and there are actions that anyone can take if they feel their privacy has been invaded. The phone hacking scandal was a wake-up call for many, and the media has at least tried to clean up its act since then.

It is understandable, however, that many may feel IPSO can’t go far enough.

In a consistently highly competitive marketplace, and with dwindling print circulations, journalists certainly don’t always get it right. Take the lurid coverage of TV host Ant McPartlin, one half of Ant and Dec, following his drink-driving arrest and subsequent £86K fine in 2018. His divorce from former wife Lisa Armstrong was also considered fair game. Meanwhile The Sun, of course, famously printed pictures of a naked Prince Harry four years ago.

Such intrusions always need to be balanced against the absolute right of journalists to investigate and expose genuine wrongdoing – as in the case of the phone hacking or MPs’ expenses scandals.

The current situation is undoubtedly imperfect, and after the most recent incident, the tragic death of Caroline Flack, now would appear to be a propitious moment to reflect on these issues again. In a world of blurred boundaries, precisely where the line should be drawn remains far from clear.

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