As the Supreme Court noted;
"What’s in a name? “A lot”, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European Court holds that Article 10 protects not only the substance of ideas and information but also the form in which they are conveyed, (News Verlags GmbH & Co KG v Austria (2000) 31 EHRR 246, 256, para 39).
More succinctly, Lord Hoffmann observed in Campbell v MGN Ltd [2004] 2 AC 457, 474, para 59, “Judges are not newspaper editors," (see also Lord Hope of Craighead in In re British Broadcasting Corporation [2009] 3 WLR 142, 152, para 25). The Judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive," (GNM Ltd & ors v Ahmed & ors [2010] UKSC 1).
Lord Leveson noted that the press, operating properly and in the public interest, is one of the true safeguards of our democracy citing Thomas Jefferson when he said: “Where the press is free and every man able to read, all is safe.”
So whilst it is trite that society values the Fourth Estate to carry out its function in reporting fairly and accurately about matters of public interest, where the balance lies in respect of reporting in the public interest on the one hand and protecting the reputations and privacy of a person on the other hand is complex.
There are thousands of court decisions grappling with these issues and addressing what constitutes the public interest. The courts have interpreted what type of conduct is open to scrutiny and either deemed to have lost its privacy value or if deemed private, that privacy is outweighed by a prevailing public interest. All of these cases are intensely fact specific and no one case can ever truly be relied upon as establishing a clear formula as to what facts are or are not, an indisputable reasonable and objectively founded expectation of privacy in relation to those facts.
Whilst there are coherent legal tests and thresholds established in law and well understood by specialist media lawyers, each case is fact sensitive. The court in conducting an intense focus on the particular facts of a case undertakes the ultimate balancing test of competing rights, and will determine where the appropriate balance lies.
For example, in 2008 Max Mosley was awarded £60,000 privacy damages as the court determined on those facts that there was no legitimate public interest in revealing his private sexual tastes in S&M practices, (Mosley v News of the World (2008) EWHC 687). In that case, Mr. Justice Eady said Mr. Mosley could expect privacy for consensual “sexual activities (albeit unconventional)”.
On Christmas Day 2010, Joanna Yates was found murdered. Her landlord had been questioned in relation to that murder, later found to be entirely innocent of any alleged suspicions. Following what he described as a ‘campaign of vilification’ by certain members of the press, resulting in two newspapers being found guilty of contempt of court and following subsequent libel actions against eight newspapers for libeling him, he was awarded libel damages.
In May 2016 the Supreme Court, (PJS v News Group Newspapers Ltd [2016] UKSC 26) in considering a three-way sexual encounter involving celebrities deemed the facts private in spite of the “media storm” that surrounded the circumstances concerning the value of the injunction that had been granted. Lord Mance held that any public interest in publishing the story was so limited that it should be “effectively disregarded in any balancing exercise” and he postulated that:
"It may be that the mere reporting of sexual encounters of someone like the appellant, however well known to the public, with a view to criticising them does not even fall within the concept of freedom of expression under Article 10 at all.”
The BBC’s reporting about a celebrity under investigation for alleged sexual offences and covering the search of his property by the police resulted in privacy damages of £210,000 – (Sir Cliff Richard OBE v BBC [2018] EWHC 1837). In considering the legal issues, the Judge held inter alia: “As a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation” and the privacy value was not lost or removed by the fact that the information had come into the hands of the media. The court held that the publication of the celebrity’s identity did not contribute to a debate of general interest: “Knowing that he was under investigation might be of interest to the gossip-mongers, but it does not contribute materially to the genuine public interest in the existence of police investigations in this area." The court held that on the facts the BBC was not justified in publishing the material, and as a result there was an infringement of his privacy rights.
In November 2012 the BBC “Newsnight” programme broadcast a report which included a serious allegation of child abuse against a “leading Conservative politician from the Thatcher years.“ No individual was named. It later transpired that the accuser had misidentified the person who had abused him. The contents of the “Newsnight” report were widely reported in the media but the alleged abuser was not named. On Sunday 4 November 2012, Sally Bercow published a tweet resulting in Lord McAlpine successfully suing her for libel in relation to the publication of the tweet to her 56,000 followers and so to the BBC who paid him £185,000 in libel damages.
So whilst there is a lot in a name, and nameless reporting about matters of legitimate public interest would result in disembodied reports that reader’s may not find interesting or be able to relate to, there is a complex legal framework that must be adhered to when conducting reporting in the public interest. These legal issues are challenging and not always straightforward.
The European Court of Human Rights has often noted that private life is “not susceptible to exhaustive definition.” When considering privacy rights there must be a fair balance between an individual’s rights and the other party’s right to freedom of expression in the public interest. The criteria applicable to deciding where the balance lies is multi-faceted and includes for example the extent to which it contributes to a debate of general public interest, how well‑known the applicant is and the nature of the prior conduct, the subject, the content, form and consequences of the statements, and the method of obtaining the information and its veracity and the severity of the sanction, (Axel Springer AG v Germany (2012) 55 EHRR 6)
The media in exercising its public interest function carries a burden of responsibility which carries with it obligations and duties.
To answer then, quis custodiet ipsos custodes?, ("Who will guard the guards themselves?). In order to ensure that society’s right to be informed about matters of public interest is proportionate to that legitimate aim and that the rule of law is upheld, the competing interests of what is in the public interest and what is inherently private must be weighed in accordance with those well-established legal principles. Perhaps the best answer to the question as to who will guard the guardians is best summed by Lord Bingham;
"that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts."
