Free speech and the public interest

Part Six of the spiked-report ‘Restraint or Revelation? Free speech and privacy in a confessional age’.

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• By confusing the public and the private, today’s confessional culture undermines the idea of the ‘public interest’.
• This removes a useful journalistic standard, and does not help the free speech cause.

The idea of the public interest

The discussion about the public interest is usually about the quality of speech – a sometimes useful debate about our culture of reporting and journalism. But in the debate on speech regulation, the quality of speech, or what is in the public interest, is used to justify what should be allowable – and this represents a confusion of two separate debates.

Supporting free speech does not require endorsing the content of what is being said. However, one reaction to increasing privacy claims argues that some speech content is important – often expressed in terms of ‘the public interest’. This confuses support for a right to free speech with support for what is being said, and undermines both the argument for free expression and criticisms of our confessional culture.

For many years, journalists have based what they believe should be published or broadcast on the dictum ‘what may be interesting to the public is not necessarily in the public interest.’ The idea of the public interest used to mean matters of public policy or issues of social importance. Today, however, nobody seems to agree on its definition.

In a recent report titled ‘The Public Interest, the Media and Privacy’ by Professor David Morrison and Michael Svennevig, those surveyed from the public and the media considered the public interest to involve issues of crime, health or national security. (1) Over 30 percent thought ‘public interest’ referred to information that the public should know, such as mistakes by government officials; 17 percent thought stories about the cosmetic surgery of a member of a leading pop group were in the public interest. (2) The authors concluded that, ‘There did not seem to be any one firm definition of the term…[and] at the popular level, the term gives rise to some confusion.’ (3).

Although the Press Complaints Commission’s Code of Practice defines the public interest as ‘detecting or exposing crime or a serious misdemeanour, protecting public health and safety, preventing the public from being misled by some statement or action of an individual or organisation…[and] there is a public interest in freedom of expression itself’, how journalists decide on standards is the subject of continuing debate.

As Professor Robert Pinker, the acting chairman of the Press Complaints Commission, has explained: ‘A Code of Committee of editors wrote the Code in 1991 and have kept it up to date ever since in consultation with the industry…The PCC is consulted by the Code Committee when changes are being made and we also make recommendations from time to time. Occasionally editors may complain about our adjudications but they can never complain that the Code was imposed on them by people who know little or nothing about the realities of gathering and publishing the news.’ (4)

Despite the differing definitions of the public interest, at least the term encapsulates the cultivation of editorial standards – that somebody can exercise free speech, but that they should talk about what they think is in the public interest. Invoking the term ‘the public interest’ recognises an aspiration to distinguish between speech that is any old fact or opinion, and speech that is important for public debate.

In practice, however, the term ‘the public interest’ has come to denote a moral definition of what is or is not acceptable speech. It can imply that what the public is interested in is trivial, and what a judge deems is in the public interest is necessarily of a higher value. As such, it has often been used as a justification for censorship.

For example, in the case of the premiership footballer and The People, Justice Jack granted an interim injunction against the newspaper revealing the details about the footballer’s extramarital affairs (which was overturned on appeal). As a justification for his decision, Justice Jack said: ‘There is no public interest in the publication of the articles and the information which they contain. I refer to public interest in the sense of being in the interests of the public, and approximating to public benefit…The claimant’s conduct is to be condemned by any moral standard: but that does not provide a public interest in the information about these two extra marital affairs.’ (5)
The public interest undermined

One interesting aspect of our contemporary confessional culture is that it is eroding the ease with which ‘the public interest’ can be used as an argument for regulation. People are volunteering the kind of information that judges and media regulators define as being not in the public interest. This undermines the usefulness of the public interest as a justification for publishing a particular story. It also makes it more difficult for the courts to censor stories just because they are not in the public interest.

For anyone interested in defending free speech, the undermining of the court’s public interest argument may seem a good thing. Yet however problematic the use of ‘the public interest’ has been as a justification for censorship, when it comes to journalistic standards it is a notion worth retaining. Why? As Stuart Kuttner, managing editor of the News of the World, commented in an interview in 1998: ‘The truth should not be suppressed or censored. Though simply because something is true, it does not mean necessarily it is in the public interest, even if it is of interest to the public. This is not an argument for censorship; it’s an argument for a civilised and mature society.’ (6)

People may dispute what ‘the public interest’ means. Is it about naming and shaming convicted paedophiles? Investigating the truth of a politician’s statement about his personal life? Photographing celebrities who claim they are teetotal when they are drunk? Or is it about none of these?

However you view what is in the public interest, at least the term encapsulates an aspiration to improve public debate. In a confessional culture potentially everything can be publicised without evaluation. Nothing in particular appears important. To avoid a blurring of public and private issues a distinction should be made between what is in the public interest, and what is not.

• Point three: The public interest is a useful journalistic standard.

This is part six of the spiked-report ‘Restraint or Revelation? Free speech and privacy in a confessional age’.

Read on:

Part Seven: The confusion over privacy

Part Eight: Privacy loses its meaning

Part Nine: Privacy, free speech and the media: some conclusions

Part Ten: Contents and acknowledgements
Part One: Restraint or Revelation? Free speech and privacy in a confessional age

Part Two: Privacy vs free speech: two competing rights?

Part Three: A qualified right to free speech

Part Four: Free speech and trivia

Part Five: Free speech and the ‘right to know’

(1) Professor David Morrison and Michael Svennevig, The Public Interest, the Media and Privacy, (BBC et al, March 2002), p1

(2) Professor David Morrison and Michael Svennevig, The Public Interest, the Media and Privacy, (BBC et al, March 2002), p101, p98

(3) Professor David Morrison and Michael Svennevig, The Public Interest, the Media and Privacy, (BBC et al, March 2002), p1

(4) Professor Robert Pinker, the acting chairman of the Press Complaints Commission, in a speech given at a debate organised as part of the research for this report at the London School of Economics, 2001

(5) Quoted in The development of privacy rights under the Human Rights Act 1998, Gavin Millar QC, Doughty Street Chambers Media Team, Privacy Seminar, 27 February 2002

(6) An interview with Stuart Kuttner, Managing Editor of The News of the World, published in Disclosure: media freedom and the privacy debate after Diana, by Tessa Mayes (LIRE media group, 1998)