“Discuss the ethical implications for journalists raised in trying to balance Article 8 and Article 10 of the 1998 Human Rights Act.� By Charlie Derry
http://charliederry.wordpress.com
BA(Hons) Journalism
University College Falmouth
The Human Rights Act (HRA) came into force in October 2000, giving effect in the UK to the rights set out in the European Convention on Human Rights (ECHR). Article 8, The Right to Privacy, and Article 10, The Right to Freedom of Expression, are the two most important articles for journalists in the UK. A journalist’s right to express their views publicly always needs to be balanced against another’s right to private life, but many ethical implications are raised when trying to find a balance between the two. How do we know when somebody’s private life comes in the public’s interest to know, and how do we define the difference between the two? This conflict has become widely debated in the role of journalism, demanding a balance to ensure the best standards in reporting. Article 8 of the HRA is a qualified right stating that everyone has the right for his private and family life, his home and his correspondence. The article states that there shall be no interference by a public authority with the exercise of this right except if in accordance with the law and is necessary in the interests of national security, the public safety, for the wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. It also holds the right to have information kept private and confidential, such as information given to doctors. Article 10 states that everyone has the right to freedom of expression. This right includes the freedom to hold opinions and to receive and impart information and ideas without any inference from the public authority and regardless of frontiers. The exercise of this freedom carries duties and responsibilities; it is not absolute and is therefore subject to formalities, conditions, restrictions and penalties as prescribed by the law. The reason behind such expression must only be necessary in a democratic society, in the interest of national security or public safety, for the prevention of disorder or crime and disclosure of information received in confidence, for the protection of health, morals or rights of others, or for maintaining the authority and impartiality of the judiciary. Additionally, the Press Complaints Commission (PCC) enforces a Code of Practice, setting out a benchmark for ethical principles to protect both the individual and the public’s right to know. The PCC is an independent self-regulatory body which deals with complaints about the editorial content of newspapers and magazines, ensuring that members of the press maintain the highest professional standards in their work. The PCC says that, “Individuals have the right to express honestly-held opinions, and newspapers have the right to publish them, provided the terms of the Code are not otherwise breached.”[1] Clause 3 of the Code is ‘Privacy’, stating that everyone is entitled to respect for their private and home life, their health and their correspondence (The same as Article 8 of the HRA). But has the definition of privacy changed since these Articles and Codes were set out? Defining privacy has undoubtedly become complicated over the years, especially due to our cultural obsession with celebrity lifestyles. The PCC Code adds to its clause of privacy that it is unacceptable to photograph individuals in private places and/or without their consent. There are many case of celebrities who have sued newspapers for breaching this clause including Tony Blair who complained about the press photographing his young children, TV presenter Jamie Theakston following his visit to a brothel and Radio 1 DJ Sara Cox for photographs taken of her naked. More famously, Jade Goody’s family launched legal action 1 - [online] Available at: http://www.septicisle.info/labels/Daily%20Mail-watch.html [accessed 5/3/10]
over the publication of a photographer of mourners at her funeral in 2009.[2] They seeked up to £100,000 from the Mirror Group Newspapers, stating it was an invasion of privacy and a breach of confidence. But it’s not only celebrities who can complain about a breach of their right to privacy because of the use of a photograph taken without consent. In May 2002, a man complained to the PCC about the use of a photograph taken of him in a restaurant which was used in his local paper. The newspaper claimed that because the cafe was a public place, he had “no reasonable expectation”[3] of privacy. The PCC, however, declared that the right acts for this man as much as it does for celebrities, and said that “customers of a quiet cafe could expect to sit inside such an establishment without having to worry that surreptitious photographs would be taken of them and published in newspapers.” So how are we to know if a certain ‘expression’ is going to cause emotional damage to an individual? Tessa Mayes, in her article ‘Privacy vs. free speech: two competing rights?’, says: “The fact that public debate is increasingly concentrated on people’s private lives is undoubtedly problematic…but censoring confessional speech in the name of ‘balancing’ a right to free speech with a right to privacy, emotional harm or trivia, is not a solution either.”[4] This links to John Stuart Mill’s Harm Principle which says that, “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”[5] However, many celebrities invite voluntary intrusions into their lives to discuss issues about their personal life such as Geri Halliwell about her anorexia and Nicole Appelton about her abortion, creating an ‘ethics-free-zone.’[6]. This only blurs the distinction between private and public life further. Shows such as Big Brother and I’m A Celebrity Get Me Out Of Here work in the same, broadcasting a 24 hour surveillance on celebrity lives. The conflict between the Articles, here, is pointing to controlling unwanted publicity rather than a ‘harmful’ intrusion into private life. When the Younger Committee on Privacy was set up in 1972, it concluded that privacy was too fluid a concept to define as a general right of privacy.[7] Over the years, the definition has become further altered by the use of technology. The internet makes it easier for people to express their freedom of speech and also for private issues to be discusse which only broadens this conflict. Charlie Beckett, in his article ‘Literacy not the law: bondage and the bloggers’, says: “This tension in journalism between openness and protection from harm is not new. But digital communications have transformed the reality of the debate.”[8] Published articles on the i nternet are regulated by the same bodies as print journalism, but evolve more so by social norms. Sarah Hinch, in her article ‘The Dynamic Balance Between Free Speech and Privacy Interests’ on The Centre of Internet and Society (CSI), says: “To maintain meaningful interpersonal relationships, we rely on our ability to control how and when we communicate our thoughts and personal information to different audiences, and in this sense,
2 - [online] Available at: http://www.nowmagazine.co.uk/celebrity-news/394604/jade-goody-s-family-threatens-to-sue-overgraveside-picture/1/ [accessed 2/9/10] 3 - [online] Available at: http://www.guardian.co.uk/media/2002/may/23/pressandpublishing.privacy [accessed 5/10/10] 4 - [online] Available at: http://www.spiked-online.com/articles/00000006DAC7.htm [accessed 12/11/10] 5 - [online] Available at: http://www.seop.leeds.ac.uk/entries/freedom-speech/#HarPriFreSpe [accessed 27/11/10] 6 - [online] Available at: http://www.independent.co.uk/story.jsp?story=65923 [accessed 12/11/10] 7 - [online] Available at: http://www.leeds.ac.uk/law/hamlyn/princess.htm [accessed 12/11/10] 8 - [online] Available at: http://www.charliebeckett.org/?p=748 [accessed 27/11/10]
privacy is essential to human bonding.”[9] These ‘unwritten laws’ are based around this notion of privacy being essential to human bonding, and evolve around an ethics we should all hold unconsciously. Alan Westin explains this in his book, Privacy and Freedom, agrees and says: “Each individual is continually engaged in a personal adjustment process in which he balances the desire for privacy with the desire for disclosure and communication of himself to others, in light of the environmental conditions and social norms set by the society in which he lives.”[10] Furthermore, other clauses of the Code refer to the use of information, other than photographs, without consent, stating that journalists have a moral obligation to not access information without consent. Clause 10 of the Code, titled Clandestine Devices and Subterfuge, says that a journalist must not seek to obtain or publish material acquired by using hidden cameras or listening devices, or by intercepting private or mobile telephone calls, messages or emails. They must also identify themselves and obtain permission before entering non-public areas of hospitals or similar institutions to pursue enquiries. In any case, editors will be expected to justify any intrusions into anyone’s private life without consent. Damian Tambini and Clare Heyward say in their book, Ruled by Recluses?, that, “Where there is a strong public interest in investigation by journalists, then all should agree that privacy rights can be waived.”[11] They believe that the methods of investigative journalism - and journalistic freedom in general - should be strongly defended by anyone who believes in a democratic government. Journalism’s vital role is to keep the public informed, acting as a “watchdog on the state”[12]. But as there becomes a more competitive market in the media, journalists often have a strong incentive to push boundaries and break the rules, glorifying the use of investigative journalism. Is this approach to journalism ethical at all? A good example of investigative journalism is the royal phone tapping scandal involving Clive Goodman and Glenn Mulcaire in 2006. Goodman, who was jailed in 2007, used private investigators and intercepted phone calls to find out information about the royal family which he then published in the News of The World. The courts supported that Goodman was the only person at the News of The World who knew about the phone interceptions, but The Parliamentary Committee criticised them for not following up other documents which showed clear evidence of the phone interceptions involving other people. The Parliamentary Report commented that it was ‘inconceivable’ that no one else knew about the scandal, that it was a deliberate obfuscation, a collective amnesia and that silence had been bought. Brian Cathcart, Professor of journalism at Kingston University, visited University College Falmouth in March 2010 as part of UCF’s ‘Approaches to Journalism’ evening lecture series. He presented students with a presentation about the royal phone tapping scandal and held strong opinions against how the case was dealt with. “This is just a complete failure to recognize what normal, respectable people might expect of in terms of behaviour,” he said. “They go around ensuring us that they’re fully abreast to the PCC code and that everybody’s briefed on it constantly. And then you see this stuff - How can you possibly believe that?” It wasn’t only the 9 - [online] Available at: http://cyberlaw.stanford.edu/node/6162 [accessed 12/11/10] 10 - Westin, Alan (1970) Privacy and Freedom. The Bodley Head Ltd. 11 - Tambini, Damian; Heyward, Clare (2003). “Ruled by Recluses?” Privacy and the Media. London: Institute for Public Policy Research. 12 - [online] Available at: http://www.highbeam.com/doc/1G1-14469040.html [accessed 12/11/10]
ethics of how information was gained without consent here, but also the courts lack of ethics as they tried to cover up the scandal. Another privacy matter that can cause conflict with the right to freedom of expression is the media law of anonymity. This law applies to reporting about child and/or sexual victims who are automatically and immediately given lifelong anonymity. The PCC states that the press must not identify children or victims of sexual assault, or publish material likely to contribute to such identification unless there is an adequate justification and they are legally free to do so.[13] Breaches of this Code, and to many other journalistic laws, can generally be justified when in the public interest. The PCC states that the public interest includes, but is not confined to, detecting or exposing crime or serious impropriety, protecting public health and safety and preventing the public from being misled by an action or statement of an individual or organisation.[14] When the public interest is invoked, the PCC require the editor to demonstrate that they reasonably believed their publication would be in the pubic interest and will consider the extent to which material is already in the public domain. As Cathcart pointed out previously, there are ways of getting around the PCC’s Code, so who decides when these rights should be waived? A high profile case that relates to this was the injunction banning all media from identifying the murders of two-year-old James Bulger. Jon Venables and Robert Thompson, aged 10, brutally beat Bulger to death in 1993. On their release from custody in 2001, they were given new identities; a lifelong anonymity based on the perception that their rights to life, privacy, and protection from torture outweighed the freedom of expression of those wishing to identify them. David Blunkett stated in 2001 that, “The injunction was granted because there was a real and strong possibility that their lives would be at risk if their identities became known.”[15] In March 2009, it was then reported that Venables had returned to jail for “a serious breach” of his conditions. The government refused to say why Venables had returned to jail or to give away his identity, commenting that the case was already too publicised. Justice Secretary Jack Straw believed that the secrecy was in the public interest and was later backed by the Prime Minister, Gordon Brown, who defended the government’s refusal to disclose why Venables had been sent back to prison. He said he understood the “public outrage”[16] but insisted it was impossible for the specific details of the breach to be revealed. In The Elements of Journalism, Bill Kovac and Tom Rosenstiel give nine elements of journalism which a journalist should follow in order to fulfil their duty of providing people with the information they need to be free and self-governing. The second element is that “Its first loyalty is to the citizens.”[17] This is where another main conflict arises; how do you decide what constitutes as being in the individuals right to privacy and not in the journalist’s right to freedom of expression towards the public’s right to know? Officials excused keeping Venables’ 13 – Banks, David; Hanna, Mark (2009). McNae’s Essential Law For Journalists. OUP Oxford: 20th edition. 14 - [online] Available at: http://www.pcc.org.uk/cop/practice.html [accessed 27/9/10] 15 - [online] Available at: http://news.bbc.co.uk/1/hi/uk/8546544.stm [accessed 5/10/10] 16 - [online] Available at: http://www.guardian.co.uk/uk/2010/mar/04/gordon-brown-jon-venables-james-bulger [accessed 5/10/10] 17 - Kovac, Bill and Rosenstiel, Tom. 1990. “What is Journalism?” The Elements of Journalism. Picador.
identity a secret by saying that he could complain about not having a “fair trial” (Article 6 of the HRA) and said that they didn’t want to prejudice future criminal justice proceedings.[18] But how is keeping a murderers identity a secret in the public interest when he had already breached many of the conditions he was released on, and returned to prison for a more serious crime? In conclusion, it seems that certain things can sometimes be in the public interest but then not in others, and that there isn’t sufficient regulation to say when or where this boundary lies. Article 8 and Article 10 of the HRA are both set out to protect the privacy of others but also the public’s right to know, but for journalists there is always a potential clash between the right itself and the exceptions to the main rule. The Articles and Codes each have specific limitations and responsibilities set out by the HRA and the PCC, but it seems that there are always ways of getting around them. Personally, I believe that there is not enough regulation around the two rights and that not enough is in place to maintain a balance between them; trying to find a balance between an individual’s right to privacy and the right to freedom of expression only leads to more questions than it asks for.
18 - [online] Available at: http://www.dailymail.co.uk/news/article-1255274/ [accessed 5/10/10]
Bibliography: http://en.wikipedia.org/wiki/Privacy http://en.wikipedia.org/wiki/Freedom_of_speech http://www.pcc.org.uk/ http://news.bbc.co.uk/1/hi/uk/946400.stm http://news.bbc.co.uk/1/hi/uk/8546544.stm http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/peoples-rights/human-rights/pdf/ act-studyguide.pdf http://www.yourrights.org.uk/yourrights/the-human-rights-act/index.html http://www.spiked-online.com/articles/00000006DAC7.htm http://www.charliebeckett.org/?p=748 http://cyberlaw.stanford.edu/node/6162 http://www.guardian.co.uk/media/2002/may/23/pressandpublishing.privacy http://www.septicisle.info/labels/Daily%20Mail-watch.html http://www.nowmagazine.co.uk/celebrity-news/394604/jade-goody-s-family-threatens-to-sue-overgraveside-picture/1/ http://news.sky.com/skynews/Home/UK-News/Reveal-Jon-Venables-Identity-Says-Man-After-He-IsWrongly-Accused-Of-Being-James-Bulgers-Killer/Article/201003215570832 http://www.wisegeek.com/what-is-invasion-of-privacy.htm http://www.independent.co.uk/story.jsp?story=65923 http://www.leeds.ac.uk/law/hamlyn/princess.htm http://www.seop.leeds.ac.uk/entries/freedom-speech/#HarPriFreSpe http://www.highbeam.com/doc/1G1-14469040.html http://en.wikipedia.org/wiki/Watchdog_journalism Tambini, Damian; Clare Heyward (2003). “Ruled by Recluses?” Privacy and the Media. London: Institute for Public Policy Research. Banks, David; Hanna, Mark (2009). McNae’s Essential Law For Journalists. OUP Oxford: 20th edition. Kovac, Bill and Rosenstiel, Tom. 1990. “What is Journalism?” The Elements of Journalism. Picador. Westin, Alan (1970) Privacy and Freedom. The Bodley Head Ltd. Sanders, Karen (2003) Ethics and Journalism. Sage Publications Ltd: 1st edition.