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Leveson’s regulator and the goal of protecting ‘real harm caused to real people’: A likely story? By Paul Wragg

In his report, Lord Justice Leveson expressed concern at the ‘real harm caused to real people’ resulting from the ‘cultural indifference to individual privacy and dignity’ that he observes in problematic press behaviour. The tragic case of Lucy Meadows is surely the paradigm example of what he had in mind.

A recent posting on this blog spoke confidently of the role that Leveson’s regulator (once installed) might have in averting, or compensating for, the damaging experience suffered by someone like Miss Meadows as a result of the intrusive and unwanted press attention into her private life following an acerbic piece by Richard Littlejohn in the Daily Mail entitled ‘He’s not only in the wrong body… he’s in the wrong job’.

It is to be hoped that this will be the case. Certainly, the dialogue so far has tended to assume that Leveson’s regulator will have a profound effect on media freedom, whether the author is for or against Leveson’s recommendations. The purpose of this note is to offer a more sceptical view – there is no intention to suggest that Leveson’s recommendations will be a damp squib (although they might be if they are watered down too much) but rather to doubt the capacity of the regulator to achieve the sort of meaningful cultural change Leveson advocates in order to prevent ‘real harm’ happening to ‘real people’. That is to say, those troubling journalistic practices that Leveson identifies at length may well continue to affect ordinary members of the public who are not celebrities but, for whatever reason, have piqued the interest of the press. This scepticism stems from two typical features of stories involving members of the public:

First, members of the public are likely to be more vulnerable to the problematic behaviour that Leveson identifies – blagging, cajoling or threatening in order to obtain an interview or private information, etc – since a) they are likely to have less experience of or exposure to journalistic norms and b) less resources to obtain advice (legal or otherwise) let alone initiate legal action in order to protect their interests. Moreover, even if they have access to a free service, they may not complain for fear of intimidation, retaliation, etc. — all of which Leveson recognises in his report. The onus in such circumstances would be on the regulator to intervene, possibly unprompted by the individual concerned and we should query how readily the regulator would be able to do so. The defence of press partisanship may also influence the regulator’s approach to intervening (see below).

Secondly, often stories involving members of the public have an arguable public interest dimension to them. Even if the regulator were minded to accept that a breach of the code of conduct had occurred, penalties may not follow due to the presence of this public interest. Of the current sixteen clauses of the editor’s code of practice, ten contain an explicit public interest defence. Likewise, both the domestic and Strasbourg jurisprudence makes it clear that discussions of public interest should only be interfered with in narrow circumstances (see, e.g., the Supreme Court decision in Re Guardian News and Media Ltd [2010] UKSC 1). Should the regulator closely follow current judicial reasoning in privacy claims then complaints by members of the public may be unsuccessful where there is a public interest at stake unless the breach of code is particularly extreme.

The Lucy Meadows story provides an interesting and provocative lens by which to examine the prospective regulator. Assuming that clause 12 (discrimination) of the current editor’s code is replicated in the new code, then Miss Meadows might have made a successful complaint on the grounds that the article was prejudicial although this cannot be assumed (as it appears her complaint to the PCC has yet to be adjudicated). The PCC’s previous adjudications are not particularly favourable to transgender complainants who have complained about insensitive disclosures in discussions concerning a matter of public interest (see, e.g., A woman v The People, A man v Daily Record, Ms Keira McCormack v Sunday Life).
Whilst we might seriously question whether Lucy Meadows was a public figure simply by virtue of her position as a teacher or whether the suitability of people in transition to teach at a primary school is really a matter of public interest there has been a spate of recent judicial decisions evidencing a broadly generous approach to such issues in which the courts have endorsed the role of newspapers to criticise the behaviour of others, particularly role models (a term that has also been broadly conceived to include, e.g., Steve McClaren, ex-England manager). Similarly, the PCC decisions mentioned above broadly agree that newspapers are entitled to publish stories expressing concerns over the suitability of particular employment. Likewise, let us not forget the sheer breadth of the definition of public figure employed by the Council of Europe under Resolution 1165 of 1998: ‘public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or any other domain’.

Of course, the presence of some public interest ought not to be used as a blunt instrument to justify journalistic disregard for privacy and dignity. That is, an identifiable public interest ought not to be treated as a threshold point to determine whether or not a misuse of private information claim is successful (see Lord Phillips in Associated Newspapers Ltd v HRH Prince of Wales [2006] EWCA Civ 1776, [66]). Yet recent cases involving Rio Ferdinand, Chris Hutcheson, Steve McClaren, Karina Trimingham and Caroline Spelman’s son provide little comfort that such a nuanced and sceptical approach will be followed.

A finding in favour of the media, though, is not the only option available. In a case such as that of Lucy Meadows, the regulator might conclude that the harm to individual privacy and dignity far outweighed any coincidental public interest in the discussion or that the expressive activity crossed the line of acceptable criticism or even that the expression amounted to a form of hate speech, thereby depriving it of any protection under Article 10 of the ECHR. But we cannot be sure of such careful scrutiny, particularly in light of recent judicial decisions (and PCC decisions – for what they are worth).
In short, a sceptical view on the prospect of the new regulator protecting ‘real people’ from ‘real harm’ may be unavoidable. Ordinary members of the public are an easier target for the press than savvy celebrities with access to greater resources. Similarly ordinary members of the public may be uncertain of their rights and disinclined from pursuing them for fear of further intrusion. All of this is recognised in Leveson’s report and if a meaningful cultural change is to be achieved then, at the very least, a tough approach from the regulator is called for. But can we be certain this tough approach will occur? More likely than not, there will be some public interest dimension to the story, even though that aspect is probably disproportionate to the sense of intrusion experienced by the member of the public. Yet legally and politically, the regulator may struggle to justify interferences with expression tackling a matter of public interest. Expressing viewpoints, even deeply unpopular ones, on a matter of public interest falls squarely within the domain of press partisanship – a concept that Leveson endorsed as a vital feature of press freedom.

OXYMORONIC: The Commentary on the Lack of Commentary on Sally Ride’s Sexual Orientation

Andrew Sullivan wrote a piece blasting the New York Times for homophobia. The paper, according to Sullivan, should have openly acknowledged that the late Sally Ride: the first woman to travel into outer space was lesbian.  To do so would have contradicted the express wishes of the deceased. He wrote:

Dr. Ride was known for guarding her privacy. She rejected most offers for product endorsements, memoirs and movies, and her reticence lasted to the end. At her request, NASA kept her illness secret. In 1983, writing in The Washington Post, Susan Okie, a journalist and longtime friend, described Dr. Ride as elusive and enigmatic, protective of her emotions. “During college and graduate school,” Dr. Okie wrote, “I had to interrogate her to find out what was happening in her personal life.”

Thus, the question becomes who has truly disrespected Ride’s memory and wishes?  The editor’s at the Times or Andrew Sullivan?

The Edwards Affair

After prolonged and repeated stalking by the paparazzi and scandalous tabloid headlines, public media outlets seemed delighted to report that former vice Presidential candidate John Edwards has been indicted. He plead not guilty to six criminal counts on charges of election finance fraud, receipt of illegal contributions, conspiracy to solicit large donations from two supporters, and making false statements.

One wealthy benefactor contributed $725,000 and another gave $200,000. Lawyers for Edwards argue that donors were not solicited for the purpose of influencing an election for federal office, but to save his terminally ill wife from more outrageous attacks on the couples privacy and familial dignity. The litmus test seems to be whether the money used for Edwards’ personal expenses would have been given irrespective of his candidacy.

Prospective jurors were asked their opinions of Mr. Edwards, their views on adultery, and their political leanings. Similar to the media coverage of the affair, none of these issues relate to issues of justice and fairness in democracy, nor has the case sparked any meaningful debate about campaign finance laws in general. It also failed to address the question of why Edwards was arrested so long after the alleged conspiracy took place. The former Senator faces a maximum penalty of 30 years in prison and $1.5 million in fines.

Dharun Ravi was convicted of a hate crime and Hate Speech is still the problem

Alternet’s Julianne Hing recently posted an article on the conviction and sentencing of former Rutgers student Dharun Ravi. Ravi’s is a tale of outrageous invasion of privacy, cyber bullying, hate speech and more. He videotaped his gay roommate’s sexual encounters and posted them on the internet with vicious commentary.

Ravi faces up to 10 years in jail and deportation back to India.

Ravi’s attorneys argued that it was a thoughtless, immature, mistake.  Many people would argue that had his actions only led to a complaint to the university rather than the victim’s suicide, we wouldn’t be where we are now.  Except that we are, and his actions warrant time in jail so that he (and other immature folks) have an opportunity to learn that with freedom comes responsibility.

He is directly responsible for the loss of Tyler Clemente’s life; the well-being of his roomate’s partner is still tenuous at best, and he thinks that this warrants community service?  Ravi is justified in believing that he has become the poster-boy for American homophobia, and that is clearly true.  The question is why.

Free speech has been invoked to protect Reverend Fred Phelps who openly runs a so-called church-based website with the moniker “god hates fags.”  His wealth comes from a rampant and viral expression of homophobia that publically celebrates this suicide, the vicious murder of Matthew Shepard and the killing of our troops, on the theory that they should all die because God is not pleased with our tolerance of homosexuality.  In the meantime, the gay teen suicide rate continues apace and the federal courts have framed this as an issue of speech instead of the toxic insanity that it really is, and impossible to justify for the proclaimed leader of the free world.

Big Brother on Steroids!

In United States versus Jones, the US Supreme Court upheld the suspect’s privacy rights against invasion because the tracking device was secured via trespass upon private property.  The Court failed to address the more substantial potential for invasion that requires nothing more than mining data ubiquitously stored by thousands of corporate entities. Justice Sonya Sotomayor deftly notes in her concurring opinion: “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail” about their activities and associations.  “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on (Disclosed in [GPS] data will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on). The Government can store such records and efficiently mine them for information years into the future.”

New Book – Privacy and Libel Law: The Clash with Press Freedom

In Privacy and Libel Law: The Clash with Press Freedom, Paul Tweed asks the reader to decide whether there is indeed any hope for a return to the principle of quality in journalism that embodies fair and accurate reporting without offense to the rights and dignity of its citizenry. Historians will look back on this time period, with gratitude for the diligence and clarity with which Tweed lays out every argument with cogent examples and references on every side of this raucous debate and conclude with sadness, that democracy in its heyday was a worthy experiment, but hopelessly doomed for its failure to account for human nature in the amassing of corporate and institutional power and unrelenting greed.

Dan Lyons fears Facebook investors encouraging insane IPO valuation: 100 billion?

His standard is rationality.  If the question is why; here’s why….  The Wesleyan Media Project released a report on Monday, which demonstrates that the Supreme Court’s decision in Citizens United, has resulted in a 1627% rise in Superpac media attack ads since the 2008 election. Spending by these groups and their billionaire funders has risen by 1282% and we are not half-way through the Republican primaries.

 Lyons is using the wrong standard.  It is not about the value of one Tech Company against another.  Facebook v. Google in the social networking sphere in relation to revenue is not the true measure of Facebook’s value.  Like Google, it might possibly be worth twice as much to certain members of the 1%. Facebook may only be seven years old, but even if you agreed that it has “a great story and an amazing brand,” that’s not an indication of its true value.  Lyons admits: “Who hasn’t heard of Facebook? Who doesn’t use it?” Half a billion people use Facebook every day.  Those in the know have noted the introduction of TIMELINE.  The feature promises to reveal, “All your stories, all your apps, and a new way to express who you are; it boils down to a single scrolling page that contains much of your Facebook existence, chronicling everything that you have done.” Select any year and Timeline will show you what happened in your life in that year.” Next, there is the new OpenGraph feature, which continuously updates your profile, as it discovers new things from your friends. The music application alone is designed to constantly keep the world informed as to what a person is listening to.  Lifestyle apps will track what you eat, where you jog, play, work, PERMANENTLY. The Facebook F8 Developer conference unveiled the company’s plan: to execute agreements with a number of companies to bring the content that Facebook users are watching or listening to around the web into their Facebook profile in real-time.

If multi-billionaires are on the verge of securing that highly coveted a 9% tax plan that brought the likes of Herman Cain into the national spotlight, what’s a mere 100 billion between them to secure the kind of power that having that much information on the whole of the electorate can ultimately buy.

Celebrity Criticism Used to Deflect Attention Away From Corporate Raiding Debate

News outlets report that defense of Mitt Romney as a corporate raider is in full sway. That might be the understatement of the year.  The larger issue, beyond one politician’s record, is the elephant in the room: specific details (state by state) of the fallout from the worst of the excesses.  That debate has been effectively sidelined for certain segments of the population by a grand ole non-sequitur.  Fox News personality (serious political commentator) Bill O’Reilly, while manning the no-spin zone, recently took pains to run a segment featuring Kim Kardashian.  Who? What?

And other outlets have piled on: “When you buy something from a charity auction, you usually assume that 100%, or at least a large portion, of the proceeds are going to charity. Stop doing this! According to Fox News, a handful of celebrities including Kim and Khloe only donate a paltry 10%.” 

So the public’s attention is shifted away from the joblessness, homelessness and panic that has resulted from corporate raiding by the wealthy elite or the court case that has enabled unnamed billionaires to skew what may be the nation’s most important presidential election since Lincoln.  No, the public is being asked to condemn the 10%-ers.

This is hardly the Fourth Estate that Edmund Burke, an 18th-century British politician, is credited with crowning as a watchdog over government and industry.  To the extent that the clause guaranteeing freedom of the press was designed to create a mechanism outside of governmental control as an additional check on the three  branches of government, we have some tweaking to do.

The Ongoing [Public Media]Trial of Casey Anthony

 Casey Anthony is the current poster girl of Bad Mother Fame: portrayed as a narcissistic and heartless bitch who may very well have orchestrated the murder of her toddler daughter.  In contrast, men convicted of murdering their children evoke pity and their crimes go quietly under-reported.  According to Professor Jack Levin, there are 10 murder-suicides a week in the United States.” The profile of a family annihilator is a middle-aged man, a good provider who would appear to neighbors to be a dedicated husband and a devoted father.”  In truth, the most significant factors driving these men are family break-up, male sexual jealousy, a need to be in control and extreme possessiveness.  Chris Milroy, a forensic pathologist at the Forensic Science Service who studies murder-suicides, says that “When men kill their children there tends to be revenge in the equation. It’s like they’re saying, ‘If I can’t have them, no one can.’”  Much less than a spontaneous act of passion driven by despair, these killings resemble meticulously planned executions.

 Women accused in the disappearance of their kids no matter the reason, become an instant obsession of public media and targets of the blogosphere.  While media coverage is often sparse when men kill their kids, there is a noticeable proclivity in those cases to focus extensively on how the wife or mother’s behavior was a trigger for the crime.

 Ms. Anthony’s daughter went missing in mid- 2008 and the child’s dead body discovered later that year.  By all accounts the evidence against her was circumstantial.  It was the media frenzy surrounding this case which fortified those inferences by holding Anthony’s social behavior, both before and after her child was missing, under a high powered microscope.  The public sentiment is that Ms. Anthony has not behaved as a mother would or should was enough to convict in the minds of most bloggers.  According to one: “She partied and stayed at her new boyfriend house almost every night” a month after the child disappeared.  Anthony’s entire family was defamed in the process, implicating the grandmother as the controlling matriarch who raised the heartless child-murderer.  

 Nearing the end of her current probation, after being acquitted of murder but convicted of obstruction of justice, Anthony suffered a privacy breach of the same magnitude as the phone hacking scandal in the UK that led to the arrest of several high profile News of the World editors.  The 4 minute video released this week was produced for private use.  Yet, major media outlets continue to focus upon her appearance, whether the video provides clues as to her whereabouts, her failure to mention the toddler’s name, her obsessive focus upon herself, and speculation that she is gearing up to profit from the celebrity persona that they created.

 Major news outlets hastily confirmed that it was Anthony on camera.  The real question is how much time, energy and resources will these same outlets spend investigating the status of the presumably ongoing criminal investigation into the toddlers disappearance or informing the public as to whether Anthony’s acquittal means that police are obligated to continue the search.  How about a documentary or extended report on the role of politics in this made for TV criminal case?  A prosecutor in the Casey Anthony trial recently announced he will run for the state attorney’s office in Florida.

Libel Remedies for Media Fabrication -Taking on the Giants

Richard Donovan is the founder of the most successful Marathon that the North Pole has ever hosted. At a cost of 12,000 euros per person, the brave have answered this call.

By competing in the world’s coolest marathon, the North Pole Marathon, you will become one of a truly select few to race at the top of the world – at the Geographic North Pole. And you will feel on top of the world when you manage to overcome the extreme sub-zero temperatures to finish 26.2 miles in one of the remotest parts of the planet.  

But first you must ask yourself if you have got the nerve and drive to travel to the North Pole and run on Arctic ice floes, with 6 to 12 feet separating you from 12,000 feet of Arctic Ocean? Can you handle the extreme cold? Are you fit enough? Do you want to push yourself to the edge? If the answer is yes, then you are ready for the North Pole Marathon. Join race director Richard Donovan, the first marathoner at both the North and South Poles, in a trip of a lifetime. Remember, this marathon is not run on land – it is run ‘on’ water, frozen water, in the high Arctic Ocean. You will never have a greater adventure marathon story. http://www.npmarathon.com/

 Business was great until Donovan allowed a writer for Forbes Magazine to tag along for the 2006 race.  The trip and the race were a success.  The sensationalized, fabrications published by the magazine and distributed to 5 million readers a short time later was nothing short of a travesty that caused a 50% decline in business.  Forbes may have been banking on the lack of enforcement of libel laws in the US to protect them, in much the same fashion of sleazy tabloids.  However, Donovan experienced a high-level victory because he hired famed media libel lawyer Paul Tweed.  Tweed’s legendary BBC documentaries See You in Court, features Episode 3: 12 April 201, that covers his work on behalf of Richard Donovan.  Way to Go Paul!  Congratulations Mr. Donovan.