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  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  EWCA Civ 1776, ). 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.