ICE blogs

September 25, 2012

Correction

Filed under: Uncategorized, Blogroll, ethical space editors blog, Headlines, journalism, new books — news_editor @ 9:54 pm

To The Phone Hacking Scandal: Journalism on Trial, edited by Richard Lance Keeble and John Mair (Arima, second edition, 2012)

Page 50 should read:

Whom do the tabloids represent? Let’s hear from Paul McMullan, former News of the World deputy features editor. He told Leveson: ‘Circulation defines what is the public interest. I see no distinction between what the public is interested in and the public interest.’ [Note: In the original version, this quotation was wrongly attributed to Neville Thurlbeck for which we apologise].

McMullan added that the readers ‘are clever enough to make a decision whether or not they want to put their hand in their pocket and bring out a pound and buy it’.

And he hadn’t finished: ‘I think the public are clever enough to be the judge and jury of what goes on in the newspapers and they don’t need an external judge and a jury to decide what should and shouldn’t be published, because if they had any distaste for it, they would stop buying it.’

Journalism is the first very rough draft of history. But it needs to be very accurate all the same. We mucked up this time and send our apologies to Neville Thurlbeck. Do buy the book or order for your library. It is a cracking read.

September 18, 2012

Privacy and profit

Financial gain not ethics or law determine the extent to which privacy is respected in the press, writes Barry Turner, Senior Lecturer in Media Law, Lincoln School of Journalism

The latest royal scandal serves to demonstrate the failings of the law to protect the privacy of individuals from a voracious and prurient press. The Duke and Duchess of Cambridge on a private holiday in a remote chateau have been embarrassed by a series of photographs showing the Duchess semi-naked and in intimate contact with her husband.

This intrusion took place in France, a country with a strongly defined privacy law and it is inevitable that the royal couple will succeed in the legal action they have taken against the magazine involved. Since this is not an ethical issue and the law is so well defined what then is the problem?

The law of 17 July 1970 and Civ. 10 June 1987 give a person a right to legal action where an unauthorised photograph has been taken on private property and even in a public place if the photograph shows them in a ridiculous or embarrassing situation. Under Articles 1382 and 1383 of the Code Civil a person’s private life is protected and the law on press freedom of 29 July 1881 prevents information about the private life of an individual being published even where that information is true.

All in all this looks like a comprehensive set of privacy laws, codified into statute that gives a thorough protection to the individual’s privacy, a set of laws admired by many lawyers in the UK who represent celebrities and canvass for similar legal restraints here. So what went wrong?

It has long been recognised by the press that whether or not the law is broken is a commercial decision rather than a moral one. And it is not the fear of sanction that decides whether or not a photograph is published but calculation as to profit. In Cassell and Co. Ltd v. Broome [1972] 1 All ER 801 the court awarded £15,000 in compensation and £25,000 in exemplary damages against the defendant who had defamed the claimant by making false statements about his war record. The court took the view that this defamation was not only deliberate but had been calculated to increase sales of the book in which the defamation had appeared.

In English civil law damages are meant to compensate an injured party and are not normally to be equated with financial penalties such as fines. Where, however, a defendant had calculated the profit to be made from his law breaking and had directed his mind to material advantages it was justifiable to increase the threshold of the damages to include damages intended to punish the behaviour.

The French courts also recognise the concept of exemplary damages and in Les époux X v. La société Fountaine Pajot; La société AGF-IART, devenue la société Allianz IART; No 1090 du 1 décembre 2010 (09-13.303) the Cour de cassation reaffirmed that punitive damages were not contrary to public policy if they were proportionate to the damage caused. Clearly this intrusion into the private lives of the royal couple, like all of the prurient interest in the royal family, was driven by profit and there is hardly any doubt that topless photographs of a future Queen are worth a fortune both now and in the future when eventually Prince William becomes monarch.

There is little doubt that press intrusion of this kind is distasteful and arguments about public interest are ridiculous. With the French law so tightly defined there is also little doubt that this intrusion will result in the magazine Closer being successfully sued. But will that act as a deterrent to further intrusions? Almost certainly not.

The decision to publish this type of photograph is a commercial one and the possible, even inevitable penalties determine publication. French courts determine the penalty on the severity of the intrusion and in spite of the disgust shown by the Duke and Duchess, the Palace and many of the public this is not an intrusion of the worst kind, such as the paparazzi photographs of Princess Diana dying in a car in Paris. As sordid as this type of prying might be, the financial penalty will be proportionate to that.

In Paris 24 March, 1965 JIP 1965. II 14305 a couple who posed scantily dressed in front of a famous monument were held to have contributed to their misadventure of being displayed in France Dimanche in such an embarrassing situation and as a result the damages, which had been low anyway, were reduced by 75 per cent. It is likely that the editor of Closer had this in mind when making the decision to publish. Should the Duchess have a right to go topless on a private holiday ? Of course. Should she give consideration to the presence of photographers ? Well, it goes with the job.

One possible remedy that the French lawyers should probably seek is to hand the intellectual property in the photographs to the royal couple. Under the law of 17 July 1970 they have a right to the ownership of them. This will prevent any further profiteering by the celebrity press and ironically the protection that copyright law will convey far outweighs any privacy protection that even the French codified system could offer.

The timing of this legal action could not be more awkward. The findings of the Leveson Inquiry are now imminent and most commentators believe that the press will face stringent regulation as a result. Advocates of privacy legislation in Britain will point enthusiastically to French law as an example to follow. Even if Leveson’s report does not specifically ask for the adoption of such a law the pressure from this case and the recommendations of the report will go a long way to precipitating one.

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