PUBLIC INTEREST TEST
The Calcutt Committee expressed unease with a ‘public interest’ concept, suggesting instead the concept of ‘seriously anti-social conduct’. The Government’s consultation paper suggested that the Calcutt Committee was right to draw attention to the vagueness of the term ‘public interest’, and stated that it would be preferable to indicate those matters that are of public interest, such as ‘crime or seriously anti-social conduct; public health or safety; the discharge of a public function; the correction of a misleading statement’.
The paper invited comments as to how the public interest definition should be formulated, and in particular whether it is preferable to define it in special terms or to be most specific. The comparable concept in US privacy jurisprudence was, until the early 1990s, ‘newsworthiness’, a term of art so broadly construed that it is now considered to be essentially whatever the press considers it to be, rather like Alice in Wonderland. The preferred option in the US became, anything which is of ‘legitimate concern to the public’. The law provides no assistance, since the public interest defence to defamation is not amplified. IPSO’s remit should give some guidance to the law.The Code of Practice, that the Press Complaints Commission was charged with enforcing, embraces the concept of ‘public interest’ and employs it as a justification or defence for an invasion of privacy. In the amended Code of Practice, ratified by the Press Complaints Commission on 30 June 1993, a public interest exception could be relied on in relation to new provisions barring bugging devices and the use of long-lens cameras to photograph people on private property. Exceptions are allowed only in the public interest, which was defined as ‘detecting or exposing crime or a serious misdemeanour; protecting public health and safety; protecting the public from being misled by the statement or action of an individual or organisation’.
The amended Code went on to state that in any cases raising issues beyond those definitions, the Press Complaints Commission would require a full explanation by the editor, seeking to demonstrate how the public interest was served. It is not clear whether the defined exceptions were applicable to justification for adefence to an alleged breach of the privacy provisions in the Code. It is also difficult to understand the reference to ‘misdemeanour’, a criminal law concept abandoned by the UK legislature in 1967.
Even among the few adjudications that have assessed the ‘public interest’ rationale, it is difficult to discern any consistent application of the term. None has referred explicitly to the guidelines set forth in clause 4. Consider again the Clare Short adjudication, in which the Commission stated that ‘public interest’ is not synonymous with whatever interests the public. It emphasised that maintenance of the distinction between those two concepts is crucial, especially with respect to those people who are in public life. Contrast these comments with those responding to Neil Kinnock’s complaint. Stating that ‘[l]eading politicians seek, experience and must expect regular exposure in the press’, and that the article ‘dealt largely in trivia about Mr Kinnock and his family in which readers might be interested’, the Commission declined to uphold the complaint. Although both decisions were probably decided correctly, their language regarding what does and does not constitute ‘public interest’ is internally inconsistent. The adjudications send mixed messages about the sorts of justifications to which the Commission is sympathetic, one scoffing at public curiosity, the other legitimising it. If the distinction is well understood, there is as yet nothing from the newspaper industry to demonstrate that it accords the distinction any true meaning.
No doubt any adjudicator in this difficult area of regulation will be influenced by the way the courts will now interpret the ‘public interest’ defence in actions both for breach of confidence and in defamation cases. In a case in the former class of action, Ungoed- Thomas J, in Beloff v Pressdram,5 said that justification for breach of confidentiality could be founded on
matters carried out or contemplated in breach of the nation’s security, or in breach of law, including statutory duty, fraud, or otherwise destructive of the country or its people, including matters basically dangerous to the public, and doubtless other misdeeds of similar gravity.