Francis Shennan: Sex, spies and audio tape

Francis Shennan

MAX Mosley and Vince Cable. The two stories could not be more different. Nor could the two bodies ruling on them yesterday (May 10 2011). But they do share two important questions for journalists.

Vince Cable did nothing as exciting as Max Mosley… as far as we know – my information is that he has not taken out a super-injunction.

The Press Complaints Commission (PCC), though, did accept that what he and other Liberal Democrat Ministers told Telegraph reporters was in the public interest. The problem was that the reporters used subterfuge and, when they started on the story, did not have enough evidence to justify it.

In contrast, revealing the use of prostitutes by the head of a multi-million pound international sports organisation was not in the public interest, according to the European Court of Human Rights (ECHR).

An audible sigh of relief will have gone up in newsrooms around Europe that the Court does not require them to notify people who feature in stories they’re about to publish. So it was easy to forget that the Court also called the original story “a flagrant and unjustified invasion of the applicant’s private life”.

That confirms that the Mosley ruling was no aberration in European human rights law. Revealing that a public figure cavorted with prostitutes is not in the public interest… well, presumably as long as the prostitutes are not under-age and are for his own personal use.

The Court also noted that the “photographs and video footage, obtained through clandestine recording, … undoubtedly had a far greater impact than the articles themselves”.

So, both stories involved subterfuge. This is prohibited by the PCC Editors’ Code of Practice, which says it “can generally be justified only in the public interest and then only when the material cannot be obtained by other means”.

The first question is: What is in the public interest?

The PCC’s definition of the public interest includes “preventing the public from being misled by an action or statement of an individual or organisation”. This would have covered the Mosley case.

Yet this is clearly not a definition the ECHR, the High Court in London or any court in the UK would accept without a lot more qualifying clauses being added.

The second question is: How do you know it is in the public interest before you begin to investigate?

First, there has to be “a broad public interest in the area” you have chosen to investigate, the Commission said yesterday.

Second, you need to have “specific information, the significance of which could be established in advance”. In contrast, the Telegraph’s inquiries were based on “broad assertions” of disquiet.

Third, the methods used must not be disproportionately intrusive. Adds the PCC: “Recording individuals using clandestine listening devices without their knowledge was particularly serious and intrusive, requiring a strong public-interest defence.”

So you must have evidence in advance that a matter of public interest is probably involved.

The PCC intends to issue further guidance on the use of subterfuge. Given the gap that already exists between what it and the courts say about the public interest, I’m not sure how much use it will be.

Francis Shennan is an award-winning journalist and a Visiting Lecturer in Media Law at Stirling and Strathclyde universities.

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