Harry, the public interest, and the internet argument

Why did the rest of the British media decline to follow the Sun in publishing the unexpurgated pictures of Prince Harry frolicking in Las Vegas?

Perhaps, as Neil Wallis, former deputy editor of the News of the World, suggested on Newsnight, the rest of the pack were afraid of upsetting Lord Justice Leveson as he writes his report on press ethics and regulation (though of course all of the British media have reported the story in detail).

Or perhaps they were deterred by the letter from Prince Charles' lawyers, Harbottle & Lewis, circulated by the Press Complaints Commission (PCC), urging British newspapers not to use the pictures on the grounds that they were taken on "an entirely private occasion" where Harry had a "reasonable expectation of privacy".

The phrase “reasonable expectation of privacy” in the lawyers’ letter is taken directly from the PCC’s Editors’ Code which states that it is “unacceptable to photograph individuals in private places without their consent”. Private places are defined as “public or private property where there is a reasonable expectation of privacy”. The Code also goes on to cite an important qualification: “There may be exceptions... where they can be demonstrated to be in the public interest.”

So what does all this tell us about the current debate about public interest journalism and the delicate balance between exposure and privacy?

It’s a debate at the heart of the Leveson deliberations. ‘Public interest’ is often cited by the media as the justification for unorthodox methods and intrusive stories. But for a phrase that is so often used it is one that is infuriatingly hard to define with any precision.

So let’s start to analyse this in respect of the Vegas snaps. The amount of privacy an individual can reasonably expect is qualified by two factors: location and behaviour. From what we know of Harry’s behavior, it may have been reckless but it doesn’t seem to have involved anything illegal or anti-social. On that count, then, the expectation of privacy would remain high.

As for location, a person’s bedroom – whether in Luton or Las Vegas - is obviously a very private place. But once you invite a dozen new-found mates back to your suite for a game of strip pool your reasonable expectation of privacy becomes substantially diminished - especially if your friends arrive with mobile camera phones.

So what about the other side of the argument – the public interest? There is an understanding that the greater the invasion of privacy, the greater must be the public interest. It’s an equation that is made explicit in the BBC’s Editorial Guidelines: “When using the public interest to justify an intrusion, consideration should be given to proportionality; the greater the intrusion, the greater the public interest required to justify it.”

In its editorial justifying its publication, the Sun cited several public interest reasons for going ahead: Harry’s image representing Britain around the world, his security, and questions as to whether his position in the Army might be affected.

All have some validity – but are they sufficient? Every individual – no matter how public their role – be they a monarch, a prime minister or a president - is entitled to some private life away from the media’s gaze. In this case, Harry was carrying out no public duties in Vegas, nor, as far as we know, was he spending any public money. The royal protection officers are of course paid for by the public purse but it’s always been the case that they are there for private and as well as public occasions. The security argument is pretty thin too.

So all in all it’s a very fine balance. The public interest arguments aren’t great. But then neither is there much of a case for total privacy. And if there wasn’t much of a case for privacy in the first place then the Sun was probably right. These are the sorts of debates and fine lines Lord Justice Leveson is going to have to wrestle with over the coming weeks.

What certainly would be helpful is a much better definition of what the public interest actually consists of. The current definitions in the regulatory codes are pretty feeble. They lack coherence and clear limits. That’s why I have proposed a new definition of journalism in the public interest (to appear as part of a new chapter in a new edition of The Phone Hacking Scandal: Journalism on Trial).

The Sun may be on even firmer ground in arguing that because these photos are so widely available on the web it is ludicrous not to publish them in a newspaper. This is a strong argument: there have been 13.5 million internet searches from British users to find the photos. Of course it’s not quite that simple - unless you argue that mainstream media should be willing to publish anything and everything that appears on the web, just because it is widely available elsewhere. Again, it’s a difficult balance.

This argument about the availability of material on the web and the near impossibility of maintaining national regulation in the face of global media is a subject to which the Leveson Inquiry has devoted surprisingly little time.

As the events of the last week have shown, it may prove a topic every bit as thorny as the public interest debate.