(My university dissertation, click to read on ISSUU)
Since the downfall of the Press Council and its replacement with the Press Complaints Commission (PCC) in 1991, there has been an increasing tension between journalists and public figures over the disclosure of their private information. Public shaming in this form has become an emerging tradition in the media, as the definition of privacy has become an ever-shifting notion in our increasingly invasive popular media culture with the likes of reality TV shows and social media. With the introduction of the Human Rights Act (HRA) in 2000 as well, public figures are now able to go straight to court on privacy matters, which has ‘encouraged a new wave of challenges to the media on privacy issues in the UK courts’ (Tambini and Heyward 2002: 4).
Whilst the media has evolved in many ways with new technology revolutionising the distribution of information, 2011 saw the fall of self-regulation and the collapse of media ethics at the peak of invasive media behaviour. The full revelation of the phone hacking scandal which resulted in the closing down of the News of The World and the subsequent launch of the Leveson Inquiry, the exposure and strengthening of super injunctions, mainly involving footballer Ryan Giggs’ affair, and the use of social media in the exposure of looters in the England riots are to name but a few. As an audience, we have readily accepted this as real news from our increasing desire to be entertained by the news we read, so where do the boundaries of disclosure lie? And what morals and ethics does public shaming face the media with?
Before the introduction of large prisons, public shaming was a widely used punishment for petty crimes in local communities. Public displays of punishment can be dated far back in history, with the most recognisable of these including the stocks and the pillory; devices used to expose a criminal to the ridicule and mockery of their neighbours. Hangings and whippings were also often a public spectacle, and some criminals were even branded with a letter, which Nathaniel Hawthorne (1994) explored in his novel, The Scarlet Letter, in which a 17th century woman had the letter ‘A’ imprinted onto her clothing as a branded shame for committing adultery.
In these earlier centuries when communities were small and everybody knew their neighbours, this type of moral degradation was an effective punishment for minor crimes. Public shaming repelled others from breaking the law, but it began to phase out in the late 18th century when The Age of Enlightenment brought in a new influence on criminology. In his 1764 essay On Crimes and Punishment, Italian jurist and philosopher Cesare Beccaria condemned the use of torture, writing that, ‘Prevention of crime is more important than punishment for the crime committed’, and that the purpose of punishment is ‘to deter persons from the commission of crime, not to give society an opportunity for revenge’ (Beccaria 2009). Accordingly, this historical movement saw the end of the use of ‘the body as the major target of penal repression’ (Foucault 1995: 8), as it put in place a respectable system of ethics, aesthetics, and knowledge. Whilst ‘the theatrical representation of pain was excluded from punishment’ (Foucault 1995: 14), the desire to publicly expose people for their wrongdoings remained. This responsibility then shifted to the media.
In their early form, newspapers were often full of scandals, family squabbles and public drunkenness, mainly revolving around local crimes and gossip. This type of tabloid was known as the penny press, which was largely produced throughout the middle of the 19th century. The first of these was The New York Sun which was published by Editor Benjamin Day in 1833. The slogan for this paper was established as ‘It Shines for All’ (New York Sun), but this was only the beginning for the media, and as science fiction author David Brin (1999: 9) forewarned, ‘Light is going to shine into nearly every corner of our lives.’
Nevertheless, a reader of the penny press from 1885 commented that an advantages of these newspapers was that, ‘Its principles are those of truth, reform, and progress’ (Croll 1997), repelling criminals once again as they were now ‘subjected to the possibility of having their misdemeanours brought to the attention of the reading public’ (Croll 1997). Objectivity wasn’t a concern in these days, as stories were often the editor’s interpretation of an event. Without media regulation, the only rule was to catch the interest of the public. This influenced another type of journalism from the 19th century known as ‘yellow journalism’, which originated through the competing battles between Editors Joseph Pulitzer and William Randolph Hearst for the best stories. Their papers began to change the face of journalism by introducing more sensationalized stories, but is what also first brought the press under scrutiny.
As a result, the Associated Press was developed in 1846, which is ‘the essential global news network’ (The Associated Press 2011), established to help newspapers deal with the competition of receiving the news first by making it available for all papers at the same time. Of course, we have come along way since the days of public shaming and a lack of media regulation. As communities grew larger, societies became more impersonal and we are now unlikely to know our neighbours. For this reason, public shaming as a form of punishment has become less successful. So surely newspapers organisations no longer need to publicly shame or disclose private information to attract the public interest?
The behaviour of the media in 2011 would answer this question with a colossal, ‘No’. As John Fischer (2007) comments, ‘The internet has made us all one big unruly community again’, with information now able to reach a worldwide audience. The phone hacking scandal, the divisive exercise of super-injunctions, and the use of social media to identify rioters in 2011 is where the media have been led to, which has ultimately concluded in the ongoing Leveson Inquiry to investigate into the practices and ethics of the British press as a whole. Led by Lord Justice Leveson, the investigation began Module 1 of its programme on 14th November 2011 with a series of formal evidence hearings that looked at ‘the relationship between the press and the public’ with a focus on the ‘phone-hacking and other potentially illegal behaviour’ (Leveson Inquiry 2011).
Similarly, the Reuters Institute for the Study of Journalism are holding a conference titled “Media and the Boundaries of Disclosure: Media, Morals, Public Shaming and Privacy” on 23rd and 24th February at the University of Oxford this year. Their conference is ‘concerned with the extent to which privacy is warranted for activities outside the scope of their professional lives or when disclosure reveals duplicity related to reputations, brands, images and public personas built and conveyed through media by political and celebrity figures’ (Reuters Institute 2011). Like the Leveson Inquiry calls for change in the media industry, this conference emphasises the need for more up to date research, as, aside from this conference and the Leveson Inquiry, which are yet to report their findings and conclusions, no scholarly article has so far provided a close analysis of these issues in reference to the media events that took place in 2011.
Since the introduction of the HRA, the conflict between Article 8, The Right to Privacy, and Article 10, The Right to Freedom of Expression, has tend to drive the debate about the media’s role. Whilst there are many scholarly articles that look at this conflict in relation to the disclosure of information, ‘Little scholarly attention has been paid to the news media’s role in public shaming’ (Hess and Waller 2010). It is this function of scandal and revelation in society as well as the shifting notion of privacy in the media that I am interested in. Therefore, my research will investigate into the lengths that the media went to in breaking the boundaries of disclosure in 2011, as well as the morals this faced the media with, adding to existing knowledge through the consideration of contemporary developments.
With these three media events meeting their breaking point in 2011, the issues of privacy intrusions have proven that the media cannot carry on as it is. Self-regulation in the UK has come under increasing pressure to provide more effective measures in the light of these events. Whilst many discuss the need for more media regulation, what can really be done to stop such behaviour? It is this question that I hope to be able to answer by providing boundaries for disclosing private information and by looking at the ethical theories around such behaviour.
The Phone Hacking Scandal: The Private vs. The Public
In the media, public shaming is done through two means – by exposing a wrongdoing into the public domain or by disclosing a piece of private information to the availability of others. John Fischer (2007) comments that, ‘Remove the names and you have the same familiar story: a prominent figure says or does something culturally inappropriate, a recording ends up on the internet, and a critical pile-on ensues.’ My central question in this dissertation asks where the boundaries of disclosure lie so we must first look at the distinctions between what is public and what is private, a difficulty often debated when discussing the role of journalism.
The biggest media event to come from 2011 was the breaking point in the phone hacking scandal which tampered with this distinction by intercepting messages that were expected to be private. Beginning in November 2005, the scandal was first brought to our attention when private detective Glenn Mulcaire was commissioned by the News of the World (NoW) to hack into the private telephone conversations of Prince William. The publishing of the resulting story about his alleged knee injury is what first sparked police inquiry into the organisation, resulting in the arrest of Mulcaire and NoW royal editor Clive Goodman in August 2006. The scandal soon died down, however, when an internal investigation found no evidence of widespread hacking at the paper, concluding that only Goodman was involved. It wasn’t until late 2010 that the extent of the scandal was realised, as evidence began to emerge that Andy Coulson, the tabloid’s editor from 2003 to 2007, had also participated in the scandal, which led to Scotland Yard re-opening the inquiry in September 2010.
This is when the scandal began to fully unveil, with the police announcing in 2011 that the paper had ‘possibly hacked the voicemails of almost 5,800 individuals’ (Shaprio 2011). Several of the most famous of these began appealing for damages over the year and this is when the case started to stimulate public interest. Still, the worst was still to come when The Guardian reported that it wasn’t only celebrities who were being victimised, announcing on 5th July that the NoW had also ‘targeted the missing schoolgirl Milly Dowler and her family’ (Davies 2011). Prime Minister David Cameron ‘bowed to pressure to hold at least one inquiry’ (Watt 2011) into the unfolding scandal on 6th July which, concluding with The Leveson Inquiry, led to the NoW closing down.
The scandal shows that key problem in disclosing private information is that ‘the realm of what is considered to be private is blurred’ (Rabun 2007). In the UK, The Right to Privacy is Article 8 of the HRA, which describes privacy as being able to have information kept private and confidential. Whilst most people benefit from this right, the privacy of public figures is always under scrutiny as the public are increasingly interested in their private behaviour. As Julian Baggini (2002: 51) says, ‘Newspapers love nothing more than exposing a public figure with their trousers down, hands in the till, nose in the powder, or preferably all three. Without sex, drugs and cash scandals, many popular newspapers would be hard-pressed to fill their pages.’ 2011, however, also saw an increase in the amount of disclosure involving the behaviour of non-public figures as well.
The TV series X Factor, a music competition, often results in a number of its contestants being shamed through the media, when details of their past prohibits them from partaking. In 2011’s series, two contestants were shamed in the UK’s national tabloids, Lascel Wood for uploading a video of himself onto a hardcore porn website, and Sian Phillips for her criminal past after being jailed for affray in 2009. The Daily Mail (2011) commented that, ‘X-Factor has been dealt a double blow after two of its contestants became embroiled in scandal’ and that ‘the show has hit a new low’. But as Baggini (2002: 7) comments, ‘To what extent, if any, are the things a person does in their private life a matter for ethics or public concern?’
Baggini (2002: 80) believes that ‘the media takes a great interest in the private lives of famous people’ because they are ‘self-appointed moral guardians of society.’ It is a common view that celebrities should set a good example because they are always in the public eye, but as Julian Henry (2010: 116) comments, ‘We are often reminded of how celebrities fail us.’ A public figure may drunkenly stumble home and nobody need know about it, but if the paparazzi get a hold of a photograph, what gives them the right to put this in the public domain? As a society we have a right to know the truth, but if nobody knew about the incident then no bad example would be set. Baggini (2002: 66) believes that the issue is ‘whether the public has a right to insist on certain standards of behaviours from people in the public office or whether such people have a right to lead their private lives as they themselves see fit.’ So how do we decide when such information should be made available to public?
Eric Barendt (2002: 20) puts a boundary in place by saying that we only have the right to know about the private lives of public figures if ‘there is some obvious connection between their private conduct and the discharge of their responsibilities.’ To decide this, we must determine whether or not the action causes harm. John Stuart Mill presented one of the first liberal defences of free speech in the 19th century, suggesting that we need some rules of conduct to regulate the actions of public figures. In his Harm Principle, Mill (1869: 22) argues that, ‘the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.’ This principle provides reasons for limiting free speech when doing so prevents direct harm, but it also creates a problem in itself as, in relation the paparazzi example mentioned above, the exposure of a wrongdoing often creates more harm than if it was kept private.
Consequently, the main problem comes from trying to define privacy independently, which as David Brin (1999: 14) comments, ‘Even legal scholars cannot agree what the word means.’ Public shaming of both celebrities and ordinary citizens demonstrates the increasing erosion of the notion of privacy in our society, which as Brin (1999: 14) again points out, ‘is described uniquely by each beholder.’ One difficulty that the courts have to deal with is whether we should even expect privacy in a public place. David Banks and Mark Hanna (2009: 422) state that, ‘the right to privacy is not necessarily lost because the activity happened in the public’, and that, ‘there may be circumstances where people can reasonably expect privacy eve in a public place’ (2009: 420).
An example of this from 2011 is the video of a racist woman filmed on a tram in London, which was uploaded onto YouTube in November. Emma West, 34, was travelling from Croydon to Wimbledon when she was secretly filmed shouting racial abuse at a fellow passenger. Ms West was eventually charged with racially aggravated harassment and spent Christmas in prison, but the video, which has now been viewed more than 11 million times, shows how hard it is to make a distinction between public and private life. Was it fair that Ms West’s outburst was spread worldwide? Or should she have been able to expect a degree of privacy whilst travelling on public transport?
The phone hacking scandal saw members of the media exercise extensive means to obtain private details of others, so it’s obvious that a better definition is needed. Damian Tambini and Clare Heyward (2002: 82-83) offer four concepts that they believe should form part of the definition of privacy. The first is ‘space’, defining what places can be considered private, the second is ‘subject matter’, considering is relevance and importance, the third is ‘expectation’, reflecting on whether Ms West should have expected privacy in public, and the fourth is ‘point of view’, as cultures and ethnicities view the term differently. They conclude that, ‘Individuals should be permitted a private area worthy of protection outside that of the purely domestic’ (2002: 82), but can this be said for everybody?
Privacy may be a social value, but some figures depend on being in the public eye. Many celebrities invite voluntary intrusions into their lives, both in exclusive interviews and with 24 hour surveillance reality TV shows such as Big Brother and I’m A Celebrity Get Me Out Of Here. Technology has further threatened the definition of privacy with devices that enable such surveillance, but the problem here is pointing to controlling unwanted publicity rather than a harmful intrusion into private life. As celebrity PR consultant Max Clifford comments, ‘If you use the media, you can’t complain too much when the media uses you’ (Hassan 2011).
This therefore emphasises the need for a distinction between public and private figures as well. To do this, Andrew Belsey (1992: 85) introduces three categories of people. The first is ‘personalities’, those who are created by and require publicity and who only claim protection of their privacy once they have seen the negative side of it, the second is people who are thrust into the public eye unwillingly, for example a relative of a celebrity who is more public than normal who we must question to what extent their privacy should be diminished, and the third is politicians and similar figures, those in a position of power and involved in public events. Whilst Belsey’s and Tambini and Heyward’s distinctions combined are very effective, the law does not yet recognise these boundaries and that’s where the problems arise.
Tambini and Heyward (2002: 85) believe that it is ‘a commonly held view is that people who have used the media in the past surrendered their right to privacy’, but they still comment that ‘a voluntary disclosure of some private facts should not entail a complete waiver to the right to privacy’ (Tambini and Heyward 2002: 85). This can be said for celebrities too. American actress Scarlett Johansson defended the right to privacy for public figures in 2011 after a nude photograph of her was leaked on the internet. She commented that, ‘Just because you’re an actor or make films or whatever doesn’t mean you’re not entitled to your own personal privacy. If that is sieged in some way, it feels unjust’ (CNN 2011). As a society we have become increasingly interested in celebrity lives, but where is the limit on how much information we should be allowed access to?
Super-Injunctions and The Internet As A Misrepresented Digital Scarlet Letter
Whether celebrities like it or not, it is now more likely than ever that their private information will eventually end up online as the definition of privacy has been further altered with the growth of the internet and its power of unbound freedom. In early centuries when public shaming existed, exposures would have been easier to bury and harder to retrieve, but as Solove (2007: 4) explains, ‘Information that was once scattered, forgettable and localised is becoming permanent and searchable.’ Tyler Street (2007) describes this is as The Age of Information and comments that, ‘We as a society have become so lethargic that we are willing to take everything we read on the internet as fact without doing any research. Because organizations and companies are aware of this they act unethically and pretend to be something else.’
Shaming has now taken on new dimensions with the development of technology, and as a result the internet now serves as a permanent stain of reputation, a digital Scarlet Letter that can both ruin and misrepresent reputations. Whilst misrepresentations can be made maliciously through gossip and rumour, they can also be done purposefully by public figures who want hide their wrongdoings from public judgement.
This highlights another media event from 2011 with the exposure of six alleged super-injunctions by a Twitter user on 8th May. A super-injunction is a legal gagging order used by the courts to prevent the publishing of information which is claimed to be private. To date, the anonymous Twitter account @InjunctionSuper has over one hundred thousand followers, to which the user named several public figures who had allegedly taken out one of these injunctions. The user’s tweets described gagging orders from sexual harassment claims to the use of prostitutes, but the main exposure was that, ‘Footballer Ryan Giggs had an extramarital affair with Big Brother star Imogen Thomas which lasted for 7 months’ (InjunctionSuper 2011). A super-injunction also prevents the reporting of the injunction itself and the name of its applicant, so Thomas became the aim of public shaming as Giggs and his family were protected. Although the press weren’t allowed to name Giggs when reporting about the injunction’s exposure, the number of people publishing his name on Twitter reached 56,000. His anonymity soon came to an end, however, when he was identified in Parliament by campaigning Liberal Democrat back bencher, John Hemming, on 23rd May. So what are the benefits of the super-injunction?
In relation to a previous question asking who decides when private information should be made available to the public, this is where these injunctions can be seen as a positive, attempting to reclaim some notion of privacy. However, as Duncan Lamont (2011) comments, ‘Super-injunctions were not invented for celebrities by lawyers and judges, but by the Attorney General on behalf of the Government to protect notorious criminals’, and they have only more recently been used ‘those who wanted to stop the tabloid press intruding into their private lives.’ But is it fair that celebrities get to have some control of their private information?
In the same way that Belsey (1992) categorised people to determine what amount of privacy they should expect, Tambini and Heyward (2002: 86) discuss the category of ‘role models’. They use the example of a footballer who was permitted a super injunction because he was a role model to youngsters, which is usually the case for celebrities and again expresses the need for control over the disclosure of information. Media lawyer Charlotte Harris believes that, ‘You should be allowed to end a relationship with somebody, whether you are married or not, without having that person say ‘right, I’m going to go to the paper, I’m going to destroy your life, I’m going to tell everybody every intimate thing about you’’ (BBC 2011a), but even if we can agree that public figures should be some protection of their privacy rights, should they be allowed to privatise their wrongdoings?
Max Clifford says that it’s ‘easy’ to take out an injunction, but that, ‘it doesn’t make it right’ (Doughty 2011)=). Similarly, when Hemming’s intervened in the court proceedings deciding if Giggs’ name should remain anonymous, The Daily Mail reported that he was ‘applauded by fellow MPs’, signalling ‘the end of the Manchester United star’s fight to maintain his reputation as a faithful husband’ (Doughty 2011). This concept of reputation opens up the negative side of injunctions, which, as Helen Wood, a former escort who was caught up in one of the super injunction cases, explains, only allow ‘wealthy male celebrities to behave as they wanted’ (BBC 2011a).
The right to reputation is protected by Article 10 of the HRA, The Freedom of Expression, which gives the press the right to prevent the public from being misled and from being exposed to a crime or misdemeanour. Street (2007) comments that, ‘Many people misrepresent themselves in order for selfish gain’, and this is precisely why Prime Minister David Cameron commented that the increasing use of injunctions made him feel ‘uneasy’ (BBC 2011a). This downside of injunctions therefore highlights the advantages of disclosing information, as law professor Richard Epstein (cited in Solove 2007: 35) explains, ‘The plea for privacy is often a plea for the right to misrepresent one’s self to the rest of the world.’
Judge and legal scholar Richard Posner believes that we shouldn’t be allowed to hide harmful information about ourselves as this would lead to a misjudgment of character. He comments that, ‘Prying enables one to form a more accurate picture’ (cited in Solove 2007: 66), but whilst we have discussed the boundaries of who forfeits protection of their privacy and when, the case is again different for elected politicians as we are trusting and giving them power. In the Houses of Commons, MPs are protected by Parliamentary Privilege which allows them to do work without any interference, yet we still might have to know about their private lives to make an accurate picture of their character. So is this a justification to disclose private information?
One view that promotes this reasoning is the way that public figures construct their image as a brand or product rather than an individual. Just like with large companies, this type of exploitation is about making money which makes the desire to shatter the illusion greater. With the increasing use of social networking sites such as Facebook, as well, we are given the unlimited freedom to express ourselves through a social identity. In this over exposed world we are become willing to share more and more information online, but as Danah Boyd (2008: 127-128) comments, ‘While profiles are constructed through a series of generic forms, there is plenty of room for them to manipulate the profiles to express themselves.’
With websites such as YouTube as well, the internet has also reinstated public displays of shaming, as seen with the case of the racist tram lady. As Solove (2007: 109) comments, ‘Gossip is no longer the resource of the idle and of the vicious, but has become a trade.’ Nonetheless, Street (2007) comments that, ‘Even though the exchange of information is now in a digital realm, the duty to do right and to treat others the way we would like to be treated is still present.’ This relates to Immanuel Kant’s Duty Ethics from the 18th century, which, in contrast with Mill’s Harm Principle, is based on actions rather than consequences. Kant believes that, ‘The supreme principle of the doctrine of virtue is: act in accordance with a maxim of ends that it can be a universal law for everyone to have’ (Kant 1996). By these means we should only do what is universal, basing an action on whether it is the right or wrong thing to do not on what outcome it will bring.
Still, there are problems with universalising anything, especially with issues of privacy which has many varying contexts. Reverend Henry Ward Beecher (cited in Solove, 2007: 107) described the time he was pursued by the media in 1875 as if, ‘I were a maggot in a rotten corpse.’ It’s not that these kinds of stories are new, but the way in which they are now captured, reported and consumed which has transformed them into a social and ritual function. Whilst the internet transverses the boundaries of privacy more rapidly, has technology also enhanced shaming to be used for the good of society as well?
The Use Of Social Media In The 2011 Riots: Shaming For Both Good And Bad
Another effect of the internet is that it is ‘becoming a powerful norm-enforcement tool’ (Solove 2007: 86), which as a result is allowing people to take the law into their own hands. To again offer an example from 2011, the England riots saw three uses of social media during and after the disorder, the first to organise the riots, the second to help with the clean up, and the third to help identify the criminals involved.
The 2011 England riots began on 6th August in Tottenham, North London in response to the shooting of Mark Duggan by Metropolitan Police two days before. The rioting, which involved a widespread of looting and arson, spread across towns and cities all over England, destroying thousands of shops and creating millions of pounds worth of damage. Lasting for four days, the rioting eventually came to an end on 10th August, by which point many began to question if social media was to blame.
This was the first use of social media, as Iain Mackenzie (2011) reported that, ‘A number of politicians, media commentators and members of the police force have suggested that Twitter and BlackBerry Messenger, in particular, had a role to play.’ Research in Motion, the makers of BlackBerry, co-operated with a police investigation into the use of its BlackBerry Messenger (BBM) service to organise the riots, as ‘Scotland Yard vowed to track down and arrest protesters who posted really inflammatory, inaccurate messages on the service’ (Halliday 2011). The government even began to question ‘whether it would be right to stop people communicating via these websites and services when we know they are plotting violence, disorder and criminality’ (BBC 2011b).
This negative use of these devices was soon overshadowed, however, as the second use of social media resulted in the hash tag #riotcleanup to trend worldwide on Twitter. The trending topic was a result of a Twitter campaign, set up by 37-year-old Dan Thompson on the account @riotcleanup, which was created to co-ordinate clean-up operations in effected cities. Beginning with just 10 people, the Twitter account eventually attracted more than 70,000 followers as communities around all of England began to pull together to clean up their local high streets.
As the riots came to an end, it was reported on 15th August that ‘about 3,100 people’ had so far been arrested (BBC 2011c). By this point, the police had obviously recognised the potential of social media, as they then turned to Twitter for its third use in the riots. On 11th August, Manchester police began to name and shame those who had been convicted by publishing their full names and date of birth on their Twitter page, commenting that, ‘We promised we’d name all those convicted for their roles in the disorder – here we go…’ (GM Police 2011). For those who were yet to be caught, the police went on to use Flickr, an image hosting website, to publish CCTV images of people believed to have been involved in the riots to help get them identified (Operation Withern 2011). Naming the album ‘Operation Withern’, the police stated on their website that, ‘Operation Withern is investigating the serious disorder and violence that has been affecting parts of London’, whose ‘priority is to bring to justice those who have committed violent and criminal acts’ (Sawers 2011).
Whilst the NoW disclosed information for their own profit-driven reasons, Manchester police’s, albeit questionable, actions show that public shaming and the disclosure of private information can be done for the good of society as well. As Solove (2007: 92) comments, ‘In a world of increasingly rude and uncivil behaviour, shaming helps society maintain its norms of civility and etiquette.’ The internet, here, served to enhance people’s ability to help the police, as the media acted as secondary definer of the state to reinforce the boundaries of acceptable behaviour. In relation to the exposure of Tiger Woods’ affair, William McKenzie (2010) says that, ‘Shame, for shame’s sake, is not the answer. We need it to lead to redemption.’ Describing these same news frameworks, Stuart Hall (1978: 19) comments that, ‘By stressing the continuity and stability of the social structure and by asserting the existence of commonly shared set of assumptions, the definitions of the situation coincide with and reinforce essential consensual notions.’ Whilst it has been proven here that the internet can help people to prevent illegal behaviour, we must still ask whether this is a good thing.
As Solove (2007: 23) continues, ‘Blogs are blossoming across the internet. They are increasingly being woven into the fabric of society, and they are staring to play a profound role in our lives.’ In the same way that the Manchester police used social media to help identify criminals, this can again be done maliciously with ordinary citizens becoming self-appointed investigative reporters. An example of this is a blog titled ‘Publicly Shamed’, which quotes and publishes photographs of men who have supposedly offended women onto a publicly viewable archive. Run by a 25-year-old female in New York City, the blog welcomes material from the public, stating that, ‘If you say or do something ridiculous or creepy, to me or in my presence, I will publicly shame you by telling everyone I know what you did’ (Publicly Shamed 2010). The problem here is that ordinary citizens do not know the laws of media, so there are no boundaries in place for them to know when they have gone too far. Whilst the blog hasn’t been updated since 2010, the photographs of these men are now permanently published online for the all to see, again referring to the internet serving as permanent stain of reputation.
Whilst these contrasting examples show the distinctions between how public shaming can be used for both bad and good, it’s not always that obvious. Kirsty Jess and Lisa Waller (2010) discuss the role of the media as a form of disciplinary punishment and social control that has the power to publicly shame a person who comes before the courts. As an example, The LA Times reported about one judge’s, County Judge Peter Miller, preferred method of punishment for stealing in the US, which was to make shoplifters carry a sign reading, “I stole from a local store”. Miller, along with many other judges around the US, believes that public penitence involving public humiliation works to rehabilitate convicted offenders, and comments that, ‘If you see someone marching up and down in front of a store, you may think twice before stealing. I’m not going to say it is going to prevent it, but it will stop the one who did it from doing it again’ (Word 2007). But is it fair?
Over a twelve-year period, Miller sentenced over 600 people to this form of punishment, and, according to the article, only three of the offenders repeated their offence. Just as in the days when public shaming was used as a deterrent, it has again been proven as an effective punishment for minor offences. However, Chad Cusworth, Brian Daniels and Emily Rondi discuss that not all public shaming works as a legitimate punishment by looking at the use of offender databases. At first they give the example of the government’s sex offenders list, which works as an ethical punishment as its purpose is ‘to enhance public safety by preventing more crimes through the management of sex offenders through a community’ (Cusworth, Daniels and Rondi 2007: 2). In contrast with this, they then use the example of the TV series To Catch A Predator, which consists of a hidden camera team catching sex predators in the act, that resulted in one man caught on the show committing suicide out of embarrassment. Public shaming, therefore, does not always punish people sufficiently, exposing information that can turn people to exile rather than teach them a lesson.
As Solove (2007: 101) comments, ‘Shaming is an important tool for social control, yet it can be dangerous if unchecked.’ Whilst we have discussed how both public shaming and the exposure of private information can help to maintain norms, we have also seen how it can negatively affect a society as well. This again shows how hard it is for the courts to balance between what is purely public shaming and what is beneficially disclosing private information. So how do we find a balance?
The News As A Form of Entertainment And The Public Interest As A Defence
It is an inevitable point to come to when discussing the issues of public shaming and the disclosure of private information, as we are again led to the conflict between Article 8 and Article 10 of the HRA. Whilst we have discussed that public figures do deserve some degree of privacy, we have also examined the reasons as to why the press should be free to expose their wrongdoings. It is this same conflict that judges have to try to balance when privacy matters are taken to the courts, so how do they decide between what information should be kept private and what should be exposed?
The HRA establishes that if a person has a reasonable expectation of privacy, the press can only publish a story about them if there is a genuine public interest in doing so. This concept of ‘the public interest’ is what is argued in a legal case ‘to justify the waiving of normal ethical restraints when reporters gather information’ (Banks and Hanna 2009: 5), maintaining that only information of a high value to society can justify the disregard of privacy laws. Anne Gregory (2010: 98) comments that, ‘A journalist would say that ultimately the public interest is where his or her duty lies’, but as David Banks and Mark Hanna (2009: 5) point out, the concept has ‘no single, comprehensive definition in law.’ Just as there are many boundaries around the definition of privacy, the problem again comes from not fully understanding what the public interest entails, and therefore whether or not it can justify public shaming and the disclosure of information.
Journalism’s key role is to act as a watchdog on the state, keeping the public informed of events and affairs going on in the world. As Andrew Belsey (1994: 80) continues, it is ‘the central democratic function of casting a sceptical eye on the processes and personnel of politics and power, and most importantly, keeping the public informed of the results.’ But with our increasing interest into celebrity lives, we, as an audience, have also developed the desire to be entertained by the news we read. Because of this, Belsey and Chadwick (1994: 1) comment that, ‘Even consumers have done journalism no service by putting up with trivia and trash, accepting execrable standards as the norm’, as our understanding of what’s in the public interest becomes confused with what the public find interesting.
With the development of technology as well, Dr Matthew Ashton (2011), a politics lecturer at Nottingham Trent University, discusses that the speed of the press means that ‘workers have to produce more stories and have less time to follow-up leads, develop contacts and most crucially of all check facts.’ Because of this, Ashton (2011) believes that it ‘has meant a blurring of news and entertainment as it’s easier and quicker to write ‘celeb’ news stories.’ But has this increasing tabloid approach made it easier for the press to get away with privacy intrusions, claiming that it is in the public interest to entertain its readers?
Jean Seaton (2010: 203) comments that, ‘There is a traditional, rather pious plea’ for a more ‘serious’ and ‘responsible’ media, and as Belsey and Ruth Chadwick (1994: 1) comment, ‘There is no reason why journalism should not have further aims as well, such as entertainment, so long as these are subordinated to the overall aim of the circulation of information.’ This is what needs to be emphasised, as the media must remember its core roles at the same time as trying to entertain. As Nigel G. E. Harris (1994: 69) comments, the audience ‘still expect some reliability in the information presented to them’, so where do the boundaries lie?
Solove (2007: 132) believes that, ‘Ample public curiosity doesn’t make a piece of gossip newsworthy, as such interest can stem from a hunger for prurient entertainment instead of from a desire to learn about the news and current events.’ Only information of public concern is protected by the public interest defence, but even though we are interesting in what public figures get up to, a lot of what we read about is only of public curiosity. To understand what constitutes as the public interest we are again led to the boundaries between what is public and what is private. Max Clifford comments that, ‘If a politician is lecturing about family values while they’re having affairs, then they deserve to be shown up’ (Hassan 2011). So how do this all relate to the three media events from 2011 that I have been discussing?
The three examples each show a varying contrast in whether they constitute as the public interest or not, which further reflects on how they were received by its audience. Firstly, the phone hacking scandal was not of significant public interest as the disclosure of information here was done through illegal means. As Simon Jenkins (2011) comments that, ‘While their stories may sometimes be in the public interest…that does not mean there was a public interest in breaking the law to obtain it.’ The case is different for super-injunctions though, as the courts must already consider whether or not it is in the public interest to grant one. Through the exposure of such injunctions, however, the courts have realised that there are still problems around using them. As for the use of social media in the England riots, we were shown here how public shaming could be done for both good and bad, but even if shaming can sometimes serve to enhance moral correctness in society, it ultimately proved that it isn’t a sufficient punishment and therefore not of public concern.
However, the phone hacking scandal points to a wider context, as the widely used form of investigative journalism often sees the use of illegal actions to obtain information. Damian Tambini and Clare Heyward (2002: 87) believe that, ‘Stories that have a great impact on many people’s lives should be reported, even if they are intrusive’, and that, ‘These methods – and journalistic freedom in general – should be robustly defended by anyone who believes in a democratic government’ (Tambini and Heyward 2002: 1). This highlights the need to define the notion of public interest more narrowly in terms of the range of issues considered to warrant a justifiable intrusion, as David Morrison and Michael Svennevig believe that, ‘The concept of the public interest is both too clumsy and too grand to capture the operations of the media’ (Morrison and Svennevig 2002: 79).
To do this, Morrison and Svennevig go on to suggest the use of the term ‘social importance’ instead ‘the public interest’. They describe this term as being able to capture all of what the public interest does, but ‘without the operational difficulties’ (Morrison and Svennevig 2002: 78) and ‘the specious reasoning that is often presented as a justification for intruding into privacy (Morrison and Svennevig 2002: 79) that the public interest brings with it. Whilst this is seemingly a sufficient replacement, we must also consider the type of information being exposed. Do all wrongdoings deserve to be punished?
A majority of information disclosed features non-criminal acts, but as Baggini (2002: 168) comments, ‘One might argue that only people engaged in illegal activities or severe norm violations lack privacy.’ This is another great compromise as if information consisting of only illegal acts were justified in being disclosed, this would then constitute as a matter of public interest and serve as a justifiable defence. Additionally, in the same way the freedom of expression protects the right to reputation, the public interest can also warn the public of a criminal or a misleading politician. Tambini and Heyward (2002: 2) comment that, ‘Where journalists abuse their legitimate role and rights, the result is genuine harm.’ Still, to determine this we must also consider the audience as Banks and Hanna (2009: 398) comment that, ‘Even if the information obtained ought to be disclosed in the public interest, it does not necessarily follow that it should be disclosed in the media.’ One’s actions may only harm one other person, so does that still mean that the whole world should know about it?
Tambini and Heyward (2002: 2) comment that, ‘The more insidious harm is where the power to intrude impacts on society as a whole.’ In the same way that we can use John Stuart Mill’s Harm Principle as a boundary, Hobsbawm goes on to discuss to another ethical approach from the 18th century with Jeremy Bentham’s Utilitarian approach to ethics. Bentham questions the nature of human rights, putting a boundary in place by stating that, ‘it is the greatest happiness of the greatest number that is the measure of right and wrong’ (Bentham 2001: 93). By these means, the only time that somebody’s privacy should be invaded is when it is for the greatest good for the greatest number of people as this would then constitute as being in the public interest.
However, as Baggini (2002: 104) concludes, ‘because it is for the greater social good’ is not ‘a good reason by itself to limit freedom.’ Whilst we have again put boundaries in place as to what constitutes as the public interest, this still calls for the courts to balance the right to privacy against the right to freedom of expression. Lord Wakeham (2002: 23) believes that question is, ‘How can we ensure that genuine intrusions into personal privacy not in the public interest become fewer and further between without undermining freedom of expression?’ So where does the media go to from here?
Is More Media Regulation The Answer?
As I have discussed as my main framework for this dissertation, the year of 2011 has shown the downfall of media ethics. The lack of efficient regulation in the press is a fresh, but also controversial, issue in journalism because, as Tambini and Heyward (2002: 1) comment, ‘There continues to be a strong incentive for journalists to push boundaries and bend rules under an all-inclusive banner of press freedom.’ This is exactly where my research has found us, and it seems that the only conclusion is the need for better and/or more media regulation.
Currently, the media is self-regulated by the PCC, a voluntary and independent regulatory body drafted by editors for editors, which was established in 1991 to replace the Press Council after it was deemed unsatisfying in its attempts to maintain a high standard of media ethics. The PCC has now taken this responsibility ‘by dealing with complaints, framed within the terms of the Editors’ Code of Practice, about the editorial content of newspapers and magazines’ (PCC 2012). However, Dan Sabbagh (2011) comments that the PCC is ‘history in its current form’, as it came under sharp scrutiny during the events of 2011. It was especially criticised during the phone hacking scandal when David Cameron stated that it was ‘inadequate’ and ‘completely absent’ (Robinson 2011). Even the NoW commented that, ‘Self-regulation does work. But the current makeup of the PCC doesn’t’ (Sabbagh 2011), so what changes can really benefit the practise of journalism?
So far ethics has been effective in providing boundaries and resolutions, showing that there is a certain standard of behaviour. Belsey (1994: 90) believes that, ‘It is ethics, not law, that should protect privacy’, as Baggini (2002: 103) comments that, ‘The law is an imprecise and inconsistent means of ensuring that, in the exercise of our freedom, we do not harm others.’ However, as we have previously discovered, disclosures are made for different purposes. If a new regulation is put in place this is something they would need to consider, but with the development of technology we must question how to control the free flow of information, as the current code of ethics does not outline when the media have gone too far. In relation to the concept of reputations, Solove (2007: 187-188) believes that the law ‘should allow individuals to exercise greater control over their personal information, even after has been exposed to the public’. However, if public figures are given too much control of their information, as with the case of the super-injunctions, we could be exposed to information that we can’t trust.
David Brin (1999) agrees, and believes that we need more power to use our rights, as well as the ability to detect when they are being abused. But how do we keep control of information without restricting the two rights of privacy and freedom of speech? As I have previously mentioned in relation to the defence of privacy invasions, ‘The PCC sometimes seems unable to distinguish between reporting which is in the public interest and reporting which the public finds interesting’ (Barendt 2002: 17), which leads many to question why there’s not a privacy law in place. The answer to this is that, ‘All too often, attempts to address the situation are dismissed as ‘an attack on press freedom’’ (Tambini and Heyward 2002: 10). Just as in the days of public shaming and the early form of yellow journalism, newspapers are still concerned with ranks in a competitive struggle for survival. Barendt (2002: 20) comments that, ‘All industries – and the media industry is particularly competitive – dislike the imposition of restrictions’, and this is where the problem occurs.
As Solove (2007: 120) comments, ‘The effect of too many lawsuits’ will result in ‘impeding speech far too much’, so we are again forced to find a balance. A privacy law would not do this effectively as it would undermine the freedom of the press, but as Dr Matthew Ashton (2011) comments, ‘Government regulation clearly isn’t the answer either as that would defeat the purpose of having a free press.’ Ashton argues that the case is to protect the quality of journalism. He believes that, ‘We need more journalists with more time and resources to do their jobs properly. Otherwise we run the risk of a free media which doesn’t produce anything worth knowing’ (Ashton 2011). To do this, David Merritt (1995) believes that the solution is to redefine journalism, commenting that its ‘core importance is eroded and its purposefulness lost’ (Merritt 1995: 4) as journalists’ motives are no longer trusted.
Moreover, Jean Seaton (2010: 197-198) comments that, ‘It is not so much that news has always been in attack mode, which can be one of its most valuable public functions, it is rather that there are now few penalties for attacking incorrectly.’ By these means, the problem comes from the fact that the PPC is a list of restraints rather than a regulatory body that emphasises the right ways for the media to act. Tambini and Heyward (2002: 92) highlight this, commenting that, ‘The problem is not with the content of the codes but with their enforcement’, and that ‘The best option is to reform the current regulatory system’ (Tambini and Heyward 2002: 97). The point is here that the PCC need to provide clarifications and stronger terms for words, which relates to my a lot of my findings throughout my research; the biggest problem for many problems with these issues and their defences is that their definitions are confused. ‘If the PCC can make these distinctions, so can the courts’ (Barendt 2002: 21), so where do we go from here?
Max Clifford says that, ‘Hopefully we’ll have a half-way house and avoid a privacy law’ (Hassan 2011), but there are still many issues that need to be considered. Lord Wakeham (2002: 25-26) details three tests that should be used to identify if a privacy law could do a good job. The first asks, ‘Will it be accessible to the public?’, as a privacy law would do nothing to protect the privacy of ordinary people in relation to financial matters. Secondly, we must ask ‘Will it make intrusions more likely?’, as a privacy law might encourage editors that the risk is worth taking. And finally, ‘Will it be misused?’, as we need to consider whether a privacy law will allow injunctions to be deployed more effortlessly.
Whilst no conclusions have yet been reached, The Leveson Inquiry is still to carry out Module 4 of its process, which calls for ‘Recommendations for a more effective policy and regulation that supports the integrity and freedom of the press while encouraging the highest ethical standards’ (Leveson Inquiry 2011). Until then it’s all guesswork, but the inquiry is a pretty solid promise that something will eventually be done.
The three media events that I used alongside the three main journalistic issues around privacy and public shaming establish that, whilst there are many boundaries to take into consideration, we are often led to the same conclusion. The main outcome of this dissertation is that there isn’t a sufficient definition of terms to fully understand their limits, and this is why the PCC was proven ineffective at the peak of intrusive media behaviour last year.
The two definitions that need reworking are that of ‘privacy’ and its defence of ‘the public interest’, as this is where the boundaries of disclosure became confused. Many scholars throughout this dissertation offer successful margins to help form definitions of these words, notably Andrew Belsey’s categories of people, Damian Tambini and Claire Heyward’s concepts to form part of the definition of privacy, and David Morrison and Michael Svennevig’s use of the term ‘social importance’ to replace ‘the public interest’. Together these scholars make suggestions of how to better deal with the protection of privacy in issues of intrusions, but as I have also often concluded, these distinctions have not been picked up by the courts and that’s why the media reached the level of intrusive behaviour that it did in 2011.
The second major problem to be concluded is that a lot has changed since the PCC was put in place. The internet was still in its early years, and it is still is in comparison to how rapidly it is changing. Whilst public shaming has been around for hundreds of years in many different forms, we have also recognised how it too is revolutionising with the development of the internet. Shaming has always been done for both good and bad but, as with each of the media events I have discussed, 2011 saw the extremes that these boundaries can be pushed to, and this why many are calling for more media regulation.
In relation to my findings as a whole, my aims have definitely been met. The main advantage of my dissertation was finding the link between each event with a wider journalistic issue, as this helped me to form a proficient structure to my dissertation. To improve my research, however, I would need to carry on investigating into the visual side of public shaming with the growth of the internet, as whilst I mentioned this briefly a couple of times, I was never able to go into depth with it. With a lot of journalism being online, this would be a very important issue to look into, which will ultimately have a lot more to offer in terms of boundaries and regulatory needs.
So is more media regulation the answer? Whilst something undoubtedly needs to be done in terms of better media regulation, it is a common view that, ‘Legislation should be brought in only as a last resort’ (Tambini and Heyward 2002: 97). There is still much to be discussed, but whilst we can offer opinions and potential solutions, no matter how proficient, it’s unlikely that there’s going to be any immediate changes. This is where the ongoing Leveson Inquiry will come in, which at the time of writing this dissertation is yet to reach its half way mark. The Reuters Institute conference that I mentioned early on in my research is also set to take place in February. Collectively, their findings and conclusions as to whether more media regulation will serve as a solution will be sure to answer the question for us all within the next year.
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