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July 25, 2014

The redefining of ‘public interest’ journalism has had a devastating effect on our free press – and it’s going to get far worse

By Cleland Thom

The redefining of ‘public interest’ over the last two decades has had a devastating effect on our free press.

Editors used to work on the basis that public interest applied to every story they published … if it didn’t, they wouldn’t be publishing it.

That stance was – and I would argue, still is – firmly established in common law and in our unwritten constitution.

But our industry has accepted a deliberate narrowing of the public interest definition over the past two-and-a-half decades, with little more than a murmur.

A stricter version made its debut in the first version of the PCC’s Editors’ Code of Practice in 1991. It flew in the face of centuries of legal doctrine.

Since then, it has been tightened up in the Code, and included in privacy law and the Data Protection Act.

And it will undoubtedly feature more in day-to-day journalism decision-making in the future.

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Tim Crook, who heads media law and ethics teaching at Goldsmiths, University of London, and is a visiting professor at Birmingham City University, explained the origins of public interest.

He said: "It has constitutional roots going back many centuries.

"It's an English common law legal concept that is apart from and potentially higher than statute, case law and international treaty- such as ECHR or Treaties of Rome, Maastricht and Lisbon.

"It is the constitutional interest of the people in common law. It can be articulated in terms of natural justice, democratic interest and principles of liberty and freedom.

"It is invoked to counter tyranny, injustice, abuse of power by judiciary, executive, legislature and of course private corporation."

Crook believes this journalistic dimension of the concept was not properly respected at the Leveson Inquiry.

He said: "There was continual mocking of the idea that the public interest is not what interests the public. Of course it is.

"Democracy and holding state power to account and challenge is charged by the desire of people as a media audience to read what journalists and publishers working on their behalf provide for them. Leading editors of the press during the 20th century talked of their role as public servants to their readers. It wasn’t just a matter of publishing the sensational to boost circulation and increase profits.

"The maxim on publishing and be damned was about taking the consequences for publishing what the state and powerful elite wanted to keep private and secret.

"I thought the Leveson Inquiry tried to demolish the idea of there being public interest in freedom of expression itself. There’s been a paradigm shift from free media being a priority to the rhetoric of 'Yes, of course we believe in free media, but …'’

Crook recalled a statement by Lord Justice Tasker Watkins in a protection of sources case from 1981 when he talked about the public interest in freedom of expression being a concept that people had died for: "That’s how important it is. It cannot, and must not, be tampered with, or diminished. If the pendulum swings to a balancing exercise of continual buts, democracy itself will suffer."

Crook explains the power of public interest in the case of William Penn and William Mead.

He said: "In 1670, they were criminally prosecuted for preaching to an unlawful assembly in Gracechurch Street, the City of London.

"The jury sought to acquit them according to their conscience and not according to the letter of the law.

"The judges fined the jury for their defiance, and jailed half of them when they couldn’t afford to pay. The punishment was later overturned on appeal. There's a plaque commemorating the case on the ground floor of the Central Criminal Court."

Crook added: "Public interest is not state interest, the interest of business, oligarchs, professors, or even media interests.

"It is recognition of a residual constitutional imperative in people needing to receive and communicate information."

A whole generation of journalists has now grown up never knowing or experiencing the unfettered ability to report in the public interest. To them, being shackled by the PCC Code and other laws is a way of life.

Sadly, so is the corresponding diminution of our free speech and our free press.

And as I said in my blog last week, it’s going to get far worse.

Cleland Thom provides distance learning courses in media law.

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