The media and publication "in the public interest"

In the argy bargy this week over media reforms there were many references to the public interest, with criticism that the term was not defined in the proposed bills amid plenty of observations about the vague and uncertain nature of any public interest test in any event.

Some media representatives struggled themselves when asked to define the public interest. It turns out their own rules don't provide much guidance.

It is a complex issue and the "public interest" term is probably overburdened by use in many different contexts.

Those in the Freedom of Information world who encounter it all the time obviously deserve a medal for coping with the complexity of balancing public interest considerations.

At the Senate Committee hearing on the now ditched media reform bills, Campbell Reid from News Ltd, in response to an invitation to define the public interest said this "is dependent very strongly on who is leading the conversation at the time." 
(Perhaps in this vein, various editors of News' Daily Telegraph in the past have equated the public interest with "how many papers we sell.")

When asked about the professional conduct policy for News Limited newspapers, Reid said it "sets out the professional standards of our journalism that we require under the headings: 'accuracy', 'mistakes', 'privacy', 'covert activity', 'confidential sources', 'harassment', 'discrimination', 'grief and distress', and so on." But, Mr Reid said, there was no definition in this document.

His boss Kim Williams later elaborated

"I think the term 'public interest', as I have already said, is not defined in the bill itself—probably because of the very great difficulty involved in arriving at a uniform and consistent definition of that which constitutes the public interest. Therefore, what we have done is to set out inside the code of conduct with journalists the relevant issues in terms of accuracy, mistakes and how they are dealt with, misrepresentation, privacy, covert activities, confidential sources."

On privacy the News code July 2012 version states:

4.1 All individuals, including public figures, have a right to privacy. Journalists have no general right to report the private behaviour of public figures unless public interest issues arise. The right to privacy diminishes when the suitability of public figures to hold office or perform their duties is under scrutiny and such scrutiny is in the public interest.

4.2 Unless it is in the public interest to do so, do not identify the family or friends of people accused of, or convicted of, a crime.

4.3 The publication of sensitive personal information — such as taxation details, Family Court records and health and welfare matters — may be prohibited by legislation. Seek legal advice.

4.4 Private investigators will not be contracted to provide editorial services without the approval of the group editorial director.

4.5 Private investigators conducting work on behalf of the company will be required to comply with our editorial code of conduct and provide a written assurance that they will not engage in unlawful surveillance.

A 2006 version of the News Code that came to light in 2011 included a definition:

4.1 All individuals, including public figures, have a right to privacy. Journalists have no general right to report the private behaviour of public figures unless public interest issues arise. The right to privacy diminishes when the suitability of public figures to hold office or perform their duties is under scrutiny and such scrutiny is in the public interest. "Public interest" is defined for this and other clauses as involving a matter capable of affecting the people at large so they might be legitimately interested in, or concerned about, what is going on, or what may happen to them or to others.

This left open publication where the public might find something interesting- a la the Daily Telegraph interpretation. Despite many findings that public interest does not mean of interest to the public.

Neither the current News code nor The Australian Press Council principles attempt definition.The APC principle states:

News and comment should be presented honestly and fairly, and with respect for the privacy and sensibilities of individuals. However, the right to privacy is not to be interpreted as preventing publication of matters of public record or obvious or significant public interest. Rumour and unconfirmed reports should be identified as such.

Perhaps it is not surprising in the circumstances that a sensible discussion about the public interest is difficult even when the term is brandished about in all directions as it was this week.

For starters it means something of serious concern or benefit to the public. In other words publication involving information about an individual, without consent is justified where this will advance the interests of the public through bringing to light information about matters that impact on the community as a whole or a significant section of the community. Publication is justified when it is in the public interest.

Still lots of wiggle room there, but with a bit of work and some specific examples, more useful guidance might emerge.

"Public interest" no simple matter

In the context of the Rinehart interest in Fairfax, Murdoch's troubled times and faint rumbles from Canberra, Richard Ackland in the SMH and elsewhere today muses on the imprecision of terms currently being bandied about such as "public interest" and ''fit and proper person'' tests for media ownership. In a broader context, those who ply the legal practitioner trade have passed the latter. And access to information folk are well acquainted with the former.

''The public interest'' is a phrase sprinkled through legislation with gay abandon. It sounds democratic and noble, but at the end of the rainbow it has to be interpreted by a judge, or a cluster of judges - a recipe for uncertainty, because the judges themselves are uncertain...In the government's issues paper on a cause of action for serious invasion of privacy, ''public interest'' appeared 57 times. In the Finkelstein report, it was 85 times, the same number of times it was mentioned in the Convergence Review (including 13 times on one page). No doubt it is a popular rubric because it artfully allows plenty of imprecision and circularity in its application....Really, a public interest test is fine, as long as no one tries to define it."

Definition starts with the notion of what action or decision best contributes to the good order and well being of the community as a whole, but that opens all sorts of trails and branches in search of factors relevant to the matter at hand.

Hence all that rubbery stuff, Richard, and the struggle with grey when black and white would be preferable- if only we could find it.

Of course in his trade some have worn the public interest badge proudly, apparently oblivious of what it means. Who will forget the Deputy Editor of Sydney's Daily Telegraph defending the publication of what at the time, the Telegraph insisted were photos of Pauline Hanson some 30 years previously:

the ‘public interest.’

When questioned about the precise public interest involved in old photos of compromising positions she said ‘That's for our readers to tell. That will be determined by the number of people that buy the paper’.  (Media Watch, 23 March, 2009). And of course they weren't of Hanson at all.

Freedom of information reforms in Australia in recent years have seen parliaments to varying degrees have something of a go at definition, or at least an attempt to spell out considerations that favour disclosure in the public interest (still leaving open other possibilities), those that favour non-disclosure, and some that are irrelevant in deciding whether to grant or refuse access. Within certain parameters still plenty of room for argument and lawyering, but something of an improvement on pre-reform days.

The Queensland Information Commissioner for example has reams of guidance but it's not for the faint-hearted. OAIC Guidelines include this non-definitive list of public interest factors favouring disclosure. And of course there is a statutory list of factors on the other side.