Press freedom vs Right to privacy

What happens between consenting adults behind the closed doors of their private residence must be protected from any form of intrusion except if there is an abundantly clear case that this would be justified “in the public interest”

“If people are able to release (private) information with impunity it might have the effect of illegitimately constraining a person’s choices as to his or her private behaviour, interfering in a major way with his or her autonomy.”

– HRH Prince of Wales V/S Associated Newspapers

Balance between press freedom and the right to privacy, especially of political personalities, is the subject of an ongoing debate in all democratic countries. The famous case of President Bill Clinton and his affair with Miss Monica Lewinski had caused a furore in the US during the former’s presidency leading to a real threat of impeachment.

More recently the published photographs of French President Hollande on his scooter in the streets of Paris on his way to the apartment of his alleged mistress had caused a similar uproar in which all the issues relating to privacy, freedom of the press and the public interest in a lively democracy were thoroughly debated.

As in so many situations it is very difficult to generalize over these matters. For each case the actual circumstances, the national mores as well as the laws of the country provide the parameters within which societal and legal judgement is passed.

The recent publication by the daily l’express of photographs of the Prime Minister dancing during what is described by the newspaper itself as a private party has caused a near pandemonium. During the week past, a debate has raged between supporters of the two sides on the competing rights of privacy and freedom of expression.

In this article we take the view that a fundamental rule of civilized society is that what happens between consenting adults behind the closed doors of their private residence must be protected from any form of intrusion except if there is an abundantly clear case that this would be justified “in the public interest”. Apart from this issue, which is admittedly the most fundamental one, there are a number of related issues which must be considered in order to strike a fine balance between the right to privacy and that of freedom of expression in a democratic society.

The representatives of l’express newspaper have been busy explaining that their primary motivation for publishing the incriminated photographs is that they wanted to “make public” the nature of the relationship which prevailed between the two main protagonists because they were convinced that it was in the public interest to do so.

Since there is no “a priori” justification for giving precedence to freedom of expression claim over privacy claim, the onus was therefore on the newspaper to establish that the publication of the said pictures would somehow serve the “public interest”. Given that the nature of the alleged relationship has already been the subject of numerous public comments in public meetings as well as in the media, it is far from obvious that this can be justified.

One need to be extremely careful to make the distinction between what is of “public interest” and “what is of interest to the public”. The line between the two is indeed blurred and yet the treatment of one or the other in the media should be diametrically opposed.

It is perfectly justified for the press to publish what the public desires to read – indeed this is a commercial imperative for any newspaper business. Paparazzi intrusion into the lives of showbiz or football celebrities, for example, is often motivated by such demands and regularly raises issues of privacy which are diversely dealt with by the Courts. One can safely surmise that this is part of the commercial decisions/risks which newsrooms take as part of their normal business process.

The notion of “public interest”, on the other hand, and in the present context deals with more limited concerns involving the national interest and which are generally political in nature. It also involves intrusion into the privacy of public officials or politicians. It is therefore necessary that this be put to the test of “an intensive focus” of the comparative strengths of the two competing claims – privacy and right of expression.

As stated above if the law of the jungle is to be avoided, then only – if an abundantly clear case can be established in favour of “public interest” – should the media proceed with publication of information potentially harmful to the privacy of a person or persons. Here again the decision to publish the photographs clearly fails to meet these criteria.

The other issue which is highly troubling is related to the quote relating to the case cited above. A “reputed” newspaper has now accepted material which has been filmed during a private party for publication to a wide audience. Given the availability of sophisticated micro/spying technology for filming or taking photographs, every citizen of Mauritius now needs to be on their guard.

In Europe and the US, “revenge porn” a practice whereby people are posting photographs of their “ex” in more or less indecent situations on the net is the “latest craze.” The publication of photographs of people enjoying themselves during a private party in a wide circulation newspaper may have started a new trend among partygoers in Mauritius.

Freedom of expression and of the press remains one of the backbones of any democratic system. The right to privacy has emerged as one of the measures of the level of sophistication of a society. Reconciling these two imperatives will never be an easy task. As the nature of the newspaper industry becomes more and more competitive and a commercial business, the temptation to serve the “basic instincts” of a wider readership may prove more and more difficult to resist.

The recent debates in the UK and the fate of the ‘News of the World’ has highlighted many of the challenges which crop up as privacy becomes the victim of sophisticated technology and greed under the guise of the right of freedom of expression. Endeavouring to strike the right balance between these two conflicting interests has defined the nature of the industry ever since the printing press has become a significant news media, and there is no indication that there will ever be a definite solution.

* Published in print edition on 23 August 2014