Rooney, Coulson and Hague scandals reveal the need for more, not less, press protection

6 September 2010 by Adam Wagner

What does Wayne Rooney’s alleged philandering have to do with human rights? In itself, not very much. But a recent spate of exposés in and of the press has exposed more than a footballer’s indiscretions.

The starting point from a human rights perspective is the fragile relationship between two articles of the European Convention on Human Rights; namely, the right to privacy and the right to freedom of expression. Article 8 provides that everyone has the “right to respect for his private and family life, his home and his correspondence.” This right is qualified, in the sense that it is possible for a state authority to breach privacy rights if it is (amongst other things) necessary in a democratic society.

The freedom of the press is also enshrined by the Convention by Article 10, which provides the “right to freedom of expression“. The right is similarly qualified, but when the UK incorporated the Convention into its domestic law by way of the the Human Rights Act, it added an extra protection to material with journalistic merit.

Scandal!

With the interplay of Articles 8 and 10 in mind, we can move to some scandalous behaviour, both by journalists and the subjects of their stories.

Yesterday, the News of the World and Sunday Mirror both claimed to exclusively reveal that Wayne Rooney, the Manchester United and England footballer, had sex with a 21-year-old “hooker”. Meanwhile, earlier in the week William Hague, the Foreign Secretary, felt it necessary to release a detailed statement explaining why he had shared a twin hotel room with his aide, who resigned last week.

Rooney’s affair has nothing to do with football and the Hague’s room-sharing very little to do with politics. But both raise questions as to whether the press can have too much freedom, and if enough is being done to protect individuals – however rich, famous or powerful – from unnecessary invasions into their private lives.

Hacking by hacks

Elsewhere in the media world, the re-ignition of the Andy Coulson phone-hacking affair is reminiscent of a fish eating its own tail. Coulson was once the editor of the News of the World and is now David Cameron’s communications director. As a result of a detailed New York Times investigation, fresh allegations have surfaced that Coulson knew journalists were hacking into telephone messages whilst he was editor in 2007. He has now become subject to the kind of intensive scrutiny which he used to produce for his former employer, no doubt detracting from his role protecting the Prime Minister from similar pressures.

One of the many worrying questions which arise from this is why, if British newspapers are so effective in uncovering private indiscretions – and so keen to do so that journalists will even break the law to get ahead – it has taken an investigation by an American newspaper to focus minds on a scandal which goes to the heart of British politics.

A possible answer is that the UK press’ obsession with uncovering private indiscretion has come at the expense of exposing other misbehaviour. Simply, it is both easier and cheaper to intercept a footballer’s text-message or pay off a prostitute than it is to uncover a complex political scandal. It is also more lucrative. A second possibility is that if the Murdoch press is unwilling to investigate itself, then there is less chance that such investigations will happen in the first place.

Also of concern is the mystery of why the phone hacking police investigation bore limited fruit. The New York Times claim that “Britain’s revered police agency failed to pursue leads suggesting that one of the country’s most powerful newspapers was routinely listening in on its citizens.” And, according to the chairman of the Parliamentary group which had twice investigated the phone hacking, “To start exposing widespread tawdry practices in that newsroom was a heavy stone that they didn’t want to try to lift.” Today, the New York Times editor said “Scotland Yard has declined our repeated requests for interviews and refused to release information we requested months ago under the British freedom of information law”.The Met may consider the case afresh, but this clearly needs a lot more attention from a robust press.

Interrelated

The Inforrm Blog as usual provides sober analysis of the Hague and Rooney media events. On Rooney, an editorial argues that “no clear “public interest” justification for this story has been articulated. This is simply a “kiss and tell” story designed to sell newspapers and humiliate a professional sportsman”. On Hague “Whether they were true or false the rumours were themselves an unjustified intrusion into Mr Hague’s private life.”

But, in the final analysis, the Rooney story is different to that of Hague, and the difference highlights an important point about press freedom. If the Hague rumours are true, and this is by no means clear, then it is possible that he gave an important foreign policy job to someone with whom he was having a secret affair. Leaving aside the homophobic undertones which have sullied some of the coverage, if this tale is true, it is surely in the public interest to reveal it. And, as tasteless as it may seem, it is only because of the kiss-and-tell angle that it came to light. Finally, it should not be forgotten that if the story turns out to be untrue, the affected individual can always sue.

Returning to Coulson, it is a neat coincidence that his potentially (again, not yet proved) illegal behaviour connects to Rooney, in that it is his former employer which broke the story, as well as Hague, because it is Coulson who will be managing the fall-out from the aide’s resignation. But the Coulson affair may by the true scandal of the three, exposing misbehaviour in the press, politics and even the police. The shame is that it has taken a New York-based newspaper to complete the investigation.

What next?

One of the many effects of these revelations may be to strengthen UK privacy law. Inforrm make a decent case for a legal obligation to give advance notice of private revelations, as is currently being argued by Max Mosley in the European Court of Human Rights. It is also possible that the impending libel review will recommend stronger legal protections for those affected by public scandals. But whilst tweaking may be necessary in order to prevent a snooping free-for-all, it is crucial that the baby is not thrown out with the bath water. The United States may have a stronger tradition of investigative journalism, but it is also even more obsessed with private scandal and innuendo than we are in the UK. This is because the same constitutional guarantee of press freedom applies to complex political scandal as it does to seedy exposes of sport stars. The government is essentially powerless to restrict either, no matter how distasteful a story may be.

In other words, the lesson from U.S. may be that it is impossible to restrict freedom of the press in instances we find morally reprehensible without having a chilling effect on what we may consider to be more worthy journalism. In any case, judging whether a story is “immoral” or not in the public interest has always caused problems, which is the main reason why freedom of expression has been enshrined as a basic right under the European Convention. This places more trust in the public, or, as is fashionable, the “crowd”, in deciding whether a story is true or of value than it does in well-meaning but ultimately self-interested political leaders.

The boundary between journalists and the public is also blurring, meaning that the crowd has access to many more sources of information, which is leading to quicker and deeper scrutiny of media events. New technology, and particularly blogs and Twitter which have been central in exposing the Coulson affair, may be difficult to control but their proliferation will certainly put the crowd’s wisdom to the test. Of course, this should never justify illegal behaviour, and a fairly clear line can be drawn behind which phone-hacking would lie.

So, the lesson to be learned from this swirling innuendo is not that the right to privacy should be strengthened, but rather than the qualified protections under European Convention should be bolstered and brought into line with those under the American Constitution. Because the Rooney, Hague and Coulson affairs may be various sides of the same coin, and a democratic necessity, as distasteful as that may seem.

Read more:

• Previous posts on freedom of expression
• Press freedom defeat continues to sting
• “Nazi” jibe DJ loses freedom of expression claim

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