By MARK PEARSON Follow @Journlaw
Amidst the international fallout from the News of the World scandal, and as the Australian media braces for the release of new proposals for regulation, I thought I would showcase a newsroom ethical decision making tool I developed some years ago which seems to have even more relevance today.
True self-regulation must happen at the moment a journalist, editor, news director or producer is confronted with an ethical dilemma. Whether to intrude into the privacy of an individual, perhaps at a moment of extreme vulnerability, is a decision journalists should make on an informed basis, having weighed legitimate public interest concerns against the potential harm they might cause the person involved.
While the courts have been active in considering privacy actions against the media in recent years, many more privacy cases have been dealt with by self-regulatory bodies, particularly the Australian Press Council. As well as the Press Council, a further five Australian media bodies feature privacy guidelines as part of their ethical codes.
Whether or not a court or a self-regulatory body ultimately reviews a journalist’s decisions in privacy matters, reporters and news directors are frequently called to account for such decisions by other media or by their own audiences.
Journalists would be better equipped to engage in such debate, answer such challenges and defend their decisions if they had more effective and transparent processes in place when handling an ethical decision in the newsroom. There is no doubt the daily editorial conferences in major news organizations sometimes feature ethical discussion over whether a particular photograph should be used and whether certain facts about a person should be revealed. A full anthropological study of such meetings might give an insight into the processes and language used when discussing such decisions. This author’s experience of such meetings is that they would benefit from some basic tools to help guide discussion and ensure all bases are covered when reaching a privacy-related news decision.
The different legal approaches to privacy throughout the world reflect different cultural approaches to the notion of personal privacy and the different weightings accorded to free expression as a competing value. The topic is a complex one, as evidenced by the closeness of decisions of the highest courts and regulatory bodies of Europe, the UK, Australia and New Zealand when trying to adjudicate cases where the media have infringed upon individuals’ privacy.
Those very courts have looked to the internal mechanisms of news organizations and the codes of their self-regulatory bodies in trying to determine whether credible and professional decision-making processes have been followed in deciding whether to publish ethically dubious material. In fact, in the UK the courts are required to look to “any relevant privacy code” for guidance in balancing public interest vs. privacy disputes in their determinations under s.12 of the Human Rights Act 1998.
It is difficult in the cut and thrust of pressing deadlines for editors and journalist to adopt comprehensive and detailed checking processes. Sometimes there are just minutes available for key ethical decisions about whether to use a photograph, to crop it in a certain way, or to include a particular paragraph in a story. That said, there are codes of practice we can look to for general guidance in such matters. In Australia they include the MEAA (AJA) Code of Ethics, the Australian Press Council’s Statement of Principles and its accompanying Privacy Standards, the codes of the various broadcasting co-regulatory bodies, and various in-house codes adopted by major news organizations.
While all these are useful documents, they are either sparse in their directions or are not worded in a form which would be readily accessible for working journalists and therefore unlikely to be a reference point for editorial conferences or regulatory hearings where such matters are under debate. Further, many media organizations work under several sets of guidelines simultaneously. All operate with reference to their journalists’ ethical code and at least their own industry’s code of practice.
I have taken several self-regulatory codes and developed from them a more useful schema of situations, actions, and individuals which might in turn lead into a workable device for journalists (reporters, editors, news directors, and photographers) and regulatory bodies and perhaps even courts seeking to weigh up the competing privacy-public interest elements of a story. It aims to help journalists cover the main avenues of consideration when reaching their own decisions and, in turn, offer them a tool for explaining their decisions logically and systematically. I have called it the “Privacy Mandala”.
The ethical and industry codes typically flag potential danger zones for privacy material, including journalistic use of rumour, confidential information, offensive material particularly photographs and file footage.
The codes also identify several methods of privacy intrusion. They deal with individuals’ status as public figures or, alternatively, with their naivety of media practice in dealing with whether intrusion of their privacy might be more or less justifiable. These also deal with the kinds of individuals involved, with special concern over the intrusion into the lives of children. Some suggest public figures should be prepared to sacrifice their right to privacy “where public scrutiny is in the public interest”, while others say intrusion may be justified when it relates to a person’s “public duties”. Some warn journalists not to exploit those who may be “vulnerable or unaware of media practice”. Some counsel journalists against intruding into the lives of innocent third parties. Some make special mention of the vulnerability of children and recommend protocols for getting consent.
All this concern over the category of individual whose privacy might be intruded upon links with Chadwick’s (Chadwick 2004) notion of a “taxonomy of fame”. Former Victorian Privacy Commissioner (now ABC Director of Editorial Policies) Paul Chadwick devised a useful starting point for weighing up whether someone is deserving of a certain level of privacy. He called it the ‘five categories of fame’, each justifying different levels of protection. He argued that public figures who had courted fame or sought a public position deserved less privacy than those who found themselves in the public spotlight by the hand of fate or because they have been born into a famous family. His five distinct categories include: fame by election or appointment, fame by achievement, fame by chance, fame by association and royal fame. He suggested the tension over media exposure of private details of an individual can be “eased” by the use of such categories. Nevertheless, even the codes seem to go further than Chadwick’s list which does not account for the special circumstances of children in the news.
Clearly the potential damage to an individual resulting from a privacy invasion is an important consideration, however it gains scant attention in the codes themselves. This may be because much of the damage of a gross invasion of privacy might be incalculable, such as emotional scarring and other traumas.
The “public interest” exception to many of these requirements almost always features in media codes, with varying degrees of explanation. Public interest is the trump card in many of our decisions, but we need to explain why a photo of Nicole Kidman collecting her children from school is of such social importance if we are to justify our intrusion into her privacy. Perhaps it is of social importance because she has publicly criticized formal schooling, or perhaps because she has publicly claimed to be home-schooling them, or perhaps it is not of social importance but just mere curiosity and we have no right publishing this photo at all.
The Australian Press Council suggests an important further step publications should take when relying on public interest exemption: they should explain the basis of that decision to their readers.
How do we combine these multifarious considerations into a useful device for journalists and editors to use in a newsroom when confronted with a privacy dilemma? We can start by identifying the main spheres of concern with privacy issues, including a version of Chadwick’s categories of fame. As a final consideration we feed in the public interest / social importance of the material.
This means we can feature the following key factors for a journalist or editor to consider when weighing up a privacy intrusion:
- The nature of private material.
- The means of intrusion:
- The fame of individual (adaptation of Chadwick’s categories of fame): Red flag items here include children and the “media vulnerable”.
- The damage caused. That is, the level of directly predictable monetary loss, shock or embarrassment (variable according to individual’s circumstances and cultural factors) and potential for future loss or harm.
We then need to factor into the consideration the crucial “public interest” value, presented as a counterpoint to the above. This would operate on a scale from the prevention of death or injury and exposure of crime or corruption through the exposure of hypocrisy, setting the record straight, exposure of waste or inefficiency, preventing death or injury, or something merely of curiosity or gossip value. Part of the social importance decision-making process requires a decision on the level of centrality of the private material to the story.
The web of relationships and considerations is illustrated here as the Privacy Mandala.
A “mandala” metaphor has been borrowed from Buddhist terminology to aid with the analysis of the media-privacy issue here, but also ultimately with analysis of a matter in the newsroom. It would have been simpler, perhaps, to choose a more straightforward metaphor like a compass. However, there are aspects of the mandala which add value to our discussion. Like the Western concepts of privacy and reputation, it relates to an individual’s value of the self, often a deeply spiritual phenomenon. Mandala, which can take a range of forms, are also meant to be vehicles for meditation, and here ours provides a mechanism to do just that as we meditate in the professional workplace upon the values of privacy and press freedom. The intercultural nature of the metaphor is also no accident. In an increasingly globalised and multicultural society, media organizations occasionally need reminders that there are numerous interpretations of “privacy” among their audiences and news sources which might require special respect or consideration. Further, mandala are inherently complex. The Tibetan mandala are laden with meaning at a multitude of levels. So too is the privacy debate, with each of the four axes listed here representing a series of subsidiary factors needing to be considered in any decision to intrude. While there may be occasional clear-cut cases where privacy or the public interest are overwhelming “winners”, the majority of news situations fall into a negotiable zone where the most we can ask of a media organization is that it has considered the relative values carefully before deciding to, first intrude on a citizen’s privacy, and, secondly, publish the result of such an intrusion. The mandala can be used effectively to help with decision-making at both of those key moments in the news process.
When presented in this graphical form, some of the first four realms of privacy could further be displayed in shades of pink, with some listed as “code red” items. From the above discussion, it is clear that it would take a matter of overwhelming public interest to successfully counter a “code red” matter like the invasion of privacy of a child or a grieving relative of someone killed in tragic circumstances. These would need to have their social importance factors clearly articulated by an editor choosing to go ahead and publish the item.
Quite separate from the mandala graphic is an independent area of consideration which is rarely mentioned in the ethics textbooks: the commercial impact of a story. It is rarely addressed because theorists seem to work on the assumption that media organizations should be motivated primarily by a public or social good which is forever being compromised by a commercial imperative. However, the reality is that editors and news directors are motivated at least as much by circulation, ratings and page views as by a public duty to deliver the news. Their own tenure depends on their success in this regard, and it has been demonstrated that celebrity news and gossip sells newspapers and magazines and that hidden cameras and consumer advocacy doorstops boost current affairs television ratings. That said, the commercial impact of privacy decisions might be positive, negative or neutral, as illustrated by the following graphic.
The table takes account of the fact that there may be a range of potential profits or costs resulting from a story involving a privacy intrusion, including gained or lost circulation or ratings, advertising, syndication rights, corporate reputations, legal damages, and court or regulator costs. The courts would frown upon news organizations formally weighing up the potential monetary outcomes against the intangible human damage which could be caused by a privacy invasion. That said, there is little doubt journalists go through such a process, either formally or informally, when deciding whether to run with a story which pushes the privacy margins.
While there is little doubt many media organizations go through considerable angst in deciding whether or not to run a story which features some level of privacy intrusion, they have been inclined to keep the reasons for those decisions to themselves unless there is an ensuing disciplinary hearing or court case. News organizations should be encouraged to explain their ethical decision-making to their readers, viewers and listeners. It would take only a few paragraphs in a newspaper to accompany an intrusive photograph with an account of why there is an overwhelming public interest in readers seeing the material in question. Similarly, a news or current affairs anchor could devote a couple of sentences to say: “We realize this story involves a compromise of Miss X’s privacy, but we feel there is a greater public interest served by audiences viewing first-hand the emotional impact of a tragic event.” Such transparency would demonstrate to regulators and courts that a decision had been considered carefully and might well minimize the groundswell of protest from readers and audiences which often follows a privacy intrusion.
Here we have covered considerable terrain on the topic of privacy and journalism. We have distilled from Australian media regulations the key elements of privacy as they apply to the practice of journalism. We have grouped them into five key categories, covering the nature of the private material, the means of intrusion, the relative fame of those intruded upon, the level of damage caused, and the level of public interest or social importance of the story at hand. We have pointed to the importance of commercial considerations through increased ratings, circulation, or advertising sales as an additional consideration editors and news directors might taken into account before finalizing their privacy decisions. Finally, we have demonstrated that transparency in ethical decisions can provide some benefits to news organizations.
It is not claimed that the Privacy Mandala holds all the answers for a journalist faced with a privacy decision. Other factors might deserve inclusion.
This research should serve to demonstrate that there are workable models for ethical decision-making in the newsroom which can elevate discussion in editorial conferences above the gut feelings of news executives and force the articulated justification of decisions to intrude. Further, such a model might even help journalists proceed through an ethical minefield like privacy confident they have at least considered carefully the implications of their actions. That, surely, is in the public interest.
* Note: An earlier fully referenced version of this blog was presented as a conference paper at the Journalism Education Association conference on the Gold Coast, Australia in 2005. The research was undertaken with funding from the Australian Press Council. For a full-text version of the original article please visit the Proceedings of the 2005 Journalism Education Association Conference, Editors: Associate Professor Stephen Stockwell and Mr Ben Isakhan, ISBN: 1920952551.
© Mark Pearson 2012
Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.