How can media companies ensure they live up to their responsibility to respect human rights?

Public outrage in Britain against intrusive journalism has reached boiling point. Disclosures concerning actions taken by the tabloid News of the World alongside new allegations that two newspapers from the same company, the Sun and the Sunday Times, may have obtained personal information about former Prime Minister Gordon Brown (who was at that time the Chancellor of Exchequer), have caused many to call for a fundamental reordering of the media industry. (The Sun has denied Brown’s claims).

News International, a subsidiary of News Corporation, owns the titles. News Corp has become the singular target for the outrage. Its chief executive Rupert Murdoch is a controversial figure, and owns a large share of British print media (his properties in Britain also include the newspaper the Times) and now wants to own the 61% of the TV network BSkyB that he doesn’t already own, a move many politicians now oppose.

His close relationships with politicians in both Conservative and Labour parties, his apparent ability to make or break governments, his past conflicts with trade unions, his newspapers’ disdain for celebrities’ privacy, and his use of economic power to make it harder for his competitors, have collectively created many enemies among the politicians, celebrities, the royal family, unions, and business rivals.

Legal repercussions

News Corp’s shareholders have launched legal action against the company’s management. This is schadenfreude, but there are also elements of what Thomas Babington Macaulay, the 19th century Whig politician and administrator called Britain’s “periodic fits of morality.”

News Corp employees have certainly committed several ethical breaches, and a few have even broken the law. The company faces the risks of legal prosecution and compensation claims. Employee conduct which seems criminal include instances where its journalists and investigators have allegedly paid money to police officers to get access to certain records, or other instances where they may have used surveillance methods to get access to information they otherwise would not have been able to obtain.

Right to Privacy Vs. Right to Freedom of Expression

The right to privacy and the right to speak freely coexist uneasily. One protects individuals from unwarranted intrusions on personal life; the other ensures that individuals can express their views without fear of retribution. If the two rights operated in isolation, there would not be a problem, but the two can sometimes clash, and both rights have limits. The exercise of one can undermine the other.

As the recently adopted Guiding Principles for the implementation the UN Framework on business and human rights show, companies have the responsibility to respect all human rights, in all contexts, without regard to their size. Even so, media organisations are most affected by the interplay of freedom of expression and privacy rights.

Need for greater regulation of the media?

As providers of information, it is in the interest of media companies to argue for unfettered free expression. But most countries place some restrictions on this right, including for protecting state secrets, public morality and decency, impartiality of the judiciary, and the individual right of privacy, and media companies are expected to operate within that framework.

However, as the News of the World saga shows, sometimes journalists act with impunity, violating individual privacy, obtaining stories through dubious means, and making law enforcement officials complicit in their conduct.

Now there are calls for greater regulation of the media. That is a slippery slope. Deploying the blunt instrument of regulation can have unintended consequences. But without it, what can be done to ensure that media businesses operate in ways that protect, and not undermine human rights? Understanding the UN framework is a good place to start.

UN 'Protect, Respect, Remedy' framework on business and human rights

While the UN Protect, Respect, Remedy framework on business and human rights doesn’t offer sector-specific guidance on what a company should do, it does offer the steps every company should undertake to ensure that its actions respect human rights.

Adopting a policy commitment to respecting human rights is essential, and many news organisations have codes of conduct, which attempt to control the ethical behaviour of their staff. The problem lies in the lack of enforcement, and a tolerant attitude towards industry practices that are widely prevalent.

Codes of conduct in the United States are more rigorous, and while they do not address human rights concerns specifically, adhering to those codes significantly mitigates the risks of breaking the law or violating privacy of individuals in an unwarranted manner. (Some of the practices of British journalism are actionable offences in major American newspapers).

Developing policies that prohibit paying for information and respecting the rights of people who are subjects of stories is important. That should be accompanied by a sector-specific human rights impact assessment through due diligence of reportorial conduct. (Some newspapers have their own grievance mechanisms, such as ombudsman, readers’ editors, and so on). Such policies should be enforced vigorously, and journalists’ performance should be tracked against their adherence to the codes.

Adopting such policies does not restrict freedom of the press – there are few jurisdictions more friendly to press freedom than the United States; there are few newspapers with as rigorous codes of conduct as the major dailies in the United States; there are fewer crises of the kind the British media business is currently experiences in the United States.

Existing UK Legislation

What does existing UK law say about these issues? According to Article 8 of the British Human Rights Act the right to privacy is described as the right for one’s private and family life, home, and correspondence. A public authority can interfere with the right under the law, only to protect national security, economic wellbeing of the country and public safety, to preventing crime, to protect the health and morals, or the rights and freedoms of others.

Then there is Article 10, which defines freedom of expression as the right to hold opinions, and to receive and impart information and ideas. It then places restrictions on the right, by including duties and responsibilities, including caveats similar to those on the right to privacy, besides adding protection for an individual’s reputation, impartiality of the judiciary, and confidentiality of information.

Together, these caveats show that neither right is absolute. When a newspaper publishes illegally obtained information about an affair between consenting adults, the individuals’ right are compromised. When a newspaper discloses private conduct by a public figure that has public consequences the public interest prevails.

These realities place a heavy responsibility on the media industry to make informed judgments that support human rights. Unfortunately, relying on the law alone may not offer much help. Sharper understanding of human rights – of the subjects being written about, of the accused, and what constitutes public interest in order to protect fundamental freedoms – becomes necessary.

Flirting with danger

The News of the World flirted with danger for some time. Some of its staff had served jail time for breaking the law in obtaining information. Its exposés were rarely about great matters of public importance, such as government or corporate misconduct; they were more often about the frolics and foibles of footballers, film stars, TV personalities, politicians, and cricketers. Senior journalists at News of the World, including editors in recent times, Andy Coulson and Rebekah Brooks, bear responsibility for the most recent transgressions because they occurred on their watch.

The Fourth Estate

Media are called the Fourth Estate for good reason. They are after all vital organs of society, and newspapers, the Internet, radio, and television, play an extremely important role from a human rights perspective. They hold authorities accountable and highlight human rights abuses; they expose wrongdoing; and they enable the realisation of other rights by helping people seek, receive, and impart information.

Public Interest

What ought to guide the media’s conduct when it challenges privacy, official secrecy, or other restrictions, is the principle of public interest.

In this regard, American court rulings have clarified the issue best. They have ruled in favour of newspapers even if they get certain facts wrong, if the newspaper is guided by public interest, as the case, New York Times v Sullivan shows.

A similar British ruling does not go as far as Sullivan, but is nonetheless helpful. Courts in the UK have developed the so-called Reynolds Defence while ruling in cases involving newspapers investigating the conduct of public figures.

Public figures – government officials, celebrities, and business executives – have the right of privacy, but when their private conduct has public implications, the equation changes. As the British journalist, the late Bernard Levin put it in colourful terms: “Those who live in glass houses should undress in the dark.”

Who is to make decisions about what information is in the public interest? In democracies with free press, the decision is best left in the hands of editors. But recent examples show a collective failure not only of the newspaper itself, but the industry’s ombudsman too. The UK Press Complaints Commission has had to distance itself from its own earlier report on phone hacking. Some commentators and parliamentarians have called for greater statutory oversight and regulation of the media, and politicians, celebrities, and even businesses would love to tame “the feral beast”, as former Prime Minister Tony Blair once described the British media. Therein lies the danger.

A need for balance

While personal privacy is important, granting it more importance than freedom of expression can create the sort of scenario that prevails in France, where newspapers have been reluctant to report the private conduct of politicians and other powerful people even if public interest was at stake.

(It affects the powerful, not the powerless – for example, when the former managing director of the International Monetary Fund, Dominique Strauss-Kahn was arrested in New York on charges of sexual assault, French media initially complained about the breach of Strauss-Kahn’s privacy, but some French tabloids reported details of the plaintiff’s personal life, breaching her privacy).

At the same time, systemic breaches of personal privacy by elements of the media, which compromises the government and law enforcement officials, combined with the lack of political will to act against powerful media companies, as has happened in the UK, can undermine rights.

Freedom of the Press

Creating a culture where media companies understand their human rights responsibilities – which means respecting the rights of people they write about – does not mean they have to pull their punches. American newspapers that develop a range of policies, including those dealing with conflict of interest, have also published the Pentagon Papers and unearthed the Watergate scandal; American business papers have revealed what companies like Enron were up to, and how Wall Street operated, contributing to the financial crisis.

Freedom of the press is the foundation that protects many human rights. Speaking seventy years ago, U.S. President Franklin Roosevelt identified it as one of four freedoms that must be protected. The United States Constitution emphasises the freedom of press so much that its First Amendment prevents the state from passing any law that might restrict that freedom.

If the U.K. Government decides to regulate newspapers, there are real dangers that free speech may be undermined. Most journalists and news organisations object to restrictions on principle, because often governments (not necessarily the U.K.) seeking to place such restraints have a bigger design: those who speak in the name of upholding morality and decency often want restrictions on women about what they can wear and whether they can work; Governments that impose restrictions on grounds of preserving order also ban public meetings, demonstrations, trade unions, opposition to their actions, and detain people without trial and torture prisoners.

Press freedom is vital to curb government excesses. While condemning what News of the World did, it is important to remember that besides a few persistent members of parliament, it was fine investigative reporting by two newspapers - the Guardian and the New York Times – which exposed the phone hacking scandal.

The media industry must seriously examine its conduct, to ensure that while upholding a fundamental right – of free speech – it does not undermine other rights – such as privacy – unless public interest is at stake.

Related: UK - allegations of privacy rights breaches by parts of the media continue to mount, now involving former Prime Minister - The Australian, 12 July 2011

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