Privacy and Injunctions - Evidence - Parliament

Joshua Rozenberg, Professor Steven Barnett, and Professor Brian Cathcart—Oral evidence
(QQ 119–161)
the law has been broken”, or say the same to the new PCC when it comes to assess
whether codes of professional conduct have been broken.
Q145 George Eustice: Just finally on that: you talked about “weasel words” in the
PCC code. There is another provision that says that if it is likely that this all might become
public anyway, then that’s a factor to be taken into account in assessing the public interest.
Do you think that is also wrong?
Professor Barnett: I am not sure what that means: “if it is going to become public
anyway”. If the argument is that everyone is saying so-and-so’s name on Twitter, and
therefore we may as well allow it to be public, no, I am sorry. Because people are talking
about something in the pub does not mean to say that you can have a five-page spread in a
mass-circulation newspaper. It is not a public interest defence to say that there are a few
people who know this name.
Q146 Mr Buckland: On the point that Mr Eustice has just raised, I am interested
in a definition, but should we not go further and encourage the courts to construe the public
interest widely, and direct them to construe any exemptions to that narrowly, a bit like the
approach that you take with various articles in the European Convention on Human Rights,
where you construe the rights widely but construe exemptions narrowly? Could we frame
that, do you think, as part of any statutory interpretation?
Joshua Rozenberg: It is tricky, isn’t it? How wide is wide? How narrow is narrow?
I am sure that you can indicate to the courts what you would like them to do, but ultimately
if they are going to be the judges of the public interest, you have to leave that to them. It is
well known that the public interest is different from what interests the public. Lord Woolf,
in what I would say was a rather unfortunate judgment in 2002, said, “If newspapers do not
publish information which the public is interested in, there will be fewer newspapers
published, which will not be in the public interest”, which picks up a point that Lord Boateng,
I believe, mentioned earlier. But I do not think that is true. I think that the courts have got
to do their best to interpret where the public interest lies, and if you in Parliament think the
courts are getting it wrong then you can pass legislation to give them a nudge in one
direction or another, but I am not sure that concepts like “wide” and “narrow” are going to
be much use to the courts.
Professor Cathcart: One of the best things to come out of our present discussions,
right across the state of the press, is an increased understanding and awareness of public
interest arguments. When you say “widely” I am sure I agree with Joshua on the “how wide
is wide?” question, but I think that the idea that this principle has quite wide application is
very important. Steve mentioned a variety of laws in which there is not a public interest
defence. Indeed, in the Regulation of Investigatory Powers Act 2000, as I understand it,
there is no public interest defence for phone hacking. I would argue with Steve that there
should be. It would have to be in pretty extreme circumstances, but there should be. If it
were possible to elevate the idea of a public interest defence so that not just journalists,
politicians and judges understood what it was, but that it was widely understood by the
public, the function and purpose of journalism would be better appreciated.
Professor Barnett: But we have to remember that it is only because there was not a
public interest defence to phone hacking that we are here now. In terms of how widely you
draw it, it would have to be very clearly defined in terms of promoting the kinds of
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