At the heart of the issues to be considered by the expert group established by the Minister for Justice to make recommendations on reform of the libel laws is the question: what is the public interest?
An aspect which clearly has not occurred to those promoting the media vested interest on this issue is that the way this question is answered will define the boundaries of journalism in the future.
At the moment there are, in effect, almost no boundaries, and although journalists moan and whinge about the libel laws, media can do what they like until someone sues. What may well emerge from the process now under way is that the boundaries may be set very clearly, very narrowly and in such a manner as to make expeditions beyond them very dangerous indeed.
What might this thing called "the public interest" entail? Clearly, as the epigram has it, the public interest amounts to something other than "what the public is interested in".
The public interest is a central element of the National Union of Journalists' Code of Conduct, being referred to in several connections. First, the code asserts that means other than "straightforward" ones for obtaining information, photographs and illustrations are only justifiable "by overriding considerations of the public interest".
The code also says that only considerations involving the public interest can be invoked to justify intrusion into private grief and distress. In these references there is the strong implication that journalism is not, should not be, concerned with matters which are beyond the public interest.
However, it is quite clear that latter-day journalism in general, and some sections of the media in particular, are determined to push this definition as far as it will go. It is also clear that, were the libel laws to be revised to make matters defined as in the public interest less susceptible to litigation, that lobby would then assiduously set about breaking down any concrete definition of the public interest which might be arrived at, so as to spread the benefits of relaxed libel laws to the rest of their endeavours.
Underlying the legal thinking on this issue is not so much the alleged rights of the media but the assumption that society is generally bettered by the free discussion of issues which might come to bear on its welfare.
Clearly, there are occasions when the individual's right to protection is in conflict with the general requirement that matters of importance to society be fully ventilated in public. The issue to be decided in considering the weight of the public-interest factor is whether the damage to public welfare arising from the breach of privacy, confidentiality or reputation outweighs the beneficial effects of publication; i.e. whether the public's right to know something which may have an impact on the common good should come before other considerations which relate more specifically to the individual or individuals concerned.
BUT it is often overlooked that the public interest can also be served by non-publication, or by the punishment of publication which has offended the public interest with regard to personal privacy, confidentiality etc. This means, incidentally, that a litigant in a libel case who confronts a newspaper on an issue of personal defamation may well be pursuing as much the public interest as the vindication of his or her private reputation.
This, unsurprisingly, is a way of seeing things rarely presented in media discussion of libel issues, which invariably focus on alleged dangers to press freedoms.
There are certain matters where the issue of the public interest is not controversial. Obviously politics, church affairs, most legal matters, public institutions and artistic works presented to the public are regarded as fair game. Generally speaking, criminal matters, and indeed virtually all breaches of the law, are thought to be appropriate subjects for publicity, and to allow for a certain degree of latitude with regard to their investigation and exposure.
More and more, the public interest concept is being extended to embrace financial matters generally, as the idea of rendering unto Caesar becomes a matter of increasing public agitation. More controversially, courts in the UK have, on occasion, found in favour of disclosure in instances where the alleged wrongdoing of the party arguing against publication was no more serious than public hypocrisy in sexual matters.
As regards privacy, the view taken by the courts in general is that if people seek publicity to present a certain positive public image of themselves, they cannot complain if others succeed in presenting a different picture by invading their privacy or breaching confidentiality. The guiding principle is that the public should not be misled.
But this guiding principle may also present an argument for higher awards when defamation is proved, since the freedom to publish wide-ranging, even quite invasive, material about somebody necessarily implies also a higher degree of responsibility to get the facts right, which can only really be enforced by an obligation to pay heavily for getting them wrong.
And so, if the rules are changed to enable matters deemed to be in the public interest to be subject to a lower standard, it follows that all other matters must be kept well clear of this new dispensation. If individuals are to be subject to a relaxation of the immediate protections governing the publication of information or comment about them, it is right that the penalty for publication of proven defamations be extremely high.