The news a few years back that the Bush administration had convinced the big telecom companies to allow the authorities to spy on customers without warrants, in the name of fighting terrorism, caused a ruckus. Americans tend to worry about protecting our privacy from the government or big Internet-based businesses. But what if it was newspapers doing the snooping, hacking into phone and e-mail records of celebrities and politicians, and then publishing what they discover?
In the United Kingdom, just this question has come up in light of revelations that a Rupert Murdoch-owned newspaper, News of the World, had journalists hack into cell-phone voicemail messages of Prince William and Prince Harry and report on personal details revealed in them.
Two men went to jail in 2007 in connection with the scandal, but recent concerns have arisen that the hacking may have been much more widespread, targeting leading politicians, sports stars, and celebrities — as the New York Times put it in a recent story on the scandal, “anyone whose personal secrets could be tabloid fodder.”
(A Parliamentary investigation found that the News editor at the time, Andy Coulson, had not known the phone hacking was taking place, and definitely did not approve it. Coulson is now the chief spokesman for Prime Minister David Cameron, giving the new attention to this scandal a strong political bent.)
Britain’s culture of celebrity-crazed tabloids looks a lot like American pop-culture lunacy, and as US media outlets continue to compete for ever-shrinking shares of an ever-shrinking financial pie, desperation for audience attention is certain to increase.
Still, this level of invasiveness is one we can hope will not darken our shores. Mainstream news organizations tend to see themselves as above that sort of stunt. Even Murdoch’s empire in the US, primarily the Fox network, has so far been content with ambushing public figures on the street and asking them unpleasant questions. (The Murdoch-owned Wall Street Journal, it must be said, seems particularly unlikely to stoop to UK-tabloid style activities.)
Celeb-focused publications and blogs haven’t debased themselves this much yet either, but they might, given the brazenness — and phenomenal popularity — of outlets like TMZ and PerezHilton.com.
The question there, and here, boils down to free-press guarantees. Some people want to outlaw this type of behavior by journalists. But that gets into a slippery slope of the government exerting control over journalists. In the UK, which has a free-press tradition but no written constitution, that is easier than here, with our First Amendment enshrining media liberty.
Some have worried that such a law would have unintended consequences, though that is being debated too: Would new restrictions prevent true public-interest disclosures of very private information, as happened in 2009, when reporters investigating lawmakers’ expense accounts revealed that some members of Parliament watched pornographic pay-per-view movies on the public’s dime?
Under existing laws, UK celebs have, with the help of a cooperative judge (who was replaced last week amid this debate), been increasingly able to get injunctions preventing publication of private information, even if what they’re trying to protect is accurate. (Which brings up other concerns about press freedom.)
In the US, judges have traditionally been much more leery of granting those kinds of “prior restraint” injunctions, preferring to let story subjects seek redress in court after publication. In a shift that shook the American legal landscape, though, a federal appeals-court ruling last year held that a person can be libeled if private information, even if true, is published with “actual malice.”
When that case was reheard in a lower court, a jury reversed the ruling. But injunctions are decided by judges, not juries. It may be just a matter of time here.
Jeff Inglis can be reached firstname.lastname@example.org.