consistent with, that very right. Thus the right is not just dominated by its opponent, but also conveniently self-subverting. The Art 8/10 framework per se reveals little about the privileging of either right or the broader values that influence it. Free expression, in Fish’s terms, ‘is not an independent value’, has no ‘‘natural’ content’’, but constitutes a ‘political prize’ for partisan struggle. For Fish, ‘When the First Amendment [right to free speech] is successfully invoked the result is not a victory for free speech in the face of a challenge from politics, but a political victory won by the party that has managed to wrap its agenda in the mantle of free speech.’ Arts 8 & 10, each formulated in manipulable abstract terms, can thus be viewed as generalised statements of political ideals that do not have fixed meanings per se. They require political or social argument to be constructed around the privacy/free expression dualism in the form of rights versus rights conflicts, but do not provide specific guidance about how such conflicts should be dealt with. Instead, Articles 8 & 10 defer the ‘resolution’ of potential conflict by delegating the interpretation of meaning in any specific context to the judiciary. Indeed it is only through their relationships with particular factual contexts that the Articles’ very meanings are produced. This ultimately highlights the perceptiveness of Griffith’s observation that the text of Article 10 ‘sounds the statement of a political conflict pretending to be a resolution of it.’ Ultimately, the inevitable privileging of either privacy or free expression in MPI must be guided by more abstract-level level principles employed by judges. Deconstructive analysis must therefore be undertaken at this level by investigating the emerging body of principles that determine which of the two
The second form of public interest expression is that which reveals that the public has been misled and/or highlights hypocrisy. In such circumstances, according to Eady J, the court must ask ‘would publication in some way prevent the public from being seriously misled?’ Or is the intrusion of publication necessary and proportionate ‘to prevent the public from being significantly misled by [the claimant’s] public claims’. This justification was illustrated in Campbell where the claimant accepted that her false claims to be drug-free justified the defendants setting the record straight, albeit shorn of unnecessary detail. Similarly, Rio Ferdinand’s as a reformed, mature family man justified the Sunday Mirror’s publication of a story (and corroborating photo) of his adulterous affair. Here Nicol J claimed that this form of public interest argument is ultimately premised upon the importance of revealing truth. This proposition is supported more generally by the ECtHR guidance in Axel Springer which confirms that the veracity of the disputed information is a relevant criterion in the balancing exercise. It thus corresponds to one of the fundamental justifications for free expression, rooted in John Stuart Mill’s On Liberty thesis, that the free exchange of ideas ultimately furthers the discovery of truth. Yet Mill’s argument applied almost indiscriminately to a wide range of expression, even (counter-intuitively) that which was false or of ‘low quality’. This is because for Mill, truth was just part of the issue; as Wragg explains, his main concern was how individuals hold their truths. Mill repeatedly and eloquently stressed the importance of debate and interaction with opposing views so that truths could be actively tested, properly understood and rationally held rather than being passively received, ‘encrusting and petrifying [the mind] against all other influences’. So the truth justification for free expression does not precisely fit with the narrower misleading the public ground. In Mosley Eady J expressly depiction
Similarly, in Mosley the court stated that ‘“political speech” would be accorded greater value than gossip or “tittle tattle”’. Judicial categorisation of certain expression as trivial tittle-tattle shows a clear (and arguably justifiable) circumspection towards such reportage. This disdain is particularly apparent in Mosley where Eady J had ‘little difficulty’ in concluding there was no legitimate public interest in video footage of the claimant engaging in private sexual activities; ‘The only reason these pictures are of interest is because they are mildly salacious and an opportunity to snigger’. He went on to say that ‘Titillation for its own sake could never be justified. Yet it led many thousands of people to see the footage’. Elsewhere judges dismissed similar types of reportage involving revelations about private sexual conduct as ‘tawdry allegations’, ‘vapid tittle tattle’, ‘salacious’ and ‘satisfy[ing] public prurience’. Such characterisations are perhaps a natural consequence of the nature of reportage disputed in the vast majority of MPI cases, most of which is ‘kiss and tell’ (or rather, ‘kiss and sell’). Despite operating as a dichotomy the categories of ‘public interest’ and ‘interesting to the public’ are not mutually exclusive. There is judicial acknowledgement that stories in the public interest may also interest the public. The point is illustrated by reference to the 1960s Profumo affair which, according to the following passages, involved public interest issues and a titillating sexual element: ‘I have little doubt that sexual relationships involving those who are in the public eye … are generally likely to be interesting to the public, but they will not necessarily be of genuine public interest. Sometimes, as for example long ago in the case of the ‘Profumo scandal’, the information will fulfil both criteria.’ ‘… whether publication is sought to genuinely inform public debate, or rather merely to titillate the undoubted interest of a section of the public in the sexual or private peccadillos of
A variety of ‘publics’ of fluctuating size and nature up in MPI discourse. First, there is the ‘public’ used by the media in its self-justifying rhetoric. This public is essentially the market of consumers who will only buy what interests them and whose demands must be met if papers are to survive – the very existence of the press depends on it. In this narrative, the consumers are empowered, in charge, and papers are merely giving them what they want; doing so is essential to their watchdog function. Though as Fiss notes, ‘[T]o be a consumer, even a sovereign one, is not to be a citizen.’ Second, there is the more subtle of ‘public’ in the justifications for free expression that underpin this area. It is clear that the dominant justifications concerning democratic debate and truth rest upon Enlightenment-era ideals where the ‘public’ is a monolithic entity comprised of a homogenous group of politically engaged, intelligent citizens, always keen to debate serious social issues. These members of the public reflect the contradictory co-existence of noble ideals and elitist assumptions. And finally, despite their claims, judges are no more immune than others to this tendency to co-opt the ‘public’ for their own rhetorical purposes. Whilst critical of the media for self-interestedly conflating public interest and interesting the public, other judicial comments betray certain preconceptions of their own regarding the public. Their evident (and justifiable) distaste for much of the reportage in MPI disputes on occasion tilts over into a caricature of the ‘public’ (or ‘a public’) that consumes it. This public is implicitly characterised as a voyeuristic, licentious mob, ironically echoing the Greek origins of the word ‘democracy’ which meant rule of the people (‘demos’), but with connotations of the unruly multitude. This arguably gives the impression of a well-intentioned paternalist elite reinforcing certain stereotypes about the public (and what ‘interests’ it), whilst drawing upon specific Enlightenment-era liberal ideals of what is truly for the public’s own good. This is evidenced by judicial use of the Profumo example which is underpinned by the somewhat patronising assumption that though the public has