Media intrusion into private lives: Jan 07 issue

WHEN PRIVATE BECOMES PUBLIC
How far should the media go into the lives of public figures?
A few days ago Investigate Online posted a restricted access story on its website making fresh and serious allegations about Social Development Minister David Benson-Pope. The story was published online because its content is R18 in nature, and by requiring a credit card purchase for a nominal one dollar fee children can be prevented from accessing it.
The decision to publish the story was not taken lightly, nor was it taken because of any prurient interest in the subject matter. Our journalistic colleagues in Washington, London or Sydney would make exactly the same call – on the grounds that a Minister’s private life becomes public when he makes it relevant.
The full reasons are contained in the online edition, but what follows is a summary of the international debate on media ethics, and how far it is appropriate to go when investigating public figures seeking public office. IAN WISHART REPORTS

In a story like the Benson-Pope case, perhaps the biggest question any news organization faces is an ethical one: is this sufficiently relevant to be in the public interest? Contrary to popular misconception, the news media knows far more about most public figures than it ever publishes, because it correctly deems that much of that information has no bearing on how the person does their job.
For example, the fact that a politician may be gay is irrelevant to whether they’re a good Minister of Transport or Minister of Finance. The fact that another politician is a strong Christian is irrelevant to their performance as Minister of Health. It is only where one’s private life intersects with their public one that issues of relevance and/or the voters’ right to know surface.
Take those two previous examples: that same gay politician chooses to champion a bill favouring gay adoption of children, but without disclosing his own sexual preferences. Voters should be able to see whether he has a personal, rather than professional, interest in the subject matter. By choosing to become involved in a political issue dear to his heart and which challenges the normative situation, the politician makes his private life relevant. Likewise, a strong Christian appointed as Minister of Censorship might make decisions that many agree with, but his beliefs are indeed relevant to how he performs in that particular portfolio and should be disclosed. On the flip side of that coin, the same applies to raging social liberals occupying powerful positions.
In the essay, “Can Public Figures Have Private Lives?”, Harvard University’s Frederick Schauer has contributed significantly to the debate.
“In most of the debates about the issue of disclosing facts about the lives of candidates or office holders that those candidates or office holders would wish to keep secret, the issue is framed around the question of the relevance of the fact at issue. “Typically, as with the debates about the extramarital sexual activities of President Clinton or about past drug use or other allegedly “minor” crimes that took place in the distant past, it is alleged that the facts ought not be disclosed because they are irrelevant to the performance of the job. Regardless of whether people want the information, the argument goes, information that is not relevant to job performance has no place in the public electoral discussion.
“Such claims of irrelevance mask a host of deeper and more difficult issues. Chief among these are contestable issues about what the job actually is, and equally contestable empirical issues about the relationship of some fact to that job.”
Illustrating that point, Schauer raises the example of US judge Douglas Ginsberg whose nomination to the US Supreme Court was spiked in 1987 after reporters, using unnamed sources, disclosed that Ginsberg had been a frequent user of marijuana in the past. Leaving aside the medical argument over whether marijuana would have dulled his wits sufficiently to make him a liability on the Supreme Court bench, Schauer concentrates more on the fact that as a person supposed to uphold the law in one of the supreme positions available under the US constitution, Ginsberg simply couldn’t measure up: “The fact of past disobedience to law was material to Ginsberg’s qualifications”.
Just as it was, of course, in the fall from grace of New Zealand’s Attorney-General David Parker, after he was caught by Investigate filing false returns to the Companies Office.
“My point here,” Schauer continues, “is that a claim of ‘irrelevance’ presupposes some standard of relevance…denials of relevance often mask narrow conceptions of the positions and its responsibilities, conceptions with which others might reasonably disagree.”
This is one of Professor Schauer’s central themes: that even if a majority of voters might believe something is “irrelevant” or out-of-bounds, a functioning democracy requires that the interests of a minority who might want to hear that information be protected.
“When such disagreement does exist, however, the issue becomes more difficult, because there is now the question of when it is appropriate to make widely available a piece of information that some voters might think relevant to their voting decision, under circumstances in which the information is indeed relevant to their voting decision based on criteria that they take to be relevant.”
Schauer draws on the Monica Lewinsky affair to illustrate the tensions at play:
“The claim that marital infidelity is irrelevant to the office of President of the United States presupposes that the role of President should not include the role of being an exemplar of marital fidelity. For many people it should not, but for many others it should, and debates about relevance to the job are commonly smokescreens for debates about just what it is that the job really entails.
“It is widely known that President Clinton cheats at golf. Although it is clear that playing golf is not part of the job description of President…many people believe that maintaining certain high standards of veracity are indeed part of that job description. And if that is the case, then the empirical question is presented whether evidence of cheating at golf is some evidence of (or relevant to) a likely failure to maintain high standards of veracity in public pronouncements.”
And if New Zealand readers are suddenly sensing a merging of Paintergate, Speedogate, Doonegate and Pledgegate, read on:
“It is possible that the answer is no,” continues Schauer, “and that there is neither a causal relationship or even a correlation between the existence of the trait of cheating at golf and the existence of the trait of being abnormally dishonest in one’s public and political dealings. But it is also possible that the answer is yes, and that a cheater at golf, holding everything else constant, is more likely to be dishonest in public statements. And if this latter alternative is in fact the case, then the argument that golf behaviour is ‘private’ or none of the public’s business becomes a somewhat more difficult one to maintain.”
Cheating, however, is a personality trait that many people can agree is relevant. What about the grey areas of sexuality? After all, we all have sex lives.
“No less real is the example of the disclosure, against the presumed wishes of the candidate, of the sexual orientation of a candidate for public office. Although many of us believe that sexual orientation is both immaterial and irrelevant to job performance in all or virtually all public sector and private sector settings, it is unfortunately (from my perspective) the case that not everyone agrees.
“For a not insignificant proportion of the population in most countries in the world, having a gay, lesbian or bisexual orientation is immoral, and having a heterosexual orientation is not only morally commanded, but is also a necessary qualification for holding public office.”
Schauer’s view is that like it or not, you can’t have a meaningful public debate on these issues in a general sense but only on a case by case basis – the circumstances of each politician being different. Voters may decide that sexual behaviour is irrelevant in one case but exceedingly relevant in another, because of the different personalities or responsibilities of the politicians in question.
“It may turn out that disclosure of traits that some deliberators believe to be morally immaterial or empirically irrelevant will nevertheless properly be part of the process by which [the public] decides collectively…what its moral criteria will be.”
And again, the Harvard professor returns to the checks and balances necessary in a democracy. Even if only ten percent of the electorate believe the private life information should be disclosed, he says, and the other 90% believe it shouldn’t be, publication is justified.
“Under these circumstances, it is tempting to conclude that the majority should prevail, and that disclosure should be deemed inappropriate. But given that we are discussing the topic of the information necessary for exercising [the vote]…there is something deeply problematic about majorities deciding that information relevant to the voting decisions of a minority ought in some formal or informal way be made unavailable to that minority.”
Although Schauer hears the argument often used in New Zealand politics – that raking over the coals of politicians’ private lives will discourage good people from standing for election – he disagrees with it.
“There are moral arguments on the other side as well,” he acknowledges. “Chief among those is the argument that control over the information about one’s life is itself a central part of what is sometimes referred to as personal autonomy, and that there is no good reason why a person should be required to relinquish that right simply to enter the public domain.
“Yet if personal autonomy is the basis for the countervailing right of non-disclosure, it may be hard to distinguish this right from all of the other autonomy rights that one must forgo to enter the public arena.
“One has the right to speak or to remain silent, to live where one pleases, sometimes to work where one pleases, and a host of other rights that are commonly and properly thought relinquishable by one’s voluntary decision to stand for public office or to operate in the public domain more generally.”
In other words, what makes a public figure’s right to privacy sacrosanct when they may give up a whole lot of other rights as part of standing for office?
Naturally, Professor Schauer is not alone in his assessments of the reduced right to privacy of public figures. In a major editorial two years ago this month, Britain’s Guardian newspaper tackled the issue in the wake of the David Blunkett affair.
“The awkward truth is that the way people live their private lives does tell us things that can help to make judgments about them as public people…this is not the same as saying that the world will only be put to rights if it is run by certified saints. This country was seen through two world wars by leaders who would certainly not qualify on that score; but whatever the human failings of a Lloyd George or a Churchill, they did not include an inability to get the job done.”
It’s a comment that echoes the earlier ones on relevance. Are the personal failings relevant to the particular job they have?
The San Francisco Chronicle’s test in regard to public figures is this: “Personal conduct may have a bearing on public roles and public responsibilities. The degree to which a public figure voluntarily conducts his or her life in public or the degree to which private conduct bears on the discharge of public responsibility should guide the publication of personal information.”
Journalist turned lawyer Hal Fuson, now the chief legal officer at America’s Copley Newspaper Group, told a panel discussion journalists should not pull back from disclosing facts about elected officials just because of their own worldviews.
“Worry about the facts, folks, and let the truth take care of itself. Truth is like beauty, it’s in the eye of the beholder. And facts depend on verifiability. Verifiability depends upon being able to get your hands on lots of information that people don’t want you to have, because they want to shape their stories to suit themselves, not to suit the interests of society, and certainly not to suit your desire to inform your communities.”
The American Press Institute has published an ethics “checklist” for journalists weighing up publishing private information on public figures. They include:
Does this matter affect the person’s ability to do his job?
Does this matter reflect on the person’s conduct in office?
Does this matter reflect on the person’s character?
Does the matter reveal hypocrisy?
“Character matters for public officials,” says the Press Institute. “They publish family pictures on campaign brochures and proudly reveal private matters that reflect positively on their character. Private matters that reflect negatively on their character matter to readers as well.”
The Institute concludes:
“Don’t look for easy answers. Many stories involve consideration of more than one of these questions. However you decide, you can’t ensure that you will please all your readers. If you write the story, some readers will say you are prying into matters that should be private. If you don’t, some readers will say you are covering up for people in power…Sometimes the proper decision is to publish the story along with an explanation of your reasons for publishing and your consideration of various factors. Most readers understand that these are not black and white decisions.
“You might decide that a long-ago consensual affair between adults is no one’s business, and some readers will decide that you’re covering up. Or you might decide that criminal conduct is newsworthy whenever it occurred and some readers will think you are dredging up mud about youthful mistakes because your editorial page opposes the candidate.”
Australian political reporter Peter Cole-Adams was quoted in one ethics discussion this way:
“Elected parliamentarians were, he said, the paradigm of the public figure: each chose to enter politics; was paid by the public; spent public money; lived by publicity; enjoyed perks; and had the right to defame anyone he chose from the sanctity of the parliamentary privilege…in this sense, the public, as the hirer and firer, has a right to know what its representatives are up to. ‘If they are not going to be honest…they should be careful’. The questions the press has to ask are: is it true? Is it interesting? Is it in the public interest to disclose? He noted Lord Northcote’s dictum: ‘News is what someone wants to suppress. Everything else is advertising.”