APPENDIX 66
Memorandum submitted by the University
of Leeds
We have, at the University of Leeds, completed
two studies into public attitudes towards issues of the media
and privacy. The two reports are enclosed. The Broadcasting Standards
Commission commissioned both studies. The first report, "Regulating
for Changing Values", although not totally given over to
issues of privacy, did address the question in some detail. We
have signalled the relevant parts of that report as it relates
to privacy. (pp 82-95 and pp 122-134) The second report, "The
Public Interest, the Media and Privacy" is dedicated totally
to the media and privacy. Both studies involved focus groups and
national representative surveys. The second study, as well as
employing focus groups research and a national survey, involved
interviews with leading figures within the media, television,
press, radio, regulators and pressure groups interested in privacy
issues.
It is our judgement, based on the research evidence,
and the complex terrain upon which notions of privacy are grounded,
that a move towards judicial governance of privacy, rather than
a self-regulatory system, would be inadvisable. To do so would
not, in so far as the public is concerned, best serve their interests
and expectations of performance. We will briefly support this
assertion by reference to our research, which, we would like to
point out is, as far as we are aware following a literature search,
unique in its scope and empirical rigour.
Although the research initially revealed that
the public did consider that individuals had a right to privacy,
it fairly quickly became obvious that this right was so conditional
that in fact no such right existed. Even children, for example,
in extreme circumstances, could lose the right to privacy. Rather
than talking in terms of a right to privacy, with its legalistic
overtones, the language in which people discussed press intrusion,
and intrusion of privacy in general, for example CCTV, was centred
upon expectations of privacy. It was quite clear that expectations
to privacy were related to space. This was differentiated into
"closed space", "restricted space" and "open
space". Expectations of privacy ran inverse to those categories.
"Closed space" would be the home, "restricted space"
would be the office" and "open space" would be
a shopping precinct or general gathering place such as a public
beach. To illustrate; the beach at Scarborough would be an open
public space, but a sheltered picnic spot in the Yorkshire Dales
would be a restricted space. In the former it would be expected
that one would be observed, and in the latter not so, or not so
to the same extent.
Conceptually, and this is related to the idea
of types of space, it was clear that people operated with the
notion that they had a duty of care in safeguarding their privacy.
That is, there was not a duty to protect oneself from observation
within one's own home, and hence no duty to monitor one's behaviour,
whereas in "restricted space" there was some duty, and
with an absolute duty of care in "open space" and consequent
responsibility to monitor behaviour. It was difficult to see therefore
how in "open space" objection to intrusion could occur,
since as far as the public were concerned, one had little if any
right to object since individuals are aware of the rules governing
performance.
Rules governing performance, as the second study
shows in particular, were central to how people judged the whole
question of the intrusion of privacy. Those in public positions
could expect less privacy than ordinary people. This would include
entertainment personalities, politicians, judges and so on. However,
ordinary people could not, and ought not to, expect privacy when
their behaviour breaks the expected rules of correct behaviour.
Thus, how people judged whether privacy has been wrongfully intruded
upon stemmed from judgements of a person's position, and judgements
of behaviour.
What the above points to, and can be seen in
the reports, is that judgement of privacy was contextually driven
to the extent that it would be difficult to formulate general
principals that would satisfy, when applied to individual actual
cases, how people constructed what was right and what was wrong.
For example, to appeal to the principle of "in the public
interest" as justification for intrusion, as the second report
shows, is merely to square the circle of the original problem
in deciding the right to intrude. In terms of media performance,
no clear definition of what the public interest consisted of,
either from the general public or from interviews with media personnel,
regulators and so on, emerged in any satisfactory manner. As a
term it had little analytical precision, and was operationally
as vague as mounting the defence of "in the national interest".
How interest was constructed was a dependent of values, and given
that there is no single "value community" in Britain
disagreement occurred. In short, it was often seen as a term of
"special pleading" by interest groups, be they politicians,
the professions, the media or other groups and institutions.
The question of privacy is therefore fluid and,
although judgements can be made informed by understandings of
public expectations, it is not such that it can be codified to
be given legal substance, or if it were, it would be unlikely
to serve the public well.
One of the problems in coming to judgement on
the issue of privacy, as the second report shows, is that the
notion of the private is dynamic and not fixed. It is a social
construction that changes historically, with changes in living
conditions and changes in notions of identity. Younger people
in our study were prepared to give greater areas of their lives
over to inspection than older people, indeed, were more likely
to wish to promote inspection. It is unimaginable that in the
not too distant past a programme such as Big Brother could have
been made—it is unimaginable because it would have broken
the rules of acceptance of the inspection of intimacy, and therefore
not found to be entertaining, as indeed it was not, leaving aside
the age of the participants, by older people.
Privacy is in a perpetual state of being reworked
in terms of what the private is taken to mean. For example, many
of today's children regard the bedroom as private in a way that
was not the case for many in previous generations.
We raise the above to make the central point
that how the private is viewed is open to a great deal of cultural
influence, and hence is not easily fixed or pronounced upon by
strict rules. It might be helpful here to view ideas of privacy
as open to change in a similar, but not so rapid a manner, as
that of taste and decency in programmes. Indeed, the question
of the intrusion of privacy, and manifested in our study, crosses
often with judgements of taste and decency. What, for example,
might not be seen as an intrusion of privacy in America would
be in Britain because different estimations of the decent and
the tasteful are held. This was actually born out in the research
by people's responses to media handling of the events of September
11. The objection that privacy had, in some cases, been intruded
upon was based on cultural expectations of "fitting"
behaviour, and not rights in some legalistic sense. For example,
the relaying of farewell messages left on answer phones from those
on the doomed aircraft.
In summary, it would be our judgement that so
far as the general public is concerned their interests in terms
of judging the intrusion of privacy by the press would best be
served by a non-legalistic approach. That is, a set of guidelines,
interpreted in practice by non-judicial process. This would allow
a flexibility that can take into account the changing nature of
public sentiment and expectations of performance in a way extremely
unlikely by a law of privacy.
5 February 2003
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