Journalism and the Limits of Privacy

(The original version of this entry was written by Christine Dobby)

How do we decide whether to publish details of a politician’s extramarital affair? A celebrity’s medical condition? The personal details of a good Samaritan? The lurid but long-gone past of a top executive of a private company? These questions all require considerations of the value and boundaries of privacy. And what about the public’s “right to know”? Journalists must grapple with these issues when deciding what to publish. This essay will look at the role of privacy in the Supreme Court’s recent landmark decision on defamation law, review literature on privacy and explore possible frameworks for approaching such decisions.

Privacy and the Public Interest Responsible Communication Defence

The Supreme Court of Canada’s 2009 decision in //Grant v. Torstar Corp.// represented a broadening of the protection afforded to journalists regarding the law of defamation. The country’s top court introduced a new defence to libel claims: “public interest responsible communication.” The defence will apply to a claim of defamation where:

a) The publication is on a matter of public interest; and

b) The publisher was diligent in trying to verify the allegation, having regard to:
a. The seriousness of the allegation;
b. The public importance of the matter;
c. The urgency of the matter;
d. The status and reliability of the source;
e. Whether the plaintiff’s side of the story was sought and accurately reported;
f. Whether the inclusion of the defamatory statement was justifiable;
g. Whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and
h. Any other relevant circumstances (see Summary of the Required Elements at para. 126).

The decision touches on issues of privacy in several instances. Chief Justice McLachlin, writing for the eight-person majority, notes early on that concern for personal privacy is related to the protection of reputation (Grant, para. 59). However, although the Supreme Court has recognized the protection of privacy as “essential for the well-being of the individual” (R. v. Dyment, cited at para. 59 of Grant), it has not figured prominently in the law surrounding defamation. McLachlin writes one reason for this is that defamation law is geared toward providing protection against false statements whereas privacy is typically concerned with keeping true information from the public. The Chief Justice concludes that while privacy legislation exists in several provinces, protection of privacy may be a factor complementing the protection of reputation in the development of defamation law.

Grant makes it clear that the issue of privacy will be a consideration in determining whether a publication is on a matter of public interest – the first step of the public interest responsible communication test. McLachlin writes:
  • First, and most fundamentally, the public interest is not synonymous with what interests the public. The public’s appetite for information on a given subject – say, the private lives of well-known people – is not on its own sufficient to render an essentially private matter public for the purposes of defamation law. An individual’s reasonable expectation of privacy must be respected in this determination. (Grant, para. 102)

Privacy will also be a factor in determining the seriousness of the allegation.
  • The degree to which the defamatory communication intrudes upon the plaintiff’s privacy is one way in which the seriousness of the sting may be measured. Publication of the kinds of allegations traditionally considered the most serious – for example, corruption or other criminality on the part of a public official – demand more thorough efforts at verification than will suggestions of lesser mischief. So too will those which impinge substantially on the plaintiff’s reasonable expectation of privacy. (Grant, para. 111)

So, while the decision does touch briefly on the matter of privacy, it does not set out clear criteria for when a publication on private matters will go beyond what is in the public interest. Rather, the chief justice offers some guidance from cases found in the jurisprudence on fair comment (a defence to defamation) and s. 2(b) of the Charter of Rights and Freedoms (freedom of expression). McLachlin cites the following as guidelines:

- “Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or others; then it is a matter of public interest on which everyone is entitled to make fair comment.” (Grant, para. 104)
- “To be of public interest, the subject matter ‘must be shown to be one inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached.” (Grant, para. 105)
- “Public interest may be a function of the prominence of the person referred to in the communication, but mere curiosity or prurient interest is not enough. Some segment of the public must have a genuine stake in knowing about the matter published.” (Grant, para. 105)

The emphasis is on broad issues that affect large numbers of people and go beyond simple curiosity or voyeuristic interest. (Note that “private” issues – including those that are simply interesting due to our mere curiosity to know about them – may be published with impunity with the consent of the subject.)

The Common Law and Protection of Privacy:

While the Grant decision offers some factors to consider on the issue of privacy as it relates to the public interest for the purposes of defamation cases, there is scant guidance in Canadian law on the media and privacy in general. Canadian media law expert Dean Jobb writes that while an individual can be sued for invading the personal privacy of another, there has been little jurisprudence establishing the bounds of the tort in this country’s common law. (Jobb, 2006, p. 314) In 2009, Jobb commented on an Ontario Superior Court Justice’s decision to allow a claim against Jan Wong and the Globe and Mail based on invasion of privacy to proceed to trial. (Jobb, 2009) The judge wrote that Canadian courts “have been reluctant to recognize” a distinct right to privacy under the common law. Jobb further noted that only four provinces had established legislation to protect citizens against invasion of personal privacy. (Jobb, 2009 and 2006, p.314) The statutes in British Columbia, Saskatchewan, Manitoba and Newfoundland and Labrador – as well as the Civil Code and Charter of Human Rights and Freedoms in Quebec – protect against eavesdropping, publishing diaries and other personal papers and the unauthorized use of an individual’s image or name to promote a product, says Jobb. (Ibid.) But journalistic efforts to gather information for news stories are generally exempt from such laws, he adds. Had the case gone as far as the Supreme Court of Canada, it had the potential to set a common-law precedent on the media’s ability to report the private details of people’s lives. (Jobb, 2009) The case was settled out of court though (see group presentation on “The Ethics of Deceiving Sources,” posted on the wiki), so the law gained no clarity on this point. Jobb concludes that even absent clear direction from the courts, journalists should be aware that their motives, actions and methods are increasingly coming under scrutiny.

In any case, it is arguable that privacy – and the restrictions on journalism due to it – is best viewed as a moral or ethical issue, rather than a legal issue. As American journalist Gene Foreman notes, “As a practical matter in these decisions, journalists look to their ethical standards rather than to a rule of law.” (Foreman, 2010, 231) Similarly, journalism ethicist Louis Hodges, writing about USA Today’s probing into famed tennis player Arthur Ashe’s medical condition (eventually forcing the star to reveal – against his will – that he had AIDS) has the following to say:
  • Most people who have had things to say about the newspaper’s moral irresponsibility and insensitivity to Ashe’s interests would acknowledge the paper’s legal right to do what it did. The concern was over the absence of a moral right to do what was perfectly legal. It is the moral concern, not the legal, that I write about here. (Hodges, 1994, p. 198)

Renowned philosopher and ethicist Sissela Bok also argues that while privacy issues have been dealt with in the law – though not always conclusively – the legal and moral issues are not identical. (Bok, 1982, p. 250) Although violations of privacy can have legal implications, approaching what is private and in what situation and what can and cannot (or should and should not) be published should be grounded in an ethical framework.

Privacy as an Ethical Issue – Frameworks for Making Ethical Decisions about Privacy:

In the following discussion of definitions of privacy and what it protects and limits on it, it is easy to see threads of what informed the Supreme Court in its formulation of the public interest element in Grant.

Bok addresses privacy in her 1982 book Secrets: On the ethics of concealment and revelation. She writes that while secrecy and privacy are closely related, they are distinct. Bok defines privacy as “the condition of being protected from unwanted access by others – either physical access, personal information, or attention.” (Bok, 1982, p. 10-11)

Bok notes that there is no clear line surrounding individuals’ private lives and indicating what journalists should not delve into. (Bok, 1982, p. 252) She, like the Supreme Court in Grant turns to the concept of public interest. She writes, “It is not wrong to be interested in another person’s life, no matter whether that person is famous or not.” However, if the public does not have a need to know something, says Bok, it changes the degree to which reporters should respect requests for anonymity and privacy. (Bok, 1982, p. 253)

From here, Bok confronts the frequently touted argument in favour of violation of privacy that the public has an inherent “right to know.” She is critical of the position that the counterbalance to the guarantee of freedom of expression is the right to know. Citing Ronald Dworkin’s arguments, Bok says the right to speak does not mirror the right to know – at most it may support a right to listen. (Bok, 1982, p. 254-55) She argues that any right to know, even where mandated by statute, cannot be a right to knowledge or truth, but at best, a right to access to information. And, she adds, not all information, but only to some. (Bok, 1982, p. 258) Bok says the role of the press should be:
  • To satisfy... the public’s legitimate interest in learning about matters – governmental or not – that affect its welfare. The reporting concerning such matters should not be forceful; and it should not accede to all the claims we have examined; to privacy, confidentiality, or trade, scientific, administrative, and military secrecy. At times these shields are legitimate; but their legitimacy cannot be taken for granted. (Bok, 1982, p. 257-58)

Hodges defines privacy using the visual imagery of “circles of intimacy,” wherein we each stand at the centre of a series of concentric circles in which the degree of intimacy diminishes from the innermost circle outward. (Hodges, 1994, p. 199) The closer the circle, the more intimate the information. The outermost circle encompasses information you would not object to all of humanity knowing. Hodges says to have privacy is to possess control over your circles of intimacy. (Hodges, 1994, p. 200)

Privacy, argues Hodges, is crucial to civilized life and because it is essential to meeting basic psychological and political needs, it is not to be taken lightly. (Hodges, 1994, pp. 200-01) However, he says the right to privacy is not absolute and stands beside what he views as “a countervailing right of others to know quite a lot about us as individuals.” Hodges says this “right to know” stems from observations about human nature and human need – human beings need to know quite a lot about those who have power over them. (Hodges, 1994, p. 202) Hodges sums up the right to privacy/right to know paradox as he see it as follows:
  • Because humans are individual beings, the total elimination of privacy would eliminate human existence as we know it; because we are social beings, the elevation of privacy to absolute status would likewise render human experience impossible. (Hodges, 1994, p. 202)

Due to this tension, civil society must grapple with the issue of when to allow intrusion on private affairs and when to forbid it. As in Grant, Hodges says mere curiosity about private information or conduct is not generally sufficient to warrant publishing it against the individual’s will. In answer to the question of when a journalist is justified in overriding an individual’s right to privacy, Hodges also relies on the concept of public interest. He writes:
  • It is just for a journalist to violate the privacy of an individual only if information about that individual is of overriding public importance and the public need cannot be met by other means. As a formal criterion of course, this does not tell us what information to publish in specific cases, but it does provide a test for any particular decision on privacy. (Hodges, 1994, 203)

From this formal criterion – the public interest or importance – Hodges says it is possible to establish some general criteria to guide journalistic decision-making. For him, this involves a consideration of what it means for a story to be important. He says self-knowledge is important because of its intrinsic value to us as individuals, whereas other knowledge is important only extrinsically – as a means to an end. Most knowledge readers gain from news stories is only extrinsically valuable, says Hodges. He concludes that the test of importance requires a judgment about what people need to know in order to live well and invasion of privacy is only justified if that need to know overrides the individual’s need for privacy. (Hodges, 1994, pp. 204-05)

Note that both Bok and Hodges advocate approaches that focus on the public interest and both necessarily involve weighing competing claims. The individual’s privacy versus must be balanced against the interest of the public in knowing some private information about the individual (whether or not both of those claims amount to outright rights). This weighing of competing values is essentially a form of ends-bases or teleological reasoning. Foreman writes that ends-based thinking – related to the utilitarianism arguments of Jeremy Bentham and John Stuart Mill – directs a choice in favour of the course of action that brings the most good to the most people. (Foreman, 2010, p. 77) This form of reasoning requires attention to who will be helped and who will be harmed by a decision and to what degree. Further, it leaves room for consideration of the rights of a minority, says Foreman. But while this form of thinking allows decision-makers to consider all the possibilities, Foreman notes that it may be difficult or impossible to predict the consequences of a decision. (Foreman, 2010, p. 78) This is one of the chief criticisms of consequentialism or ends-based reasoning.

Foreman advocates an approach to decisions on privacy that relies on both ends-based reasoning as well as the Golden Rule, which mandates putting yourself in the place of the person affected by your decision and assessing the fairness from that perspective. (Foreman, 2010, pp. 78-79 and 233) He proposes the three-step template set out by the (American) Society of Professional Journalists (SPJ) in its code of ethics. The steps involved are: assess the information, calculate the likely harm and weigh those two factors to arrive at the decision. For Foreman, the first step involves making a distinction between what the public is interested in versus what it has a legitimate need to know. He suggests a way of approaching this difficult and subjective question:
  • Ask whether the information fulfills journalism’s primary duty – providing citizens with the information they need to know to go about their daily lives and to make governing decisions about their community. (Foreman, 2010, p. 234)

It is in the second step – analyzing the likely harm – that the journalist should compare the degree of harm to the degree of privacy the news subject can reasonably expect. Foreman says public officials have the least claim to privacy, while ordinary citizens have the most. (Foreman, 2010, p. 235)

Using public importance as an overriding guide, Hodges sets out considerations applicable to certain categories of people. He says when reporting on politicians, journalists should publish private information, even against their will, if their private activity could have an effect on their public performance. (Hodges, 1994, p. 203) For public figures in general, Hodges argues we should publish if their private activity might significantly affect their performance of duties to their publics. Similar to Foreman’s argument regarding public officials, Hodges says the greater the public figure’s power, the lower their claim to privacy. (Hodges, 1994, p. 204)

Celebrities, says Hodges, make a conscious choice of occupation in which they must waive all but the narrowest measure of privacy. But he cautions against doing harm to celebrities by reporting conditions over which they have no control – for instance, the Arthur Ashe incident. (Hodges, 1994, p. 207) We should publish only that private information that relates to the newsworthy act in the case of temporary news heroes, Hodges says. For instance, the sexual orientation of a man that jumped in front of a bullet shot at President Gerald Ford is irrelevant to the story. The fact that he was a former Marine and had the reflexes to do what he did, however, was not irrelevant. (Hodges, 1994, p. 208)

Hodges says once someone has been convicted of a crime, we should report all aspects of his or her private life that would help the public understand the criminal and his or her acts. The more serious the crime, Hodges says, the more justified we are in looking into the convicted person’s private life. (Hodges, 1994, p. 208) In contrast, reporting about the private lives of innocent victims is not warranted, Hodges says. (Hodges, 1994, p. 209) Finally, we should report on the private lives of adult relatives of prominent people only because of the significance of what they themselves do – not because of their family ties. (Hodges, 1994, p. 210).

There exists no definitive answer to the question of when invasion of an individual’s privacy – and publication of those details – is warranted. Yet, it is clear that it is possible to formulate some general guidelines and a framework for approaching the decision-making process.

Reference List

Bok, Sissela. Secrets: On the ethics of concealment and revelation. New York: Pantheon Books, 1982.

Foreman, Gene. The Ethical Journalist: Making Responsible Decisions in the Pursuit of News. West Sussex, U.K.: Wiley-Blackwell, 2010.

Grant v. Torstar Corp., 2009 SCC 61

Hodges, Louis. “The Journalist and Privacy.” Journal of Mass Media Ethics, 9:4 pp. 197-212.

Jobb, Dean. Media Law for Canadian Journalists. Toronto: Emond Montgomery Publications Ltd., 2006.

Jobb, Dean. “The Charter Collision Course: Where privacy rights and freedom of the press meet head on.” Media: The Canadian Association of Journalists, Winter 2009, 14:1, 25.

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