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 AJR  Columns :    THE PRESS & THE LAW    

From AJR,   December 1999  issue

Muzzling the Media in the Name of Privacy   

France and Hong Kong move to quash press “excesses.”

By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     

It has been more than two years since Diana, princess of Wales, was killed in a car crash in a Paris tunnel. The paparazzi accused of chasing her to her death have been cleared of any direct responsibility by French authorities. Surely it is time to put to rest both the princess and the debate over whether privacy should trump freedom of the press.

Apparently not. In the past few months, two countries have decided to reopen the discussion, floating legislative proposals designed to give governments greater authority to curb press "excesses" in the name of protecting privacy.

The French government is considering a bill that would prohibit the media from publishing photographs of people wearing handcuffs, declaring that such depictions create a presumption that the person in custody is guilty of a crime. Another provision states that those who publish or broadcast images of crime scenes may be fined if the photos compromise the "dignity" of the victim--a subjective standard, to say the least.

On the other side of the world, a Law Reform Commission in Hong Kong recommended in late August that a Press Council for the Protection of Privacy be created by statute. Its ostensible purpose would be to protect Hong Kong's citizens from the excesses of the news media.

Both proposals are cleverly designed to elicit public support. Instead of bleating about desperately hard lives of celebrities who are trailed endlessly by the paparazzi, they focus on the plight of ordinary citizens such as crime victims who, through no fault of their own, become the objects of unwanted media attention. The French proposal may even extend the right of privacy beyond the grave, to protect the delicate sensibilities of the dead.

But as problematic as the French bill may be, it is the Hong Kong proposal that is most worrisome. It starts with the novel premise that the public has more to fear from the media than from the government. Therefore, the Law Reform Commission presumes, it is up to the government to protect the individual from the press.

It will do this by creating what it calls a Press Council "independent" of government. Maybe something got lost in the translation, but this council doesn't sound independent to me. The chief executive of Hong Kong selects an "independent" individual, who in turn selects an "independent" appointments commission whose members may not include anyone connected with teaching or practicing journalism. That group may choose some journalists to serve on the council, but not to chair it. Instead, the proposal suggests, the chair should be a retired judge or "senior lawyer."

Any journalists who do agree to serve on the council will have the unique experience of weaving their own noose by helping to draft a mandatory privacy code, which will serve as the basis for complaints against those in the print media who supposedly have violated it. All local newspapers and magazines must participate in the proceedings against them and will be compelled by law to contribute money to support the council's operations.

Unlike in some other countries, a newspaper that answers a complaint before the council will not be immune from civil or criminal legal proceedings based on the same facts. In fact, information gathered in connection with the investigation may be used in future court actions, even though the council's proceedings won't be bound by the usual rules of evidence and the news organization won't be allowed to have an attorney present. A newspaper found in serious breach of the privacy code will be subject to fines. It can also be forced to publish apologies, retractions or statements from the "injured" party.

And what will be the result of all this? According to the Law Reform Commission, "[T]he public will become more aware of the media's concern for responsible journalism, journalists will become more sensitive to potential problems involving media ethics, and people will hold the profession in high regard."

When a government announces that it will improve the public's perception of the news media, watch out. Between the fines, the compelled apologies and the general humiliation, the press that emerges from the inevitable scourging that will take place before the Press Council will certainly be less inclined to inform the public about matters that might be controversial.

But at least the government will have succeeded in protecting the public from the press.

The only question is: Who will protect the public from the government?