Is there now anyone in the country who does not know that Keith Vaz MP paid for the services of two male sex workers? Probably not, after his antics hit the headlines in spectacular fashion last week.
It was a good old fashioned tabloid exposé, which resulted in Mr Vaz, the Honourable Member for Leicester East, resigning as chairman of the Home Affairs Select Committee.
As far as I am aware, Mr Vaz hasn’t denied the allegations which were made against him, but he has come out fighting, saying that he was set up by the Sunday Mirror. A number of people have supported him by saying that what he does in his own time is no concern of ours.
On the other hand, there have also been a few voices who have pointed out that the exposé was absolutely in the public interest.
So it’s worth considering the legal position. After all, this story has as much relevance to the regional press as to the nationals. You only have to look at the Leicester Mercury’s coverage of the scandal to see the local importance of the story.
No doubt the top flight legal advice that Mr. Vaz has obtained centred on the issue of privacy, in which two questions have to be considered:
- Did Mr Vaz have a reasonable expectation of privacy when he, er, participated in the reported encounters?
- If so, was there a public interest in reporting the story, which outweighed any expectations that Mr Vaz may have had about his privacy?
By publishing the allegations, the Sunday Mirror probably answered the first question with: ‘yes'; and definitely answered the second questions with another: ‘yes’.
However, an anonymous analysis on a widely read media law blog was much more circumspect, with the writer concluding: There are some “public interest” factors to be placed in the balance but it is far from clear that they are sufficient to justify publication.
Hardly surprisingly, I am firmly behind the Sunday Mirror and its lawyers, and whilst obviously looking at this from a publisher’s perspective, I thought it might assist to offer a little legal analysis from that point of view.
Firstly, did Mr Vaz have a reasonable expectation of privacy?
I have little doubt that the answer to this question is “yes”.
The starting point is that neither the right to respect for private and family life nor the right to freedom of expression are afforded a higher priority over the other. As the judgment in the Max Mosely case told us, a balancing exercise has to be carried out after “an intense scrutiny of the facts”.
Whilst the fact that Mr Vaz is a public figure is part of those facts, it does not answer the question by itself. Public figures are entitled to a private life, after all.
One must also take into account other considerations, including: where the activity took place; the nature of the activity; the place at which it was happening; the nature and purpose of the intrusion; the absence of consent; and, the purpose for which the information came into the possession of the publisher. The contribution that the published material makes to a “debate of general interest” is also very relevant.
As recent Court decisions have made clear, information of a sexual nature regarding affairs conducted in private, attracts a reasonable expectation of privacy. This point was reiterated in the recent case of PJS, and I think it almost impossible to argue to the contrary.
Secondly, and more importantly from the point of view of the journalist/publisher, if a person has a reasonable expectation of privacy, is that reasonable expectation nevertheless overridden by the public interest?
Well, this is where the controversy lies, but as you would expect, my approach is simple: if this tale of secrecy, deceit, and apparent conflict of interest by an influential public figure is not in the public interest, then what is? Which is why I agree with the Mirror that this story genuinely was published in the public interest.
It is worth remembering, however, that in order for the public interest defence to succeed, the Courts have repeatedly made it clear that the publication must “genuinely be in the public interest”, and not simply be “of interest to the public”. As one Judge put it, “satisfying public prurience is not sufficient justification to interfere with the private rights of individuals”.
Although not relevant to this case, when looking at a potential story which involves balancing breach of privacy against the public interest, the impact the publication will have on children must be borne in mind. The fact that the subject of the story has young children who might be affected by publication is not a “trump card”, but it is given great weight by the Courts. Once again, you only have to look at the Supreme Court’s decision in PJS to see the importance the law and the Courts place on protecting children.
In many ways, the Vaz story did not raise any new legal issues. But it did emphasise, again, that if journalists and editors want to argue that a story is being published in the public interest, proper thought, a detailed analysis, and “an intense scrutiny of the facts”, must be carried out well in advance, if you are to stay out of legal hot water.
But as the Sunday Mirror has shown us, these are not insurmountable hurdles. Good, responsible, journalism (with some input from your friendly media lawyer!), will see you safely through the complex maze of privacy law.