The apparent suicide of a nurse in London, a few days after she had been hoaxed by Australian radio DJs who pretended to be members of the royal family, has highlighted the difficulty of effectively regulating the media in a digital age. The overreach of the British press has been exhaustively detailed by the Leveson inquiry but the death of Nurse Jacintha Saldanha shows how easily harm can also arise from foreign media, and from lowbrow ephemera that would have been little more than a local news item a decade ago.
Modern technology has swept aside the idea of merely local news; in the age of digital streaming few outlets have a stable and unchanging audience. The data-stream coursing through countless informal channels has made previous media paradigms irrelevant. Hard news may still be gathered and published mainly by the ‘legacy media’ but its digital afterlife, on websites, blogs, Twitter feeds and other social media, has become chaotically diverse and nearly impossible to control. The global public sphere has also become so susceptible to ‘viral’ tidbits of gossip and scandal that its purveyors can easily touch the lives of those who live — in the case of Jacinta Saldanha, quite literally — on the other side of the planet.
The Australian radio station 2Day FM cleared its hoax call, billed as “the biggest royal prank ever,” with its lawyers before broadcasting the clip repeatedly, and hosting it on the station’s website. As the backlash from Nurse Saldanha’s death took hold, and advertisers started to withdraw their support, the station’s management claimed that the consequences of the prank were “a tragic event that could not have been reasonably foreseen.” This may be true in a legalistic sense, but it doesn’t begin to address the station’s grossly irresponsible conduct throughout the affair.
Before it repeatedly humiliated the British nurses the Australian radio station had been cautioned for inappropriate broadcasts – one of which revealed details about the sexual abuse of a minor. Like hundreds of similar stations around the world, it seems to have thrived by pandering to the culture of provocation in which traditional radio banter yields to lowbrow sensationalism. Highly rated radio programmes in North America, and elsewhere, routinely air hoax phone calls that humiliate cheating partners, or they host game shows that encourage listeners to call in with descriptions of sleazy or abusive former boyfriends. Hundreds of popular DJs think nothing of supplying regular updates on any recent celebrity embarrassment that a well-known person has suffered. 2Day FM’s ‘lapse in judgement’ should be viewed in this context. But while it is tempting to doubt whether such unambitious broadcasting can have any redeeming value, it is worth recalling that there are instances in which this very prurience can push other media, and the legal systems that oversee them, towards greater transparency.
In the introduction to You Can’t Read This Book: Censorship in an Age of Freedom the columnist Nick Cohen recounts how lawyers “tried to stop a beauty queen telling of her nights of passion with one of the most talented footballers in the English Premier League” – namely the Manchester United star Ryan Giggs. His lawyers argued that “The English legal system must silence her to protect Giggs’s public image as a loyal husband and wholesome sporting role model.” The judge agreed, silenced the aggrieved mistress and instructed the British press to “censor themselves or face the consequences.” This left the tabloids no option but to “run articles complaining that the courts had stopped them exposing an unnamed footballing ‘love rat.’”
Cohen notes that while the super-injunction (a legal order that not “only barred reporters from revealing why claimants had gone to court, but barred them from revealing that claimants had gone to court at all”) briefly deterred Fleet Street: “No judge on earth can stop journalists gossiping, and many who worked in the media knew that the mysterious footballer was Ryan Giggs.” Inevitably their knowledge leaked into the Twitterverse. At first, however, “[f]ew in authority realised that their manageable world, where gatekeepers controlled the news and judges and politicians held gatekeepers to account, had gone.” When Giggs’s lawyers learned that his name was being bandied about online, they “did what their predecessors would have done” and “announced that they would take legal action against Twitter, and compel it to reveal the identities of users who had placed themselves in contempt of court.” Cohen describes the lawyers as “stuck in the last century, [unable to] understand how ridiculous their threats sounded.” When it was clear that Twitter had made a nonsense of the Giggs super-injunction the British press were able to name him without fear of prosecution. At the time this was hailed as an unambiguous step in the right direction.
More recently the BBC’s embarrassment at airing a current affairs programme which mistakenly identified a senior politician as a child abuser – an implication that was amplified and made explicit on Twitter – has shown that the possible outcomes are more complex and worrisome, but nobody seriously believes that the genie can be put back in the bottle. Instead a number of countries have updated their libel laws to include a shield for “responsible publication in the public interest” in which libels are committed despite journalists’ striving to maintain best practices while reporting in the public interest. Perhaps the best that can be hoped for is a legal system that encourages transparency but remains willing to act when the media contemptuously breach traditional rights to privacy.
Ironically, one of the most telling remarks on this vexed question appears in a memorable obituary of Dame Elisabeth Murdoch (mother of media mogul Rupert) that appeared in the Financial Times last week. In 2003 Dame Elisabeth, a tireless philanthropist who died at the age of 103, said that “the invasion of people’s privacy is the worst thing because from that comes so much more. I think that privacy is anybody’s right.”
