Sex, privacy and media ethics

Sex sells. And sex really sells in the media business. With their profitability in free-fall, newspaper businesses especially are always on the look out for a salacious front page story to help them grab some precious market share. Unfaithful soccer stars "playing away from home", celebrity match-ups and break-ups, trysts with prostitutes, or accusations of sexual assault are all highly newsworthy, especially at the tabloid end of the market. But recent events in the UK and elsewhere have led many to question whether the sex lives of celebrities can be afforded some degree of privacy protection from an intrusive media, or whether in the interests of press freedom, and the growing uncontrollability on online social media "reporting", they are simply fair game.

In the last few weeks the Ryan Giggs super-injunction affair in the UK has brought these issues to a head. Why all the excitement? Well until a few days ago, Giggs, one of the UK's best known soccer players, was the mysterious unnamed figure who had successfully been granted a so-called super-injunction by the English courts. The injunction had been given to protect Giggs' privacy in the wake of an attempted kiss-and-tell story by Imogen Thomas, a former reality TV star, who claimed to have had an affair with the married, and previously squeaky-clean, soccer star. It not only prevented newspapers from reporting the story but also from even referring to the injunction or the claimant.

Super-injunctions like the one granted to Giggs have become the legal instruments of choice for individuals and companies in the UK looking to prevent their activities from being reported in the press. They are granted by the courts to protect privacy under the Human Rights Act. The newspaper industry is predictably waging a war of words against them because they shackle some of the traditional freedoms that they are used to and which they rely on to act as the fourth estate. Super injunctions also raise the hackles of the public because with a price tag that starts at something like US $100,000 they appear to allow special legal treatment for the rich and famous. Moreover, as the Giggs affair and the 2009 pollution case of the oil company Trafigura have shown, the rise of social media platforms such as Twitter through which stories can be circulated outside the remit of the formal TV and newspaper industries, the limits of existing legal protections for privacy are being severely tested. Giggs' name was connected to the injunction through Twitter long before the press could report on it, raising legal questions about the culpability of Twitter and it's tweeters for being in breech of the injunction.

There are all sorts of ethical questions arising out of this, but from our point of view, it largely boils down to the question of when our sex lives should be private and when could or should they also be public knowledge? Let's sort out some of the considerations here:

1. Consent
Obviously the starting point here is consensual sex between adults. Coerced sex or sex crimes fall into an entirely different realm of privacy. The media has a legitimate right to publish in these cases provided legal protections for victims and the accused (which differ between jurisdictions) are respected. But clearly Dominic Strauss Kahn's alleged assault on a hotel chambermaid should be held to a different standard of privacy than his consensual affairs. Affairs with subordinate employees, even when supposedly consensual, might fall somewhere in the middle given the power dynamics involved.

2. Public interest
Where there is a potential public interest at stake the media also has a stronger case for investigating and publishing, such as where politicians campaigning on "family values" are accused of marital infidelities, anti-gay advocates are caught with rent boys, or legal enforcers break the law by paying for sex. A weaker but sometimes defensible case can also be made for leaders in a position of authority and trust whose trustworthiness might be questioned when extra-marital affairs come to light. The sex lives of celebrities rarely have a public interest component .... however much the public may be interested in hearing about them!

3. Privacy vs free speech
In the absence of coercion or public interest, there is much less chance of the press claiming a prima facie right to publish. Privacy (and after all sex is pretty private) will usually trump rights to speech unless free speech can lead to other public benefits. It's a matter of avoiding harm being prioritized over some fairly minimal free speech benefits.  The media may claim that the right to privacy is critically weakened in the case of marital infidelities and other ethical infractions. But even the unjust should be able to expect justice.

4. Harms and benefits
Without public interest, for the equation to fall on the side of publishing, there will often have to be some meaningful moral benefits for one or more of the parties to the "private" act. A spurned lover with an illegitimate love child for instance might be looking to tell their side of the story in the media and thereby gain some kind of apology or recompense from a celebrity. Here the ethical equation between speech and privacy should shift more convincingly towards publishing.

5. Reasonable expectation
Where the waters really get muddied is in the question of reasonable expectation. Privacy is typically attributed when there is a reasonable expectation that something will remain so. A telephone call or a conversation in a private residence should reasonably be expected to remain private, for example. That is why the UK newspaper, the News of the World, is in such hot water for it's illegal phone hacking of celebrities. These conversations took place in a reasonable expectation of privacy and should remain that way unless one of the participants chooses otherwise. But phone hacking is a case of the ethics of media tactics. A newspaper offered a story by a willing kiss-and-tell informant is very different. Here it is one of the participants looking to rewrite the "contract " of privacy established between themselves and their sexual partner. And in this case we have to ask ourselves whether soccer stars and other celebrities really have a reasonable expectation that their affairs with glamour models and reality TV stars will remain private. However much they wish it to be the case, there appears to be a lot of evidence to the contrary. Sure, this may be a case of a highly pragmatic interpretation of rights to privacy, but it's in the real world, a world of privacy for sale that we increasingly find ourselves in. Celebrities should be protected from direct intrusions into their privacy by the media. But maybe they should not be protected from their own decisions about who to be "private" with in the first place.

Photo by AtilaTheHun. Reproduced under creative commons licence