Journalism “legals”: when is something in the public interest?

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A Mediaonline article published this week does an excellent job of laying out some of the legal considerations governing the publication of sensitive material in South Africa.
The article carries interviews with the people involved in looking at the legal ramifications of Jacques Pauw’s book, The President’s Keeper, (one of whom is my sister Gill Moodie) and notes that while something may ordinarily be dangerous to publish, the factor of “public interest” can come into play and make publication justifiable:

The next step is to ensure that what the journalist/author intends to publish is of public interest. This is vital because it can be used as a defence in a number of instances. De Klerk explains, “The law protects privacy for example, but privacy can be overridden if there is an overriding public interest present”.

In other words, you could argue that you published something defamatory or illegal because you believed it was in the public interest.

But what is “public interest”?

What it is not

Despite how it sounds, the term does not mean something that is interesting to the public. For example, a journalist knows that a celebrity is engaged in a messy divorce, and has heard some salacious details. While reading about these rumours might be interesting to many people (indeed, fascinating), that still doesn’t give a publication the right to publish them (even if they have established the rumours to be true).

What it does mean

Public interest means that the information is relevant in some way to a greater public agenda. Here are some examples:

1. The salacious details mentioned above might be in the public interest if the celebrity is being accused of molesting children, and there is a suspicion that many children may have been affected.

2. A politician has an affair… if it affects only his or her partner, then it is their private business. If it can be found to be true that the affair has caused the politician to be blackmailed into, for instance, granting a tender involving taxpayer’s money… then the affair is relevant to the public.

3. A prominent religious figure has HIV-Aids but has concealed the fact. If he is going about his life peacefully, then his secret should stay secret. But if he is excommunicating members of his congregation for having the same illness, then it could be argued that his state of health is relevant to those congregants and people who might be thinking of joining his church.

So the seat-of-pants question to ask to determine whether something is in the public interest or not is: Does this information go out of the private and into the realm of the public, and does it impinge on the rights of others? If you can say yes to both parts of that question, then you are in the realm of public interest.

NOTE: I am not a lawyer. This tip reflects only my personal toolset, honed by 30 years of journalism. When in doubt, always ask a colleague, your boss or a media lawyer.

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