Freedom of expression is a vital commodity in a democracy. Whether one obtains news or views from the printed press, television, radio or from online sources, one knows that to be properly educated, informed and entertained the price to pay could well be the rights, reputation and privacy of others.
Article 10 of the European Convention of Human Rights, which guarantees freedom of expression, does not sit well with Article 8, which promotes the right for private and family life. Yet both these rights are pillars of our democracy. Despite the insistence that that freedom of expression and privacy are of equal value, it is clear that one or the other must always be given primacy. In the United States that primacy will be given to freedom of expression and it will only be a question of how much primacy, whilst in Europe, privacy will have more importance and again it will only be a matter of how much more primacy.
This conflict frames the debate on the Soornack affair. Have the papers gone too far in this political intrigue ? It is a given that it is the media's role to investigate the alleged misappropriation of public funds and any potential acts of fraud and corruption. On the other hand, should it be the role of the press to do its best to prove an extra-marital affair ? The crux in our scenario is that it is alleged that the latter could explain the former.
European courts have been hard at work to cement a distinction between a matter of public interest and what the public is merely interested in and curious about. This represents the Gordian knot which the Mauritian court will have to cut in the context of the Soornack affair.
Inevitably, proponents of the right to private life have demanded greater press regulation. The calls for media regulation have been hounding beyond Mauritian shores. The Leveson enquiry in the United Kingdom has revealed worrying aspects of the culture of an unfettered British media. The European Commission has published a report which urges tighter press regulations and promotes the creation of national media councils with enforcement powers ranging from the imposition of fines to the sacking of journalists.
Players in the newspaper industry will naturally argue that regulation will fatally undermine freedom of expression. However, it is argued that old distinction between media regulators and regulatory systems may now be redundant because of the impact of new technology and changes in readers' behaviour.
Curiosity at the bedroom door
Up till now, freedom of expression in Mauritius stopped at the bedroom door. Mauritian editorialists have mentioned at length the differing cultural approaches to the lives of public figures - the British gung-ho approach of the tabloid press and the French restraint exemplified by the Mitterand child. What about the Mauritian approach ? A public inquest should never turn into a trial by the media, which should not be the role of the media while there exists an independent and impartial judiciary.
In fact, when judges have to decide whether a story is in the public interest, as Justice Balancy did, they undertake a famous balancing exercise. Editors and individual journalists make similar decisions every day. How do they carry out such a process ? So far, we know that this is done by following the codes of conduct of journalists and each press group has its own individual one. Sometimes newspapers take advantage of the public interest argument, especially where a story is particularly titillating to the public. Those might not be in the public interest but are likely to sell newspapers… The criticism levelled at some of the coverage of the Michaela Harte trial by sections of the press could be such an example. At the other end of the “public interest” scale are stories covering public interest topics of considerable importance but which will potentially bore the public - take for instance the IPP contracts which will be made public.
Trial by Google
The eco-system in which consumers and other actors in the media industry evolve has radically changed over the past few years. This entails that there should be a new approach to media regulation. The uploading of a video which allegedly presented the husband of Michaela Harte walking up to the hotel reception whilst the trial was ongoing evidences the power of the internet. The debate on the impact of the internet on the trial by jury system in England is one which could equally apply in Mauritius, and highlights another challenge of efficient media regulation. What if one of the members of the jury in the Harte trial came across the video mentioned above on a smartphone or tablet ? Similarly, anonymous blogs or trolls on social networking sites can be used to discredit individuals. This was the case in America where a number of lawyers used an anonymous blog to abuse a judge.
It is thus becoming increasingly crucial to reconsider how accountability can be gauged when the line is crossed in the digital age - should the Internet Service Providers bear responsibility ? Should the ISPs have a positive duty to provide information about users who are behaving illegally ? Has privacy been flushed away through participation on social network platforms ? Who should regulate the press on the internet ? What is the measure of fair speech in the context of freedom of expression on the internet ?
Closing the morality gap
A balancing exercise of what is acceptable today should only be performed by a transparent body which is independent of both the State and the press. The body which will be handed the poisoned chalice of regulation will need to comfort both the government and the press that it will function in a way that will appeal to those two actors, namely to appreciate the importance of freedom of expression in the modern age whilst also provide a real remedy to a victim and a persuasive punishment to the perpetrator for serious misconduct. Consensus for such a body will be built by ensuring that its members are individuals beyond reproach and who appreciate how the media sector works. Coming up with a new system is a matter of deep complexity, and although change can be the bedfellow of chaos, it is a gamble that a modern democracy needs to take.