Media companies can’t be trusted to objectively balance the public interest and individuals’ right to privacy, says the woman who more than any other participant in the UK phone-hacking scandal has seen all sides of the media regulation debate.

Lawyer Charlotte Harris has fought injunctions on behalf of media companies, represented the targets of British tabloids’ obsessive intrusion into private lives, taken on Rupert Murdoch’s News International on behalf of phone-hacking victims and, for her efforts, been followed by a private detective hired by Murdoch’s company in a desperate effort to dig up dirt on her.

As she told the Leveson inquiry last year, being placed under surveillance by the rogue media corporation gave her an insight into what many of her clients had felt like when they learnt its journalists and detectives had hacked into their phones.

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The Leveson inquiry is due to report next Friday (Australian time) and its looming findings and recommendations have long since sparked the kind of debate that has close — but fairly explicable — parallels with the debate over media regulation in Australia, with the expectation Leveson will recommend an independent press complaints panel with real capacity to enforce its decisions.

While News has kept a low profile in the debate, busying itself with hanging a large number of its journalists and former executives out to dry, other UK media outlets have campaigned strongly on the claim that any regulation of the British print media will be a major blow to free speech, in exactly the same manner as News Limited’s Kim Williams has waged a campaign here against any changes to the ineffectual press self-regulatory structure funded by newspaper companies.

Harris, who was in Australia last week, says it’s critical any complaints mechanism that emerges from the Leveson process is independent of the media, so that the media itself doesn’t determine the key issue of what is in the public interest. “Otherwise there simply isn’t going to be any agreement,” she told Crikey. “I don’t think the industry can continue to be both prosecutor and judge.”

Harris says a common law right to privacy (derived by courts from the Human Rights Act, which enshrines the European Convention on Human Rights in British law) in the UK has enabled protection of some areas from press intrusion. “There are certain things are protected and it’s very helpful. For instance, your s-x life, videos of it if they exist, descriptions of the videos, if you’re party to a scandal, photos, ordinary people’s s-x lives. Financial information is protected, medical information protected.”

However, the clash in the Human Rights Convention between the right to privacy and the right to free speech creates a constant tension — where does the right to privacy end and the public interest in scrutiny of public figures begin? “The trouble with a ‘public interest exemption’ is it’s fine but you have to decide who is going to decide what is in the public interest and we’re down to this problem that if it’s the industry deciding what the public interest is it’s going to be different … that’s why I don’t think the panel should be chosen by the industry,” Harris said.

“The lawyer sat on his phone and called me and I got four minutes of a news conference of The Sun …”

She explains how she received a schooling in media priorities when a media lawyer “bum-dialled” her while attending a news conference at The Sun: “The lawyer sat on his phone and called me and I got four minutes of a news conference of The Sun — I’d had a phone call from the newspaper saying that they knew my client was homos-xual and that they were going to publish this and that they had photographic evidence. I said I’d have to take some instructions … so I could just hear the journalists and lawyer, and the lawyer was saying ‘so what is this photograph?’. So they produce a photograph and he said ‘but he’s wearing a hood’. And the journalist said ‘but she doesn’t know that’.

“It was one of those gifts — but what there wasn’t was any discussion of whether it was in the public interest. It was about whether they could get away with it, because this was a good story.”

Harris also believes that superinjunctions (which drew extensive publicity in 2011 in a debate over free speech, the ability of wealthy individuals and large corporations to use them to suppress scrutiny of them and the impact of the internet) are no longer the vexed issue they once were.

“I think it’s been dealt with,” she said. “Everyone acknowledges Trafigura [the company obtained a superinjunction preventing the publication of a report on a toxic waste dumping in Côte d’Ivoire] shouldn’t have happened. There haven’t been superinjunctions like that for a long time. The ‘rich man’s law’ is difficult because legal expenses are crazy. You have ‘no win no fee’ still, which helps, but it is often celebrities that are the people who are targets, but you can’t blame the target and say that it’s just a ‘rich man’s law’. The fact is, there is plenty of funding for people who want to have a go, but injunctions are now the last resort rather than the first port of call.

“I still apply for injunctions, but you apply very carefully, and you have a real fight on your hands, particularly if you’ve got somebody who has any public profile at all. One of the problems is that it wasn’t that long ago that being rich and being famous were synonymous, and I think we all know now that being famous is quite easy.”

Harris is not convinced News International is genuinely committed to changing the culture that led not merely to phone-hacking but industrial-scale bribery and computer hacking as well. That makes her all the more concerned that some form of regulation emerge from the Leveson process. Otherwise, she says, “it will be business as usual”.

“I remain very sceptical because of the manner in which the litigation is being conducted. And you see it in the public court hearings that we have in terms of the phone-hacking, application after application, complaint after complaint that we haven’t got enough disclosure. Amnesia again and again in different committees. I just don’t think that this industrial amnesia and lost documents and failure to disclose are particularly conducive to remorsefulness,” she said.

“I’m not saying there should be long-term shame but if we hear these false arguments about free press and these crazy accusations of censorship at those who are complaining about media ethics, it’s not conducive to culture change.”

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Peter Fray
Peter Fray
Editor-in-chief
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