In the latest example of public opinion playing a pivotal role in Media Law, an article by Daily Mail columnist Jan Moir on the circumstances surrounding the tragic death of Boyzone singer Stephen Gately has led to the largest number of complaints about a single article in the history of the Press Complaints Commission.
Moir’s piece, published on 17 October, referred to Gately’s death as “strange, lonely and troubling”, before referring to the circumstances as “sleazy” and stating that “gay activists are always calling for tolerance and understanding about same-sex relationships…. It strikes another blow to the happy-ever-after myth of civil partnerships”
The article has provoked widespread condemnation on the internet and has led to 25,000 complaints being made to the PCC over the course of one weekend, more than the body has received in total over the course of the past five years.
After the recent outrage over the Trafigura case bringing the issue freedom of the press back into the public spotlight, it would be easy to say, as some Daily Mail readers already have, that Jan Moir is entitled to her opinion, and that her freedom of expression is protected by the Human Rights Act.
However, although the press should be free to report on matters of public interest, the real issue when looking at cases like this, whether the Court or the PCC deals with it, is where you draw the line. The sad fact is that the Gately family’s legal comeback against Moir is curtailed heavily by that fact that Stephen has passed away. It’s a long-established legal principle that you can’t libel the dead, nor can they bring an action for breach of privacy. Whilst this may protect Moir and the Mail from a huge damages claim from a grieving family, it won’t protect them from the huge and growing public backlash over her comments.
The PCC have responded by saying that they will consider each complaint and then decide upon whether or not an investigation should be launched into whether the article breached the terms of its code of practice, which sets out the standards which the press expect journalists to comply with. The PCC will then look into whether or not the code has been breached and decide what, if any, sanctions to impose. If a breach is shown, then the Mail must publish any criticism from the PCC in full and in a prominent fashion.
It’s hard to see how Moir’s article isn’t in breach of a number of clauses of the code, including the duty “not to publish inaccurate, misleading or distorted information”, “to handle publication sensitively”, and perhaps most importantly here, the “duty to avoid prejudicial or prejorative reference to race, colour religion or sexual orientation”.
25,000 complaints, however, won’t change the fact that the PCC won’t usually accept a complaint from any third party who isn’t directly involved in the report in question unless there is an exceptional public interest in doing so. It could be that they feel that this case is such an exception, as they have already stated that, even if the Gately family does not make a complaint, they intend to contact the Mail after the huge response to the article in the public domain.
Moir’s response to the internet commentary about her piece claimed that she has become the subject of “what is clearly a heavily orchestrated internet campaign….I think it is mischievous in the extreme to suggest that my article has homophobic and bigoted undertones.” She couldn’t be more wrong. What actually happened is that word of her comments got out on the internet and produced a firestorm on a number of social networks, including Twitter, which.
Twitter and the blogosphere may be home to a very vocal minority when it comes to this kind of issue, but the Trafigura scandal earlier this week showed exactly how powerful that minority can be in shaping opinion and served as an object lesson in the power of social media. Quite simply, the “campaign” against her didn’t need to be organised; it’s ready and waiting when a controversial issue comes to light, and was something which she underestimated to her cost.
Trafigura also raises another issue here; that of freedom of expression. According to the Human Rights Act, Moir is entitled to express her opinion in whatever manner she chooses and it’s hard to support the Guardian’s right to operate as a free press whilst condemning Moir. That said however, the Guardian’s piece did not breach as many PCC guidelines and was much more in the realm of public interest. Moir, for better of worse, is being seen as taking advantage of a very emotional and unexpected event. Whether this turns out to be the PCC’s opinion remains to be seen, as does whether the Twitterati’s opinion of her is really taken into account – so far, it would appear to be. Whatever the case, surely the 25,000 complaints submitted to date and the fact that some advertisers have already moved away from the Mail in the wake of the article make one thing very clear – free speech is a double-edged sword; say what you want, but be prepared to take the consequences.
In this particular case, the tragic reality is that the Gately family’s only real option is the PCC and to take some comfort in the groundswell of public support for them. Whether this case leads to reform of the PCC’s Code of Practice to allow third parties to make complaints will be the key issue, but unless you can afford to take the risk of mounting a libel or privacy action, it is still a viable method of making your grievance heard. If you can afford to take action and are in a position to do so then you should. You may find that there is a very loud and lucid online voice waiting to support you as the Guardian did when it took on Trafigura, but you should also bear in mind that, now more than ever, living in the public eye means having to deal with both sides of public opinion. That goes for both Stephen Gately AND Jan Moir.
IP & Media Law 