Yesterday we wrote about why the detention of David Miranda under anti-terror legislation was so different from the arrest of British journalists on suspicion of unlawfully obtaining information. We were writing in response to various figures who accused the critics of press abuse of hypocrisy and double standards. One of them was Brendan O’Neill, who, who made a crack about “the apparently terrible crime of listening in on the conversations of our hereditary rulers” (we weren’t aware of being ruled by Steve Coogan or Sienna Miller – let alone the cousin of Jean Charles de Menzies or the relatives of 7/7 victims).  He added:

Ah, the defenders of Greenwald and Miranda will say – but Our Journalism is in the public interest whereas Their Journalism was not. But who decides what is in the public interest? Two hundred police officers? Lord Justice Leveson? The state? The Guardian? Or should it be us, the public, through open and frank and free debate…?

Fair question. So let us look at what actually prompted the so-called ‘phone hacking’ scandal. The account books of private detective Steve Whittamore – among whose customers was Rebekah Brooks – list 228 paid jobs from the News of the World, 50 from the Daily Mail, 4 from the Sunday Times, 103 from the Observer, and 681 from the Daily Mirror. These numbers are requests for information from police databases, social security records, telephone companies, and even the DVLA. Many breached the Data Protection Act (“they were huge corporations”, Whittamore said. “I assumed they knew what they were asking for”). Jonathan Rees is alleged to have hacked phones, infected computers, and even broken into houses on newspapers’ pay. Neville Thurlbeck, meanwhile, has admitted to working as a police informant, who passed over information to the Met in return for confidential scoops from their central databases. The picture that emerges from the phone hacking scandal is therefore not of principled journalists using whatever means they can to expose wrongdoing but of a vast commercial spying network, with journalists, police, and criminals all receiving kickbacks for activity which is really more like that of the NSA itself than of David Miranda. That it should take substantial police resources to get to the bottom of this network should not be a surprise – especially not after the News of the World destroyed its own hard drives a claimed ‘routine upgrade’. The stark reality of this fourth estate surveillance industry belies O’Neill’s insistence that the ‘public interest’ is some nebulous, elite concept that we can’t use to sort the wheat from the legal chaff. Indeed, the public have very clear opinions on what is and is not justified in its name. In July 2011, YouGov found that while 54% agreed with “underhand tactics” if they “expose wrongdoing”, 73% thought that journalists should never break the law; only 12% thought paying off cops was acceptable even in pursuit of political corruption. In December that year, 68% also disagreed with the statement that “hacking the phones of celebrities is not as bad as hacking the phones of ordinary people like Milly Dowler and the McCanns”; most of them frowned on the former almost as much as the latter. Then, in 2013, a report by the Carnegie Trust explored these attitudes in more detail:

“… support for publication increased the greater the harm to the  public revealed by a story…the public was more likely to support the publication of stories about people with power and responsibility than those about members of the public or celebrities…

“…support for publication declined as the level of intrusion involved in the story increased. Some methods of intrusion were seen as justified by only a small number of people.”

For ‘kiss and tell’ stories, even the practice of gathering information from friends and neighbours received less than 20% approval if the subject was a member of the public and only 33% if it was an MP or councillor. The rating for using the same methods to expose an MP “putting others at risk” was 71%. The absolute highest approval rating for going through bins was 46% (an MP putting others at risk); for entering premises illegally, 25% (a judge putting others at risk). Perhaps most telling of all was a poll performed by BJR/YouGov for the British Journalism Review, in which people read hypothetical story pitches and decided whether or not they would publish it. Excepting the standard “don’t know”, there were three choices: A), “this story is definitely in the public interest and should be published”; B), “this story is not necessarily in the public interest but nevertheless should be published”; and C), “this story is a private matter and should NOT be published”. That division allows for some nuance in determining what people think the papers have a right to publish and what they think is actually ‘journalism in the public interest’. Here are some results:

• “A well-known England footballer, who is married with young children, is having an affair.” 6% answered A (“definitely in the public interest”), 30% said B (“publish anyway”, and 58% said C (“a private matter”).

•  “A High Court judge has large investments in foreign companies linked to the illegal drugs trade.” 92% A, 3% B, 2% C.

• “A leading politician’s daughter is found drunk in public.” 5% A, 22% B, 69% C.

• “Foods sold by a major supermarket label have been contaminated with bacteria.” 92% A, 3% B, 2% C.

This chimes with how the phone hacking scandal unfolded. Despite O’Neill’s line about “hereditary rulers,” we can look back at the time when the only known target was the Royal Family – those heady days of ‘one rogue reporter’ – and realise how much else it took before the public really cared. It is precisely because the press wielded its power against celebrities and ordinary individuals – not against the powerful interests of governments or criminals, with whom the newspapers did business – that its behaviour caused such an outcry. In short readers actually have their own idea about what does and what does not constitute ‘the public interest’ – and it’s rather more rigorous than Brendan O’Neill’s. They are also more prudish than the ‘circulation democracy’ arguments of the tabloids admit, and not nearly as gung-ho about intrusion as the editors who claim them as an electorate. Some relevant legal institutions agree. Keir Starmer, the Director of Public Prosecutions, gave evidence to the Leveson Inquiry that the CPS would not prosecute for blagging, bribery, or even phone hacking if it was done in pursuit of exposing injustice. New rules published in September 2012 give, among examples of conduct in the public interest, “raising or contributing to an important matter of public debate” (32d) and “disclosing that anything falling within any one of the above is being, or is likely to be, concealed”. These mitigating factors don’t apply for prosecutions under the Official Secrets Act, but they are in place for all the offences laid against Rebekah Brooks, Andy Coulson. And let us not forget the Editors’ Code of the PCC, agreed by the press industry, which forbids “intercepting private or mobile telephone calls, messages or emails” and “accessing digitally-held private information without consent.” In this case, the elite cabal deciding what newspapers can and can’t do is in fact the newspapers themselves. The detention of David Miranda – as well as the surveillance networks revealed by Edward Snowden – raise crucial issues that ought to be fully discussed and evaluated. The harassment by US and UK authorities of whistleblowers and journalists is a public interest issue; the intrusion into the private lives of ordinary people using methods that are forbidden even by the press’ own codes is not. If some of our leading editors really believe that journalism has a mission in this world, they will need to learn the difference between the two – and fast.