When is prying in the public interest?

FOR several weeks, much of Britain has been discussing tabloid reports of contemptuous remarks made by two drunken directors of Newcastle United football club in a brothel in Marbella. The two were eventually forced to resign. An old-fashioned journalistic scoop? A good example of how only a free press holds the powerful accountable?

Well, not exactly. Like the cases of the paparazzi who chased Diana, Princess of Wales, in her last hours, or the journalist who induced the home secretary's son to sell her a small amount of cannabis in a pub, the "Toongate" scandal raises complex and important issues about the scope of media freedom and the privacy of people in public life.

English law will not settle these conflicts once and for all. Only custom and practice, rather than a formal legal decision open to challenge, ensure that journalists tend not to be prosecuted for the less savoury means by which they acquire information.

The formal exemptions for the media from the general law will be put in place later this year. The data protection bill has been amended to provide exemption for journalists from the duty to obtain and process personal information fairly and from the right of citizens to see what is held about them. Similarly, the human rights bill that will incorporate the European Convention of Human Rights into British law has been amended to protect the media from restrictions under Article 8, which gives citizens a right to privacy, by forcing cases to come before the self-regulatory bodies first. But this will not stop some cases from reaching the courts.

The self-regulatory bodies are expected to apply the test of whether the journalist or editor can demonstrate a clear public interest. But, as you might expect, little attempt is made to define what the public interest is.

In the case of the home secretary's son and the boorish Newcastle directors, the media engaged, it seems, in entrapment. When is impersonation or entrapment justified in the public interest? Most people think that impersonation over the phone by Bob Woodward and Carl Bernstein in the Watergate case would have justified overriding privacy, because the scale of the wrong-doing being exposed was so great and so clearly an abuse of the power held by the Oval Office.

But the press have not shown that the Newcastle directors had committed an abuse of their power, nor even that the offensive behaviour was part of a general pattern. Impersonating a customer - any customer - in the case of exposing a drug dealer is clearly of a different order from impersonating someone authorised to negotiate a consultancy arrangement on behalf of the Dubai football authorities, which was the stratagem used to lure the wretched Newcastle directors to Marbella.

The problem is that the idea of the public interest is at once too broad and too narrow. It is so broad that it can be read by tabloid editors as legitimising anything their public might want to read about, and yet it is too narrow to explain just what kinds of news-gathering might be permissible.

A better settlement between media freedom and privacy, which I argue in a forthcoming book, is for the courts to develop through case law and under the Human Rights Act, a concept of "the special duty of scrutiny" for the media. The test would then be a matter of when the special duty applies.

We would ask: where is the public interest in the initial circumstances that provoke the scrutiny, in the means by which the investigation is conducted and in its publication?

Where someone in a prominent position is alleged to have done something wrong, or voluntarily entered public life and then evidence appears that their record is tainted, the journalist has a duty to scrutinise and the right to privacy may be overridden.

But there is neither duty nor right of scrutiny where someone has a character flaw that has no obvious relevance to their position or role. The two former directors of Newcastle United may be repulsive, but unless someone can show that this has undermined their professional judgement (presumably the prices of the club memorabilia were agreed by many board members and staff who have not resigned), it cannot be argued that entrapment on this scale is justified.

If New Labour imagines that with the recent amendments to the data protection and human rights bills they have settled issues of press privacy, it is mistaken. The rise of the mass media in the past 30 years is the biggest change in the configuration of power in western societies. In years to come, we should insist on more scrutiny of the ethics of the scrutineers.

Perri 6 is director of policy and research at Demos, the independent think-tank. The Future of Privacy, 2 vols, Demos, London is published on May 18.