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Was the use of Hidden Cameras by the News Media Ethically Justified in the Fahey and Todd Cases? Explore Why or Why Not, Referring to Recent Cases [Jane Shannahan] Introduction Right to privacy became an issue in the US as far back as 1890 in words not unfamiliar to 21st century ears: “The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery” (Warren & Brandeis, 1890, cited in Pearson, 2005, p.
). Privacy is much more widely violated today due to technology. Ethical guidelines for journalists have not kept up with these changes, augmented by the availability of platforms on an international scale. Ward has discussed ethics issues for media which include: “Accuracy and Verification: How much verification and context is required to publish a story? How much editing and ‘gate-keeping’ is necessary? (and) Deception and Fabrication: Should journalists misrepresent themselves or use recording technology, such as hidden cameras, to get a story?
Should literary journalists invent dialogue or create composite ‘characters’? ” (Ward, 2009, p.
296). The two cases discussed here came to light via covert recordings made of high profile members of the New Zealand community, namely the sexual allegations against Dr Morgan Fahey and the exposure of the sex and drug life of international eventer, Mark Todd. The proceeds of the recordings were made public. This case study will compare the cases to determine whether the intrusions were ethically justified.
In 1998, TV3 alleged in its 20/20 programme that Dr Morgan Fahey had been sexually abusing patients. A second show featured a meeting between ex-patient Brenda and Fahey in his surgery that Brenda filmed via a secret handbag camera. Fahey’s lawyers tried to prevent the secret footage being transmitted but the injunction was overturned by the Court of Appeal. Fahey was charged in July 1999 and in May 2000 pleaded guilty to sex charges relating to 11 women over a 30-year period. In mid-2000, at age 68, he was sentenced to six years in prison but was released on parole in September 2003.
In June 2002, the UK’s Sunday Mirror featured grainy images purporting to be a gay liaison and drug use in an English hotel room. The party of note was world-renowned Olympic eventer, Mark Todd. The material gleaned from hidden recording equipment was passed on to the newspaper by a 24-year old male prostitute who added that Todd talked about other sexual indiscretions and outwitting drug-testing prior to the forthcoming Olympic Games. To compound the incident, a TV3 reporter went to Todd’s England home with a visible microphone and, unseen, by Todd and his wife, a video camera.
Todd never confirmed or denied any of the sex/drug related allegations. Todd was not charged under law or penalised by the Olympic Committee. Ethical Considerations There are a number of ethical issues surrounding the two cases. Whilst Fahey and Todd were embroiled in different scenarios, there are similar principles at stake. The focal one is the use of covert recording equipment. It is startling to learn that “hidden cameras have been contentious in journalistic practice since their first use almost a century ago” (Wilkins & Coleman, 2005, p. 6). A recent notorious ‘hidden camera’ case relates to the American ABC television channel being sued successfully by Food Lion after ABC infiltrated the workforce in 1992. To the public this meant justice was served because media seemed to stop at nothing to get/manufacture a story. However, for journalists it meant that disallowing hidden cameras was counterproductive to highlighting a public health matter which needed addressing (Wilkins & Coleman, 2005).
This illustrates that the media and its publics are at odds over what is acceptable regarding means of gathering information, even when the media is professing to exercise its traditional watchdog brief. As it happens, Food Lion never spoke to the accusations of unsafe food practices but concentrated on the larger issue of how the damning material was gathered. Similarly, Mark Todd never responded to the accusations against him and any comments were confined to the manner in which the photographs were obtained and the detrimental effect on him, his family and his eventing career.
Morgan Fahey’s campaign involved vehemently denying the accusations whilst condemning the method and making similar pleas for understanding. The New Zealand EPMU’s Journalism Code of Ethics contains guiding precepts including the desire that members do not gain by cash or kind; that they are fair in obtaining news and images and are open as to their provenance when in company of subjects/interviewees and respect privacy (http://www. epmu. org. nz/journalism-code-of-ethics/). The NZ Press Council (NZPC) also recognises the importance of privacy in their Statement of Principles.
However, the NZPC puts privacy in the overall context of pursuit of the public interest: “nevertheless the right of privacy should not interfere with publication of matters of public record, or obvious significant public interest” and subterfuge should only be utilised when “information cannot be obtained in any other way” (http://www. presscouncil. org. nz/principes. html). However, membership of EPMU is not compulsory and neither set of tenets are actually laws. On top of this, the ‘get out’ pertaining to matters of ‘public interest’ is not straightforward as traditionally defining the concept has been fraught with inconsistency.
Over the years dicta have been massaged to justify covert methods in bringing matters before the public. There are no doubt public interest subjects that trump the underlying aim to preserve privacy but judging such cases is problematic. Entitlement to Privacy Democratic ideals include the right to privacy, where privacy is a “condition of being protected from unwanted access by others” (Bok, 1982, p. 10, cited in Sanders, 2003, p. 78). Fahey and Todd were filmed covertly. The fact they were both prominent figures was presumably part of the reason why journalists thought they should be investigated.
Some argue that when people choose to be in the public eye they should not be surprised the public are curious or that it is the media’s job to monitor them. Celebrities of all kinds probably concur that this applies to working life. However, it is certainly true that the public do not seem to be able to get enough of celebrities and the minutiae of private life, whatever their occupation. Paradoxically the public seem to expect public figures to conduct themselves beyond reproach at all times and this expectation is heightened depending on the profession.
Morgan Fahey was a long-established doctor as well as a civic figure, who had done much to improve community life. Mark Todd was a successful sportsman and a role model for young New Zealanders. Todd was filmed partaking in his private life with photographs and commentary printed in a national UK newspaper. Fahey’s privacy was also invaded twice: firstly in his surgery during the covert filming and again when the film was shown on New Zealand national television. The right to privacy should be available to all but this does not suit the paparazzi who need to justify their virtual stalking of many figures.
However, as is recommended by the NZPC, privacy should make way for matters of concern to the public interest, which although a nebulous concept, apparently trumped both Fahey’s and Todd’s right to privacy. Their actions needed to be made ‘un-private’ because it seems public figures cannot expect a private life (unlike the rest of the population). Contribution of Outcomes The NZ Broadcasting Standards Authority (BSA) became involved with Fahey’s case when complaints were made on his behalf. The BSA is concerned with occasions of the public being deceived which was found not to be the case, i. . there was no ‘doctoring’ of the recording. Whilst the BSA noted there was a prima facie breach of Fagan’s privacy, it decreed that the media’s actions were justified under the circumstances (BSA Decision, 2000). The Todd incident occurred in the UK which made it beyond the country’s jurisdiction and added to its remoteness for New Zealanders. The first difference between the two cases lies in the outcome which saw Fahey confess and be convicted. Adultery and sexual preference are private atters, but taking Class A drugs is illegal (it was alleged that Todd consumed marijuana and cocaine). No action was taken against Todd by any authority, anywhere, the result more akin to ‘not proven’. However, the fact remained that Todd had been filmed and ‘something’ had occurred, fuelled by Todd’s camp making no comment either way, choosing to emphasise the unfounded personal intrusion and distortion. Todd’s case was helped too because of the dubious reputation of the Sunday Mirror which had seemed to set up Todd purely for the sake of a revenue-generating story.
As Elder, Johnson and Rishwain expound, such filming is not justified when cameras are used to “test the limits of … privacy, and commit other torts literally to manufacture news and to excoriate and exploit” (2002, p. 433). The Fahey result then neatly ratified the covert filming which confirmed the eventual revelations. Motives & Chequebook Journalism There had been a history of TV1 and TV3 competing by engaging in chequebook journalism (paying for stories) which has had a negative effect on investigative reporting such as the Fahey event (Cupples & Harrison, 2001).
There was speculation that Brenda might make some money from her disclosures but this did not seem to matter in the end due to the successful trial outcome. For Todd, it always appeared that the motive for compromising him was financial – for the man involved and for the newspaper. There was speculation in the NZ media, particularly about whether he was entitled to compete in the Olympics (Todd owes us all an explanation, 2000). The Sunday Mirror’s probable aim of un-doing Todd backfired spectacularly as noted by Todd’s PR professional, Glenda Hughes: The biggest issue was that a high-profile sportsperson chose not to respond, and this was a new experience for many of our media, who couldn’t believe it was happening … The final result was simply that there was no follow-up scoop waiting to be had. Not by anyone” (Hughes, G, 2003). Who are the Victims Both Fahey and Todd immediately positioned themselves as victims based on the manner and product of the intrusions and the effects on their respective families. For Todd, this was a successful strategy but not so for Fahey.
Victim identification marks the point where the two cases really diverge. There were many victims in Fahey’s case but none in Todd’s (discounting wider issues of drug distribution, addiction, etc). A philosophical question arises as to what the long-term aftermath would be if Fahey did not confess and was found not guilty. Similarly, if the other individual in the Todd incident had faced public scrutiny the outcome may have been much less positive. This failure to face the public of course turned out to be a plus for Todd’s reputation, i. e. ending weight to his consistent assertion that it was all a tabloid set-up. In the victimless Todd episode, it could be projected that no harm would permeate if certain facts were not publicised. But if Fahey had not been exposed, that would mean his victims would never have any resolution, Fahey (and others like him) might continue to self-validate their actions and continue to offend. Being caught also sent the message that high status is not a licence to practice abuse on lower status individuals. Not all the media were against Fahey initially.
TV1 interviewed him, barely alluding to the allegations, but instead Fahey: “made some allegations of his own that were to recur in subsequent media reports on the story – particularly that the women were employed as part of a dirty tricks campaign engineered by his rivals in the mayoral elections and that there was a history of mental instability in some of the complainants” (Cupples & Harrison, 2001, p. 195). Fahey also maintained there was a conspiracy to spoil his Mayoralty bid but he only ever threatened a defamation suit.
The reaction of public institutions to the allegations against Fahey was skewed most probably because he was such a prominent figure who had won awards (many of which he was latter stripped of). This was manifest in that he was not struck off until five months after arrest and the Christchurch City Council granted him four months’ paid leave (Langwell, n. d. ). The Olympic Committee probably search for performance-enhancing drugs given to the horse rather than the recreational kind used by riders. However, marijuana and cocaine are illegal and the Olympic ethic could be undermined f a world champion and role model was found to have a drug habit. The fact that the Olympic Committee stayed loyal to Todd from the outset could well have impressed the public – many of whom quite possibly also rallied, taking the view that his alleged unseemly actions were not cause for public outrage, more a matter between him and his family. This refers again to the idea that the other party in the Todd case was most likely paid by the Sunday Mirror and the paper would accrue revenue for printing the story.
Todd’s camp responded by stating that it was a “squalid tabloid newspaper set-up” that was an “unjustifiable and disgraceful intrusion” (Todd accused, 2000). Todd maintained throughout that there were “many distortions and untruths” in the story. What is interesting about Todd’s circumstance is to wonder if someone in his position, in the current ‘kiss and tell’ era, would take such risks. Regulation & Trial by Media The media is mainly self-regulating as evidenced by the principles evinced by the EPMU and NZPC, backed up by the BSA and interpretation comes into play on a case by case basis.
The influence of technology has required changes to media ethics. An example of regulation ‘gone mad’ is in Malta where media have to get permission from the public if they are photographed as part of any large crowd which is an utterly unwieldy proposition. (Pearson, 2005). There is also the influence of culture. For example, a study showed that Brazilian journalists were much more likely to use hidden cameras than Americans but this was in a context where the South Americans had less access to political and commercial information and public institutions tended to optimise, i. . massage, statistics to avoid censure (Hersckovitz, 2005). Journalists have sometimes seen fit to “police themselves and determine the standards by which they will be judged” (Feighery, 2011, p. 170). This perspective would amount to one-way asymmetrical communication, i. e. no recourse to outside opinion or feedback considered, which is outmoded. Feighery suggests that the public should have input regarding standards and practices to enable two-way communication to be most symmetrical; whether this is practicable is another question.
Bizarrely some media output over Fahey initially concentrated on “whether the timing of the broadcast was appropriate given the coming elections, whether a television programme was an appropriate space to make these allegations, and whether the women could be believed given their anonymity” (Cupples & Harrison, 2001, p. 190). Todd was in a similar position due to the forthcoming Olympics. The two cases had in common the ‘trial by media’ process, a development lambasted by Fahey’s lawyer. However, the BSA ruled that “proof of guilt is not required before allegations against a person is broadcast (BSA, 2000, n. p. ).
In fact, for a long time, Fahey had many numerous supporters in high places, which had quite the opposite effect. There was no vigilantism; he confessed, was convicted and incarcerated according to due process. Todd neither confirmed nor denied the accusations and did not threaten legal action. Hidden Cameras, Watchdog & Subterfuge As noted earlier, authorities recommend hidden recording should be employed as a last resort. Elder, Johnson & Rishwain, 2002 urge that hidden cameras not be used to drive a story as this is also doing a disservice to consumers when footage could be open to more than one interpretation.
But once the Fahey film was made public other patients spoke up and it was revealed that Ansett Airlines had been hearing disturbing comments from new female trainees since 1990. It was also the case that other doctors were aware of Fahey’s proclivities and women’s welfare groups had been passing on information to the Police for a couple of years (Langwell, n. d. ). Despite all these strands of communication, the Police and other public authorities failed to take action which is probably why the bold step was taken to put the subject on television – twice.
Whilst the Fahey footage was not a confession, it must have contained enough elements to finally galvanize the Police into action. The NZPC and the BSA both behove journalists to resort to subterfuge when other avenues of gathering information have been exhausted. Due to the Fahey outcome it can said that the media was right to exercise its watchdog role and employ subterfuge. Apparently the Todd material was ambiguous with the actual meaning unclear and the Sunday Mirror does not have a reputation for a watchdog with much integrity.
The paper came second right behind the (now defunct) News of the World (NOTW) in research from Morrison and Svennevig (2007) scaling papers more likely to intrude into personal lives. The same poll found that 68% of respondents thought papers more likely to intrude than TV news and the intrusion was into love-lives. It seems unlikely that the Sunday Mirror went to the Police, or any other moral guardians, with negative information about Todd before embarking on its subterfuge and decision to publicly release their ‘find’. Links with Recent News Stories
Google Street View in 2010 collected photographs of people’s homes without their permission and in doing so, inadvertently collected sensitive personal information. Google believed it was acceptable to take photographs of such public buildings but this led to criminal and privacy investigations in the UK and many other countries. This case is a little back-to-front in that a seemingly innocuous public image was taken but in the process, intruded vastly by acquiring so many people’s details (Halliday, 2010). This illustrates the issue of deciding whose interests are being served and the extent to which rights can be infringed.
In 2010, the Duchess of York was secretly filmed negotiating a large payment (? 500,000) to supply a businessman access to her ex-husband, Prince Andrew. The meeting has been set up by The News of the World (NOTW). This debacle reeks of similarity to the Todd one in that a prominent person was set up purely for the purpose of a ‘juicy news’ story. The Duchess had been publicly humiliated previously in 1992 when she was filmed by paparazzi topless in the company of her financial advisor, John Bryan who was sucking her toes (Rayner, 2010). This was a further intrusion similar to that endured by Todd.
A New Zealand landlord named Norris placed cameras all over a house rented by a woman who was having an affair. The landlord then informed the man’s wife and showed her the photographs. The tenant believed the cameras to be motion sensors. The landlord in question was a former mayoral candidate. This case was a first and agreed by all (except Norris) to be a “gross invasion of privacy” (Grunwell, 2010). (The recordings were made in 2008 but the case was not heard until 2010. ) Like so many media, Norris believed he was within his rights to deliberately undertake secret filming, but the media have more experience in excusing their actions.
The media became obsessed with England Rugby Captain, Mike Tindall – recently married to Zara Phillips – over CCTV footage of him in close contact with an unidentified female when he was ‘worse for wear’ in his hotel. The security guard took a copy of the film illegally and then uploaded it to YouTube. It can only be speculated that the guard, Jonathan Dixon, believed he was doing his duty as a concerned citizen. What is disturbing about this, as the author says: why it was of such interest to NZ media and why it was even deemed to be news (Rasmussen, 2011).
This incident was another case of the ‘public’ becoming ‘private’, i. e. Mike Tindall should have felt secure in the confines of the hotel – a public place – without having to consider whether his private life would become compromised. Whilst it was ethical to have CCTV cameras, there was no justification for publication. In September 2011, the NZ Supreme Court ruled that covert filming could not take place on private property. The SIS has for many years monitored private properties but this is now illegal in line with the Supreme Court decision over the recent Urewera issue.
Due to the importance to national security the government were intent on implementing an interim measure to overcome this contradiction (Cheng, 2011). Whilst many may not believe that terrorism and the like could occur in this country, there is still a duty to protect visitors and citizens from the possibility. This could be regarded as a situation where individual rights would have to give way for the greater good – a social responsibility. The last example of recording/broadcasting without permission goes back to 2002 but is mentioned here as it illustrates a horrendous extreme.
That year a maker of porn films, Steve Crow, planned to include 10 minutes of a baby’s birth in a porn film, the mother-to-be, a stripper known only as Nikki, having given her permission. Crow maintained that no outside agencies had any right to stop him. A lawyer on behalf of the foetus said that: “the film would infringe the baby’s basic rights, including privacy, the right not to be an object of sexual gratification, not to be in a porn movie and not to be exploited for the commercial gain of others” (Wycherley, (2002).
In the event, complications meant the birth had to take place in a hospital. The Public Interest The investigative journalism carried out by TV3 actually points up a paradox: we expect the media to act in our interests but “historically, the aims of television regulation and of investigative journalism seem often to have been at odds with one another” (Goddard, 2006, p. 46). Commentators often speak of public interest as a justification for hidden recording equipment but this generally relies on justifying individual rights being subverted in favour of the greater community.
To iterate the NZPC’s dictum whereby, “the right of privacy should not interfere with publication of matters of public record, or obvious significant public interest” and subterfuge should be used when “information cannot be obtained in any other way” (http://www. presscouncil. org. nz/principes. html). Certainly in the Fahey matter, the BSA decreed “there was a strong public interest in the broadcast” (BSA, 2000). This was backed up by the Court of Appeal which held “there could be legitimate public interest in the exposure of misconduct” (Unmasking Dr Fahey, 2000).
What other matters then constitute the ‘public interest’ when it is not suffice to answer ‘what the public is interested in’. As Bernstein (1992) says, media give the public what media thinks they want and what media hopes will sell – humouring rather than challenging (cited in Carter & Allan, 2000, p. 134). Social Importance As noted earlier, attempts at defining the ‘public interest’ have been unsatisfactory, allowing reporters to meld an issue to fit the unclear parameters in order to justify certain stories.
Morrison & Svennevig (2007) have posited an alternative paradigm, that of ‘social importance’; a tenet of which is that the public are not entitled to know everything, following Kieran’s argument (2000). Another issue is if important news can be conveyed without images, especially when that action could betray the privacy of unfortunate participants and their families. Whilst the public will watch anything it does not follow that they are entitled to do so. Issues of privacy become blurry, an example being the 200 people who fell from the World Trade Centre towers in September 2011.
The authors found that interviewees linked public interest and privacy to taste and decency. It was found that there had to be an impact on groups of people, felt in a personal way. Fahey’s behaviour had an undeniable adverse impact on many, whereas the Todd example had little or no impact on community groups. The researchers conclude that: “the term ‘social importance’ appears … to capture all that ‘in the public interest’ refers to without the associated operational difficulties of the latter … and social importance can be scaled from very high social importance to very low” (p. 1). This scale also aids in deciding level of acceptable intrusion. Conclusion Deciding the rights and wrongs about filming, whether it be overt, covert and when it is justifiable are made much more complex when so many have sought notoriety, from the glut of reality TV to allowing 24 hour global webcam access to one’s bedroom as did Jenny Ringley from 1996 (http://en. wikipedia. org/wiki/Jennifer_Ringley). Was it ethically justified that media employed covert recording equipment to obtain data in the Fahey and Todd cases. This question can be answered by urther asking if it was it of social importance that Morgan Fahey abused patients over decades and if Mark Todd might be bisexual and might not be averse to relaxing with drugs. I would suggest ‘yes’ on both counts for the former (Fahey) and ‘no’ on both for the latter (Todd). This conclusion has been reached by comparing pertinent issues such as: right to privacy, private versus secret behaviour, media watchdog role, penalties incurred, media motivation, victim status, the contribution of technology and inadequate media regulation. The cases overlap but closer comparison shows, much more importantly, where they differ.
The final assessment is strengthened by employing the social importance tool over the unformulated public interest ideal. Social importance also helps evaluate an acceptable level of intrusion which relates to establishing a right to privacy not just for well-known figures but across the board. Cupples and Harrison examined how the Fahey case played out in the media which in turn influenced the public’s reaction: “the content of (the) secret film enabled a transformation of Fahey’s identity, achieved through the inversion of public and private” (2001, p. 198).
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