In my research I keep bumping up against the confusingly thorny – if woolly – issue of the “public interest”, a concept at the heart of media debates, the Leveson Inquiry and recent privacy and libel cases. There is surprisingly little empirical research to draw upon, but I would commend this report by Morrison and Svennevig from 2002* to anyone interested in interpreting and defining the public interest: ‘The Public Interest, the Media and Privacy [PDF]‘.

Today’s encounter with the public interest came about in this Forbes post by Tim Worstall. He argues that the (wrongly) alleged deletion of the Milly Dowler voicemails by News of the World was “the crux of the allegations that led to the newspaper being closed down”.

It’s generally agreed that all of the other allegations of hacking (actually, not hacking, but the listening to of voice mail messages by using the default PIN) could have been weathered but that it was this one that drove the public mood over the edge.

How does he know? And was it “public mood” that did for NOTW?

Newspapers and their editors play a very significant role in defining the “public mood” that might justify or encourage the publication of certain information, and in turn influence commercial or political reactions.

As Daniel Bennett and I argue in a forthcoming book chapter about the newsworthiness of phone hacking, the Dowler voicemail revelations marked a tipping point in reportage of the scandal. The Times’ editor James Harding told the Society of Editors conference last November: “[Phone hacking] didn’t capture the imagination or the indignation in the way which it did after Milly Dowler.”

While we know (and are frequently reminded) that judges don’t necessarily deem what is in the public interest to be synonymous with what the public finds interesting, the concept of the “public mood” is relevant to the “public interest” defence or test.

In 2005, the (then) Information Commissioner, Richard Thomas suggested that public interest considerations in favour of disclosure might include “informing debate on key issues of the day“; “helping people understand and challenge decisions which affect them“; and “clarifying incomplete or misleading information” [See speech here].

It strikes me that these points are related to the “public mood”. While public mood is not always the same as the public interest, its influence should not be forgotten in the public interest discussion. What factors evidence it, in immediate form? As a start, we might look at:

• Editors’ interpretation and presentation
• Survey/polling results
• Public opinion expressed through radio phone-ins / online discussion / newspaper letter pages / other public forums
• Interest groups and politicians’ statements

In my view, the “public mood” plays as crucial role in media law and journalism as the “public interest” but is a complex and elastic concept subject to a multitude of influences and interpretations. Returning to Worstall’s piece, I would suggest it would be more accurate to say it was the media’s interpretation and presentation of the “public mood” that influenced the development of the scandal (especially in regards to the Guardian’s correction), rather than one “public mood”. [NB: I’m not sure how we would ever know whether it was the deletion detail that led to the tipping point, or whether the interception alone would have been as widely condemned.]

Thoughts around this welcomed, as I try and make sense of it all…

As a semi-related postscript, in my last post I flagged up things to look out for in 2012. I’d add this, which escaped my attention before Christmas: a green paper and draft bill will set out proposals for changes to parliamentary privilege. They are due to be published before the end of the Parliamentary session. Significantly (for this blog, and others interested in media law and public interest reporting) the Green Paper will discuss “whether there should be changes to the law on reporting of parliamentary proceedings in the media“.

The Government will not be proposing to constrain by legislation the ability of hon. Members to name in proceedings in Parliament individuals who are the subject of anonymity injunctions made by the courts. It will be for each House to consider whether to make changes to their internal procedures to address this issue.

Happy new year. Ideas, tips and suggestions to please, or via @jtownend on Twitter.

*Hat-tip: Thanks to Martin Moore for alerting me to it at the end of last year.