What Does the Term 'Public Interest' Actually Mean?

This post first appeared on VICE UK

"Public Interest." It sounds like an ill-advised side project where George Osborne and Mark Carney attempt to rap about fiscal policy. Thankfully, it's not. But what does the term actually mean?

It's one of those phrases you hear so frequently in the news, you assume there's some widely-agreed upon definition, i.e. that, if something is in "public interest," it's something that the public want and that will be of benefit to society. Only, that assumption might be wrong. "Public interest" appears to be a bit of a misleading phrase.

In September 2014, the Department for Energy and Climate Change (DECC) issued a response to a consultation that they had held over changes they wanted to make to existing trespass laws. The changes would allow companies to drill under people's properties without permission. This was to make it easier for them to extract energy sources such as shale gas, oil and geothermal heat. Shale gas—is extracted through a process known as hydraulic fracturing—you've probably heard it being referred to as "fracking."

The consultation had an overwhelmingly negative response. There were 40,647 respondents, with 99 percent opposing any changes to the law. The DECC's reply? "Taking all factors into consideration, we consider that there is a strong case that these proposals will be in the public interest."

This confused me. How can the DECC say that the proposals are in the public interest after a huge majority of people responded saying that they were decidedly not interested? Well, it's because "public interest" doesn't really mean anything, not from a legal standpoint.

The "public interest" was a key factor in the Leveson Inquiry, too. When The News of the World had been found to be hacking into Milly Dowler's voicemail, among others, an ex-NOTW journalist defended the practice by saying that the stories were "in the public interest."

But how can one journalist claim to have a clear grasp of what's "in the public interest" when others admit they haven't got the foggiest? The Guardian's Nick Davies said at the inquiry: "If I'm working on a particular story in particular circumstances, do I or do I not have the public interest on my side? The answer very often is: I don't have the faintest idea because we don't know where the boundary lines are."

Nobody seems to know. The same question has been asked in studies published by the media regulator OFCOM, the Carnegie Trust, and, somewhat bizarrely, The Institute of Chartered Accountants of England and Wales. None of them propose a strict definition, but all agree that having a framework in place would help clear up the ambiguity.

Despite this ambiguity, "public interest"—with no discernible fixed definition—is a key consideration in a lot of decision making processes.

When Google receive a request to remove an article from their listings, they say they have to take "public interest" into account: "When you make such a request, we will balance the privacy rights of the individual with the public's interest to know and the right to distribute information."

When News Corporation wanted to fully take over BSkyB, George Osborne said that "public interest" was of the utmost importance: "We would never allow the public interest to subjugate to the commercial interest or the vested interest."

Since 2011, the letters that the royal family write to ministers and government departments have been exempt from the Freedom of Information Act under Section 37. Before the 2010 election, the Conservative Party made democratic accountability and transparency in politics a key focus of their campaign. This, apparently, didn't extend to the royal family.

However, it also states that it isn't an "absolute exception":

"In considering whether or not to use this exemption Departments should consider whether or not the public interest in withholding the information outweighs the public interest in disclosing it."

To be clear: when responding to Freedom of Information requests regarding the royal family, government departments should consider the "public interest" (an ambiguous concept) in keeping the information secret, and weigh that against the "public interest" (again, an ambiguous concept) in revealing the information.

Somehow, through all that ambiguity, they were able to establish that the majority of decisions should fall in the royal family's favor. Funny, that.

"It is likely to be in exceptional circumstances only that the public interest will come down in favor of disclosure of this information."

While the Royal Family are said to not really have much of a say in how the country is run, they do write a lot of letters behind the scenes. Prince Charles has been accused of lobbying the health secretary to support homeopathic remedies being provided by the NHS. Prince Andrew has allegedly written to US government officials in support of his friend Jeffrey Epstein – who is now a convicted sex offender. Thanks to Section 37, we have no idea how the royal family are using their influence on our government, and this is said to be in the "public interest."

In his opening address to Leveson, Robert Jay QC put it perfectly: "Put simply, the public interest is very often deployed as some trump card."

So, what is "public interest"? A nice-sounding phrase with very little meaning, it seems, and one often used to suit the ends of whoever is claiming to have the public's well-being at heart. It's a comforting concept, but, as Davies suggested, a dangerous piece of – highly subjective – rhetoric that invites little further thought.

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