Media and Public Shaming

Drawing the Boundaries of Disclosure

Julian Petley

• Publisher: I.B. Tauris
• Year: 2013
• Print ISBN: 9781780765877
• eBook ISBN: 9780857733382
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Public Policy
• Index: Politics & International Relations

The media today, and especially the national press, are frequently in conflict with people in the public eye, particularly politicians and celebrities, over the disclosure of private information and behaviour. Historically, journalists have argued that 'naming and shaming' serious wrong-doing and behaviour on the part of public officials is justified as being in the public interest. However, when the media spotlight is shone on perfetly legal personal behaviour, family issues and sexual orientation, and when, in particular this involves ordinary people, the question arises of whether such matters are really in the 'public interest' in any meaningful sense of the term. In this book, leading academics, commentators and journalists from a variety of different cultures consider the extent to which the media are entitled to reveal details of people's private lives, the laws and regulations which govern such relations, and whether these are still relevant in the age of social media.

1

To Punish, Inform, and Criticise: The Goals of Naming and Shaming

Jacob Rowbottom

Freeloading MPs, businesses with poor customer service, sex offenders, under-performing schools, and wayward footballers may appear to have little in common, but all can find themselves subject to a media ‘name and shame’ campaign. The term ‘name and shame’ is often used loosely by the media, and can arise in a wide range of contexts and serve a number of different goals. In this chapter, three goals for naming and shaming will be explored: (1) to punish informally a named individual; (2) to inform the public about their actions or conduct; and (3) to criticise and express disapproval of them. In practice, the three are difficult to separate and all may arguably be served by the same media campaign. However, each can be separated analytically and each poses its own difficulties.

To ‘name and shame’ is to disclose information about an identified person or body, which either seeks to induce shame in that person, or at least express a judgement that the person ought to feel ashamed of themselves (on the differences between shame, shameful, and shaming, see Massaro, 1997: 672). If the practice succeeds in inducing a sense of shame, it can lead to feelings of exclusion and isolation for the named person. Even if a naming and shaming practice does not succeed in inducing shame, it can lead to a loss of status or reputation in the eyes of others. A person may feel no shame about their sexual behaviour, but may still want to avoid public disapproval among those who believe that behaviour to be immoral.

Naming and shaming by the media is distinct from publishing a story that invades a person’s privacy (Massaro, 1997: 665–6). When a newspaper reveals that a celebrity is in the early stages of pregnancy, that story will invade the celebrity’s privacy but may not seek to induce shame. Conversely, a newspaper might name and shame a person convicted of a criminal offence, but normally that would not be private information. While the two are distinct, they can overlap. When such overlaps occur, legal conflicts can follow in which the courts have to consider the strength of the privacy right over the possible justification for the naming and shaming practice. This chapter does not seek to resolve such questions of balance, but instead seeks to identify and explore three types of goal that may underlie naming and shaming. There are other reasons why the media might wish to name and shame a person, such as to boost profits or to entertain, but the focus here is on the goals that may justify the practice in certain circumstances (over and above general arguments for free speech and the right to convey accurate information).

To punish

Naming and shaming can be seen as a form of punishment for those who deviate from certain standards. In some cases, public authorities use publicity as a formal sanction. For example, section 66 of the Financial Services and Markets Act 2000 provides that the Financial Services Authority can, as one of its disciplinary powers, publish a statement that a person is guilty of misconduct (Cartwright, 2012). Section 10 of the Corporate Manslaughter and Homicide Act 2007 allows courts to impose publicity orders for corporate manslaughter and homicide convictions. Under such orders, the company can be required to publicise the fact of its own conviction (possibly through newspaper advertisements), giving details of the offence and the fine imposed. The official use of naming and shaming penalties may be potent in the context of corporate activity, given the importance of reputation and the limited effectiveness of fines (Macrory, 2006). However, arguments have been made for shaming penalties to be used more widely in criminal law, in relation to the activities of individuals (Braithwaite, 1989; Kahan, 2005). For example, in the US, one court has required convicted sex offenders to purchase advertisements in newspapers to highlight their crime and to encourage others to seek treatment (McAlinden, 2005: 378). In the UK, former minister Ann Widdecombe was quoted by the Telegraph, 24 April 2012, as arguing that people found very drunk in public should, following a court hearing, be named and shamed in the press.

Advocates of shaming penalties argue that publicity can serve various justifications for punishment. Most obviously, it can provide a deterrent. The loss of reputation, status, and social opportunities that can follow negative publicity may deter individuals from engaging in a criminal act. Aside from the potential for social disapproval, the practice of shaming (and also repentance) can ‘build consciences which internally deter criminal behaviour even with the absence of external shaming’ (Braithwaite, 1989: 75). The consequences that flow from being named and shamed may also constitute a form of retribution for the wrongdoing. Furthermore, a formal publicity sanction can serve the expressive function of punishment that publicly condemns certain conduct and signals that disapproval to the offender (Feinberg, 1965). Publicity can also communicate the censure of the criminal to third parties, which ‘conveys the message that the conduct is reprehensible, and should be eschewed’ (Von Hirsch, 1993: 11).

While the legal authority can provide publicity through its own press releases and websites, it can be more effective if the publicity is carried in the media. By reaching a wide audience through the media, the impact of the publicity sanction on the company or individual’s reputation may be greater. In this way, the media can assist where a legal authority has decided to ‘name and shame’ as a formal penalty. However, in the UK, publicity sanctions are not the norm. Instead, the role of the media in publicising legal wrongs is more informal.

The most obvious example of informal publicity arises when the media report the fact of a person’s criminal conviction and the surrounding details. The publicity is not part of the formal punishment, but can still serve the deterrent, retributive, and expressive goals of punishments, in the same way as a formal publicity sanction. While publicity from crime reporting can serve certain punitive goals, it is important to note that publicity is not necessary for an effective punishment. Publicity is not the norm for minors convicted of criminal offences, whose identities are not normally disclosed in the absence of strong countervailing reasons. Lord Bingham stated that for convicted minors publicity should not be used ‘as an additional punishment’ and that it is ‘very difficult to see any place for “naming and shaming”’ (McKerry v Teesdale & Wear Valley Justices, 2000). Furthermore, in certain European countries, such as Sweden, the media do not normally publicise the names of adults convicted of criminal offences, reflecting an effort to reduce the level of stigmatisation.

When reporting trials and convictions, the primary function of the media is to inform people about the criminal justice system, a function that will be considered in the next section. However, it often seems that the media intend their reports to have a punitive effect. The goal can be inferred from the condemnatory tone used by the media, and especially the press, when reporting certain criminal convictions. Serious criminals are sometimes described as ‘fiends’ or ‘monsters’, which promotes their exclusion from society. The media themselves refer to naming and shaming. For example, on the Manchester Evening News website, under the heading ‘Locked Up’, the paper states that it is ‘naming and shaming criminals convicted of serious offences’ in the previous month.¹ It displays a photograph of the convicted individual and a summary of the crime committed. The use of the term ‘shaming’ itself suggests that the media are doing more than merely reporting, and are seeking to impose a social penalty.

Media publicity surrounding a conviction does not constitute punishment in the usual sense of the word, which refers to sanctions ‘imposed and administered by an authority constituted by a legal system’ (Hart, 2008: 5). The courts have stressed that only they have the power to punish people for a crime (R. (on the Application of Ellis) v Chief Constable of Essex [2003] EWHC 1321 (Admin) at [30]). In this view, it is for the courts to decide what sanction is appropriate and proportionate. Despite this, informal publicity has some connection with punishment. John Spencer (2000: 466) has written that, for adults, ‘[t]he unspoken premise seems to be that being named in the newspaper is a part of the sanction, and the risk of public shame is part of the law’s system of deterrents’. If this were to be more openly recognised, then the courts could consider the harsh effects of publicity when deciding the formal sanction. The court has on occasion mentioned the high levels of shame caused by publicity as a mitigating factor in sentencing (R v Oliver [2011] EWCA Crim 3114), although it is not clear when the courts will rely on such a factor. The US scholar Douglas Husak (2010) has argued that a more explicit connection between publicity and punishment should be made, calling for the level of stigma generated by the media to be taken into account when deciding the severity of the sentence. However, if such an approach were to be taken, it would raise concerns about equity of treatment if those criminals suffering the greatest reputational losses, such as businessmen or celebrities, were to receive shorter jail terms.

While distinct from the formal penalty, media publicity can provide a supplementary informal sanction for a violation of the law. By acting in this way, the media engage in a voluntary collaboration with the state. The media may be reluctant to emphasise such a function, as it points in the opposite direction to the classic view of the media as an independent watchdog over the state. By naming and shaming the convicted criminal, the media advance rather than check the interests of the state, and seek to encourage compliance with the laws. That may be no bad thing, and on many occasions cooperation between the media and the state will be expected. For example, the media may publicise statements from the police about a spate of crimes in a particular area. Crime reporting can be supportive of the state in more general ways, given the tendency of the media to ‘exaggerate the threat of crime and in the main promote policing and punishment as the antidote’ (Greer and Reiner, 2012: 269). Of course, not all crime reporting is supportive of existing policies. Certain parts of the media advance a ‘tough on crime’ agenda and criticise judges for imposing ‘soft’ sentences. While taking a critical stance, such reports still seek to further the interests underlying the legal rule by asking how it can be better enforced. The relationship between the media and crime raises many complex issues, but the central point made here is that the reporting of convictions is one way that the media can informally collaborate with the state to further certain punitive goals.

There are a number of criticisms that can be advanced against publicity as a formal or informal sanction (Kahan, 2005). It is not clear whether naming and shaming will be effective and the publicity may be counterproductive. Being named as guilty of particular conduct may fail to trigger the desired social response and be regarded as a badge of honour among some people. Naming and shaming may also highlight the frequency with which the norm is broken, and thereby normalise and make more acceptable the very behaviour regarded by the authorities as shameful. A contrasting line of criticism is that naming and shaming practices may be too effective and undermine the goal of rehabilitation. The social stigma generated by naming and shaming an individual may be so great that the person has difficulty putting past mistakes behind them and being accepted by the wider community. Where the public has a strong reaction to a particular crime, the effects of publicity may be disproportionate to the wrong in question (Cartwright, 2012). Given the unpredictability of the public response to a person being named and shamed, it is likely that publicity can both under- and over-punish in different circumstances. So far the discussion has focused on a simple example of naming and shaming by communicating details of a criminal conviction. This should arguably be the least controversial example of punitive naming and shaming, as the legal authorities have made a public finding of a legal wrong that deserves punishment. However, as the discussion above shows, it raises a number of difficulties. Deeper problems arise when the media act more independently of the state and take a proactive role in deciding when people should be subject to censure and stigmatised as criminals. The famous News of the World campaign to name and shame convicted child sex offenders went beyond the reporting of convictions, and included details of the crimes, and photographs and addresses of the offenders, labelled all the people into one category and had a strong emotive tone. Far from aiding law enforcers, it was condemned by the police and was criticised by many as leading to vigilantism. Other examples include the media naming someone they believe to have committed a crime, even though that person has not been convicted in a court. In these examples, the media target what they take to be a breach of a criminal standard, but do so independently of the legal authorities.

While the independent actions of the media raise all the problems of shaming penalties discussed earlier, there are further criticisms of such methods. The individual named by the media prior to prosecution or conviction may not be guilty and may be subject to unfair criticism (Braithwaite, 1989: 158). The media are not subject to strict evidential requirements before condemning an individual. Where the media publish information beyond the details of a conviction, there are dangers that the publication will interfere with other legal rights, such as the right to privacy (Corbett, 2011). Finally, there is the questionable legitimacy of the media’s authority to invoke informal punishments. As stated earlier, the courts have stressed that only they have the power to punish people for a crime. While publishing allegations of criminal activity independently of legal proceedings may be justified, shaming as a form of punishment does not offer such a justification.

In other examples, the media may seek to shame as a way of punishing violations of non-legal standards. For example, a newspaper might decide to name companies that have used overseas contractors with a poor record on labour standards. While that publication serves an informational role in advising on consumer choices, there is also an element of censure, in which the actions of the company are condemned. Where the conduct violates widely accepted standards, there may be little objection to such social censure. However, in a speech to the Society of Editors in 2008,² Daily Mail editor Paul Dacre made a broader argument defending the media’s role in enforcing social standards:

Since time immemorial public shaming has been a vital element in defending the parameters of what are considered acceptable standards of social behaviour, helping ensure that citizens – rich and poor – adhere to them for the good of the greater community. For hundreds of years, the press has played a role in that process. It has the freedom to identify those who have offended public standards of decency – the very standards its readers believe in – and hold the transgressors up to public condemnation.

One difficulty with this approach lies in determining what social standards should be upheld in this way. In some cases, it is debatable whether a wrong has arisen, such as where a newspaper ‘shames’ a celebrity for having an affair. There are further reasons for caution about such informal publicity sanctions, given that Mill warned of ‘the moral coercion of public opinion’ which could lead to a ‘social tyranny more formidable than many kinds of political oppression’ (1991: 8, 14). However, if there is to be a sanction of public opinion in certain cases, it should not be unilaterally imposed by media that decide what the standards are, whether they have been breached, and what penalty should be imposed. The media still have a role in expressing and persuading others of their view about such conduct, which in turn can create a social pressure to conform, but that will be considered below as part of the freedom to criticise, rather than to punish.

Several punitive functions of the media have been outlined. To critics of the media, these functions may be unattractive in so far as they assign to the media a power that is open to abuse. If there is a punitive aspect to the media naming and shaming, there are dangers if this power is left to the discretion of editors. The punitive functions of the media are also unattractive for the media industry because they stand in tension with the classic liberal account of the press as a check on the state. However, discussion of a punitive function at least recognises the power of the media to have a negative impact on a person’s life and the informal role they play in social control. It is arguable that the media have some value in this role when they act in collaboration with the state. However, a punitive role for naming and shaming in the media can be justified, if at all, only in limited circumstances. Greater exploration of this function in future might identify possible safeguards and conditions that can be attached to this power of the media.

To inform

A second goal of naming and shaming is to provide information. A s...

Table of contents

• Author Biography
• Blurb
• Title Page
• Copyright Page
• Contents
• List of Illustrations
• List of Contributors
• Foreword
• Introduction
• 1. To Punish, Inform, and Criticise: The Goals of Naming and Shaming
• 2. Public Interest or Public Shaming?
• 3. Privacy and the Freedom of the Press: A False Dichotomy
• 4. On Privacy: From Mill to Mosley
• 5. Disclosure and Public Shaming in the Age of New Visibility
• 6. Cultural and Gender Differences in Self-Disclosure on Social Networking Sites
• 7. Crime News and Privacy: Comparing Crime Reporting in Sweden, the Netherlands, and the United Kingdom
• 8. The Dominique Strauss-Kahn Scandal: Mediating Authenticity in Le Monde and the New York Times
• 9. Public Interest and Individual Taste in Disclosing an Irish Minister’s Illness
• 10. Visible ‘Evidence’ in TV News: Regulating Privacy in the Public Interest?
• 11. John Leslie: The Naming and Shaming of an Innocent Man
• 12. The Two Cultures