Pandaemonium

THE WRONG SOLUTION TO THE WRONG PROBLEM

Everybody believes in press freedom. But what is it to have a free press? And how do we protect it? These are the questions raised by the publication of the Leveson report into the ‘culture practice and ethics’ of the British press and the debate that has both preceded and followed it.

leveson press conference

In his report, Lord Justice Leveson talks of his ‘outrage’ at the ‘havoc wreaked on the lives of innocent people’ by the unethical and criminal behaviour of sections of the British press. He dismisses the idea that the press can clean up its own act. He proposes, instead, an independent regulatory body, underpinned by law, to police press standards and impose sanctions including, apparently, up to £1m fines.  Newspapers would be free not to join the regulatory body. But those that refused to would face sanctions, including the possibility of ‘exemplary’ damages in court if found guilty of misconduct.

Many, including many advocates of free speech, have welcomed the report. David Cameron has caused outrage by questioning the wisdom of underpinning press regulation with statute. I have little sympathy for Cameron’s predicament. His record on civil liberties is abysmal, and the political difficulties in which he now finds himself are of his own making. Nevertheless, I too reject the core of the Leveson argument.

According to Leveson, his proposal ‘is not, and cannot be characterised as, statutory regulation of the press’. That, it seems to me, is sophistry. I regard the US First Amendment as the touchstone of free expression and of a free press. Any law on the press or on speech must, in my view, pass the First Amendment Test. That is, would such law survive or fall foul of its constitutional protection? The answer in this case is that it would fall foul of it.

The Leveson report tries to allay fears that its proposals might undermine free speech by insisting that any new law that regulates the press must also enshrine ‘a duty on government to protect the freedom of the press’. Many have presented this as a British version of the First Amendment. The First Amendment does not, however, impose ‘a duty on government to protect the freedom of the press’. Rather it constrains government from interfering in free expression. Congress, it states, ‘shall make no law abridging the freedom of speech or of the press’, a very different approach to that taken by Leveson and his supporters.

The First Amendment has provided not just a test for laws on liberty. It has also helped establish a telling division among civil libertarians. Those steeped in the First Amendment tradition have mostly opposed the Leveson proposals; those who draw more on ‘European’ traditions of freedom and liberties have welcomed them. Carl Bernstein, the veteran US reporter who with Bob Woodward broke the Watergate scandal, insisted on Channel 4 News that criminality should be a matter for the law, but that the law should not have a place in regulating non-criminal behaviour:

The answer is to find the proper way to put [journalists] in jail for the horrible offences that they are guilty of, not to try and restrain free speech, freedom of the press. That is going to come back and bite British ­democracy in the ass because that is what this is about. It’s an easy answer to a tough problem.

Clive Stafford Smith is perhaps Britain’s leading civil libertarian. He spent years in the USA defending death row prisoners. More recently he has acted for Guantanamo Bay detainees, been a harsh critic of the ‘war on terror’ and is a director of human rights organization, Reprieve. He, too, is appalled by both the Leveson proposals and much of the response to it:

Maddening that (il)Liberal Dems and Labour want to constrain the press with a statute; what are Cleggster and Miliband thinking?

The New York Times is a long-standing critic of Rupert Murdoch and of his journalistic and business methods. The Leveson proposals, it wrote, ‘seem misplaced, excessive and potentially dangerous to Britain’s centuries-old traditions of a press free from government regulation.’

papers in chains

Why, then, do so many liberals and civil libertarians take a different view and support Leveson? The argument for press regulation rests on two main claims. The first is the belief that journalism needs to be regulated like other professions such as medicine and the law.  Only then, many argue, can unethical behaviour be controlled. The trouble is, journalism is not like any other profession. Doctors and lawyers provide a service, for which they must be highly trained and licensed by the state. Doctors and lawyers rightly comprise a tightly controlled club from which the unethical and the incompetent can be excluded. The state necessarily plays a role in deciding who can and cannot practice medicine or the law.

Journalism is more like a public conversation than a service. The relationship between journalists and the public is very different from that between a doctor and a patient or a lawyer and a client. It is not experts or the state who are the ultimate judges of whether a piece of  journalism is good, or a journalist ethical, but the public itself. Doctors or lawyers can be struck off by their professional bodies for malpractice. But how do you strike off a journalist? As Padraig Reidy of Index on Censorship has put it:

You may be able to sack her, but what if she starts to blog, to Twitter, to produce her own paper?

It is, in other words, both practically impossible and politically undesirable to treat a journalist as one might a lawyer or a doctor. Journalism, in Reidy’s words,  is not simply a profession but ‘one way in which people can exercise their right to free expression’. The question of journalistic ethics is vitally important and needs to be tackled. But it cannot be tackled by pretending that journalism is like any other profession, or through greater regulation, especially regulation underpinned by the state.

The second reason for which many demand press regulation is  the overweening power wielded by press newspaper owners. The global media empire of Rupert Murdoch, in particular, has generated much fear and loathing.  It is true that Murdoch’s command over large swathes of the print and media industries has afforded him great influence. But we should neither exaggerate that power, nor see it as unique. There is a long history of powerful press barons, particularly in Britain, who have tried to influence politicians and shape political life. Old-fashioned British newspaper owners, such as the Lords Beaverbrook and Rothermere, who dominated the industry in the first half of the twentieth century, possessed far greater social and political power than Murdoch does today. They were also far more willing to interfere in political life. In 1931 Beaverbrook and Rothermere put up their own candidate in a parliamentary by-election in Westminster St-George to show their displeasure with the Conservative Party leader Stanley Baldwin, whom they had come to regard as not sufficiently their poodle. Can you imagine the response if Murdoch attempted a similar stunt today? But even these old-fashioned barons possessed less power than they, or we, like to think. Despite a ferocious barrage of propaganda from the Beaverbrook/Rothermere stables, their candidate lost; the official Tory took almost 60 per cent of the vote. Fourteen years later, the Tory-leaning press launched another ferocious propaganda campaign – this time in support of Winston Churchill’s Conservative Party and against Clement Attlee’s Labour Party at the general elections. Labour won by a landslide, with 393 seats to the Tories’ 197.

who-owns-the-news

What is different today is not that the media has become more powerful, but that political institutions have become far weaker. The authority of politicians has plummeted in recent years and the public has become increasingly disengaged from politics. The role of the media has expanded to fill the gap left by the hollowing-out of public and political life. In the past, the political class spoke from a position of strength. Its social authority was unquestioned and it possessed immense self-confidence in its ability to rule. Today, the weakness of the political class, the erosion of its self-confidence, the bankruptcy of its ideas – all ensure the greater influence of a figure like Murdoch. The media has assumed its position of unprecedented influence almost by default.

And yet, in reality, caught between a plummeting readership and an expanding Internet, the press is probably less powerful today than it has been for more than a century. In the 2000 pages of the Leveson report there is but one page on the Internet or social media, which it dismisses as an ‘ethical vacuum’.  It is a striking blindness, but not untypical of the report.

The press is not only weaker than before, it has also become less willing and able to play its traditional role of ‘speaking truth to power’, happier to chase celebrities than hold the powerful to account, desperate to pass off gossip as news. In part, this process has been driven by many of the same social developments that have undermined the authority of political institutions. The media, as much as the public, have become disengaged from the political sphere. Newspapers have a more intimate relationship with politicians but less engagement with politics.

The promotion of gossip has, for newspapers, become a cash machine. What drives the gossip machine, however, is not just profit but also the cultural blurring of the line between the public and the private. The spewing out of the private into the public is not just a tabloid issue but a much broader cultural phenomenon. From misery memoirs to serious journalists probing the drinking habits of politicians, from Facebook users revealing to the world the most intimate aspects of their lives to CCTV cameras on every street corner, from bedroom webcams to reality shows that trade on humiliating contestants – our whole culture seems uncertain about where the public ends and the private begins. There is, of course, a big difference between voluntarily offering up intimacies and such intimacies being made public against people’s wishes. Nevertheless, the tabloids have coarsened our culture largely because an increasingly coarse culture has provided new opportunities for the tabloids  – and not just for the tabloids. Tackling the issue of press ethics, in other words, restraining gross intrusion into people’s privacy, means far more than simply reining in the newspapers; it means transforming the culture within which they operate.

The real indictment of the press today is not that it is too powerful but that it is too cowardly.  It fails to probe deeply enough, it is unable to ask the difficult questions of those in power, it refuses to challenge received wisdom. In that sense the problem with the press is not that it is too strong, but that it is too weak.  Nothing in the Leveson report addresses that issue. Indeed its proposals will only help accentuate the weaknesses of the press. The trouble with a more regulated press is that it is likely to become more, not less, tame and conformist, less willing to get itself into trouble, less prepared to confront those who hold power.  The Leveson report provides the wrong solution to the wrong problem.
hacked off

Perhaps as deep a problem as the Leveson proposals are some of the responses to the report. When David Cameron expressed misgivings about the statutory component, there were cries of ‘betrayal’, claims that he had ‘hung the victims of crime out to dry’, that he had ‘sided with the Fleet Street bullies’.

But why should a Prime Minister, or any politician, accept in full (or even in part) the Leveson Report? What is wrong with dissenting from its proposals, debating it, putting its conclusions under scrutiny? Is that not the function of Parliament? What, many Leveson supporters have asked, was the point of spending so much money and time on a public inquiry if its proposals were not going to be accepted in full? One might equally ask: what is the point of spending so much money and time on electing MPs if all they are supposed to do is rubber stamp inquiry reports? It is an argument that tells us much about attitudes to democracy these days.

I fully understand the anguish of the victims of outrageous press intrusion and malpractice, their desire for newspapers to be reined in, their anger at those who may not fully endorse the Leveson proposals. But however much our sympathies are with them, the fact that someone is a victim does not make him or her right, or give them greater moral authority or political insight. A political campaign, especially a campaign for a ‘free and accountable press’, should surely take a more considered position. What infuriates me is not the claim that statutory underpinning of press regulation is necessary. That is a legitimate argument, even if it is, in my eyes, mistaken. What infuriates me is the claim that this is the only legitimate argument, that to dissent from it is an act of moral cowardice, of betrayal, and that the only reason one can oppose Leveson is if one is in the pocket of Murdoch or the Mail, if one has crossed over to the other side.

This is the kind of emotional and moral blackmail that has long been the currency of many a tabloid campaign, and the source of many of their excesses. It is ironic that the Hacked Off campaign and its supporters should indulge in it too. But perhaps not so surprising. For the moralising of debate has long spread far beyond the tabloids, and become central to much of political life. The consequence has been the development of a ‘You can’t say that!’ culture, where to dissent from the consensual line is regarded as a moral outrage rather than as a democratic right.

And that is what is worrying about the Leveson proposals themselves. The problem with the Leveson report is not that it imposes or implies state control of the press. It will not involve politicians directly interfering in newspapers or censoring material. But the threat of regulation, and of enforcement of sanctions for wrongdoing, will inevitably create a more conformist press, less willing to challenge, to dissent, to be offensive. To those who insist that the regulator will wish to curb only the obnoxious practices by which we are all appalled, I would suggest that they study the history of every recent law restraining liberties. From the Public Order Act to the Regulation of Investigatory Power Act (RIPA), every such piece of legislation has, once on the statute books, vastly expanded in scope, and been used for restricting speech and actions far beyond that for which it was originally intended; collectively, this expansion has had a chilling effect on liberties.

‘The image of Murdoch, Lord Rothermere, Paul Dacre and the Barclay brothers wrapping themselves in the flag of liberty is’, Hacked Off’s Brian Cathcart observes, ‘as repulsive as it is amusing’. Indeed it is. But the reason that the likes of Murdoch, Rothermere, Dacre and the Barclays brothers are able to do so is that  liberals and radicals have already cast away that flag. They have vacated the space of free speech, allowing reactionaries to occupy it. In this the debate about press freedom mirrors that of free speech more broadly. There, too, reactionaries like Dutch politician Geert Wilders and the French Front National leader Marine le Pen have been able to promote themselves as martyrs to free speech. Why? Because liberals and the left have effectively given up on freedom of expression, taking to demanding more regulations and restrictions on unacceptable speech. Let us not repeat that mistake again.

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33 comments

  1. JeremyR

    While a lot of this argument makes sense, it fails to provide an answer to the problem: how do you stop appalling intrusion such as that into the lives of the Dowlers and the McCanns while not constraining investigative journalism in the public interest? The answer that the anguish of innocent victims is a price worth paying for press freedom (i.e. it’s best to do nothing) may sound fine, provided you’re not on the receiving end of the press pack.

    One solution could be to make publication of details of someone’s private life without their permission a criminal offence, unless it was in the public interest – with significant fines available as penalties. A jury, not a government appointed regulator, would then decide the marginal cases. Hopefully any jury would be able to distinguish between hacking Millie Dowler’s phone and, say, exposing the hypocrisy of a politician who preaches “family values” while cheating on her/his spouse.

    This approach would avoid the slippery slope of a government appointed regulator, and the problem that it’s too expensive for “ordinary people” who become victims of intrusion to resort to the civil courts.

    It’s probably more realistic than changing society’s appetite for gossip, or media ownership. (The latter, by the way, is not all negative. Murdoch makes money from the Sun, and used to make money from the News of the World. But he cross-subsidises The Times, which is loss-making, but exemplifies just the sort of quality journalism that presumably everyone wants to preserve.)

    • Twm

      Phone hacking is already illegal, hence the on-going police investigation.
      The non criminal intrusion of the ‘into the lives of ordinary people thrust into the public spotlight’ type is indeed harder to deal with.
      Newspaper owners now appear to be saying they are willing to set their own set of rules – and crucially stick to them, or at least pay fines if they breach them.
      While I agree that an attempt to change the public appetite for gossip is ambitious (perhaps unrealistically so), perhaps ‘post Leveson’ the public will turn their backs on papers that are repeatedly shown to break their own rules.
      Thank you Kenan for a very well composed argument, it would be good if ‘Hacked Off’ linked to it & asked people to read it before signing its full endorsement of Leveson petition.

      • The refrain of many, notably Ian Hislop, that these acts are already illegal is marginally correct – but also exposes the underlying problem in sharper relief.

        Journalists and many others working for Newspapers (it’s not credible to limit this to NoTW) saw no disincentive in committing illegal acts and interfering with police investigations.

        They generally saw themselves above the law. Judging by the reaction since Hack-gate and Leveson came into public view, little has changed in their mindset. The police openly admit that they could not have pursued NoTW without the cooperation of News International management, and there appears to be no alternative view of press regulation coming from government beyond a no-to-leveson campaign.

        The press have not cleaned house. The dirty secret of most newspapers is that they were all as guilty as NoTW, but don’t want to pay the price.

      • Cityhobgoblin

        How many times in the past have the press said that they are ‘willing to set their own rules and…stick to them’?

      • JeremyR

        Fair point re hacking. I should have chosen another example from the many available that are intrusive but not illegal. The hounding of Chris Jeffries, the innocent landlord in the Bristol murder case, would have been better. Or even Max Moseley. That story was nothing to do with his role in F1, and the Nazi bit was pure fiction, made up because his name is Moseley – about as shoddy. Excellent idea of the link from Hacked Off. Too easy to have a knee-jerk reaction to this.

  2. While I broadly agree with the view that the first amendment has been successful and that even hate speech should be protected your piece fails to address the problem which underpins the whole matter. The press was and is out of control, and that has not changed.

    Even supposedly learned newspapers behave like amoral children, screaming desperately for the latest scandal, when they find none they will spin anything into pseudo scandal.

    The assumptions of pieces like this one, which is well argued, appears to be that the press has corrected it’s course. That there is now a disincentive in going after people like the McCanns – this view is severely wanting.

    If the press does not want Leveson, then it needs to come up with a credible alternative, and authors like yourself need to address this point rather than protesting Leveson’s case.

    • I have nowhere suggested that ‘the press has corrected its course’. If anything I am arguing the opposite – that self-regulation will not work properly until there’s a cultural shift too. The point is, it’s easy fingering the tabloids, but the problems run much deeper. Tighter regulation not only avoids addressing the underlying problems, it also threatens to erode the very mechanisms we need, including free and open debate, that can address them.

      • My point was that by not supplying an alternative you leave us with the failed self-regulation ‘status quo’ (having walked us to the brink).

        It is indeed a culture problem, we agree on that, and I too am concerned about the legislative overreach that we have seen in recent years. But what is the alternative?

        Self regulation has utterly failed, our existing regulatory bodies in every industry from ORR to Offwatt are so utterly weak they are simply expensive window dressing!

        Front to back the press is rotten, and while I’m open to the idea that legal regulation isn’t the best course, what practical alternatives are there.

  3. Ed Wilson

    “Carl Bernstein, the veteran US reporter who with Bob Woodward broke the Watergate scandal, insisted on Channel 4 News that criminality should be a matter for the law, but that the law should not have a place in regulating non-criminal behaviour.”

    So the Securities and Exchange Commission (to use a US example), which regulates non-criminal behaviour with a view to preventing criminal behaviour should not have been established by the Securities Exchange Act of 1934 and should not have been amended by several other Acts.

    It’s not a sensible distinction.

  4. Mark

    Well argued but completely missing the point as, sadly, we have come to expect from anyone working in journalism. Freedom of the press is a well meaning phrase but it has little currency. Newspapers are free in so much as they can print what their proprietors want (or what their editors believe their proprietors want). However, try to get them to give equal weight to a conflicting opinion and you realise the press is no more free than Pravda. The response to Leveson itself illustrates this very point. The fact that its been like this seemingly forever doesn’t make it any more acceptable.

    Should newspapers be free to expose wrongdoing and hypocrisy without fear or favour, absolutely (although I would suggest they’ve enjoyed the without fear part a little too much while generally ignoring the without favour bit). The trouble is, the most popular newspapers are using this laudable aim as cover for peddling gossip and smut. I have no interest in, nor any right to know, who a particular footballer is sleeping with or whether a certain politician is straight or gay. As long as they’re breaking no laws, or acting hypocritically, it’s none of my business and, quite frankly, it’s none of yours. Had ‘serious’ newspapers held their less worthy brethren to account, we may not be in the mess we are. Unfortunately they didn’t, and they won’t, because there a too many vested interests involved. That is why another voluntary, even if independent, regulator will be a waste of time.

    Finally, why refer to the American First Amendment? We are not America and we don’t have a written constitution (although I think we should). I don’t recall the press making much fuss when attempts have been made to curtail protestors’ freedom of expression (in the case of Brian Haw and various poppy burning stunts). And I don’t remember any protests from the press quoting America’s fifth and sixth amendments when the law was changed on double jeopardy and the right of certain terrorism suspects to challenge their accusers. What of America’s second amendment; is it perhaps a good idea that we too should have the right to bear arms? Perhaps those who have been relentlessly pursued by paparazzi or door stepped by hacks would think so.

    • The press, you say ‘is no more free than Pravda’. So why do you want to make it even less free with further regulation?

      Perhaps if you had actually read my piece you might have realised that I myself had made the argument against the passing off of gossip as news, as I have for a long time. But I also made the point that the reasons for the erosion of the distinction between gossip and news lie not simply in the actions of the tabloid but also in wider social and cultural changes. ‘More press regulation’ is the easy, catchy solution. It does not, however, address the underlying problems.

      Why do I refer to the American First Amendment? Because I believe in the free speech principles embodied in it. And as for the press not ‘making much fuss when attempts have been made to curtail protestors’ freedom of expression’ or ‘when the law was changed on double jeopardy and the right of certain terrorism suspects to challenge their accusers’, that is absolutely true. But why is that an argument for greater regulation, or a less free press? I certainly campaigned against those restrictions on civil liberties (unlike many of those now calling for Leveson to be implemented). And I campaign against Leveson-style press regulation for exactly the same reasons. What I don’t get is why the fact that the press is not free should be an argument to make it even less so.

  5. A few appeals to authority, one or two straw man arguments and generalised references to liberals, radicals and reactionaries and that seems to be about the sum of it.

    The fact that Clive Stafford Smith says something doesn’t automatically make it right. And much as I like and read the NYT, I’m not duty bound to agree with all it publishes on the basis that it is the NYT.

    You say:
    “What infuriates me is the claim that this is the only legitimate argument, that to dissent from it is an act of moral cowardice, of betrayal, and that the only reason one can oppose Leveson is if one is in the pocket of Murdoch or the Mail, if one has crossed over to the other side.”

    Knocking down your own straw man there I reckon. What infuriates you is your imagination. Still, it doesn’t stop you from claiming the contrary in no uncertain terms, such is your fury!

    Do you really know the difference between freedom of speech and freedom of the press? It’s hard to tell. Or how about the difference between something in the public interest and something the public might be interested in?

    I rather suspect you haven’t had your privacy trampled on by the press, or had your life and family ruined because of the financial imperative of the press to pander to public prurience for entertainment. I suspect if you had, then you might have identified a different problem. There is a reason why the first consideration given to publishing stories about the public, famous or otherwise, has been the likelihood and wherewithal of the victim to fight back. If you didn’t know this then you don’t know much about tabloid newspaper publishing.

    Maybe you believe the purpose of a newspaper is to inform and educate, rather than to be a platform for advertising.

    Did you know that your time in court and dealing with defending yourself can never be adequately recompensed? It’s time out of your life that you can’t have back and no amount of money can make up for. So why not have punitive legal sanctions against those whose actions resulted in the misappropriation of time, simply for that act alone? Why not have an obstacle to make the press hesitate before publishing.

    Sections of the public may well have a taste for gossip, but that doesn’t mean the press are duty bound to feed it. They are only financially obliged to feed it because they lack the imagination and scruples to do otherwise. The public also have a taste for train crashes and public executions.

    By the way did you see Charlotte Church on tv the other night? Articulate and thoughtful, I thought. But I’d be forgiven for thinking “what does that drunken bitch know”, because that’s the impression of Ms Church given to the public by The Sun, the NoTW. The Daily Mail and all.

    Journalism isn’t easy, and it seems to me the only argument against Leveson’s recommendations (which actually give legal protection to the press against political interference, and which you don’t mention), is that journalists demand there should be easy targets when the real significant ones (actually in the public interest) are more difficult and require a bit more work than phone hacking, stalking with long lenses and paying disgruntled ex-partners to dish dirt.

    There is no danger in Leveson’s recommendations, neither to freedom of speech nor the freedom of the press. But it’s not their freedom the British press are seeking to protect. It’s their perceived right to pursue any and everyone in the name of profit. It’s only about profit. They have zero interest in anyone’s freedom, because if they had they wouldn’t treat the public with such utter contempt.

    If I may suggest to Jeremy R, by the way, the cross-funding of The Times by The Sun isn’t any justification for the ruination of lives and families.

    • Since I cannot deal with all your points without writing another post (which I may well do), let me respond to just two. First, surely you can see the difference between ‘appeals to authority’ and illustrating an argument. I made the point that there were two different approaches to free speech, that the approach of ‘those steeped in the First Amendment tradition’ differed from those ‘who draw more on ‘European’ traditions of freedom and liberties’, and I illustrated the first with quotes from Carl Bernstein, Clive Stafford Smith and the New York Times. That’s called providing evidence, something I thought that supporters of Leveson favoured.

      And second, since apparently I cannot tell the difference between ‘freedom of speech and freedom of the press’, or between ‘something in the public interest and something the public might be interested in’, perhaps you could enlighten me as to how you protect freedom of speech by restricting freedom of the press? Or who defines the ‘public interest’ if not the public?

  6. THE WRONG RESPONSE TO THE WRONG ISSUE

    Keenan, you are not alone in seeing Leveson’s call for statutory underpinning of a new press complains body as an attack on the freedom of the press. However, it’s a knee-jerk reaction that overlooks the real issue that is driving people to sign the Hacked Off petition.

    I can’t speak for any of the other signatories, but I believe 100% in a free press. The petition itself calls for the government to ‘promote investigative journalism through effective public interest defences’. Doesn’t sound so illiberal to me.

    The reason I signed the petition is because I want our journalists, editors and proprietors to be accountable for their actions, not just to their friends on the PCC or some ‘marking your own homework’ replacement body. The statutory underpinning, I believe, provides that accountability.

    Without it, we are left at the mercy of the paper’s definition of freedom of the press – that they should be able to define what constitutes the public interest, do whatever they see fit to get the story and, if proved to be wrong, to print a retraction on page 37 and be done with it.

    I don’t believe that we have to tolerate such behaviour in order to have free press. I can’t imagine that you do either. However, if you’re going to criticise those of us who have signed the Hacked Off petition, then you need to explain what redress you can offer those targeted by the papers.

    Please don’t say that there are laws against this sort of thing. Do you have any idea how much it would cost to take News International to court to challenge their definition of the public interest?

    For the first time in our history, Leveson has offered the British people a means by which to curb the excesses of newspapers that believe they are a law unto themselves. That is why many progressives are willing to support him.

    • Billy, I share your anger at some of the journalistic practices. What I don’t share is your solution.

      The problem with calling for constraints on reactionaries is that such constraints inevitably get used against progressives too. It’s a tale I have tracked many times over the years with respect to free speech. The laws now used to silence many Muslims as ‘extremists’, for instance, are rooted in the laws for which many anti-racists campaigned as a means of of silencing racists and Islamophobes. As I wrote four years ago,

      We cannot have it both ways. If we invite the state to define the boundaries of acceptable speech, we cannot complain if it is not just speech to which we object that gets curtailed. The state should not define either what Muslims can say or what can be said about Muslims – or about anybody else for that matter.

      And as I wrote last year, after the closure of The News of The World but before the Leveson Inquiry was set up:

      This is paradoxically a dangerous moment for those who want see a free and open press. For however much we might despise Murdoch, his business methods and his journalistic ethics, however much we might feel a sense of schadenfreude at the implosion of Murdoch’s media empire, we should nevertheless be wary of many of the arguments about how to set things right… In cleaning out Rupert Murdoch’s stables we need to be careful that we don’t ourselves end up in the shit.

      Yes, we need to challenge both the practices and the political arguments of wide sections of the press. We need to do so with more, not less, free speech. We need to do so by creating our own sources of information and opinion, our own papers and websites, blogs and Twitter feeds, not by creating mechanisms that could potentially curtail them.

      • Twitter? Is that all you’re offering the Dowlers?

        When the papers are shouting through your letter box, harassing your kids, pestering your neighbours for salacious gossip – keeping all this up until you give them what they consider to be a satisfactory response to their questions?

        People want a free press, but they also what to know that, if the papers come after them, that they have some redress. That’s what this debate is really about. How do we make our press both free and accountable?

      • And there I was thinking that you wanted to engage in proper debate on this issue rather than simply throwing around caricatures and insults. If there’s one thing that this issue has taught me, it is that those most hostile to the tabloids are often also the ones most willing to engage in tabloid-style argument.

        Having got that off my chest, let me try to re-engage you in a reasoned debate. The implication of your argument is that Leveson-style regulation will both provide protection for people like the Dowlers and help create a free and honest press. I disagree on both counts.

        One way to think about this is to compare the press in a country that does have strong press regulation with the press in a country that does not – France and America, for instance. France has strict privacy and press laws. Not so America. The French press is as intrusive as the American press; in fact probably more so – the recent Kate Middleton photos, for instance, revealed well how such privacy laws do not protect privacy. It is also, however, far meeker towards those in power and less willing to investigate stories and scandals than its American counterpart. You may respond that the comparison is unfair, and anyway does not apply to Britain, because of the differences in the cultural contexts of the three countries. That is partly true, but it also makes my point for me – that the real problems lie not at the level of regulation but of culture. And if you really want to protect people like the Dowlers, while also promoting free speech and a freer press, what is needed is a cultural shift. The call for greater press regulation is an easy answer, the consequence of which is likely to be not greater protection but a tamer press, and the creation of mechanisms which could potentially rebound on progressives.

  7. Twm

    @JeremyR

    Again the existing contempt of court laws should have prevented much of the negative coverage that appeared about Chris Jeffries. Many journalists, knowing the contempt laws, were surprised by the coverage at the time – and not so surprised when a number of newspapers were successfully prosecuted for breaching the act.

    You mention the case of Max Mosley, who of course won legal action regarding privacy he bought against the News of the World.
    However this isn’t a simple case of a newspaper overstepping the mark, even if a judge believed it to be.
    Yes NotW invented the Nazi aspect to try and justify the story as in the public interest, but in a country where some have to rely on food banks is it not in the public interest to know how the mega wealthy spend their millions?
    Perhaps it didn’t suit NotW to put that public interest argument forward and the fact that Mosley’s spending habits are exposed in a newspaper owned by another mega wealth individual is, I guess, just one of the peculiarities of modern life.
    You may not accept the Mosley story as in the public interest but I hope it illustrates the complexity of press regulation.

  8. My instinct is to side strongly with you, as my own experience of carrying out investigations in the more tightly controlled world of broadcast journalism leads me to see that regulations do prevent work that is clearly in the public interest, but breaches the letter of the law. I spent hours of my life in the 1990s seeking ways around broadcast codes (The ITC and BBC) in order to expose and uncover serious stories – on one occasion we shot secret images of a suspected drug dealer as stills – our advice was that this was not covered by the ITC rules as it was not video.

    I rummaged through the bins of a fake paramedic, and knew the identity of a man who claimed to be a loyalist terrorist. These were ‘illegal’ acts, but ones that I and others were prepared to defend as we believed they were in the public interest. Sadly, when those techniques are used inappropriately, and in pursuit of stories that don’t justify walking a dangerous line, then the public develops an appetite for making the whole process illegal in all circumstances.

    The Leveson problem though, is that when something went as sour as the tabloid press did, there is a very real need to initiate real change. Your blog doesn’t fill that gap.

    The arrogance of the News of the World newsroom staggered me in the 1990s – I remember briefing a reporter on a story we were running on the BBC – which he promptly stole. When we complained I received a note from Andy Coulson telling me to basically ‘piss off’. They were untouchable, powerful, above the law.

    It is that final phrase that has me thinking hardest. There has to be a stronger response that might have an impact on ethics and moral decision-making. That can’t be legislated for, but nor I think will it appear as a result of a cabal of news editors or publishers forming a new body with more powers to fine or to apologise.

    Your argument about a slippery slope of statutory regulation is not enough. I agree with you, but we need to think of a concrete response that doesn’t license the press, and doesn’t create a two-tier press with a new ‘Pravda’ in print, while most of us garner our news from unlicensed sources on-line.

    My thoughts are still developing, but I think a system that holds journalists and publishers to account for the stories and the methods they employ to get them needs to have real teeth, but only the power to act after the fact. There is far too little in Leveson about defining the public interest, which should be the defence of principle to an accusation of improper activity. If I steal, bug, cheat and lie, and in doing so uncover corruption, prevent deaths, or bring a dishonest government to its knees, I should be able to justify the actions I took after publication: but if employ those tactics to uncover the love life of an X Factor participant I should face the music.

    We have to find a way to do that without the State running the show, but as yet, I haven’t heard a proposal that achieves this fine distinction. Leveson certainly hasn’t, but can the press do it for themselves? I’m not sure…

    • First, my apologies for taking a while to respond; I have been away, and occupied with other projects. Your basic argument seems to be that the current form of regulation has not created a free, open, ethically sound press. I would not disagree with that. Where we would disagree, I think, is in our understanding of what has failed, and why.

      The consensual view, and yours, too, it seems, is that self-regulation has failed because press is too strong and out of control. My view is that the press is too weak and cowardly and that no regulatory mechanism – self-regulation, independent regulation or statutory underpinning – will address this problem, though some forms of regulation will make it worse, and potentially create new problems, particularly for free expression.

      You suggest that the fundamental problem lies in the tabloids acting as if they were ‘above the law’. If that were the real problem then the remedy would be simple: apply the law, promptly and effectively. And if that were the real problem, the debate we would be having now would be not so much about the tabloids as about the failure of the police and the CPS to apply the law promptly and effectively (a debate we may well want to have anyway). The problem, in other words, is not really the tabloids acting as if they are ‘above the law’. It is, rather, as I have tried to indicate, a deeper nexus of social and cultural issues.

      Of course, when you make that point you are open to the charge that you are not providing an alternative. That’s because the alternative is always seen as a different form of regulation. If you suggest that the problem lies elsewhere, then inevitably it will appear that you want to do nothing. The ‘we must do something’ argument is understandable. It is also problematic. Matters currently may be highly unsatisfactory. But if doing something not only does not address the problem but threatens to make it worse, then we may indeed be better off not doing ‘something’.

      I am not, of course, saying that we do nothing. I am just suggesting that the consensual view of ‘what is to be done’ is mistaken. Since the problem lies not at the level of regulation, but at the level of social and cultural developments, the question we need to ask ourselves is not so much ‘What kind of regulation do we need?’ as ‘What are the social and cultural changes necessary to enable both free speech and a free press?’ By necessity the answer to that is not a one-line solution. I might get round to writing a post to sketch out my ideas about it. In the meantime I am open to a debate on it on Pandaemonium.

  9. Reading your section on the power of the press, I wonder why you focused so narrowly on the balance of power between the press and political institutions? Hasn’t the problem at the centre of the inquiry’s focus been the disparity of power between the press and individuals? People for the most part unconnected with political institutions? Individuals for whom the cost of seeking redress is often prohibitive? I haven’t read the report, but the impression I got listening to this group of lawyers talking about it was that the proposal was for something less than an equivalent of a small claims court for dealing with libel and unwarranted intrusion complaints – an extension of means of seeking redress to the less powerful, rather than a restriction on what it is legally permissible to publish. Have I misunderstood?

  10. JeremyR

    Helpful discussion on the “Today” programme between Lord Falconer and Shami Chakrabarti making clear that:
    a) No-one is proposing that a government appointed body regulates the press. The idea is that the press set up an independent body and the only role for an official regulator is to review it periodically and say whether it’s performing or not.
    b) The regulator could be Ofcom, but few seem to favour that. Shami C favours a judicial method of oversight, keeping the executive completely out of it.
    c) There would be no compulsion for publications to sign-up to the independent body, but there would be strong incentives for them to do so.

    That sounds to me like a good way out of the dilemma.

  11. Kenan, reading your post reminded me of something the cursading investigative journalist Lydia Cacho said about Mexico: “A corrupt political system is only sustained by a corrupt and complicit culture.”

  12. I’m intrigued by the line “the threat of regulation, and of enforcement of sanctions for wrongdoing, will inevitably create a more conformist press, less willing to challenge, to dissent, to be offensive”. Surely even the discredited Press Complaints Commission – and the even more discredited Press Council – were designed in order to “regulate and enforce sanctions for wrongdoing”?

    When even the leaders of the newspaper industry are falling over themselves to admit that their creations failed in their goals, and that something stronger is needed, taking an approach that threatening regulation will bring the world down around our ears, seems hyperbolic.

    The problem, of course, is that the newspaper industry would have us allow them to design, introduce, run, and follow the strictures of a new body; the rest of us are surely right to point to the PCC and the PC as examples of their having done precisely that in the past, and to turn to the adage “Fool me once, shame on you; fool me twice, shame on me”, and ask what the appropriate view of “shame me thrice” should be.

    We do not, of course, have the same culture as our cousins across the Atlantic, even in terms of freedom of the press – viewing pre-trial coverage on either side of the Pond is sufficient testimony to that, where the contempt laws here curtail what may be discussed. Even as someone with a generally liberal bent, the approach in the US horrified me, and left me wondering whether outright opposition to *any* curtailment of the press’s activities can actually be justified.

  13. Vanessa Pupavac

    Families like the Dowlers and the McCanns were not simply victims of press abuses but of a broader cultural climate promoted by child experts and campaigning organisations instructing us to view all parents, including seemingly loving parents with suspicion. Such suspicious models fostered the wrongful convictions of women such as Sally Clarke, and lies behind some individuals in the press thinking it was ok to treat bereaving parents as fair game to be snooped upon. But instead of their awful experiences being harnessed,to campaign against this culture of suspicion, they have been harnessed to campaign for press regulation.

  14. We don’t have freedom of speech in Britain, though we should, so that cannot be a relevant argument here. At least once a week someone is arrested and sentenced for writing or saying (of wearing a T-Shirt saying) offensive things.

    In any case, freedom of the press is different, since it applies to a certain class of companies, not individuals. The reason they mostly stick to infotainment and gossip rather than what might properly be called journalism is that they have a fiduciary duty to make a profit not to serve the public interest.

    What’s so wrong with a statutory code of conduct? A slippery slope argument must be explained, not merely stated. We have one for broadcast television and it seems to uphold quality without “taming” journalism. By outlawing the kind of excesses found in the wild west of our newspapers, it puts a floor on the kind of conduct that competition for readers/viewers otherwise naturally leads to. (Economics 101, competition must be structured correctly if you want it to produce good things rather than bad.)

    • The fact that we don’t have proper freedom of speech is not an argument for restricting it further. Yes, freedom of press is different from of freedom speech (though what actually constitutes the press is unclear, especially in the age of internet); nevertheless, however, one defines the press, restricting freedom of the press, cannot but diminish freedom of speech. The press is one means through which to express speech, and a less free press inevitably means less free speech.

      You write of newspapers:

      The reason they mostly stick to infotainment and gossip rather than what might properly be called journalism is that they have a fiduciary duty to make a profit not to serve the public interest.

      Newspapers had the same ‘fiduciary duty to make a profit’ half a century ago, but newspapers’ attitudes to news and gossip was very different then. In other words, we return to my central point: the key issue is one, not of regulation, but of social and cultural change.

      The ‘slippery slope’ is hardly the main part of my argument. There is a long and well-grounded liberal and radical tradition opposing of state regulation of the press and recognizing the dangers of such regulation for free speech. Perhaps you could explain why you think that tradition is mistaken.

      • I suppose my main concern is that you stake your case on principle and neglect the analysis of power. Most of the critics of your position, including many commenters on this post, consider that the power of the mass-media press is itself an issue for individual liberty. In other words, we are pressing a liberal case that Mill would have recognised against the oppression of individuals by private as well as state power. AS Greg Miskiw, assistant editor at the News of the World, famously put it, “That is what we do – we go out and destroy other people’s lives.”

        The relationship between freedom of speech and freedom of the press is more complex than you suggest. As gatekeepers to the attention of millions these mass-media companies have substantial power over whose opinions may be heard, to promote certain opinions that further their own commercial interests, and to swamp alternative opinions in a deluge of counter-speech. They can and do create support for attitudes, like Islamophobia or against ‘European’ human rights, the conspiracy of global warming etc, without any attention to facts (i.e. ‘Yellow Journalism’ – hardly a recent ‘cultural’ phenomenon).

        Free speech has two main justifications. It is intrinsically valuable to be able to express oneself, and it is instrumentally valuable to society as a whole by providing everyone access to the best of such opinions as grist for the kind of public reasoning that produces a better politics. The first cannot apply to corporations since they are not constituted as thinking moral agents. The second is not automatic but depends on institutional arrangements. Some economic reasoning seems relevant here. e.g.

        -The domination of the media by a handful of press corporations has obvious oligopolistic aspects that can distort the functioning of the market for ideas.

        -Public interest journalism is a public good that we can expect will be under-supplied by market forces (e.g. The Guardian’s work on exposing the phone hacking scandal didn’t translate into paying readers).

        -There are also negative externalities analogous to ‘pollution’, introduced into the public sphere by these media companies. That includes not only the many individuals and groups who have been victims of vilification for profit but also the general disrepute into which print journalism has fallen.

        It is quite possible to meet your principled definition of press freedom with arrangements that actually undermine the values of free speech.

      • The question of power is central to my analysis. Why, after all, should one oppose state regulation of the press if one is not concerned about questions of power? My point is not that power is not important but, first, that the power of the press (especially today) is overplayed; and, second, that the best way to challenge such power is not through giving greater powers to the state but by taking matters into our own hands – for instance, by refusing to read yellow journalism and by creating our own forms of communication. You may say that is Utopian. It certainly did not seem Utopian in the past. In the days when press barons were far more powerful than they are today, so was the alternative press, so were alternative voices. What is different today, as I suggested in my essay, is not that the press is more powerful but that the political sphere is weaker. That’s the issue that needs addressing.

        The trouble with your market analogy is that free speech is not a commodity like apples or cars. I know that the commodities of which you are talking are primarily newspapers, but newspapers, too, are special kinds of commodities. Newspapers are a means through which ideas, arguments, speech, are expressed. A highly imperfect means, I know, biased, usually pursuing an agenda, often dealing with issues that are irrelevant, inappropriate, etc. But that is the nature of free speech and a free press. All corporations are subject to competition rules. What newspaper companies should not be subject to in addition are regulations that seek to order the ‘marketplace of ideas’. That is anathema to a free press and to free speech. Such regulation always comes to limit the speech not of newspaper barons, but of progressives who want to challenge those in power.

  15. sok

    I run two websites concerning the murky issue of residential leasehold law that get 100,000 page views a month. Both have a daily updated editorial service.

    Twice in the past month, Leveson has been cited in complaints about coverage: once by a leaseholder reader; once by a legal firm that also threatened libel. I have had another take-down notice from solicitors in the same period, also claiming defamation.

    Readers citing Leveson is a bit irritating, but understandable (journalists were never there to be liked). But it’s bluster and not very subtle from a lawyer, although one’s attention moves quickly on to the alleged libel.

    Mitigating the costs of libel actions in a regulatory scheme is the carrot in Leveson – and a very attractive one – but the rest is all stick. I admired the inquiry as a necessary cathartic process – and as an antipasto before next year’s criminal cases – but it is over, and the report’s recommendations are of far less importance.

    Like millions of other internet users around the world, I appreciate the US first amendment approach to free expression. But Leveson is reportedly eager to get to grips with it, to introduce his UK vision of fairness and redress.

    I do not have confidence in an obsession to control through the blunt instrument of the courts.

    The recent libel threats to my websites have concentrated the mind. I am now looking at moving them both to other jurisdictions (the approach taken by the political blogger GuidoFawkes). The irony would be that to campaign to change UK leasehold law, one needs the protection of another country’s laws.

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