“It’s the newspapers I can’t stand”



In Tom Stoppard’s play Night and Day, one character remarks to another: “I’m with you on the free press. It's the newspapers I can't stand.” I don’t think that our discussions of the proper configuration of press freedom have moved very far from this impasse in the thirty years since the play was published. This is evident in the fruitless reiteration of rival claims about supposed speech rights, both by those who think the media – at least the print media – should be self-regulating, and that anything else will lead to censorship, and by those who think that the media – including the print media – should be restricted or regulated in various ways.



At present those who oppose regulation are particularly keen to counter any claims that any right to privacy should receive legal or regulatory protection at the expense of media freedom. For example, Paul Dacre has claimed robustly, but with little argument, that those who seek to use regulation to secure greater respect for privacy are enemies of press freedom, in thrall to an establishment “whose hatred of mass selling papers has transmogrified into a hatred of self-regulation itself”. Others insist that we need to respect rights to privacy even if this means that we have to remove some of the privileges of self-regulation from the media, as they have been removed from other institutions and professions across the last thirty years: a change enthusiastically supported by most of the media. The debate is confused by the fact that both sides claim to champion “independent regulation”, by which they mean entirely different things.



In my view, unargued appeals to the (supposed) rights of a free press, or (supposed) rights to privacy, or other (supposed) speech rights get us precisely nowhere. They don’t show whether adequate self-regulation is possible, or desirable, or whether it is better than other forms of regulation, and they don’t show which forms of regulation are compatible with which configurations of press freedom. Nor do they show how the claims of privacy and press freedom are to be dealt with in cases of conflict. If we want a convincing view of press freedom, assertions about rights are not enough.



Yet current debates about speech rights, or supposed speech rights, seldom go beyond assertions about those (supposed) rights. Unsurprisingly they provide a poor basis for thinking about press freedom. The various rights appealed to are indeterminate, and reasons for giving more weight to one rather than another are not articulated. In these inconclusive debates, speech rights are variously taken to include freedom of speech, freedom of expression and freedom of the press, flanked by more specific speech rights such as freedom of information, rights to know (occasionally exotic rights not to know), data protection and privacy rights, and rights intended to protect specific sorts of speech, such as freedom of worship, artistic freedom or academic freedom. However, this comforting rhetoric of rights does not show which of these supposed speech rights matters most, let alone which matters most in specific situations.



Disputes about the proper boundary between rights to freedom of expression and to privacy illustrate the difficulty of resolving issues by appealing to the speech rights that are proclaimed as Human Rights. Both rights are proclaimed both in the 1948 Universal declaration of Human Rights (UDHR Articles 12 and 19) and in the 1950 European Convention on Human Rights (ECHR Articles 8 and 10). In ECHR Article 8 assigns everyone a “right to respect for his private and family life, his home and his correspondence”, while Article 10 assigns everyone a “right to freedom of expression [that] shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”. Like other Convention rights, rights to privacy and to freedom of expression are hedged with numerous restrictions, listed in the second (and less frequently read) parts of the two Articles. The Convention does not assert unconditional rights, and it does not rank the rights it asserts. Nor do other proclamations and declarations of rights. Comments about the need to “balance” these rights against one another point to a genuine problem, but do nothing to resolve it. Moreover it cannot be resolved by invoking the authority of Declarations, Conventions or Constitutions: conflicts between the claims of freedom of expression and of privacy can’t be settled just by asserting that the former right trumps the latter, or vice versa. Arguments from authority cannot vindicate the authority they invoke.



Any defensible account of press freedom, or of other speech rights, needs rather to draw on the political and philosophical arguments that lie behind the landmark proclamations and declarations. Our reasons for taking certain speech rights seriously is not, after all, that they have been declared or proclaimed, or that they are beloved by parts of the Human Rights movement, or even that they have been incorporated into numerous constitutions or into UK law. Our reasons are rather that certain speech rights are backed by probing and well-explored arguments that have been thought about, criticised and honed in long debates about the nature and needs of liberal and democratic societies. We are, I think, more likely to find adequate arguments for one or another conception of press freedom, and of other speech rights, if we do not ignore those arguments.





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Three Arguments for Press Freedom



Broadly speaking there are three reputable lines of argument for press freedom in the liberal tradition. Rather inconveniently, they seek to justify quite different configurations of press freedom.



1. Press Freedom and Truth Seeking



The oldest of these arguments is that freedom of the press allows us to discover and test truth, and to detect and reject falsehood. This cornerstone of liberal thought was central to Milton’s argument for freedom of the press. In Aereopagitica he claims that



“… though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter?”



The rhetoric soars, but unfortunately Milton’s claim is not broad enough and not convincing. His argument is too narrow because it is silent about speech that does not aim at truth. It is unconvincing because freedom may be necessary but is rarely sufficient for speech that aims at truth. Truth is quite often put to the worse in “free and open” encounters. This is why we restrict and regulate freedom of speech with some care when we aim at truth. As Bernard Williams acidly reminded us in Truth and Truthfulness,



“…in institutions dedicated to finding out the truth, such as universities, research institutes, and courts of law, speech is not at all unregulated.”



The one conclusion that we can safely take from Milton’s argument is that censorship – “prohibiting and licensing” – damages the search for truth: but refraining from censorship is only a necessary and not a sufficient condition for truth seeking. Free and open encounters are not enough for speech that makes truth claims, including media speech that makes truth claims. Reporting news or football results is different from publishing horoscopes or short stories, and needs different disciplines (we don’t fact check horoscopes, or expect editorial corrections when their predictions are wildly incorrect). But those who make or query truth claims need to take account of evidence and argument, and to probe honesty and competence. Here the open question is not whether media truth claims need to respect epistemic and ethical standards, but how respect for those standards is to be secured.



John Stuart Mill joined Milton in arguing that knowledge of truth improves when ideas are not merely uncensored but freely contested. In On Liberty he maintained that



“...the peculiar evil of silencing the expression of an opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it.”



If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.



Once again the argument against censorship or silencing of truth claims is convincing, but Mill too does not provide an argument for any determinate form of press freedom. “Collisions with error” help to distinguish truth from error only if they use appropriate epistemic and ethical standards. Later appeals to the image of a “marketplace of ideas” fail in the same way. Like “free and open encounters” and “collisions with error”, untrammelled exchanges in that famous market place are as likely to lead to a Babel of voices as to comprehension, let alone discovery of truth, or reliable ways of distinguishing true from false claims. Like other market places, a market place of ideas works when, but only when, the right sorts of disciplines and standards are respected.

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2. Press Freedom and Self Expression



Elsewhere Mill went much further than Milton. He looked beyond speech that aims to communicate truth claims to the whole gamut of self-expression. Acts of self expression need not be noticed by or directed to any audience, need not be intelligible, and need not be intended to communicate; they need not make truth claims.



In On Liberty Mill approaches self-expression by way of his famous harm principle, which asserts that “the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of any of their number, is self-protection.” He points out that much individual speech is merely self-regarding (today we would say merely self-affecting). Since speech that doesn’t affect others won’t harm them, issues of self-protection won’t arise in this case. So if we accept the harm principle, we should neither prevent nor constrain self-regarding speech.



Mill concluded that individuals should enjoy extensive rights to self-expression, which he saw as including “absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological”. He then claims that this extensive freedom is “practically inseparable” from “liberty of expressing and publishing opinions”.



Unfortunately Mill’s defence of individuals’ rights to self-expression is unhelpful for an account of press freedom. If individuals have rights to publish opinions that will not harm others, they will need media that enable them to do so. But the last thing they need is media with parallel rights of self-expression, since such media could have no obligation to publish individuals’ opinions, so would be entitled to constrain and limit individuals’ rights to self expression.



The phrase freedom of expression is central both to Mill’s account of individual rights to self-expression and to contemporary claims about press freedom. But this, I suspect, is just an unfortunate convergence of terminology. Powerful institutions, including media organisations, are not in the business of self-expression, and should not go into that business. An argument that speech should be free because it generally does not affect, a fortiori can’t harm, others can’t stretch to cover the speech of governments or large corporations, of News International or of the BBC.



Yet the phrase freedom of expression has become the established term for media freedoms in the sixty years since its use in UDHR and in ECHR. I believe it has gained this prominence for reasons that have almost nothing to do with self-expression or with rights of self-expression. Freedom of expression is a useful overarching term for media freedom for two quite different reasons. First, it covers the gamut of communication media (broadcasting, print, film, the internet), whereas some of the classical speech rights focus on specific media of communication (freedom of speech; freedom to publish; in German the deliciously named Federfreiheit (freedom of the pen, lit. of the quill or feather). Secondly, the phrase freedom of expression is neutral about the types of individual or organisation that, as we now often say, originate content, and unconcerned about the audiences to whom that content may be directed.



Consequently a focus on freedom of expression can readily be taken as a licence to focus on the rights of originators at the expense of the needs of readers, listeners and viewers, and in the media context to focus on the rights of journalism rather than the needs of audiences.

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3. Press Freedom and the Needs of Audiences



Claims about rights to freedom of expression in the broad contemporary sense are remote from Millian claims about individuals’ rights to self-expression, so we cannot use Mill’s arguments to vindicate them. Fortunately there are other arguments for freedom of expression, understood broadly, that are neither restricted to speech that makes truth claims, nor marginalise communication by focusing on self-expression.



Freedom of expression, understood broadly, is required for social, cultural and political life, and indispensable for democracy. Without it communication with and among citizens, as well as between government and citizens, can be impeded or distorted and may leave some or many unable to understand or assess others’ claims or commitments, or to participate effectively in social, cultural and political life. So a broad configuration of freedom of expression can be justified by its role in protecting, respecting and contributing to the communication needed for social, cultural and political life: but this argument will not justify rights of self-expression for the media. Rather it will support media freedom to communicate in ways that are intelligible to and assessable by readers, listeners and viewers.



One way to identify which configuration of press freedom can be justified is to consider more closely why individual rights of self-expression cannot be extended to the media. Individuals can express themselves without anybody noticing that they are doing so, understanding what they mean or grasping what they are doing. Self-expression does not need audiences because it need not communicate. So when others merely express themselves we can afford to tolerate a degree of inaccuracy, insincerity, exaggeration, confusion, and the like. Mill is, I think, right that we need take issue only when self-expression risks harm to others.



Matters are different with speech that seeks to communicate, and markedly different when powerful organisations, including the media, seek to communicate. The communication of the powerful can shape and influence, improve and damage others’ lives, and in democracies we have long since taken steps to regulate the communication of most powerful organisations. The speech rights of governments, of public bodies and of companies are heavily constrained, and nobody thinks that they should have the privilege of self-regulation. They must report in prescribed ways on prescribed topics, and submit specified information to audit, there is no right to invent financial or other information; government and public bodies are also multiply open to scrutiny and freedom of information requests, and must not be partisan. The media are in quite a different situation, and it is often said that this is essential because anything other than self-regulation would permit censorship of content.



But censorship of media content is not the only risk against which readers, listeners and viewers need protection. The needs of audiences are also disregarded or short-changed when others’ communication, including media communication, does not allow them to understand what is said or to assess what is done in saying it. Intelligibility and assessability matter for all communication, and more so for the communication of the powerful.



A requirement that media communication be intelligible is not controversial. Neither newspapers nor broadcasters aim to be or gain by being unintelligible, or have an interest in being unintelligible, although no doubt some content is wearyingly unintelligible to some audiences. But assessability is another matter: why should the media bother to make their content assessable by their audiences? Why do audiences need not only to understand, but also to have the possibility of assessing what the media communicate?



The short answer to this is that the communication of the powerful, including media communication, is neither infallible nor disinterested. Since it is not infallible, audiences need ways of assessing the reasons or evidence for its claims. Since it is not disinterested, audiences need ways of identifying which interests are being served. Just as the liberal tradition has argued for measures to secure discipline and transparency in other powerful organisations, so it provides reasons for measures to secure discipline and transparency in the exercise of media power.



Lack of discipline or transparency in the exercise of media power in liberal societies does not often take the form of crude propaganda—although that is not unknown. It more often shows in failure to report on issues that matter for citizens, in reporting that is slanted, selective or confused, in “reporting” that echoes unacknowledged press releases; in attentive coverage of matters of undeclared financial interest to proprietors or to journalists; in editorials that are really advertisements; in opinion pieces that masquerade as reporting; in covert exercises in product placement, and in tendencies to exaggerate, ignore, exclude, marginalise or mock certain voices or topics.



I emphasise the generic problems of media communication that is cavalier about enabling audiences to assess their claims and commitments because I think that the issues are underplayed by focusing narrowly on the preoccupation of parts of the media with celebrities, scandal and sensation. The problem, as I see it, is not just that parts of the media are intrusive and even prurient, but a more general failure to take the needs of audiences seriously. Too often media communication is driven by undeclared and undetectable objectives and interests that make it hard or even impossible for audiences to assess their claims and commitments. Hidden persuasion is all too easy for those with hidden powers.



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What Can be Done?



Any adequate account of press freedom must, I therefore think, take account of the needs of audiences to understand what is said, and to assess what is done in saying it, since both matter for social, cultural and political life. But even those who agree that this is the most convincing argument for press freedom differ about its practical implications. Can anything be done about media standards without risking censorship? Some doubt whether it is worth discussing media regulation, since they find it blindingly obvious that there should be none, or at most a veneer of self-regulation.



Still, if not now, when? In the wake of the U.K. hacking scandals that emerged in the summer of 2011, we now find ourselves in the midst of widespread discussions of the proper configuration of press freedom, of ways in which it should be accommodated to other speech rights, and of the forms of regulation by which it might be best achieved. What could a focus on the needs of audiences bring to that debate? I shall comment on three areas in which I believe a focus on the needs of audiences points to changes that do not risk censorship. The three areas are the limitation of media power, the protection of privacy and the improvement of media process.



Audiences are assisted in judging media content and claims if they meet a range of perspectives. So if we justify press freedom by its social, cultural and political benefits, we should seek to limit the concentration of media power. In the UK anti-monopoly restrictions on media ownership were weakened in the Communications Act 2003, and cross border ownership of broadcasting companies is permitted (it is prohibited in the US). Anti-monopoly provisions could be strengthened without any risk of censorship of content. While greater plurality of ownership will not guarantee greater diversity of content, it is likely to support diversity and so to provide readers, listeners and viewers with more diverse considerations, evidence, issues and opinions that will support their ability to assess what is communicated.



It may also be relevant to revisit the issue of cross-border control of the media. Are citizens and democracy well served if many of those who own and control significant parts of the media do not share citizenship, domicile or residence with their readers, listeners and viewers? Are we content for some dominant voices in the British media to be controlled by those who pay no personal taxes here and may not share our geopolitical fate? Would we be content if additional News International papers were sold off, and we found that we could add a Chinese and, say, a Qatari owner to our already rather healthy list of expatriate owners of major newspapers and broadcasting companies?



Secondly, we shall need to think more about rights to privacy. We are now moving away from the world in which it was plausible, or even faintly respectable, simply to deny that there are rights to privacy, or to insist that (unlike other rights) they should have no legal protection. In debating the proper configuration of rights to privacy, I believe that we shall need to clarify the scope of public interests defences for publishing content that would otherwise be private. This will be hard enough, but not impossible. And it is urgent: no democracy can function well if office holders fear media intrusion into the lives of their families. An atmosphere of bullying and fear is likely to deter many public spirited people from entering public life, and deter those in public life from speaking out on matters that might attract media intrusion.



However, my guess is that the most taxing issues for securing a clearer interpretation of privacy rights will centre on the permissibility, or otherwise, of publishing claims about others’ private lives that have been placed on line anonymously. Is it acceptable to repeat and recirculate undocumented and unauthorised claims about others’ private lives by claiming to report material already in the public domain? Anonymous postings may reflect fantasy, gossip or prurience, or indeed self-promotion and revenge. I confess that I do not see how what we might best deal with this problem. Yet if we do not deal with it, media power will remain intimidating for many, and damaging to social, cultural and political life.



However, discussions both of anti-monopoly provisions and of rights to privacy are both slightly separate from the main issue of shape and limits of acceptable media regulation. Can self-regulation be made effective? Or is the very idea of effective self-regulation self-deceptive? Is it true that anything but self-regulation will permit censorship? The evidence to date is that self-regulation of the press by the PCC has been neither effective nor ethically adequate, so the burden of proof now lies with those who think that it could be reformed to make it effective or adequate. There is no doubt that vast efforts and resources, and millions of words, will be devoted to trying to show that some form of self-regulation can meet adequate standards.



An alternative way forward would accept that media regulation must have a statutory basis, so that those with responsibility for it can require others to produce evidence and can inflict sanctions, while barring the door to censorship of content. This, I believe, is not impossible. Regulation could be entrusted to a body with a statutory basis (so with the necessary powers to call for evidence and to sanction), which was confined to regulating media process, but explicitly prohibited from regulating media content.



Consider how things might change if media process were regulated with the aim of making media claims more assessable. The governing idea of such regulation would be to require media exercise power to be openly acknowledged, and subject to the sorts of disciplines other powerful institutions and office holders face. Why should office holders in public and corporate institutions be required to declare their financial and other interests, while leading journalists, editors and proprietors are not? Why should office holders in public, corporate and charitable bodies be required to declare “related party transactions” and gifts, while those who work for the media are not? Why should the remuneration and tax status of leading journalists, editors and proprietors not be declared? Why should payments made for content (e.g. for the “stories” of celebrities and of victims) or for procuring content (e.g. payments to private detectives) not be made known to readers, listeners and viewers. Why should anonymity for sponsors and other paymasters be acceptable? Should not cheque-book journalism declare its true colours? Should not financial journalists, restaurant critics, travel writers, property columnists and many others reveal payments made for content?



Those in the business of organising and providing content for others need to be free from censorship, but to be subject to processes that allow others to judge their claims and commitments. The media have been keen enough on transparency for others with power or influence, and what is sauce for political geese is surely also sauce for media ganders.