How do we balance freedom of expression with press intrusion?

The current state of confusion over press regulation here in the UK presents me with a very useful opportunity to start this blog – the attempts by politicians to come up with a model of regulation that meets the assumed need for reform and also satisfies the various scruples about freedom of expression. One could choose to start a blog at any time but what is so good about this one is that it once again presents us with that most enduring of political dilemmas, the relationships between rights and responsibilities, between freedom and constraint and between the individual and the state.

Freedom of expression has long been assumed to be a corner-stone of British democracy and the key right of the individual. One classic definition is that of John Stuart Mill who wrote in On Liberty (1859), “However, positive anyone’s persuasion may be, not only of the faculty but of the pernicious consequences, but (to adopt expressions which I altogether condemn) the immorality and impiety of opinion. – yet if, in pursuance of that private judgement, though backed by the public judgement of his country or contemporaries, he prevents the opinion from being heard in its defence, he assumes infallibility. And so far from the assumption being less objectionable or less dangerous because the opinion is called immoral or impious, this is the case of all others in which it is most fatal”. Whoever so limits this freedom assumes an infallibility, and Mill preferred that we tolerate even extreme differences because some truth may lie in that opinion that those assuming to judge might miss. Whoever writes the rules assumes potential control.

In today’s heady politics (was it forever such?), such views are seemingly being modified by what one very articulate pressure group, Hacked Off, have been vociferously demanding as implementation of the Leveson report into press ethics and behaviour. The Leveson Commission was set up after journalists were found (it is alleged, as court cases are pending), to have hacked in spectacular fashion into a large number of people’s mobile phones. A remedy would appear to be available in law but the victims have been able to produce evidence of widespread intrusion into their personal lives, that is in a country that has no actual privacy law. Leveson recommended an independent regulator be created withe power to impose fines, and supported by statute. There followed months of agonising and political dispute as politicians argued variously for or against regulation, and the Prime Minister came up with a variation on Leveson, a regulator created by the device of Royal Charter, as certain cities and the BBC for example are constituted. Continued agitation by Hacked Off served as a backdrop to a break in the coalition and a combination of Liberal Democrat and Labour to impose a statutory backing to the Charter idea. Now politicians have, we are told, done a deal, and yet much of the press is in arms against what they see as a loss to the concept of Freedom of the Press, and an international body, the Organisation for Security and Co-operation in Europe (OSCE), has cautioned on the precedent of political interference in the media. In reply, Cameron and others claim that their proposals, with a two-thirds majority being required in Parliament for any further change to the proposed regime, will keep politicians out.

For readers from outside the UK, it should be borne in mind that the UK has no written constitution, much to many people’s puzzlement. What is called the “Constitution”, isn’t one as such, but is a combination of custom and practice, convention, statute law and such things as rulings by the Speaker of the House of Commons, handed down over the centuries. It has more recently been to some extent also subject to the obligations of EU membership and the European Convention on Human Rights, enshrined in UK law under the Human Rights Act of 1998. Freedom of expression for example belongs in a grey area where we are actually constrained in our expression in certain areas, particularly libel and slander, where judicial remedy is available – usually to those with the biggest cheque books. The victims of hacking have actually been able to sue News International, part of the Murdoch empire, and have received sizeable pay-outs before the issues reached the courts.

What has struck me in this episode so far, is that there is no ultimate point of reference in this debate, such as a Constitution enforced by  a Supreme Court, except that, ironically for them, the defenders of liberty can appeal to the above-mentioned European Convention. What we seem to have is the now-familiar pattern of policy being made in a hurry, under pressure, with a political deal that has not, arguably received widespread consultation and poses considerable issues in relation to the British political settlement. Indeed it appears that the inter-party “deal” was reached with members of Hacked Off being present, but not those representatives of the press. Here again is another reminder of many of the problems that gave rise to Leveson, the too-close relationship between politicians and media barons, particularly Murdoch. It is almost as if the other “side” are doing what they preached against.

A backdrop to this whole sorry saga is of course the decline in newspaper readership and therefore profits, as attention shifts to the internet and elsewhere, and the tendency to go for big stunts and mega-publicity in their efforts to maintain their grip on a shrinking market. In addition, politicians’ relationship with the media is ambiguous, as is celebrities who form a considerable number of Hacked Off’s membership. They court publicity but also seek to manipulate it for personal and party advantage, and fear negative exposure. Equally, media barons have sought access to the corridors of power to advance their interests, as was perhaps seen with News Corp and the attempted takeover of Sky. There is a long history of this, as seen with the influence of Lords Rothermere and Beaverbrook in the last century. Hacking of course bringings in the added complexity of just how we manage the explosion of digital communication, protect privacy and guard against fraud.

This is why, in particular, this is for this writer as good a time as any to start this blog. And to boot, bloggers too could be subject to this proposed regime – an even better reason! It also offers the student of politics a superb example of how our political process works, for better or for worse.


%d bloggers like this: