While nobody doubts that press freedom matters, it is frequently discussed in terms of a rhetoric of rights that fails to address the real issues. Unargued appeals to rights show up in current disputes, and nowhere more so than in claims about the proper boundary between rights to freedom of expression and rights to privacy. Both rights are asserted in the European Convention on Human Rights. 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.” But the Convention does not assert unconditional rights (it lists restrictions in the second parts of both Articles 8 and 10), and it does not rank the rights it asserts in order of importance.
Yet in Britain defenders of press freedom often suggest with little discernible argument that freedom of expression trumps rights to privacy, and even condemn any protection of privacy by the courts. Writing in The Times, for example, Paul Dacre, editor-in-chief of the Daily Mail, referred to the evidence he had submitted to the Leveson inquiry into phone hacking and press standards, objecting that “judges seem to attach more weight to the right to privacy than to the right to freedom of expression,” and querying the right to privacy by pointing to an “almost terminal tension between the right to privacy and the public’s right to know.”
Others, including the prime minister, have characterised court rulings that protect privacy as “judge-made law”. Yet the Convention has been incorporated into British law, and judges who rule on privacy cases are not making law – although their task might be easier if Britain had more than the Data Protection Act by way of privacy legislation.
The conflict between rights to freedom of expression and rights to privacy can’t be settled by mere assertion that the former trumps the latter. Nor can arguments from authority, whether that of the European Convention or of the United Nations Declaration of Human Right, settle disputes about rights. Any defensible account of press freedom, or of other speech rights, needs to draw on the political and philosophical arguments that lie behind the proclamations and declarations.
Three arguments for press freedom
In the liberal tradition there are broadly three reputable lines of argument for press freedom. 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 John Milton’s argument for freedom of the press. In Areopagitica (1644) he asserts 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 neither broad enough nor convincing. His argument is too narrow because it is silent about speech that does not aim at truth. It is unconvincing because freedom is not enough for speech that aims at truth. Truth is 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 (2002), “in institutions dedicated to finding out the truth, such as universities, research institutes, and courts of law, speech is not at all unregulated”.
Nor are free and open encounters enough where the media aim at truth. Reporting news or football results is different from publishing horoscopes or short stories. Seeking and reporting the truth is not best achieved in free and open encounters but through honest communication that is both intelligible to and assessable by readers, listeners or viewers. When truth claims are at stake, the open question is not whether the media need to respect these and other standards, but how they are to be secured.
John Stuart Mill joined Milton in arguing that our grasp of truth improves when ideas are contested. In On Liberty (1859) 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.”
But there is deep difference between Milton and Mill. Mill looked beyond speech that aims to communicate truth claims to self-expression, which need not communicate and need not aim at truth. In On Liberty he formulates 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 then points out that much individual speech is merely self-regarding (today we would say self-affecting). Since it does not affect others, it does not harm them, so issues of self-protection will not arise. Given the harm principle, such speech should neither be prevented nor constrained. 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 claimed that this extensive freedom was “practically inseparable” from “liberty of expressing and publishing opinions”.
Mill’s defence of individuals’ rights to self-expression is, however, an awkward basis 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 will need is media with rights of self-expression that parallel those of individuals.
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 may be no more than an unfortunate convergence of terminology. Powerful institutions, including media organisations, are simply 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 cannot harm, others can’t be stretched to cover the speech of News International or of the BBC, any more than it can be stretched to cover the speech of governments or large corporations.
Yet the phrase “freedom of expression” has become the standard term for media freedom in the past 50 years. I believe it has gained this prominence for reasons that have almost nothing to do with self-expression. “Freedom of expression” is a useful phrase for two reasons. In the first place, it covers all communication media (broadcasting, print, film, the internet), whereas some of the older speech rights pick out a specific medium of communication (“freedom of speech”, “freedom to publish”). Secondly, the phrase “freedom of expression” is neutral about the types of individual or organisation that, as it is now often put, “originate content”.
Contemporary views of freedom of expression are remote from Millian rights to self-expression, and we cannot use Mill’s arguments to vindicate them. Fortunately, there are broader arguments for the range of press freedoms now gathered under the term “freedom of expression”, that are neither restricted to speech that makes truth claims, nor marginalise communication by focusing on self-expression. Freedom of expression, understood in a broad sense, is required for civic, social and political life, and indispensable for democracy. Without it, communication with and among citizens will be limited in ways that may leave some or many unable to understand, to assess or to participate in their own public and political culture.
So, while arguments from the needs of social and civic life and participation will not support unrestricted media freedom, they will give strong support to freedom to communicate with readers, listeners and viewers in ways that they find intelligible and assessable. A plausible vindication of freedom of expression can be built on the communicative needs of audiences.
By contrast, an unrestricted view of freedom of the press, modelled on individual rights of self-expression, need not meet standards for communication with readers, listeners and viewers. Self-expression often fails to meet the necessary conditions for communication, and can be blind to others’ capacities and incapacities.
We can afford to ignore a great deal of inaccuracy, insincerity and gaps in the ways individuals express themselves, and to take issue only when their self-expression risks harm to others. But analogous defects in media communication would frequently be risky, even damaging. Both false and unreliable reporting, and reporting that misrepresents its aims and its evidence, can silence, confuse or marginalise important issues or voices, can promote manufactured or manipulated “news”, and can make it hard or impossible for audiences to judge what they read, hear and view.
Failure to maintain standards for adequate communication, including adequate standards for truth claims, can have heavy costs. If the media misrepresent serious matters as a contest of celebrities, as scandal and sensation, they may promote a culture of apathy, cynicism or mistrust and fail to convey to their audiences what matters and what is trivial. Equally, if they misrepresent the riff and raff of celebrity activity as serious matters they may mislead in other ways. If they systematically exclude, marginalise or mock certain voices or topics, they may foster deep forms of discrimination.
Such lapses in standards for communicating are more likely to damage than foster communication and democracy. If freedom of the press amounted only to an unrestricted right of self-expression, there would be nothing wrong with a press that concentrated on these and similar activities. But arguments for a press freedom that appeal to its contribution to social and civic life point to a version of press freedom that takes the necessary conditions for adequate communication seriously.
Each of the three types of argument for freedom of speech has advantages. Milton’s arguments for the needs of truth-seeking remain important for speech that aims at truth – in particular for science and legal process, for reporting and assessment. Mill’s appeal to rights of self-expression remains important for individuals, and for artistic freedom. But neither line of thought offers an adequate account of press freedom, which has to look beyond the demands of truth claims, and beyond the rights of individuals, and must constrain communication to ensure that it is intelligible to and assessable by its intended audiences.
What is to be done?
In the wake of the British phone-hacking scandals disclosed in the summer of 2011, we can anticipate further vigorous discussion of the proper configuration of press freedom. It is too soon to come to any conclusions but it is already apparent that several topics will be near the top of the agenda.
I suspect that we shall see a reopening of discussions about anti-monopoly restrictions on media ownership and cross-ownership (weakened in the 2003 Communications Act). I also suspect that we shall see a lot more discussion of rights to privacy. But both of these debates are slightly separate from discussion of press freedoms, and it is in discussions of press freedoms that I think we can expect to find the widest disagreement.
Many will enter the debate at a procedural level, insisting that either self-regulation, as practised by the Press Complaints Commission or in modified form, must remain, fearing that anything else will permit censorship. Others will argue that self-regulation neither has been nor can be effective or ethically adequate, and that media regulation must have a statutory basis. The issue then will be to show how media regulation can have a statutory footing while barring attempts to control content.
A promising approach to this conundrum might be to permit the regulation of media process but to prohibit the regulation of content. For a small illustration, consider how things might look if the press were subject to demands for transparency about their process. Journalists, editors and proprietors could be required to declare their interests (like others in positions of influence). They could be required to list payments made to informants and payments and favours received in relation to specific stories (where relevant without naming recipients or sources). They could be required to make such transactions explicit in company accounts. The media have often been keen on transparency for others with power or influence, and what is sauce for political geese is surely also sauce for media ganders.
Baronness O’Neill will deliver the Reuters memorial lecture on the rights of journalism and the needs of audiences on Monday at St Anne’s College, Oxford
Truth, pornography and stamp duties
The freedom of the press in Britain has been a fitful, four-century process – which can be seen in retrospect as having moved jerkily from the dark to the light, writes John Lloyd. The two writers most often quoted here are John Milton and John Stuart Mill, who both claimed that truth is never bested by falsehood in a free exchange.
The 18th century saw obscenity laws come on to the statute book as pornography became more widely distributed: it took the trial of D.H. Lawrence’s Lady Chatterley’s Lover to finish these off in 1960. Reporting of parliament had been banned in 1738: but the ban was never enforced after 1771, with a press gallery created 30 years later, and daily reports of proceedings begun in the early part of the 19th century – with the modern form of a verbatim Hansard dating from 1909. The influence of the Swedish civil libertarian Peter Forsskal may have been felt: his 1759 pamphlet “Thoughts on Civil Liberty” was the first squarely to argue that citizens had right of access to the documents of their state.
The 19th century saw newspapers and reviews take a central place in political and social life. Fear of revolt in the early part of the century was suppressed in part by stamp duties on newspapers, making radical papers too expensive for poorer readers: stamp duties were later reduced and then repealed in the 1850s. Graphic reporting of the Crimean war in The Times helped cause the fall of the Aberdeen government in 1855.
The 20th century, at least in Britain, has been largely a growth of press freedom. The BBC, at first deferential to the government, became progressively more independent and remains so. Newspapers, magazines and books, when their contents came to trial for blasphemy, indecency or revelation of government secrets, tended to win their cases (though not on libel, which remains stricter in the UK than in many other democracies). Journalists can now argue that their work, even if mistaken, can be exempt from punishment if done in good faith – a result in part of the Jameel case against the Wall Street Journal in 2006.
The present arguments are about the extent of revelation. Newspapers stand charged not just with the phone-hacking of the News of the World (and likely more broadly) but of gross invasion of privacy in the cases of the McCanns and the murder in Bristol in December 2010 of Joanna Yeates, whose landlord Christopher Jefferies was a suspect of her murder and was the subject of some 40 defamatory articles. The BBC journalist Kevin Marsh wrote recently, “Is it anything short of a miracle that here, now, in England we have ... established the right to know which Premiership footballer has slept with which Big Brother contestant?”
This ironic reflection reminds us that freedom never comes unattended by licence.
John Lloyd is a contributing editor to the FT and director of journalism at Reuters Institute for the Study of Journalism