REGULATING THE PRESS

Author Paul Sturges, Professor Emeritus, Loughborough University, UK (Professor Extraordinary, University of Pretoria, South Africa) focuses mainly onrecent British debates on press regulation. Sturgesalso draws on content listed in the Beacon for Freedom of Expression database.

REGULATING THE PRESS

ENSURING RESPONSIBILITY, OR ROAD TO CENSORSHIP

INTRODUCTION

The newspaper press disgusts the reader almost as often as it delights or impresses. Newspapers are just as likely to print a sneak picture of a near-naked celebritys unfortunate new layers of fat as they are of Malala Yousafzai on a platform making an inspiring speech. They will print sneering accounts of ordinary people whose lives are spectacularly out of control as if this were news but we can also read well-informed reportage of inspiring events such as the successful salvaging of the Costa Concordia. Of course one can suggest that there are actually two totally different types of newspaper: the gutter press that trades in meaningless sensation and the quality press that writes informatively of important events and comments on vital issues. Well, thats true: to an extent. The problem with it is that there is overlap between the content and tone of sectors of the press which makes it difficult to simply embrace one sector and condemn another. What is true of the printed news media also applies to broadcast and digital media: we are exposed to a mixture of content that cannot easily be segregated into acceptable and unacceptable, whatever the criteria we choose. The Americans have it right in the First Amendment to their Constitution, which directly and unequivocally prohibits Congress [the State] from abridging [limiting] the freedom of speech or of the press. The U.S. law courts extend First Amendment protection to all forms of content across the range of media, so that it protects pornography as strongly as it does photos of sunsets and kittens, or arguments for unrestricted rights to own powerful guns and enormous stockpiles of ammunition as much as it does gentle pleas for kindness and respect between human beings from the Dalai Lama.

This undiscriminating defence of media freedom is, however, not a simple position to hold. Other authoritative statements on press and media freedom make this clear. A key instance is the European Convention on Human Rights, which after setting out the essential rights to information and communication in its Article 10, says that:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the authority and impartiality of the judiciary. (Council of Europe, 1950)

The distinction between what is expected in a democratic society and the actions of governments whose record is unacceptable to thinking human beings is not whether there is suppression or no suppression, but the extent and degree of suppression. The Beacon for Freedom of Expression database allows the researcher to explore media suppression and threats to press freedom from a variety of examples with a global perspective.

BEACON CASES

The following is a selection of cases taken from the Beacon for Free Expression database which can be located by searching the database by publication name or country. The articles illustrate some of the range of actions taken to suppress freedom of expression in the press. They introduce themes several of which will be further developed in the rest of this article. The most Kafkaesque example in the way irrelevant looking regulations are used to suppress a publication comes from Syria. In 2003, before the present conflict, the licence to publish of a satirical weekly Al Domari was cancelled. The grounds were that it had violated press laws by failing to publish for three months. The hiatus in publication seems to have been in response to government pressure caused by the critical content that appeared in the magazine. Resuming publication to protect the licence was rendered virtually impossible by the refusal of the state-controlled press distributor to circulate copies of the new edition, which contained criticism of stringent new press laws and the general lack of press freedom. The mixture of threats, use of state monopolies and regulations to suppress criticism of press control has a nightmarish quality.

Direct official action can be used, as in Cambodia in 2011 when two newspapers critical of the government The Water and Fire News, and The World News were simply ordered to cease publication. Reasons for such action may be explicit. For instance, in Spain the Basque newspaper Euskaldonun Egunkaria was closed down and journalists arrested in 2003 on the grounds that it was associated with the terrorist organisation ETA. The newspaper was immediately reopened under another name. In Iraq a weekly newspaper Al Hawza was closed for six months in 2004 by the representatives of the occupying coalition on the grounds that it was publishing articles intended to disturb public order and incite violence against coalition forces. The justification offered for closure may be less specific, as in the Yemen in 2007 when two websites Al Shora and Aleshteraki were temporarily closed by government action. This seems to be because they were controlled by opposition parties and reported fighting with rebel forces. The fact that closure was for fixed periods lends the action more of the appearance of the rule of law.

Action may be less direct, but equally effective. A subtle exploitation of regulatory powers comes from the Ukraine, where in 2004 the opposition newspaper Silski Visti was closed down. The ostensible cause was its publication of two advertisements in 2003 for a book that was considered anti-Semitic. This was widely regarded as a pretence to silence it. Action can also take the form of various mixtures of covert and illegal and quasi-official. For instance, in the Gambia a newspaper called The Independent consistently offended officialdom, presumably by its independence. Extra-judicial action included the setting on fire of its printing press in 2004. In 2006 its premises were sealed and the paper prevented from publication by official, but illegal action. The examples could be multiplied to bring in an almost limitless range of different countries and the coverage of methods expanded considerably. There is little limit to what governments and other interested organisations will do to suppress comment and criticism. What this article will concentrate on is an example that shows up many of the issues with less obvious but still potentially threatening implications.

THE UK PRESS SCANDALS

Recent problems in the UK, which embeds the European Convention in its laws as the Human Rights Act, 1998, illustrate the difficulties that arise when press regulation is contemplated and applied in a (comparatively) open and free democracy. In particular the problems shift the focus of the debate from one which, as in the above examples, pits a powerful state against a weak press and media. In the UK case the media are rich and powerful in a way that could scarcely have been anticipated by the drafters of the European Convention, let alone those who drew up the amendments to the American constitution. Ironically this debate occurred in the UK at almost precisely the same time as a debate on the role of investigative journalism and whistleblowing by principled government officials. The revelations orchestrated by Julian Assange (now in diplomatic protection at the Colombian Embassy in the UK) and Edward Snowden (given temporary political asylum in Russia) remind us of the vital role of the press and media in supporting whistle-blowers to preserve and expand our freedoms. The issues arising from these cases are too complex and would require too much detailed explanation to allow them to be dealt with in this short article. They do, however, provide a compelling reminder of the indispensable positive role of press freedom, at the same time as we are exploring its misuse.

The UK problems that we will discuss here surfaced when it became clear that a sector of the press had been systematically perpetrating gross abuses of personal privacy. In 2007, a journalist at the newspaper The News of the World and a private investigator were convicted of illegal interception of phone messages. Although the newspaper claimed that this did not reflect its usual practices, other cases began to emerge, mainly concerning celebrities but also concerning news stories that included one particularly emotive example. The voicemail of a missing girl (who was later discovered to have been murdered) was hacked into, causing deep distress to her family. The sheer scale of these criminal abuses led to a special police investigation, which also revealed corrupt press relationships with police officers and ambiguous relationships with politicians. In July 2011 a public enquiry was set up to examine the culture, practices and ethics of the press. The enquiry and its report are known by the name of its chair Lord Leveson. The open public hearings included the cross examination of complainants, witnesses and members of the press including reporters, editors and owners. Victims of hacking who gave evidence included the actor Hugh Grant, Chris Jeffries who the press falsely accused of a crime largely on the grounds of his eccentric appearance, and Sally Dowler, mother of the murdered girl mentioned above. Perhaps most revealing was the testimony of Rupert Murdoch, the owner of the newspaper, in which he sought to distance himself from the abuses and assert the continuity of his media holdings contribution to free expression.

At this point it is important to stress that the issue is not merely the offences committed by journalists and their editors, but the consequences of the oligopolistic ownership of the UK press. The potential impact of published and broadcast expression places an enormous responsibility in the hands of the owners and managers of media outlets of all types. The image of the brave owner/editor of a small crusading newspaper is perpetuated in numbers of American movies, but current reality is quite different. Decades ago Schiller (1989) identified the development of a corporate oligarchy controlling large swathes of the worlds media. Rupert Murdoch, with his newspaper groups that dominate the global press and his TV and other media interests (with the Fox channel in the USA as flagship) is the personal embodiment of this tendency. Not to be forgotten, also, is the ownership of media by business corporations that also have a host of non-media interests. This means that newspapers, books, broadcasts and Internet information sources are not necessarily the neutral conduits of free expression which the constitutional and other agreements protecting them might suggest. What is new about the UK case is that, in contrast to what we might regard as the usual perception, the press does not on this occasion appear as a noble but vulnerable champion of freedom. In fact it represents unprincipled use of economic and political power greater than that of most states, which seems to call for some sort of regulatory system.

Major media owners tend to have the closest of relationships with governments. In discussing the press and freedom of expression it is easy to forget that in many cases we are actually discussing the freedom of immensely powerful people whose expression is made through a host of surrogates employed by newspapers and other media outlets. With this power come proportionate responsibilities. On the one hand media owners, and the politicians themselves, believe that media support causes governments to be elected or defeated (the support of Murdochs Sun newspaper in the UK is widely believed to have contributed heavily to the success of Tony Blairs Labour Party in the 1997 UK elections). On the other hand some governments feel able to demand that media groups conform to the norms of communication they set, in return for a position in the media market that they control. The Murdoch media in China seem to be in this position. Whilst it is not made totally explicit most of the time, Chinese government policy is fundamentally hostile to freedom of expression. A document representing policy at the highest level dealing with current subversive influences includes in its list Western-inspired notions of media independence. (Buckley, 2013) The close and intimate relationship between media and the centres of power compromises both media integrity and the independence of government in degrees that vary according to the political complexion of each particular state. The UK scandals seemed to reach some sort of closure with the publication of the Leveson Report, (Leveson Inquiry, 2012), which exposed what had been done with great clarity. The report also demanded a response from both government and the press. We will deal with this specific set of responses later, but first, responses to the press and freedom of expression need to be contextualised.

FORMS OF RESPONSE

If we explore the constraints to free expression normally exercised by states we find them taking some forms that at least nominally follow due process of law. At the same time we should not forget extra-legal or, to put it frankly, illegal measures taken against free expression. Most of the examples from the Beacon database discussed earlier, take this informal route. In many countries those who speak out have a real fear of beatings, confinement, torture, and violent death that has nothing to do with the formal apparatus of the state or any other organisation. Few people feel able to express themselves when they are terrified, and no one can express themselves when they are dead. Clandestine hit squads of off-duty policemen or soldiers, members of political movements or, quite simply, hired thugs attack free expression in many countries. Political dissidents, social individualists, members of marginalised groups, and the journalists who might try to reflect their views are under threat, particularly in Asia, Africa and Latin America. In Turkey during 2013s street protests in Taksim Square hostile tweets from official sources against Selin Girit a BBC journalist clearly constituted a concealed threat. As Fatma Demirelli of Todays Zaman put it Journalists now have a sort of split brain: on the one hand you see what the news is, but on the other you immediately try to gauge how to report it without stepping on anyones foot. (Letsch, 2013) The shooting of the Russian journalist Anna Politkovskaya in 2006 reminds us that intimidation does not stop at threats and menacing hints. Every year an average of 43 journalists worldwide are martyred in the service of free expression, (Committee to Protect Journalists, 2007), but every year an even greater number restrain their journalistic instincts and write what they think their political masters would prefer to read.

The two modes of legal response mentioned earlier are prior restraints on expression before it is even voiced, and those which oblige those expressing themselves to accept the possibility of legal challenges and possible penalties after the event. Prior restraint, also known as pre-censorship is the most open and damaging form of censorship. The state demands, through some system or other that material that is intended for publication or broadcast is submitted for inspection prior to its appearance. It is then formally decided by the censors whether or not the material will be approved for dissemination. Classic examples were the Book Chambers of the old Soviet Union. On the one hand they were a means of supporting and organising the publishing industry, but on the other they were the means of ensuring that only officially approved material appeared. Such an authoritarian system naturally inhibits the writer. It makes it obvious that the alternatives offered include risking rejection and all the subsequent threats to the writers comfort and security that implies; writing something that is predictably acceptable; or writing nothing. All-encompassing systems of prior restraint are not as common as systems that deal with some specific aspect of information, most commonly national security. Britain, for instance, has its Defence Advisory Committee, which can examine material intended for publication or broadcast that deals with sensitive defence matters. If it is considered necessary it can then order its modification or suppression by the issue of a DA Notice. Discredited and infrequently used as this system is, it reminds us that even a democratic state such as Britain offers its researchers and writers good reason to choose to avoid certain sensitive topics.

If there is to be some form of legal consequence for expression whose acceptability is successfully challenged, it is better that it is imposed as a penalty after publication or broadcast than suppression in advance. This gives the originator of the disputed communication the right to a trial in open court, during which the merits of the issue and the value of the intended communication can be properly debated. This was effectively the only recourse open to all those victims of press intrusion whose cases were examined by the Leveson Enquiry. The existing self-regulatory Press Complaints Commission was so ineffective that newspapers blithely continued in their unethical and illegal way. The difficulty for the victims of intrusion was that most of them lacked the capacity to investigate abuses that they suspected were taking place and did not have the money to take cases to court against the newspapers. There is a line of commentary arguing that fear of legal action has the potential to create what the Americans call a chilling effect on the press. This certainly did not apply in these cases. The fear of legal action can strangle a possible publication or broadcast by a small or financially vulnerable media organisation, but in contrast, the immensely rich Murdoch group can afford to ignore the chilling possibilities of legal action. Only state intervention seems to offer redress and a deterrent.

THE UK RESPONSE

What the Leveson Report proposed was that there should be a Royal Charter for the press which would provide for oversight of the self-regulation of the press. This is effectively a two layer arrangement. The press is expected to agree to creating its own self-regulatory body that will gain the approval of a supervisory board set up under the jurisdiction of the Royal Charter. The regulatory system would have sanctions available to it, including financial penalties for journalism that infringes the rights of the public, and compulsion to publish apologies that match the prominence of offending stories. An arbitration service that could order non-compliant media outlets to pay exemplary financial penalties for offences they might commit would form part of the arrangement. Despite the intention of this two layer scheme to protect press freedom by allowing it to regulate itself, under the supervision of an official board, several major press groups opposed the Charter. Perhaps the most disturbing and convincing claim made by critics of the scheme was that it could be modified at some time in the future so that it could be used to suppress freedom of expression and investigative journalism. A provision added to the Royal Charter in response to this stated that it could only be altered by a two thirds parliamentary majority. This still left some media groups alleging that freedom was under threat in the longterm.

To an independent observer it might look much more like the politicians were doing very their best to find some kind of arrangement that would restrain abuses without infringing freedom. Nevertheless, at the time of writing several newspaper groups were attempting to set up a self-regulatory body that would not be answerable to the board that had been set up under the Royal Charter. From one direction this could be seen as the continuing struggles of a powerful and arrogant press to go its own way, or from another direction a principled stand against an arrangement that could mutate into press control and suppression of freedom of speech. The new system of press regulation in the UK occupies a specific place in the spectrum of threats to freedom of expression. The threat is characterised as negligible by each of the main political parties, but described as considerable by sections of the press. At this juncture, the politicians probably have the best of the argument, but press fears cannot easily be disregarded. In their suspicion of the Charter and its complex arrangements, they can call on some arguments that have credibility. We could call these aspects of their case the potential for restriction creep.

RESTRICTION CREEP

The most disturbing argument against the measures contained in the Royal Charter is that any system of regulation lays itself open to restriction creep. By this we mean that a system set up to respond to obvious abuses can over time be used towards the application of anti-democratic press control. What is more, there are insidious arguments which are used in various parts of the world to allay the fears aroused by control. Not so long ago a Chinese colleague defended press and media control to me in a message that cited three justifications, national security, social stability and defence of the national culture. Despite my strong suspicions that he was obliged to do this by officials who had monitored our fairly innocuous email exchanges on the subject of freedom of expression, these are worth a little attention.

First, we should look at national security. As was pointed out at the very beginning of this paper, the European Convention on Human Rights recognises concerns over national security and territorial integrity as valid reasons for some curtailment of the right to freedom of expression. That having been said, the national security argument is probably the most frequently used lever to suppress broad categories of information and opinion. Patriotism has virtues, but it is arguable that the vices of patriotism, amounting at their worst to xenophobia, are much more significant. Certainly history provides ample evidence of the perils experienced by smaller nations and the tendency of larger imperial powers to impose their will on them. However, the idea that China, with its massive population and territory, guarded by enormous, heavily-armed military forces, needs more than minimal secrecy to protect it is ludicrous. By drawing citizens who quite reasonably love their countrys language, way of life, traditions and history into complicity with this farcical notion, a government effectively out-sources repression to the repressed.

Secondly there is social stability. The essential fatuity of the suggestion that people should avoid discussing social problems so as not to make them worse, means that it needs little comment. Threats to social stability are as old as society itself. They can be addressed by democratically-supported statesmanship based on the principles of justice and fairness, probably best expressed in the concept of human rights. Not talking about social problems is quite simply a formula for their perpetuation. Yet states claim that they promote social stability through national symbols, insulation of leaders from criticism and an agenda of suppressing comment on particularly problematic issues. Burning the Stars and Stripes, the UKs Union Flag or Denmarks Danebrog may be rather distressing to simple-hearted patriots, but who does it actually hurt? Do we really believe that criticism of Comrade Kim Il Sung, the Great Leader, Comrade Kim Jong-il, the Dear Leader, or the latest pathetic representative of this quasi-royal dynasty represents an unforgivable insult to all North Koreans? Does Turkey really ensure that Armenians and Kurds are more likely to be loyal citizens by making discussion of the genocide of 1915 illegal and suppressing the use of the Kurdish language? The least that people can do is reject these false agendas and speak out against them when they can.

Finally, there is the national culture. Whilst one can quite swiftly dismiss the validity of national security and social stability as reasons for self-censorship, the idea of national culture presents rather more difficulty. Even Americans, those great exporters of cultural products and services, sometimes think that their national culture is at risk. It may be a fundamental human mode of thinking, rooted in the mutability of cultures themselves, to see culture as having had its golden age (in England probably the late sixteenth century reign of Elizabeth I) and now being under desperate threat from some external source (probably for most countries an English-speaking source, the USA for instance). Yet, is it not somehow right to protect the individuality of specific cultures, so that the rich diversity of human life on this planet is not replaced by a bland, commercialised uniformity? Phrased in that way, it is hard to disagree with the sentiment. It is not the respect and care for national culture that is wrong: it is the suppression of ideas ostensibly to protect it that is the mistake. People might not be truly convinced by arguments such as these but they can at the very least be used to give a more acceptable face to the creep towards a more controlled press and other media.

CONCLUSION

On October 30th 2013 in London two events occurred. They were too strongly connected for it to seem coincidental that they happened on the same day. The formal sealing of the Royal Charter took place at Buckingham Palace, and the trial of the various accused in the case against the press phone hackers began. Thus on one day several people accused of misuse of press power faced the consequences of their actions in a classic demonstration of the role of the courts of law after the event. On the same day a system that might be capable of encouraging prior restraints to publication was inaugurated. One could take it that a very British compromise had been struck between the different legal means to deal with press problems and that the compromise had been signalled on this particular day. Questions remain however. Is there a danger that the regulatory system put in place post-Leveson will eventually compromise the important role of the press in revealing official suppression of information, as exemplified by the investigative journalistic revelations that we earlier mentioned almost in passing? Does the UK come closer to the kind of threats to press freedom indicated in the Beacon examples given earlier? The pressure group Hacked Off, which was set up to campaign on behalf of the victims of press abuse, does not accept that the Royal Charter risks this. They claim that News publishers now have a great opportunity to join a scheme that will not only give the public better protection from press abuses, but will also uphold freedom of expression, protect investigative journalism and benefit papers financially. (Wintour, 2013) This is an important opinion, but the debate remains unresolved. All that is guaranteed is that in the continuing struggle between the advocates of free expression and the enemies of the principle the UK example will continue to be an important case to follow. The new system of press regulation might be an effective means of ensuring responsibility, or it just might be a step on a road to censorship.

REFERENCES

Buckley, C. (2013). China memo reveals fears of Western influence. International Herald Tribune, Aug 21st, pp.1,3.

Committee to Protect Journalists (2007) Journalists killed: statistics and background. Available at http://www.cpj.org/deadly/index.html [Accessed 25.10.07)

Council of Europe (1950) European Convention on Human Rights. Available at http://www.hri.org/docs/ECHR50.html [Accessed 29.10.13]

Letsch, C. (2013). Where journalists have learned to censor themselves. Guardian (UK), 28th June.

Leveson Inquiry, (2012). Culture, practices and ethics of the Press. Available at http://www.official-documents.gov.uk/document/hc1213/hc07/0780/0780.asp [Accessed 6.11.13]

Schiller, H. (1989) Culture Inc.: the Corporate Takeover of Public Expression. London: Oxford University Press.

Wintour, P. (2013). Press regulation royal charter given go-ahead by the Queen. Guardian (UK), 30th Oct.