"intelligent and useful posts on many of the key legal issues"

- Adam Wagner, UK Human Rights Blog

Wednesday, 20 March 2013

A free press

There are some disturbing developments in the field of free speech around the world at the moment, all of which resonate particularly in the United Kingdom given the debate over a Royal Charter or possible statutory regulation of the press.

There are two points here: a general one about the nature of state control and a more particular one regarding free speech.

As to the first, fundamental rights and freedoms cease to be fundamental once the state gets the idea that they are just another part of its responsibilities and can accordingly be tinkered with at will.  This is why the executive is always pressuring to subsume management of the courts, the judiciary and the entire criminal justice process within another monolithic state emanation such as the Ministry of Justice.  Once that happens, then the rule of law becomes an optional extra, subject as with everything else to bugetary constraints and the overriding need to ensure the incumbent government gets re-elected. If the state gets hold of the press, then we can expect a steady if stealthy erosion of the freedom of the press, moving towards a curtailment of anyone being warned off stories which might embarrass the executive.

As to free speech, this is a principle that can be justified broadly on two grounds. First, the "rights" based argument, which is that as part of personal autonomy we have the right to free expression, meaning the right to any political, religious or other point of view, simply as part of a free society.

The second ground is the "consequences" argument, which is that the consequences of banning speech usually turn out to be worse than not doing so.  Of course this is not always the case, which is why consequentialist arguments in favour of a free press are always up for debate. At the moment the argument is being presented that the free press we have hitherto enjoyed behaved so badly that it needs to be reined in by way of a Royal Charter or statute.

Coinciding with the debate here comes this report into the Chavez regime.

Chavez was admired by a number of British politicians, a number of whom are struggling to say anything bad about him. Here, for example, is a breezy encomium from Lord Prescott on a tabloid site. And here is a Guardian editorial which struggles to say anything negative about him at all.

The most amusing and telling comment comes from the satirical Daily Mash, which ran a spoof headline about Guardian readers paying tribute to a man who would have banned the Guardian had it been published in Venezuela.

Then comes news of this sort of thing elsewhere.

It seems one step forward with free speech, and then a lot of steps backwards, and none of it bodes well for increased regulation in this country. 

Of course people have a right to a private life, and the press has been notoriously bad in recent years about interfering with such a right.  But there are two problems. First, no-one should assume that suppressing the press instead will automatically be a better option, or even that it will be the lesser of two evils.  The fact that certain sections of the press blinded themselves to Chavez's human rights abuses because they agreed with his anti-American stance or his social programmes does not fill one with confidence.

Secondly, the public/private distinction is not an easy one to make. For example, straw polls I have conducted confirm that Mr Piers Morgan is seen as a paradigm of an irresponsible tabloid editor, and by contrast the Guardian is seen as a responsible member of what used to be called the broadsheets.  For what it is worth, I do not number myself amongst Mr Morgan’s fans.  But credit where it is due.  In this interview Morgan makes Alan Rusbridger, the editor of the Guardian, look frankly ridiculous for his hypocrisy and muddle-headedness on the issue.   Who would want either a Morgan or a Rusbridger as a putative regulator of Fleet Street?

As with any form of regulation the prior question is whether any extra laws are needed at all.  I previously wrote about Leveson:

where the press have been shown to have entered into inappropriate relations with the police, then the answer is tighter controls of police. A police officer leaking information about an inquiry is (potentially) committing a criminal offence. Indeed, the journalist might too if he or she acted in a way that prejudiced a trial. There might also be a civil remedy arising from breaches of the right to privacy, having regard to Art 8 of the European Convention on Human Rights.

The same applies with politicians and civil servants: if they are too close to journalists, or are found leaking information improperly, then they may breach codes of conduct for their respective roles or, again, face both civil and criminal proceedings depending on the circumstances.

In other words, the answer to many of the questions posed by Leveson may well be better enforcement of the existing law, not new laws or new enforcement mechanisms.

 Which remains my view today.

No comments:

Post a Comment