A classic study of public opinion found that while Americans generally supported abstract principles of freedom of expression, many would not support the application of these principles in concrete cases, such as permitting an extreme group to speak at a local school (McCloskey and Brill 1983). That the public can support concrete actions that undermine professed principles was one factor that led to elitist theories of democracy, which argued that democracies rely on elites, such as judges, and parliamentarians, to protect democratic rights and civil liberties. They can’t be left to public opinion. This does not always work.
The public and many politicians seemed to ignore a disjunction between abstract principles and concrete applications of these principles when all the parties in Britain as well as the public at large supported a statutory imposition of a press regulator, agreed early this week, while still voicing support for freedom of the press.
It is most important to focus on those expected to uphold civil liberties in the face of prevailing public opinion, our elected officials. Are they hypocrites, not seeing the inconsistency in how their stated principles are contradicted by their support for actions that will have a chilling effect on freedom of the press? Or do they see themselves balancing conflicting principles, such as accepting limits on freedom of the press in order to uphold law and policy on bribery, privacy and data protection, and libel or defamation?
I should preface my response by stating my own view that the new press regulation will have a chilling effect on freedom of the press and freedom of expression online. The obvious threat of imposing exemplary fines on papers or Web sites that don’t join the club, and are judged to have defamed a person, is clearly going to have a chilling effect across the board, and particularly on organizations without deep pockets. Providing greater support for libel actions against newspapers and Websites will lead the press and bloggers to over-censure their work in anticipation of potential retribution by the regulator, such as in disproportionate awards to claimants.
Most importantly, this creation of law and regulation by the state to control the press in print and online is the beginning of the end of an independent press – the Fourth Estate identified by Edmund Burke. The press is a Fourth Estate because it is separate and relatively independent of the state, and therefore able to hold government to account. Now we are seeing some newspapers (e.g., FT, Guardian) joining the state sponsored club of papers, losing their independence, while a few papers, such as The New Statesman, have had the courage to refuse to join this group.
So the question that I must ask myself is whether this loss to freedom of the press through the creation of this regulator is justified by other values that will be protected by the regulator. My conclusion is that it is not, but let me explain by taking you back into increasingly familiar territory, which has been well developed by many others, but ignored since the day that Mum’s Net made phone hacking a politically powerful issue.
Phone hacking is a good example as it brings together the major wrongs attributed to the press and other actors in this saga. Namely, it involved unauthorized access to personal information (violation of privacy and data protection), bribery of police officers (police corruption), and defamation (libel or slander by the press).
Immediately after the phone hacking scandal broke out, the principle focus of blame fell on the Press Complaints Commission. It was said to have had no teeth, and was ineffectual in regulating the press. Self-regulation therefore lost credibility, and this created momentum behind the Leveson Inquiry and then behind statutory regulation of the press – regulation imposed by the state although cloaked in a Royal Charter.
In the immediate aftermath of the phone hacking scandal and attacks on the PCC, I approached my colleagues enmeshed in the study of journalism and the press and argued that the Press Complaints Commission was being used as a red herring, deflecting attention from those responsible for the law and policy that should protect the public from phone hacking. Thinking I would be corrected, I found to my surprise that they generally agreed, but they shied away from openly challenging what was soon becoming the dominant narrative among the critics of phone hacking. Far from the Internet creating an ‘echo chamber’ of self-reinforcing opinion (Sunstein 2007), the groupthink within the club of those critical of the tabloids put politicians in a true echo chamber.
Clearly, unauthorized access to personal information is a violation of privacy and data protection but it was and continues to be the responsibility of the Information Commissioners Office (ICO). The ICO reported on phone hacking well before the issue exploded with pressure from Mum’s Net in the pre-Hacked Off days. Politicians failed to take onboard the findings of the ICO and support the ICO in dealing with this problem. The Press Complaints Commission (PCC) is not the ICO or Parliament. The government should give the ICO the resources and support necessary to address this problem.
Likewise, the bribery of police officers is not the job of the PCC and could never be. How could the government create a press regulator capable of taking on the Metropolitan Police. This is absurd. Again, the PCC was a red herring here as well. The arrests of many journalists over hacking and bribery – without a PCC – attests to its irrelevance here as well. While I believe the arrests of journalists has been disproportionate in the extreme, and damaging to the press, they illustrate that laws and public bodies exist to address bribery and corruption. No need for a state press regulator here.
That leaves defamation, but here again, there are major existing laws in Britain that protect the public from defamation. In fact, Britain has become world famous for being the place to bring lawsuits. American legislation has sought to block individuals bringing libel cases to the UK courts in order to protect freedom of expression in the US. Britain is known as the destination for libel tourists. But one need only think about examples in the UK, such as failure to expose allegations against the BBC’s Jimmy Saville, to see that defamation is so protected here that the public was unaware of these allegations for decades, and reported only after his death.
Freedom of the press and expression, more generally, are being shaped by an ecology of choices being made about other policies and values, including libel, privacy, security, and other digital rights, such as freedom of information. Worldwide, choices being made by public officials about this wide-ranging ecology of law and policy is increasingly restricting freedom of expression (Dutton et al 2011). Internet content filtering is increasing around the world, as is the application of inappropriate regulatory models to the Internet, such as state pressure on ISPs to control content as if they were a broadcaster. On top of this, the previously unthinkable state regulation of the press in Britain is indeed a set back, but hopefully not a point of no return.
Together these trends are threatening the role that the Internet has played in empowering individuals in ways that are creating a Fifth Estate of networked individuals (Dutton 2009). The Fifth Estate can source its own information and networks in ways that can challenge the press, government and corporate elites. However, in one ‘little’ law, the UK is putting the Fourth and the Fifth Estate in great jeopardy, at the time when independent thought and accountability are desperately needed. This is the foundation of a pluralist liberal-democracy.
What can be done? I will try to support the journalists who are speaking the truth to power, such as Simon Jenkins with The Guardian, John Kampfner, Nick Cohen, and others, who are not towing the all party line on the new press regulator, and support the papers and Web sites that have the courage to challenge this new imposition of greater fines in a country that has been a libel tourist destination, such as The New Statesman. Also, it seems clear that this new press and Internet regulation has begun to wake up an otherwise too complacent blogosphere to stop taking freedom of expression for granted. Everyone needs to be more watchful of moves nationally and internationally away from support for and tolerance of freedom of expression (Dutton et al 2011).
Academics need to stop being afraid of offending politicians and challenge the echo-chamber that the anti-tabloid press and those public intellectuals seeking revenge on the press barons that have put politicians. As a number of commentators have said, this is all about freedom of the press and expression that is critical to well functioning liberal democratic societies, and not the time or way to take revenge on the press barons. Parliament should bring concrete actions in line with their abstract principles and drop this unwarranted press regulation, since competing values are already well protected by other law and policy.
William H, Dutton, (2009), ‘The Fifth Estate Emerging through the Network of Networks’, Prometheus, 27: 1–15.
William H. Dutton, Anna Dopatka, Michael Hills, Ginette Law, and Victoria Nash (2011), Freedom of Connection – Freedom of Expression: The Changing Legal and Regulatory Ecology Shaping the Internet. Paris: UNESCO, Division for Freedom of Expression, Democracy and Peace. Reprinted in 2013; Trans. In French and Arabic.
McCloskey, Herbert, and Brill, Alida, (1983), Dimensions of Tolerance: What Americans Believe About Civil Liberties. New York: Russell Sage.
Sunstein, C. R., (2007), Republic.com 2.0 . Princeton, NJ: Princeton University Press.