INTRODUCTION, BY CHRISTOPHER PRENDERGAST

Freedom of speech, expression and publication is generally taken for  granted, in a double sense: we take it for granted that we have these  things, and we take it for granted that we understand them. Recent  events however – from the parochial (the Willetts affair  and the idea of a university) to the national (Leveson and regulation  of the press; the protection of whistleblowers in public life) – suggest  that it is no longer certain that we can rest secure in the  taken-for-granted. Someone who has been at the forefront of debate is  Baroness Onora O’Neill, Emeritus Professor of Philosophy in Cambridge,  former Principal of Newnham College, former President of the British  Academy, and current Chair of the Equality and Human Rights Commission.  She has spoken and published widely on these questions, from her Guardian piece on the Danish cartoons  to her detailed submission to the Leveson inquiry (she will shortly be  giving the Spinoza lectures at the University of Amsterdam, under the  title: ‘Speech Rights and Speech Wrongs’). One of the best-known of her  many interventions is the Reuters Memorial Lecture she gave in 2011,  ‘The Rights of Journalism and the Needs of Audiences’*. With the kind  permission of Onora herself and Kate Hanneford-Smith of the Reuters Institute,  we are reprinting it here, in the hope of sparking further debate,  whether in the Comments section of the Review or on our blog. We draw  attention in particular to three themes of her lecture: a) the need to  distinguish, both conceptually and practically, freedom of speech,  freedom of expression and freedom of publication; b) the relation  between freedom and responsibility; c) the context-bound determination  of any intelligible notion of ‘rights’ (for us, there is much food for  thought in her reference to Bernard Williams’s reminder  that, if they are to dedicate themselves to the pursuit of truth,  universities are and have to be places in which speech is ‘regulated’).

*Reuters Memorial Lecture 2011, organised by the Reuters Institute  for the Study of Journalism. Delivered on 21st November 2011 at St  Anne’s College, Oxford.

Christopher Prendergast

1. ‘IT’S THE NEWSPAPERS I CAN’T STAND’

In Tom Stoppard’s play Night and Day, one character remarks  to another: “I’m with you on the free press. It’s the newspapers I can’t  stand.” I don’t think that our discussions of the proper configuration  of press freedom have moved very far from this impasse in the thirty  years since the play was published. This is evident in the fruitless  reiteration of rival claims about supposed speech rights, both by those  who think the media— at least the print media— should be self  regulating, and that anything else will lead to censorship, and by those  who think that the media—including the print media— should be  restricted or regulated in various ways.

Outspoken defenders of media self regulation insist that any other  form of regulation will endanger press freedom, even lead to censorship.  At present those who oppose regulation are particularly keen to counter  any claims that the right to privacy might receive greater legal or  regulatory protection at the expense of media freedom. For example, Paul  Dacre1  has claimed robustly, but with little argument, that those who seek to  use regulation to secure greater respect for privacy are enemies of  press freedom, in thrall to an establishment “whose hatred of mass  selling papers has transmogrified into a hatred of self-regulation  itself”. Others insist that we need to respect rights to privacy even if  this means that we have to remove some of the privileges of  self-regulation2  from the media, as they have been removed from other institutions and  professions across the last thirty years: a change enthusiastically  supported by most of the media. The debate is confused by the fact that  both sides claim to champion ‘independent regulation’, by which they  mean entirely different things.

In my view, unargued appeals to the (supposed) rights of a free  press, or (supposed) rights to privacy, or other (supposed) speech  rights get us precisely nowhere. They don’t show whether adequate  self-regulation is possible, or desirable, or whether it is better than  other forms of regulation, and they don’t show which forms of regulation  are compatible with which configurations of press freedom. Nor do they  show how the claims of privacy and press freedom are to be dealt with in  cases of conflict. If we want a convincing view of press freedom,  assertions about rights are not enough.

Yet current debates about speech rights, or supposed speech rights,  seldom go beyond appeals to (supposed) rights. Unsurprisingly they  provide a poor basis for thinking about press freedom. The various  rights appealed to are indeterminate, and reasons for giving more weight  to one rather than another are not articulated. In these inconclusive  debates, speech rights are variously taken to include freedom of speech,  freedom of expression and freedom of the press, flanked by more  specific speech rights such as freedom of information, rights to know  (occasionally exotic rights not to know), data protection and  privacy rights, and rights intended to protect specific sorts of speech,  such as freedom of worship, artistic freedom or academic freedom.  However, this comforting rhetoric of rights does not show which of these  supposed speech rights matters most, let alone which matters most in  specific situations.

Disputes about the proper boundary between rights to freedom of  expression and to privacy illustrate the difficulty of resolving these  issues by appealing to the rights proclaimed as Human Rights. Both  rights are proclaimed both in the 1948 Universal Declaration of Human Rights (UDHR Articles 12 and 19) and in the 1950 European Convention on Human Rights (ECHR Articles 8 and 10). In ECHR  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”. Like  other Convention rights, rights to privacy and to freedom of expression  are both hedged with numerous restrictions, listed in the second parts  of the two Articles. The Convention does not assert unconditional rights, and it does not  rank the rights it asserts. Nor do other proclamations and declarations  of rights. Comments about the need to ‘balance’ these rights against  one another point to a genuine problem, but do nothing to resolve it.  Moreover it cannot be resolved by invoking the authority of  Declarations, Conventions or Constitutions3:  conflicts between the claims of freedom of expression and of privacy  can’t be settled just by asserting that the former right trumps the  latter, or vice versa. Arguments from authority cannot vindicate the  authority they invoke.

Any defensible account of press freedom, or of other speech rights,  needs rather to draw on the political and philosophical arguments that  lie behind the landmark proclamations and declarations. Our reasons for  taking certain speech rights seriously is not, after all, that they have  been declared or proclaimed, or that they are beloved by parts of the  Human Rights movement, or even that they have been incorporated into  numerous constitutions or into UK law. Our reasons are rather that  certain speech rights are backed by probing and well-explored arguments  that have been thought about, criticized and honed in long debates about  the nature and needs of liberal and democratic societies. We are, I  think, more likely to find adequate arguments for one or another  conception of press freedom, and of other speech rights, if we do not  ignore those arguments.

2. THREE ARGUMENTS FOR PRESS FREEDOM.

Broadly speaking there are three reputable lines of argument for  press freedom in the liberal tradition. Rather inconveniently, they seek  to justify quite different configurations of press freedom.

A. PRESS FREEDOM AND TRUTH SEEKING

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 Milton’s argument for  freedom of the press. In Aereopagitica he claims 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?4

The rhetoric soars, but unfortunately Milton’s claim is not broad  enough and not convincing. His argument is too narrow because it is  silent about speech that does not aim at truth. It is unconvincing  because freedom may be necessary but is rarely sufficient for speech  that aims at truth. Truth is quite 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,

…in institutions dedicated to finding out the truth, such  as universities, research institutes, and courts of law, speech is not  at all unregulated.

The one conclusion that we can safely take from Milton’s argument is  that censorship – ‘prohibiting and licensing’ – damages the search for  truth: but refraining from censorship is only a necessary and not a  sufficient condition for truth seeking.
Free and open encounters are not enough for speech that makes truth  claims, including media speech that makes truth claims. Reporting news  or football results is different from publishing horoscopes or short  stories, and needs different disciplines (we don’t demand checking of  horoscopes, or expect editorial corrections when their predictions are  wildly incorrect). But those who make or query truth claims need to take  account of evidence and argument, of standards of honesty and  competence. Here the open question is not whether media truth claims need to respect epistemic and ethical standards, but how respect for those standards is to be secured.

John Stuart Mill joined Milton in arguing that knowledge of truth  improves when ideas are not merely uncensored but freely contested. In On Liberty 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.

Once again the argument against censorship or silencing of truth  claims is convincing, but Mill too does not provide an argument for any  determinate form of press freedom. ‘Collisions with error’ only help  distinguish truth from error if they use appropriate epistemic and  ethical standards. Later appeals to the image of a ‘marketplace of  ideas’ fail in the same way. Like ‘free and open encounters’ and  ‘collisions with error’, untrammelled exchanges in that famous market  place are as likely to lead to a Babel of voices as to comprehension,  let alone discovery of truth, or reliable ways of distinguishing true  from false claims. Like other market places, a market place of ideas  works when, but only when, the right sorts of disciplines and standards  are respected.

B. PRESS FREEDOM AND SELF EXPRESSION

Elsewhere Mill went much further than Milton. He looked beyond speech  that aims to communicate truth claims to the whole gamut of self-expression.  Acts of self expression need not be noticed by or directed to any  audience, need not be intelligible, and need not be intended to  communicate; they need not make truth claims.

In On Liberty Mill approaches self-expression by way of 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 points out that much individual speech is merely self-regarding (today we would say merely self-affecting).  Since speech that doesn’t affect others won’t harm them, issues of  self-protection won’t arise in this case. So if we accept the harm  principle, we should neither prevent nor constrain self-regarding  speech.

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 then claims that this extensive freedom is “practically inseparable” from “liberty of expressing and publishing opinions”.

Unfortunately Mill’s defence of individuals’ rights to  self-expression is unhelpful 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  need is media with parallel rights of self-expression, since such media  would have no obligation to publish individuals’ opinions, so would be  entitled to constrain and undermine individuals’ rights to self  expression.

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, I suspect, is just an unfortunate  convergence of terminology. Powerful institutions, including media  organisations, are 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 can’t harm, others can’t stretch to cover the speech of governments or large corporations, of News International or the BBC.

Yet the phrase freedom of expression has become the established term for media freedoms in the last sixty years, since its use in UDHR and in ECHR.  I believe it has gained this prominence for reasons that have almost  nothing to do with self-expression or rights of self-expression. Freedom of expression  is a useful phrase for two quite different reasons. In the first place,  it covers the gamut of communication media (broadcasting, print, film,  the internet), whereas some of the classical speech rights focus on  specific media of communication (freedom of speech; freedom to publish; in German the deliciously named Federfreiheit (lit. freedom of the pen i.e. the quill or feather). Secondly, the phrase freedom of expression  is neutral about the types of individual or organisation that, as we  now often say, originate content, and unconcerned about the audiences to  whom that content may be directed. Consequently a focus on freedom of  expression can readily be taken as a licence to focus on the rights of  originators at the expense of the needs of readers, listeners and  viewers, and in the media context to focus on the rights of journalism  rather than the needs of audiences.

C. PRESS FREEDOM AND THE NEEDS OF AUDIENCES

Claims about rights to freedom of expression in the broad  contemporary sense are remote from Millian claims about rights to  self-expression, and we cannot use Mill’s arguments to vindicate them.  Fortunately there are other arguments for freedom of expression,  understood broadly, that are neither restricted to speech that makes  truth claims, nor marginalise communication by focusing on  self-expression.

Freedom of expression, understood broadly, is required for civic,  social and political life, and indispensable for democracy. Without it  communication with and among citizens, as well as between government and  citizens, can be impeded or distorted and may leave some or many unable  to understand or assess others’ speech, or to participate in social,  cultural and political life. However, a broad configuration of freedom  of expression can be justified by its role in protecting, respecting and  contributing to the communication needed for social, cultural and  political life: but this argument will not justify rights of  self-expression for the media. Rather it will support media freedom to  communicate in ways that are intelligible to and assessable  by readers, listeners and viewers. A plausible vindication of an  adequate interpretation of freedom of expression must, I believe, take  the needs of audiences seriously.

One way to identify which configuration of press freedom can be  justified is to consider more closely why individual rights of  self-expression cannot be extended to the media. Individuals can express  themselves without anybody noticing that they are doing so,  understanding what they mean or grasping what they are doing.  Self-expression does not need audiences because it need not communicate.  When others merely express themselves we can afford to tolerate a  degree of inaccuracy, insincerity, exaggeration, confusion, and the like. Mill is, I think, right that we need take issue only when self-expression risks harm to others.

Matters are different with speech that seeks to communicate, and  markedly different when powerful organisations, including the media,  seek to communicate. The communication of the powerful can shape and  influence, improve and damage others’ lives, and in democracies we have  long since taken steps to regulate the communication of most powerful  organisations. The speech rights of governments, of public bodies and of  companies are heavily constrained, and nobody thinks that they should  have the privilege of self-regulation. They must report in prescribed  ways on prescribed topics, and submit specified information to audit,  there is no right to invent financial or other information; government  and public bodies are also multiply open to scrutiny and freedom of  information requests and must not be partisan. The media are in quite a  different situation, and it is often said that this is essential because  anything other than self-regulation would permit censorship of content.

But censorship of media content is not the only risk against which  readers, listeners and viewers need protection. The needs of audiences  are also disregarded or short-changed unless others’ communication,  including media communication, allows them to understand what is said  and to assess what is done in saying it. Intelligibility and  assessability matter for all communication, and more so for the  communication of the powerful.

I do not think that a requirement that media communication be  intelligible will be at all controversial. Neither newspapers nor  broadcasters aim to be or gain by being unintelligible, or have an  interest in being unintelligible, although no doubt some content is  wearyingly unintelligible to some audiences. But assessability is  another matter: why should the media bother to make their content  assessable by their audiences? Why do audiences need not only to  understand, but also to be in a position to assess what the media  communicate? Should and can regulation seek to ensure assessability?

The short answer to this is that the communication of the powerful,  including media communication, is neither infallible nor disinterested.  Since it is not infallible, audiences need to be able to assess the  reasons or evidence for its claims. Since it is not disinterested  audiences need to be able to identify the interests it may serve. Just  as the liberal tradition has argued for measures to secure discipline  and transparency in other organisations that exercise power, so it has  reason to support measures to secure discipline and transparency in the  exercise of media power.

Lack of discipline or transparency in the exercise of media power in  liberal societies does not often take the form of crude propaganda –  although that is not unknown. It can show up as failure to report on  topics that matter for citizens, as reporting that is slanted, selective  or confused, as ‘reporting’ that echoes unacknowledged press releases,  as attentive coverage of matters of undeclared financial interest to  proprietors or to journalists; as editorials that are really  advertisements; as opinion pieces that masquerade as reporting, as  covert exercises in product placement, and as tendencies to exaggerate,  ignore, exclude, marginalise or mock certain voices or topics.

I emphasize the generic problem of content that is cavalier about the  needs of audiences because I think there is danger in focusing too  narrowly on the preoccupations with celebrities, scandal and sensation  in parts of the media.
The problem, as I see it, is not just that some of the media are  intrusive, but a more general failure to think enough about the needs of  audiences. Too often media communication is driven by undeclared and  undetectable objectives and interests, which may hinder audiences who  need to assess media claims and commitments. Hidden persuasion is easier  for those with hidden powers.

3. WHAT CAN BE DONE?

Any adequate account of press freedom must, I therefore think, take  account of the needs of audiences to understand what is said, and to  assess what is done in saying it, which both matter for a configuration  of press freedom that supports social, cultural and political life. But  even those who agree that this is the most convincing argument for press  freedom differ about its practical implications. Can anything be done  about media standards without risking censorship? Some doubt whether it  is worth discussing media regulation, since they find it so blindingly  obvious that there should be none – or at most a veneer of  self-regulation.

Still, if not now, when? In the wake of the U.K. hacking scandals  that emerged in the summer of 2011, we now find ourselves in the midst  of widespread discussions of the proper configuration of press freedom,  of ways in which it can be accommodated to other speech rights, and of  the forms of regulation by which it might be best achieved. What could a  focus on the needs of audiences bring to that debate? I shall comment  on three areas in which I believe a focus on the needs of audiences  points to changes that do not risk censorship. The three areas are the limitation of media power, the
protection of privacy and the improvement of media process.

Audiences are assisted in judging media content and claims are helped  if they meet a range of perspectives. So if we justify press freedom by  its social, cultural and political benefits, we should seek to limit  the concentration of media power. In the UK anti-monopoly restrictions  on media ownership were weakened in the Communications Act  2003, and cross border ownership is permitted. Anti monopoly provisions  could be strengthened without any risk of censorship of content. While  greater plurality of ownership will not guarantee greater diversity  of content, it is likely to contribute to diversity and to provide  readers, listeners and viewers with more diverse considerations,  evidence, issues and opinions.

It may also be relevant to revisit the issue of cross-border control  of the media. Are citizens and democracy well served if many of those  who own and control significant parts of the media do not share  citizenship, domicile or residence with readers, listeners and viewers?  Are we really content for some dominant voices in British politics to be  controlled by those who pay no personal taxes here and may not share  our geopolitical fate? Would we be content if additional News  International papers were sold off, and we found that we could add a  Chinese and, say, a Qatari owner to our rather healthy list of  expatriate owners of major newspapers?

Secondly we shall need to think more about rights to privacy. We are  now moving away from the world in which it was plausible, or at least  faintly respectable, simply to deny that there are rights to privacy, or  to insist that (unlike other rights) they should have no legal  protection. In debating the proper configuration of the right to  privacy, I believe that we shall need to clarify the scope of public  interests defences for content that would otherwise be private. However,  my guess is that the most taxing issues for securing any interpretation  of privacy rights will focus on the permissibility, or otherwise, of  publishing material placed on line anonymously. Is it acceptable to  recast undocumented and unauthorized publicity about others’ private  lives by claiming to report material already in the public domain?  Anonymous postings may reflect fantasy, gossip or prurience, or indeed  self promotion and revenge. I confess that I do not see how what we  might best deal with this problem. Yet if we do not deal with it media  power will remain intimidating for many, and so damaging to social,  cultural and political life.

However, discussions both of anti-monopoly provisions and of rights  to privacy are both slightly separate from of the main line of  discussion of media freedom, and of the limits of media regulation, and I  think that it is on these that we can expect to find the most  fundamental debates. Can self-regulation be made effective? Or is the  very notion of effective self-regulation self-deceptive? Is it true that  anything but self regulation will permit censorship? The evidence to  date is that self-regulation has not been effective or ethically  adequate, so the burden of proof now lies with those who think that it  could be reformed to make it effective or adequate.

An alternative way forward would accept that media regulation must  have a statutory basis, so that those with responsibility for it can  require others to produce evidence and can inflict sanctions, while  barring the door to censorship of content. This, I believe, is not  impossible.

If so, the following rather narrower question arises: Could media  regulation be given a statutory basis while barring external attempts to  control content, and so to censor? It seems to me that only a body with  a statutory basis could have the necessary powers to call for evidence  or to sanction, but that such a body could be confined to regulating  media process, and explicitly prohibited from regulating media content. The regulation of process could be useful for audiences and make media claims more readily assessable.

Consider how things might change if media process were regulated to  secure assessability. The governing idea of such regulation would be to  require exercise of media power to be openly acknowledged, and subject  to the sorts of disciplines other powerful institutions and office  holders must meet. Why should office holders in public and corporate  institutions be required to declare their financial and other interests,  while leading journalists, editors and proprietors are not? Why should  office holders in public, corporate and charitable bodies be required to  declare ‘related party transactions’, gifts and the like, while those  who work for the media are not? Why should the remuneration and tax  status of leading journalists, editors and proprietors be private? Why  should payments made for content (e.g. for the stories of celebrities  and of victims, or for the use of private detectives) not be made known  to readers, listeners and viewers. How far should anonymity for sources,  sponsors and other paymasters be acceptable? Should not cheque book  journalism declare its true colours? Should not financial journalists,  restaurant critics, travel writers, property columnists and many others  reveal what they own, who paid them and whom they paid for which  content? Could not those who are in the business of organising and  providing content for others be free from censorship, but subject to  processes that allows others to judge their claims and commitments? The  media have been keen enough on transparency for others with power or  influence, and what is sauce for political geese is surely also sauce  for media ganders.