My first thought: given that the debate is about freedom of speech, isn’t it just a little bit ironic that the debate is so one-sided? We may be hearing from the press and those who hold a brief for the press, in the press, that libel claimants should bear the burden of proving damage and falsity; that libel damages should be capped in any case, however serious, at £10,000; that companies should not be permitted to maintain a libel action unless they can prove malice; that there is “no robust public interest defence in libel law” (notwithstanding the decisions in Reynolds v Times Newspapers Ltd  2 AC 127 and Jameel v Wall Street Journal Europe Sprl  UKHL 44;  1 AC 359), and so on.
But where are the voices being heard of those who think, for example, that the current balance between freedom of expression and other countervailing rights and considerations, including privacy and reputation, is being struck, give or take, correctly? And what of those who think that the press have simply too much power without enough responsibility? (Some such people must, I suppose, exist.) Reading recent press reports bearing upon this debate, one might be forgiven for concluding that no one had ever had reasonable cause for complaint about anything published in a newspaper; that the press had never unjustifiably invaded anyone’s privacy or injured anyone’s reputation.
My second thought is this. I cannot help thinking that these clarion calls by the press for greater freedom of expression, that is to say, fewer legal restrictions upon what they can publish, are short-sighted and are not in the press’s own best long-term interests – that is to say, at any rate, the traditional newspaper press’s best long-term interests.
I put it this way. We know that traditional newspaper readership is in decline. More and more people, the young in particular, are getting their news and other information from the internet – from favoured websites, specialised blogs, chat-rooms, and social networking sites like Facebook and the like – and not from newspapers, whether in print format or online.
The one thing, it strikes me, that distinguishes traditional newspapers from their upstart online rivals – the one thing newspapers have over their online rivals as sources of information – is the established bond of trust and loyalty between newspaper and reader.
Those of us who buy traditional newspapers do so because at some level we believe and trust that the information they provide is, broadly speaking, going to be reliable. That efforts will have been made to ensure that the factual information they contain is accurate. That the commentary they comprise is honest and based upon facts. With blogs and the such-like, by contrast, one simply does not know what one is getting.
In my view, this bond of trust, in the long-term, is liable to be the traditional press’s most valuable asset. It is the asset which, above anything else, is likely to enable the newspapers to hold on to their current readership and to attract new younger readers, readers who perhaps will become disenchanted with the relentless babble, white noise and anarchy which characterises much of the internet.
In these circumstances, it is this asset, this bond of trust, which the press should preserve and cultivate at all costs. Nothing should be done to undermine it. As the philosopher and ethicist Professor Baroness O’Neill of Bengarve observed in her thought-provoking series of Reith Lectures for the BBC in 2002 entitled “A Question of Trust”, if a greengrocer I frequent starts selling me rotten apples, it will only be a matter of time before I stop frequenting the greengrocer and go for my apples elsewhere.
Under the specific heading ‘Press freedom in the 21st century’, Baroness O’Neill makes the following salient observations (pp. 92 – 95):
“…if we want to address the supposed ‘crisis of trust’ it will not be enough to discipline government, business or the professions – or all of them. We also will need to develop a more robust public culture, in which publishing misinformation and disinformation, and writing in ways that others cannot hope to check, are limited and penalised. Yet can we do so and keep a free press?
We may use 21st century communication technologies, but we cherish 19th century views of the freedom of the press, paradigmatically those of John Stuart Mill. When Mill wrote, the press in many countries was censored. The wonderful images of a free press speaking truth to power and of investigative journalists as tribunes of the people belong to those more dangerous and heroic times. In democracies the image is obsolescent: journalists face little danger (except on overseas assignments) and the press do not risk being closed down. On the contrary, the press has acquired unaccountable power that others cannot match.
Rather to my surprise and comfort, the classic arguments for press freedom do not endorse, let alone require, a press with unaccountable power. A free press can be and should be an accountable press.
Accountability does not mean censorship: it precludes censorship. Nobody should dictate what may be published, beyond narrowly drawn requirements to protect public safety, decency and personal privacy. But freedom of the press also does not require a licence to deceive. Like Mill we want the press to be free to speak truth and to challenge accepted views. But writing that seeks truth, or (more modestly) tries not to mislead, needs internal disciplines and standards to make it assessable and criticisable by its readers. There is no case for a licence to spread confusion or obscure the truth, to overwhelm the public with ‘information overload’, or even more dispiriting ‘misinformation overload’, let alone to peddle and rehearse disinformation…
Like Mill we may support freedom of discussion, think that it is fundamental to democracy, and so support the freedom of the press to foster what in the USA is charmingly called wide-open, robust debate. But for that very reason we cannot support freedom for media conglomerates to orchestrate public ‘discussion’ in which some or many voices are unrepresented or caricatured, in which misinformation may be peddled uncorrected and in which reputations may be selectively shredded or magnified.”
In short, to paraphrase Lord Hobhouse in the Reynolds case, “there is no public interest in misinformation”.
If a situation is allowed to develop – indeed, if the traditional press encourage a situation to develop – whereby there is less of an incentive to publish accurate, responsibly checked, information, whereby newspapers publish more misinformation, whereby reputations are more often selectively shredded and magnified than they are now, gradually, slowly but surely, this will erode the bond of trust. And if this bond of trust between newspaper and reader goes, what will be the point of buying a newspaper? Why not just surf the net and see what one finds?
In these circumstances, surely what is in the long term interests of the press is not more freedom, but more responsibility and accountability – precisely, as it happens, what the press demand of everyone else? The current legal framework tends in my view to promote and foster these values. Being responsible and accountable may be burdensome and expensive, sometimes irksome and inconvenient, but in terms of the traditional press securing its long-term survival, it may just be worthwhile.
© Godwin Busuttil 2009
Godwin Busuttil is a Barrister at 5RB
This post is based on a talk given by the author at the JUSTICE / Sweet & Maxwell conference, Free Speech v Privacy – The Big Debate, held on 1 December 2009.
© Godwin Busuttil 2009