On 14 November 2011, when Lord Justice Leveson opened the formal phase of his Inquiry, he stated that ‘I fully consider freedom of expression and the freedom of the press to be fundamental to our democracy, fundamental to our way of life. But that freedom must be exercised with the rights of others in mind’. In this submission to the Inquiry, I want to suggest that the time has come to re-think the whole notion of press freedom – and indeed of the freedom of the media in general.

In particular, I want to argue that traditional notions of press freedom are rooted firmly in the seventeenth, eighteenth and early nineteenth centuries and are in serious need of updating; that freedom of expression and freedom of the press are all too readily conflated and need separating out from one another; and that we need to consider not only the right of the press to publish but the right of readers to receive the information which they need in order to function effectively as citizens of a democratic society, a right which places certain obligations on the press (I use the word ‘press’ to refer to newspapers, and ‘media’ to refer to the generality of the media in contemporary society).

The press largely defines freedom of expression as being constituted by the absence of statutory regulation. As we have seen during the run-up to and the course of the Inquiry, any suggestion that the press might be subject to greater regulation by the state, either directly or at arms length, is criticised by newspapers as being tantamount to threatening to impose on them the conditions under which newspapers exist in Zimbabwe, Syria or Hungary.

‘Free enterprise is a pre-requisite of a free press’

In this view of freedom of expression, it is the interests of the press, not of its readers nor of the subjects of its coverage, which are fundamental.  Such a view is based (albeit implicitly) on the property rights of press owners, on ‘free market’ economic theory, and on the closely related notion of the press as a marketplace of ideas. This last rests on the entirely laudable assumption that democracy is best served by the free exchange of ideas, for which freedom of expression is vital. However, whether it is best served by unfettered competition in the newspaper market is highly questionable. But evidence that this is indeed the dominant view in this country is not exactly hard to find. For example, the 1949 Royal Commission on the Press stated that ‘free enterprise is a pre-requisite of a free press’ whilst the 1977 Commission approvingly quoted Justice Wendell Holmes’ famous 1919 judgement that ‘the best test of truth is the power of the thought to get itself accepted in the competition of the market’ and themselves stated that:

In the case of the press, with certain limited exceptions, no legal restriction is placed on the right to buy or launch a newspaper. The justification is that this freedom produces a sufficiently diverse press to satisfy the public interest by ensuring a broad spectrum of views, and at the same time meets the individual interest by enabling virtually anyone with a distinctive opinion to find somewhere to express it. Consequently, there is no specific obligation on editors or proprietors to have regard, in what they publish, to the need to meet either the public or the individual interest, since the invisible hand of the market is expected to fulfil both (1977: 9).

Similarly, in 1992 the UK government specifically told the Council of Europe that ‘the United Kingdom regards press freedom as an absolute freedom. The government leaves it to the market forces to decide which press products survive’(1992: 53). As James Curran has rightly concluded:

Liberal theory assumes tacitly that press freedom is a property right exercised by publishers on behalf of society. According to this approach, publishers should be free to direct personally their newspapers, or delegate authority to others, as they see fit. What they do is consistent, ultimately, with the public interest since their actions are regulated by the free market. This ensures, in liberal theory, that the press is free, diverse and representative.

Thus as far as the press is concerned, newspaper owners and politicians are agreed that the marketplace of ideas should be treated and should function in the same way as the market for any other product or service. In other words, consumer demand determines what goods are produced and who purchases them, and government’s only role is to make and enforce the rules which allow a competitive market to function. Any other form of regulation simply distorts the market, operates against the interests of both producers and consumers, and  violates the private property rights on which this whole edifice rests. To which highly idealised view of the workings of the ‘free market’ one really must add that commercial institutions are themselves legally and politically constituted, as are the market conditions under which they operate. In this respect, it is extremely important to grasp the fundamental point that the so-called ‘de-regulation’ of the broadcast media in the UK has come about because of deliberate changes to statute law – in particular the Broadcasting Act 1990 and the Communications Act 2003, both of which have replaced regulations designed to protect the public interest with regulations designed to promote corporate interests; this is a process of re-regulation, not de-regulation. The ‘free market’ so highly prized in neo-liberal dogma is made possible in the first place only by a highly complex system of laws and regulations. Governments everywhere organise and enforce economic relations, rendering market structures no more ‘natural’ than political ones.

Market censorship

There are two major problems with the market approach to media freedom. The first is that there is a vast disparity between the way in which actually existing markets work and the way in which ‘free market’ economists claim that they should, or indeed do, work. The second is that democracy may not be best served, and may indeed be extremely ill served, by media regulated according to purely market principles. As Laura Stein points out: ‘media markets cannot guarantee the production of diverse and high-quality goods and services aimed at meeting the communication needs of all citizens. In fact, efficient market behaviour systematically favours the interests of advertisers, shareholders, and more valued audience segments over those of the broader populace, including the poor, the very young and old, and racial and ethnic minorities. Media markets also systematically disfavour unpopular and minority viewpoints’ (2006: 47). It is, of course, precisely for this reason that terrestrial broadcasting in Britain, whether publically or privately funded, has been regulated according to public service principles, the dilution of which in the drive for ‘de-regulation’ so relentlessly pursued by successive governments since the mid-1980s has been seen by many critics of this policy as seriously endangering the health of our democracy. Nevertheless, the principle is still accepted in the UK that at least parts of the media may need to be regulated in the public interest if the market, left to its own devices, fails to deliver what citizens require. We shall return to this point later.

The press, however, has always been left to the tender mercies of the market, as noted above. But this has had extremely serious consequences for press content.  There is a large and ever-growing literature on the manifest shortcomings of the English press (and not simply the popular press, either), but few critics have traced the origins of these shortcomings back to the economic basis on which the press operates as starkly as has Colin Sparks (although one would also wish to draw the Inquiry’s attention to the work of James Curran, Martin Conboy, Bob Franklin and Roy Greenslade). As Sparks puts it:

Newspapers in Britain are first and foremost businesses. They do not exist to report the news, to act as watchdogs for the public, to be a check on the doings of government, to defend the ordinary citizen against abuses of power, to unearth scandals or to do any of the other fine and noble things that are sometimes claimed for the press. They exist to make money, just as any other business does. To the extent that they discharge any of their public functions, they do so in order to succeed as businesses. (1999: 46).

The consequences for journalistic content of the untrammelled free market economy in which English newspapers exist are particularly apparent at the popular end of the market, which is where most of the journalism with which the Inquiry is concerned is to be found. Again, it is worth quoting Sparks at some length, because of the unvarnished manner in which he presents the situation:

The intense competition for circulation between the popular press means that there is an inbuilt tendency to attempt to gain ‘scoops’ in those areas known to be attractive to readers. The lurid, sensational and sometimes offensive material that dominates the mass market press is the logical and inevitable consequence of its economic position. None of these elements can be traced to the shortcomings of individuals. Newspaper proprietors may be, in the main, bullying reactionary bigots who force their editors to print politically biased material. But even if they were self-denying liberal paragons, it would still make sense for editors to act in the same way, because that is the best business model available to them. Again, editors and journalists may well be moral defectives with no sense of their responsibility to society and to the people whose lives they so pruriently report. But even if they were saintly ascetics, it would still make sense  for them to publish the same sorts of material, because that is what best secures the competitive position of their newspapers. (Ibid.: 59)

Thus while newspaper owners and editors daily stress the importance of press freedom and inveigh against the spectre of state censorship, newspapers themselves are actually subject to what is increasingly referred to as market censorship, which indeed affects all media which are funded wholly commercially and which are not subject to any public service or public interest requirements (which of course include those laid down internally by enlightened owners and editors). Market censorship manifests itself in a wide range of ways: the exercise of both proprietor and advertiser power over newspaper content, lack of adequate journalistic resources as a result of cost-cutting, an insistence on ‘giving people what they want’ as consumers rather than what they need as citizens, the tyranny of majority tastes, and a general subjugation of the news agenda to purely commercial ends, which, crucially, includes pressuring governments to enact policies which support newspaper owners’ commercial interests – vide the infamous ‘Murdoch clause’ in the Communications Act 2003. This last consideration means that national newspapers  have become inextricably interlinked with the selfsame political forces over which, according to classical Fourth Estate theory,  they are supposed to be keeping watch – a development with which this Inquiry is rightly concerned. In short, market power can be as damaging and corrosive of the democratic purposes which newspapers are supposed to serve as government power. Those who argue that press freedom is best served by the operations of the ‘free market’ are, frankly, either entirely blind to the shortcomings of actually existing markets or dogmatically wedded to the notion that the market is always a better means of allocating resources than any of the alternatives on offer, or both.

Press freedom and press privilege

But let us now turn to other criticisms of the conventional idea of press freedom as advanced by newspaper editors and owners in the UK. The latter are extremely fond of quoting American sources such as Benjamin Franklin and Thomas Jefferson in their defence of press freedom, but they always quote them extremely selectively. For example, in his 1789 article ‘An Account of the Supremest Court of Judicature in Pennsylvania, viz., The Court of the Press’, Franklin wrote:

If by the Liberty of the Press were understood merely the Liberty of discussing the Propriety of Public Measures and political opinions, let us have as much of it as you please: But if it means the Liberty of affronting, calumniating, and defaming one another, I, for my part, own myself willing to part with my Share of it when our Legislators shall please so to alter the Law, and shall cheerfully consent to exchange my Liberty of Abusing others for the Privilege of not being abus’d myself.

And again, and of even greater relevance to the substance of the present Inquiry:

It is not by any Commission from the Supreme Executive Council, who might previously judge of the Abilities, Integrity, Knowledge, &c. of the Persons to be appointed to this great Trust, of deciding upon the Characters and good Fame of the Citizens; for this Court is above that Council, and may accuse, judge, and condemn it, at pleasure. Nor is it hereditary, as in the Court of dernier Resort, in the Peerage of England. But any Man who can procure Pen, Ink, and Paper, with a Press, and a huge pair of Blacking Balls, may commissionate himself; and his court is immediately established in the plenary Possession and exercise of its rights. For, if you make the least complaint of the judge’s conduct, he daubs his blacking balls in your face wherever he meets you; and, besides tearing your private character to flitters, marks you out for the odium of the public, as an enemy to the liberty of the press

Similarly in the course of his Second Inaugural Address, 4 March 1805, Thomas Jefferson noted that:

During this course of administration, and in order to disturb it, the artillery of the press has been levelled against us, charged us with whatsoever its licentiousness could devise or dare. These abuses of an institution so important to freedom and science are deeply to be regretted inasmuch as they tend to lessen its usefulness, and to sap its safety.

Suggesting that only the demands of more important matters had prevented several States from invoking their laws forbidding falsehood and defamation, he added that ‘no inference is here intended, that the laws, provided by the State against false and defamatory publications, should not be enforced; he who has time, renders a service to public morals and public tranquillity, in reforming these abuses by the salutary coercions of the law’ (1993: 316-17). In other words, the freedom of the press to publish did not, in his view, include freedom from prosecution for spreading untruths and perpetrating libels. And the same year he wrote in a letter to John Norvell that:

It is a melancholy truth, that a suppression of the press could not more completely deprive the nation of its benefits, than is done by its abandoned prostitution to falsehood. Nothing can now be believed by which is seen in a newspaper. Truth itself becomes suspicious by being put into that polluted vehicle … The man who never looks into a newspaper is better informed than he who reads them; inasmuch as he who knows nothing is nearer to truth than he whose mind is filled with falsehoods and errors (ibid: 533).

Another figure much referenced by the defenders of the traditional notion of press freedom is Tom Paine. However, in his 1806 essay ‘Liberty of the Press’, he complained that ‘nothing is more common with printers, especially of newspapers, than the continual cry of the liberty of the press, as if because they are Printers they are to have more privileges than other people’. Paine’s words are as true today as when he wrote them.

Who runs this place?

Clearly, then, even the ‘classic’ defenders of press freedom never argued that such freedom should be absolute. Any serious defender of press freedom in the contemporary era needs to be aware of this frequently overlooked fact, but they also have to ask themselves whether the ‘classic’ defences still hold good in our media-saturated era of market-driven journalism. As John Keane put it in a remarkably prescient work: ‘the old ideal of “liberty of the press”, brought back to life by the market liberals, is redolent of a time of hand-set pamphlets, penny newspapers, limited edition moral and scientific treatises, and widespread belief in decentralised market competition as the chief antidote to political despotism’ (1991:  89). A similar point was made more recently by Onora O’Neill her seminal 2002 Reith Lectures, where she noted that ‘the wonderful images of a free press speaking truth to power and of investigative journalists as tribunes of the people belong to 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 (2002: 92-3). Indeed, it cannot be stressed too highly that the lengthy death toll of UK daily and Sunday national newspapers during both the present century and the previous one is accounted for entirely by purely economic factors, and not by any actions on the part of the state. It is also a sobering reflection on the way in which market forces act as censors that when the Daily Herald was closed in 1964 it had a circulation five times greater than that of The Times and when the News Chronicle died in 1960 its circulation was on a par with that of the Telegraph; the problem in both cases being that the newspapers did not attract the ‘right’ kind of readers for the advertisers.

The classic liberal argument for press freedom simply assumes that it is governments which should be the sole object of press vigilance, since they are the main seat of power in society. But in modern societies corporations and other vast private interests are rapidly becoming ever more powerful, and, in a steadily growing number of instances, are taking over functions previously performed by the state. Indeed, as Onora O’Neill, John Lloyd and others have noted, the media, and in particular the press, have themselves become seats of considerable, and indeed ever-growing,  power. This was a  point was made by some force by Anthony Sampson in Who Runs This Place?, in which he observed that in the late twentieth century ‘no sector increased its power in Britain more rapidly than the media … The masters of the media are the new aristocracy, demanding and receiving homage from politicians, big businessmen and the old aristocracy. Columnists and broadcasters are more famous than many of the politicians or public figures they interview’ (2005: 211). And yet, for all the power of the media, and especially of the national press, their legitimacy is unclear. They are not elected, and press journalists in particular are widely distrusted and heavily dependent on commercial masters who have their own political agendas and commercial priorities. Significantly, Sampson’s chapter on the press is entitled ‘Unelected Legislators’, and he notes that MPs are now ‘in the gallery of the virtual debating chamber, looking down in awe on the journalists. The fourth estate had become the first estate (ibid: 241).And in the Independent, 13 April 2004, he pointed out that: ‘newspapers, whatever their value as an opposition, can never become a serious first estate – a substitute for an elective democratic system. Parliament without a press is now unimaginable, but a press without an effective Parliament is an invitation to demagogy and rule by unaccountable new elites’. Furthermore, as primarily commercial operations which are thoroughly enmeshed with a wide range of other enterprises, newspapers have been far less keen to attack and investigate corporations, businessmen and financiers than they have been to turn the spotlight or flamethrower on politicians – hence the much-remarked upon failure by most of the press (with certain honourable exceptions) to spot the coming financial crash of 2008 (which had most certainly been heralded for some considerable time by those economists not in thrall to neo-liberal dogma and voodoo economics).

Invisible political actors

However, a peculiar feature of this state of affairs is that the power and the political role of the media, and especially of the national press, are very rarely acknowledged by journalists, who claim simply to be holding up a mirror to political reality in an entirely passive, disinterested  fashion whilst in fact playing an extremely active role in shaping that reality.  But to acknowledge that power and that role would, of course, be to cast considerable doubt on the validity of the carefully honed myth that the press is a delicate flower constantly menaced by the chill winds of state power. One of the very few journalists to have drawn attention to this state of affairs is the Guardian’s David Walker, who noted that ‘the power held by journalists and the media organisations for which they work is unperceived or assumed away. The occupational myth of the English political specialist is the dented sword of truth in a Manichean world where a lonely battle is fought for honesty’. And in his contribution to Invisible Political Actors, a book which is highly germane to certain of the Inquiry’s concerns, he argues that:

Political accountability, as demanded by journalists, is asymmetrical. Politicians, especially activist centre-left politicians, are held subject to tests and deficiency-meters. Their judges – reporters, columnists and presenters – account to no one for their veracity, fairness or prejudice … It is as if media institutions are invisible. Most journalists model politics as a straightforward transaction between office holders – who are generally presented as corrupt or tending towards the corrupt – and the pure and undefiled people of the United Kingdom. These are, in most newspaper accounts, sturdy individualists with a marked reluctance to pay taxes. The media, in this story, are disinterested. Journalists are the people’s proxies; they have no power, apparently, they merely frame the questions which ‘those lying bastards’ refuse to answer.

Compared to press journalism in the US, English national newspaper journalism is remarkably un-self -critical and almost wholly lacking in self-reflexiveness (with precious few exceptions such as Roy Greenslade, Peter Oborne and Nick Davies, who have not been exactly thanked by newspapers for breaking the omertà which habitually surrounds the subject of journalism in the English press). Press journalists, it seems, are happy to investigate anything other than their own practices, and in particular their relationship with each other, with politicians and with those who own the newspapers for which they work. In this respect, it does need to be stressed that the matters which quite rightly concern this Inquiry – the illegal practices employed in order to obtain stories about celebrities, the overly close relationship between journalists and the police, the stranglehold over certain aspects of public policy exerted by papers such as the Sun and the Mail – have for years been common knowledge amongst many  who work in or study the press, or both, but an impenetrable veil has been drawn over them by newspapers, until very recently indeed, on the venerable Fleet Street principle that dog doesn’t eat dog.

What all this has resulted in, as Will Hutton noted in the Observer, 17 August 2003, is that ‘Britain’s least accountable and self-critical institutions have become the media’, in spite of their insistence that every other institution in society should be as transparent, accountable and open to public scrutiny as possible.  However, what the press, or at least very large sections of it, demands is freedom of expression without any reciprocal responsibilities or obligations.

Julian Petley is Professor of Screen Media and Journalism at Brunel University, Chair of the Campaign for Press and Broadcasting Freedom, a member of the advisory board of Index on Censorship and of the editorial board of the British Journalism Review. He has written widely on the press.