This is the second and concluding part of Julian Petley’s submission to the Leveson Inquiry.  The first part was posted on 15 December 2011.

I now want to return to the nature of the freedom which newspapers claim is rightly theirs. One of the main problems here is that the arguments for freedom of expression, as a right which everyone enjoys, are frequently taken over wholesale by newspaper owners and editors as arguments for press freedom.

But individual speech is very different from mediated communication, and the modern press consists largely of vast and complex institutions which differ in every essential respect from individuals.  As Onora O’Neill put it in the Guardian, 13 February 2006:

Once we take account of the power of the media, we are not likely to think that they should enjoy unconditional freedom of expression. We do not think that corporations should have unrestricted rights to invent their balance sheets, or governments to damage or destroy the reputations of individuals or institutions, or to deceive their electorates. Yet contemporary liberal readings of the right to free speech often assume that we can safely accord the same freedom of expression to the powerless and the powerful.

To continue the comparison, my being free to speak does not, as a general rule, prevent others from doing so. But because I am free to speak, and indeed to write, as I am doing now, that does not mean that I am free to express my views in a newspaper, even if that newspaper has traduced me in its pages or published articles which I know to be based on untruths. The newspaper has an ability (which it would doubtless claim as a right) to publish, a corresponding ability which I lack in any meaningful or operational sense, because the ability to publish a newspaper is deeply embedded in an already existing system of property relations, and, as such, is jealously guarded.  What this entails is that press freedom all too often boils down to the self-proclaimed ‘rights’ of press proprietors to own newspapers and to do with their newspaper property exactly as they please. Thus their endless claims that the press must remain free are really assertions of a property right in the guise of a free speech right.

However, the right to free speech, which is indeed enjoyed by everyone as individuals, does not entail that powerful press corporations must therefore enjoy the ‘right’ to enjoy complete editorial autonomy. The point made by  Robert McChesney in a US context is equally valid in the UK:

It is one thing to assure individuals the right to say whatever they please without fear of government regulation or worse. This is a right that can be enjoyed by everyone on a relatively equal basis. Anyone can find a street corner to stand on to pontificate. It is another thing to say that any individual has the right to establish a free press to disseminate free speech industrially to a broader audience than could be reached by the spoken word. Here, to the extent that the effective capacity to engage in a free press is quite low for a significant portion of the population, the free speech analogy weakens. Moreover, those with the capacity to engage in a free press are in a position to determine who is empowered to disseminate speech to the great mass of the citizens and who is not. This accords special privileges to some citizens who can then dominate public debate.

Or as A.J. Liebling succinctly put it: ‘freedom of the press belongs to those who own one’.

The requirements of democracy

What I have suggested thus far is that the defence  of press freedom traditionally put forward by newspaper owners and editors rests on a number of implicit assumptions which are either outdated or are in one way or another highly questionable. What I will now go on to argue is that the debate about press freedom needs reframing and refocusing, that press freedom in a democratic society carries with it certain duties and obligations, and that these correspond with the rights of citizens to be properly informed.

Arguments for the freedom of the media in general revolve, albeit often implicitly, around the important role played by the media in a democracy. As Laura Stein puts it, democracy requires ‘certain resources, capacities, and institutions that make self-governance possible. Some of these resources require communication. Communication that serves democratic political processes, enabling citizens to deliberate over, define, and decide the common good, is the essence of democratic communication’ (2006: 2). In this vision of things, the media, and especially the press and the broadcasters, provide people with what they need in order to function effectively as citizens: in particular a diversity of ideas, perspectives and voices, and a wide range of sources of reliable information. Thus informed they can make both individual and collective  judgements about day-to-day matters of social and political import.

Free expression is obviously central to this process. Accordingly, government must not suppress ideas and information, but, equally, the mainstream media must cover serious issues and do so in a way which is accurate, widely accessible, comprehensible and interesting. The endless repetition of the conventional wisdom, the routine recycling of ‘common sense’ explanations of social reality, the daily conflation of news and views, the demagogic appeal to popular prejudices, and the privileging of ‘soft’ news over ‘hard’  – all of which are besetting sins of substantial sections of the English national press – most emphatically do not fall within this democratic remit.

Press freedom, as advocated by newspaper owners and editors, consists, as we have seen, almost entirely of  freedom from legal restrictions. However, an alternative view is that press freedom should be understood as something enjoyed not simply by those who produce newspapers, and should also be regarded as more than simply a negative freedom, that is, a ‘freedom from’. In this reformulation, press freedom would also be seen from the point of view of those who read newspapers, as well as from the point of view of society as a whole, since we are all in one way or another affected by press coverage of events. This would be a positive freedom, a ‘freedom to’ – in this case, the freedom of readers to access the kinds of information which they need in order to function effectively as citizens of a democracy, a freedom which also places certain positive obligations on newspapers.

Of course, one can already hear the tabloid pack bellowing that ‘this isn’t what popular journalism is all about’, ‘people aren’t interested in that kind of thing’, and so on and on. However, the answer to this kind of knee-jerk populism has been particularly clearly articulated by Cass Sunstein (and again I am quite deliberately quoting  an American source, since these are usually invoked by press owners and editors to trump arguments for  press regulation of any kind) who states that:

The system of deliberative democracy is not supposed simply to implement existing desires. Its far more ambitious goal is to create the preconditions for a well-functioning democratic process. If current preferences disfavour the acquisition of information about political affairs, there is a serious problem with the system. To be sure, no political regime can or should insist that citizens be thinking about politics all, most, or even much of the time; people have many other things to do. But lack of interest in information about government should not be taken as inevitable or as a product of ‘human nature’. We know enough to know that lack of interest is often a result of inadequate education, perceived powerlessness, unsatisfactory alternatives, or a belief that things cannot really be changed. Indifference to politics is frequently produced by insufficient information, the costs of gaining more knowledge, poor educational background, or, more generally, an unjust status quo.

A lack of interest and an indifference which, in the case of the UK, has to be blamed at least partly on the demagogic and populist manner in which the popular press represents the political process (whilst, of course, at the same time complaining loudly about ‘voter apathy’).

As noted earlier apropos public service broadcasting , it is still widely accepted in the UK that in order to protect and promote freedom of expression in its fullest sense, a sense which includes the needs of audiences as well as the rights of media producers, positive forms of regulation may well be necessary if the public interest requires it. There are strong democratic reasons for the public regulation of speech which is exercised simply as the result of being in the extremely fortunate and powerful position of owning or managing a piece of the corporate media.

Freedom of expression should not mean only freedom from government but should  also mean freedom from powerful corporate interests by means of government, and, unless one is a member of the Tea Party tendency, there is no reason to presume that the state will be more likely than any other institution to exercise its power to distort public debate. Admittedly the British state does not have a good record when it comes to protecting freedom of expression, but there again it is no worse than that of Rupert Murdoch, vide the Sunday Times campaign against the Thames Television documentary Death on the Rock; the resignation of The Times’ East Asia correspondent Jonathan Mirsky over the repeated spiking of his articles about China, articles which Murdoch feared would hinder his attempts to extend his satellite TV empire into China; the cancellation, for the same reason, of Chris Patten’s memoirs by HarperCollins, and so on and on.

The crucial point here is that when the integrity and the democratic functions of the press are threatened by the capricious exercise of private power and the play of untrammelled market forces, positive forms of regulation are needed in order to remedy the situation and to protect the public interest.  As Laura Stein argues:

‘in a democracy, it is not unreasonable for citizens to look to government to correct for market behaviour that is rational but does not serve their interests. When the public’s interest in democratic communication conflicts with commercial goals and values, it is the government’s responsibility to intervene to establish more democratic conditions … When markets fail to produce socially desirable outcomes, government regulation designed to produce more speech opportunities is justified’.

None of this is to suggest that the principles of public service broadcasting should be applied wholesale to the press, nor that newspapers should be prevented from expressing their views, but it is most certainly to argue for, at the very least, a far clearer distinction between news and views than exists at present (and precisely as required by the very first clause of the PCC Code), the accurate presentation of a much wider range of views than is currently found in the English press, an adequate right to reply, full recognition of trade union rights for journalists, and conscience clauses in journalists’ contracts.

The rights of readers

None of the above are proscriptions – they are positive requirements which, if put into practice, would benefit citizens and improve the democratic process; they might even encourage more people to read newspapers. They also align newspapers’ freedom to express themselves with the freedom of readers to be able to access the information which they need to function as citizens of a democracy.

As Onora O’Neill put it in a lecture to the Royal Irish Academy:

‘democracy requires not merely that the media be free to express views, but that they actually and accurately inform citizens. If we are to have democracy, the media must not only express views and opinions but must aim to communicate and inform’

And as she argued in her 2002 Reith Lectures, contra the conventional press wisdom:

A free press is not an unconditional good. Press freedom is good because and insofar as it helps the public to explore and test opinions and to judge for themselves whom and what to believe and trust.  If powerful institutions are allowed to publish, circulate and promote material without indicating what is known and what is rumour, what is derived from a reputable source and what is invented, what is standard analysis and what is speculation, which sources are knowledgeable and which are probably not, they damage our public culture and all our lives. Good public debate must not only be accessible to but assessable by its audiences.

In this view of things, the freedom of the press (unlike individual freedom of expression)  should be regarded as an instrumental good, that is, good insofar as it causes the press to act in the public interest and reinforces democratic ideals, but not good insofar as it suppresses diversity, impoverishes public debate, makes it impossible for citizens to judge matters for themselves, systematically prevents certain individuals or groups from speaking or routinely distorts what they have to say, exacerbates social divisions and gives rise to a particularly poisonous form of anti-political populism

If  the press uses its freedom in the latter causes, there are surely strong arguments for regulating it precisely in order to achieve those purposes for which, as we have seen, freedom of the press was fought for in the first place. Such regulation would have as its aim not the fettering or gagging of the press, but ensuring that it met the obligations which attend its right to express itself freely. As O’Neill has suggested, thinking about the obligations of the press involves questions of ‘how we ought to speak, publish and programme, and what sorts of practices of representation and communication ought to be prized and fostered’.  Such an approach also involves considering citizens’ communicative rights – not simply the right to be informed but also the right to be involved in the communications process. Democratic societies have communicative requirements and it is thus the duty of democratic states to ensure that citizens can exercise their communicative rights. In the specific case of the media, it is the duty of governments to ensure the existence of spaces, whether publically or privately owned, where citizens’ speech rights are primary and where there are real and widespread opportunities for participation and engagement.

We also need to consider how we ought not to communicate, in particular  in ways which systematically distort the public agenda and which  otherwise damage the conditions for informed democracy and active citizenship, such as the routine misrepresentation of serious issues, the personalisation of politics and the concentration on gossip and personal scandals about politicians, all of which help to cultivate a culture of mistrust and cynicism, which in turn leads to voter apathy and a general sense of political disengagement. As O’Neill concluded in her Royal Irish Academy lecture:

‘where the press or broadcasters systematically exclude, marginalise or mock certain voices or topics they replicate some of the effects of state censorship. Where they casually depict office-holders in public, commercial and professional life as self-interested and corrupt, citizens cannot judge for themselves which accusations are true, so are disabled. Such activities are more likely to damage than to foster or support democracy’

A warning from history

It might perhaps be objected that the communications rights which I have invoked in this submission are simply normative, expressing a democratic ideal which is not actually covered by statute law. However, one should not forget that Article 10 (2) of the European Convention on Human Rights states that the exercise of the freedoms outlined in Article 10 (1) ‘carries with it duties and responsibilities’ and may be ‘subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society’.

However, as the majority of English newspapers take great pride in the extraordinary fact that they have managed to make ‘human rights’ dirty words in this country, I fear that we cannot expect them to accept that they even possess these ‘duties and responsibilities’, let alone to take them seriously. One might also point out that Article 19 of the Universal Declaration of Human Rights holds that ‘everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers’.

In this respect, it is worth recalling that the 1980 MacBride Report, Many Voices, One World, published by UNESCO, argued  that

‘all communication is a basic individual right, as well as a collective one required by all communities and nations. Freedom of information – and, more specifically the right to seek, receive and impart information – is a fundamental human right; indeed, a prerequisite for many others’

Furthermore, one of its recommendations stated that

‘communication needs in a democratic society should be met by the extension of specific rights such as the right to be informed, the right to inform, the right to privacy, the right to participate in public communication – all elements of a new concept, the right to communicate’

However, it is also worth pointing out that when these perfectly reasonable arguments were first put forward they were met with fury and venom in the US, where they were disgracefully caricatured and traduced as recommendations for governmental control over the flow of information and ideas and as proscriptions against the private ownership of the means of communication. The truth, of course, is that they challenged the self-appointed ‘right’ of US communications industries to dominate the global media. Indeed, such was the furore caused by the Report that the US withdrew from UNESCO, closely followed, to its eternal shame, by the UK.

The moral of this story is that although the proposals contained in this submission to the Inquiry may seem perfectly reasonable from a democratic perspective, one interferes with the self-proclaimed ‘rights’ of media owners to do exactly as they will with their media property at one’s peril. This does not mean, however, that the attempt should not be made, nor that one should not try to expose the arrogance and self-interest that lies at the heart of their defences of press freedom – an estimable concept which, unfortunately, all too often finds itself in highly dubious company.

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.