Leveson PressWhen it was revealed recently that the libel reform campaigner and lauded press freedom champion Simon Singh also donated money to the privacy advocacy group Hacked Off, it was met with incredulity by some sections of the press. The idea that someone could be in favour of a press that was free to criticise the powerful and expose the truth about the important issues of the day, while simultaneously against unwarranted invasions of private lives in the pursuit of prurient gossip, appeared to be some kind of unfathomable cognitive dissonance.

This dichotomy of what we value in our journalism should be central to the post-Leveson discussion, instead that conversation has been hijacked by the shrill cacophony of the baser elements of this country’s media complaining about ‘the end of press freedom’, all the while trying to avoid a rational, considered discussion of what exactly this concept is and why we value it so highly.

It is fair to say that the press establishment, particularly those against any substantial reform, has been successful in its campaign, both public and private, to create a scare surrounding the idea of regulation, and shift the very orientation of the debate, from a badly needed discussion of broader journalistic values, entirely onto the narrower (albeit still important) issue of the practical nature of the successor to the PCC. Look at how quickly David Cameron retreated from his promise to implement the Leveson recommendations, and the bare-faced, beyond satire, attempts by the tabloids to demonise and discredit Lord Justice Leveson and his inquiry. In doing so the media has effectively reversed the direction of the public debate toward a trial surrounding the dangers of press regulation, and away from scrutiny of press methods, values, and agenda. If we are to really look forward to a change in newspaper culture in this country it is incumbent upon us to recalibrate the discussion to its original purpose.

Only the most ardent press speech absolutist would argue that there need be no restrictions on the press; conversely most people would recognise and agree that in a liberal democracy the press should be given as much freedom as reasonably possible and a wide remit for reporting news and proffering opinion. This gives us a starting point to explore the fundaments of the free press value. In our society we have an inherent bias toward a liberal approach to free press; this is no bad thing and evolved out of historical circumstances and a cultural attachment to a free market approach. The underlying value for free speech had traditionally been its contribution to democracy. This is not merely democracy in the narrow sense of contributions toward political decisions in elections or policy choices of government but democracy in the broad sense of pluralism and the tolerance of competing ideas and opinions.

For the most part this is unproblematic; difficulties only arise in a limited set of circumstances when that general freedom, to speak and publish, conflicts with an opposing right or interest. If we take one of the chief focuses of the Leveson Inquiry – individual privacy – as an illustrative example, we can see that the full unfettered expression of speech rights will occasionally impact on others’ rights to private life and the personal dignity therein. This is of course not news; these arguments are well rehearsed in countless privacy or libel cases and free speech analyses. However, this example provides an opportunity to tease out the competing value of free speech. This is because while a general amorphous right to speak freely can be respected in general terms, a conflict with another interest or right forces us to define why speech should or should not take precedence and thus help to reveal the principles and values that underpin the right.

As mentioned, the central justification, most often espoused, for free speech and press is that their functions are “essential to democracy”; a refrain repeated in virtually every discussion of the topic. In fact it would be accurate to categorise speech in liberal democracies as a special kind of right underpinning and safeguarding, as it does, all other rights. There are, however, valid questions as to whether our press, currently constituted, is having either a positive or deleterious effect on the public sphere and democratic discourse. You don’t have to be Noam Chomsky to see that our media is habitually asleep at the wheel in discharging its self-proclaimed democratic duties, either as watchdog (see Iraq and WMDs), representing the powerless (note the cosiness of the politician-proprietor relationship exposed by Leveson), or in critiquing government policy and providing alternative narratives (outside of a narrow band of accepted mainstream thinking). It is difficult to see how much of the content of our newspapers, particularly toward the tabloid end of the strata, contributes to a robustly informed populace capable of debating and deciding upon issues of public interest.

Thus we can see there is a spectrum of speech covered by our press, from the politically crucial to the instantly disposable. Not all speech therefore is equally worthy, and perhaps not all speech should be subject to the same level of constitutional protection. There are two broad schools of thought that reflect the differential between the opposite ends of this scale. The first is that free speech, represented by the press, is about autonomy of expression; that is a broad uninhibited right to say what we want. This conception would protect even the most democratically inconsequential tabloid fodder, even against competing rights or interests, and is approaching an absolutist view of free speech.

The alternative view is that the highest protection we give to speech, which allows it to override other considerations such as privacy rights or collective interests, is based on its contribution to democracy. The difficulty with the first view is that is not easy to defend in the wake of the damage often done, by the press, to people’s lives and our society. A free floating, ethereal and untethered justification of expression cannot sustain our free press against competing pressures. Rather it is the consequentialist explanation, the justification based on democratic necessity and public discourse value, which allows us to give freedom to the media to engage in this mission of public information.

According to this theory of a free press, it is necessary to give the fullest and most robust Article 10 protection only to the sections of the Fourth Estate that fulfil this democratic remit. The other sections; the gossip, the tittle-tattle, the prurient voyeurism should be protected insofar as all speech is protected by a broader sense of autonomy: the residual liberty to do what is not forbidden. But when this type of journalism directly violates another rights or pressing interests then it should give way (subject to a considered judicial balancing of the two rights claims).

This idea is tempered by two important caveats; the first is, as alluded to at the beginning, that the right of speech is so important to democracy and a liberal pluralistic society that the interpretation of what constitutes public discourse should be wide as possible; it should incorporate not only the strictly political but also discussions of society, morality, culture etc. Any doubt should be decided in favour of speech and the press. Secondly, only the more egregious violations of rights should be allowed to override free speech considerations, this is why we have an objective test in cases of privacy violations, that the infringement be unreasonable or highly offensive.

The reason the press has shied away from this discussion post-Leveson is twofold. Firstly, a genuine fear on behalf of some that a recognition of these restrictions on a free press, and the facilitation thereof, will be abused and will stifle genuine public interest journalism. But secondly and perhaps more so, is a refusal of the tabloid press to acknowledge that much of their content comes not from a noble intent to inform and educate its readers but from a nakedly commercial interest in selling papers. Any expansive public discourse that forces the tabloid press to actually justify their actions and content beyond a blanket monolithic chorus of “freedom of speech” would likely reveal a set of motives much more iniquitous and unscrupulous that they would care to admit, making defending many of their more pernicious actions difficult.

It is difficult to know how far it is possible to use the law to change and improve our media culture for the benefit of broader society. An independent regulator with the power to quickly and cheaply correct mistakes, enforce accuracy and give remedies to victims of press irresponsibility might significantly improve an imperfect system. There are those that would go further – not uncontroversially – and argue that the entire system of how the media is owned and operated is corrupted and for a truly representative media giving equality of access and representation there needs to be a root and branch restructuring to provide active facilitation of real, pluralist, public interest free expression, rather than simply passive non-interference.

That debate is beyond the scope of this post but what is clear is that the unique opportunity afforded by Leveson is currently in the process of being missed. A rational, informed, and honest debate about the principles underpinning a free press is the very cornerstone upon which to build a benevolent media culture. If we truly value our liberal approach to freedom of expression and wish to protect our free press then we must be able to robustly and coherently articulate its defence when questioned “Why?”

Oliver O’Callaghan is a PhD researcher in Press Freedom and Privacy at the Centre for Law, Justice and Journalism, City University London

Oliver will present a paper on this topic at W G Hart Legal Workshop ‘The Constitution and the Public Sphere: the post-Leveson Landscape’ on 24/25 June 2013