Beyond publication offences: informal censorship and the chain of communication – Jacob Rowbottom

13 07 2018

Various legal controls that are imposed on publishers provide a central focus in the study of media law. When teaching the subject, the core topics on the syllabus look at the liability of publishers in criminal law and tort law. These controls remain significant, but there appears to be a declining use of this method of control in some areas of law. Last year, when writing an article about the law of obscenity,

I noticed that there were over a hundred prosecutions each year under the Obscene Publication Act 1959 from the 1970s to the late 1990s. By 2015, there were just two convictions under that statute. What happened? It is tempting to think that in relation to obscenity law, society has simply become more tolerant of some material that would have attracted prosecution four or five decades ago.

The declining use of that statute is attributable to a number of factors (which I discuss in chapter 4 of the book Media Law). However, there are other laws that appear to impose potentially far-reaching controls on publication, but for which the legal enforcement is limited and sporadic. The Contempt of Court Act 1981 was enacted to offer greater protection for freedom of expression, but its terms nonetheless give the impression of a strong control on reporting while criminal proceedings are ‘active’. The media is sometimes prosecuted under the Act, but such actions tend to be reserved for the most blatant breaches. Publishers of government secrets can be liable under the Official Secrets Act 1989, but the offences tend not to be used against journalists or the media (and the prosecution of a journalist in the late 1990s was dropped). While defamation law is more widely used (given its enforcement by private actors), there are fewer full libel trials and the reforms enacted in 2013 provide stronger protection for freedom of expression.

Does this reflect a general trend that the legal regime is now more protective of media freedom? In recent decades, various reforms have been enacted to accommodate the rights of publishers, which have been accompanied by changes in culture and prosecution policy. It is hard for government to simply assert that the public has no right to know about its activities, that people should be prevented from publicly criticising public bodies and politicians, or that it knows best what an audience should be entitled to see.

The gradual change in culture does not mean an absence of controls, but it changes the language through which controls on publication can be justified. Accordingly, controls on adult content are justified not through appeals to morality or paternalism, but in the name of dignity and equality, as well as the protection of children. Official information is protected in the name of security, rather than to serve a general demand for secrecy. Controls on publication are also framed in terms of protecting individual rights, which enjoy the same status as freedom of expression. The change outlined above is positive and helps to bring the terms of media law further into line with the values of a modern democracy. That does not mean the media or other publishers are ‘more free’ from legal constraint, but reflects a gradual change in the framework.

There is, however, more going on. An informal request from government not to publish or to withdraw content will often be a preferred method of control, rather than the direct enforcement of the law. A publisher that fails to comply with such a request may be less likely to receive exclusive information from government insiders, or may be on the receiving end of various types of flak. The visit of government officials to the Guardian in the aftermath of the Snowden stories, which led to the newspaper destroying hard drives, is now a notorious episode. However, it stands in contrast to the heavy handed use of legal tools employed in previous years – such as the prosecution of Duncan Campbell, the injunctions in the Spycatcher episode and the police raids of media offices in the Zircon affair.

To some degree, this trend may simply reflect government awareness of the risks of enforcing the law and the lessons learned from those earlier episodes. Legal proceedings can generate negative publicity and a backlash, and court proceedings may lead to the disclosure of embarrassing evidence. The same goes for other areas of law. Lawyers still write letters threatening a defamation claim, even if the client may be reluctant to pursue the proceedings in court. The letter of the law is a significant element in this informal process, as it determines the terms on which parties negotiate. In the case of Snowden, the threat of legal proceedings was a factor that the newspaper had to consider. At the same time, the government had to weigh up the costs of litigation. Such informal strategies are nothing new, but show how the effects of the law can operate under the radar. Moreover, where controls are imposed through informal negotiations, the management of information or cultivation of journalists, it is harder to incorporate the constitutional safeguards that are offered in legal proceedings.

The targeting of publishers is just one tool available, and those seeking to limit the flow of information will approach other points in the chain of communication. This is most notable in the case of digital intermediaries. This can be done by imposing legal liability or regulations on the intermediary, or by developing informal understandings between government and the intermediary company. Again, the decline in the use obscenity offences coincides with an emphasis on intermediaries restricting the flow of certain content.

Writing in the US, Jack Balkin has described such methods as ‘new school’ speech regulation, in which authorities target the intermediary to control the speech of another person (which he refers to as ‘collateral censorship’, as the publisher is not a party to the proceedings). Given that the intermediary is not the author of the content, it may have little reason to defend the content (or may not have the information necessary to defend it) and will often take the path of least resistance by removing it. Balkin also refers to the problem of private censorship, in which a private company makes decisions that effectively determine what content will remain in circulation. These concerns do not make a case against regulating digital intermediaries – and I can see good reason for targeting such actors. It does, however, show some of the risks of the strategy and emphasises the need for safeguards.

Beyond intermediaries, there are other actors that can be a target of control. While a media organisation seems unlikely to be prosecuted under government secrecy laws, the same is not true of the sources that leak information (who can be subject to some criminal law controls or, in the case of government employees, to internal disciplinary measures). The contempt of court laws may not be strictly enforced against publishers, but greater responsibility is now assigned to the juror not to search for prejudicial content (and to the trial judge to direct the jurors). In other areas, such as extreme pornography and certain terrorism related content, the controls are imposed on the possessor of the content – which is the final link in the chain of communication (and such controls also explain the declining use of the traditional obscenity offences). These controls show a response to the challenges of the digital media, and the difficulties in preventing content being copied, shared or circulated across jurisdictions. However, these other targets may have fewer resources than a media company and may be less equipped to make a robust defence or generate adverse publicity.

There are various other techniques that can inhibit freedom of expression, such as the possible use of digital surveillance to monitor reading habits. The picture shows some diverging trends. The current political culture demands greater transparency and accountability from government and other powerful actors. Both the content and practice of media law has (to some degree) evolved to accommodate this change. This is a significant development that has changed the terms on which controls on expression can be justified. At the same time, new techniques have developed to regulate the production, dissemination and consumption of content. The newer techniques are sometimes less visible than the classic publication offences and the impact on freedom of expression and media freedom can go undetected. So, while there have been important changes, the health of media freedom has to be considered not only in terms of the enforcement of laws directly against publishers. Instead, media freedom must be assessed by looking at the formal and informal parts of the systems of control, and on each part in the chain of communication.

Jacob Rowbottom is a Fellow of University College, Oxford and is the author of Media Law (2018). For a 20% discount on Media Law, use the code CV7 at the checkout at http://www.hartpublishing.co.uk.


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