Critically discuss the proposition that ‘the press is and should be more strongly protected by freedom of expression than any other type of media’, indicating whether you agree or not with this statement.

Note: One of my duties in the various places where I teach is to show students how to write essays – something most young people are not nowadays taught to do. What I like to do in class is to choose a question at random, discuss possible approaches, and then dictate an answer one paragraph at a time. Some of these answers are very short. Some amount to small dissertations. In this latter case, the students take turns at looking on-line for the information we decide is needed. It they cannot find it, I show them how to change the structure of what has already been written, or to strike out in a new direction.

It is a “writing masterclass” approach that makes use of my own strengths, and is often a welcome alternative to formal teaching. It fills up a long morning session. Everyone learns something, and the more attentive will improve their final grades by at least one step.

Here is an example of the finished product. Do not take it as a statement of personal opinion. It is an answer produced for a specific question, and it bears in mind what a possibly unknown examiner will appreciate, and what can be written to incorporate the sources found in class. SIG

PS – If anyone wants to engage my services as a teacher of these skills, please click on the image to the left. Though they are my niche subjects, Greek and Latin are not my exclusive focus as a teacher. I do much else besides.

PPS – If you are a student, and you have come across this in a frantic last minute search, I advise you not to copy and paste and submit. You will be found out in three clicks of a mouse. Examiners were not born yesterday.

This is a question in two parts. The first is a matter of what is the case, and the second of what ought to be the case. I will answer the question largely by focussing on the situation here in England, which can usually be taken to cover the whole United Kingdom. This is because, for historical reasons, England provides a unique legal environment for the media as generally considered. Even when other countries, such as America or Australia, provide a broadly similar environment, that is because they are offshoots of Britain. However, I will discuss the situation in other countries as and when this appears to be useful.

Before starting on the main part of my answer, I will summarise my own personal view of freedom of expression. I think this important, as it clarifies the standard against which I will judge the various actual and proposed laws affecting freedom of expression. As concerns statement of alleged facts and opinion on alleged facts, I agree with John Stuart Mill, that:

If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind. (Mill, 1912, p. 23)

I accept in principle the civil laws of defamation, confidence, and perhaps copyright, so far as these give legitimate protection to private rights. I accept some criminal protection of military secrecy, so far as this protects the safety of the community as a whole. Beyond that, I do not believe it is the proper business of the State to tell people what they can and cannot receive and publish.

Actual Protection of the Press

I turn to the first part of the question. Here, I will define “the press” as “the newspapers.” This is reasonable in the context of the question. Also, widening the definition to books and other print media gives rise to the need for a less focussed answer. As for what newspapers are, this is helpfully answered in English Law by s1 of the Newspaper Libel and Registration Act 1881:

The word “newspaper” shall mean any paper containing public news, intelligence, or occurrences, or any remarks or observations therein printed for sale, and published in England or Ireland periodically, or in parts or numbers at intervals not exceeding twenty-six days between the publication of any two such papers, parts, or numbers.

In England, newspapers are subject to no special regulation. To explain this, let us examine how the broadcast media is regulated. The difference is historical. When broadcasting first became technically possible after the advances of the First World War, limited bandwidth was a critical issue. There was no meaningful limit to the number of newspapers. But there was a limit to the number of radio stations. Whoever owned the radio stations would have an unprecedented and dangerous ability to guide public opinion. The British solution was for the State to take control of the broadcasting spectrum, and, in 1926, to give a monopoly of broadcasting to one organisation, the British Broadcasting Corporation (“the BBC”). (Tracey, 2009, p. 181) This is an independent corporation, established by a Royal Charter, managed by a Board of Governors appointed by the State, and funded by a compulsory levy on receiving equipment. As a monopolistic provider of broadcast news, the BBC was required to broadcast impartial summaries, and to avoid statements of editorial opinion. (Gibbons, 2013, p. 50)

This model of regulation was applied to television in the 1930s. When competing private broadcasters were allowed, in the 1950s for television, and in the 1970s for radio, a similar model was applied to news reporting. (Tait, 2009, p. 193)

Nowadays in Britain, all domestic broadcasting is regulated by the Office of Communications (“Ofcom”), operating under the Communications Act 2003. In 2017, the Digital Economy Act extended Ofcom control over the BBC. The most recent update of the Ofcom Broadcasting Code came into force on the 1st January 2019. It requires broadcasters, among much else:

  • To ensure that news, in whatever form, is reported with due accuracy and presented with due impartiality;
  • To provide adequate protection for members of the public from harmful and/or offensive material;
  • To avoid material that is likely to incite crime or disorder;
  • To give special protection to children under the age of eighteen. (Ofcom, 2019)

The general opinion is that, while it has often tried to interfere, and has sometimes successfully interfered, the British State has usually allowed the regulated broadcast media to report and present the news “with due impartiality.” (Gibbons, 2013, pp. 51, 58) It has also done little to constrain freedom of expression in the wider sense. This being said, the facts of oligopoly and central regulation have not allowed the emergence of a flourishing broadcast media of dissent, such as exists in the United States or on the Internet. An overall judgement of the broadcast media in Britain is that it is the voice of the ruling class trying to be fair.

By contrast, there is no statutory regulation of newspapers. They are self-regulating. There is no statutory Press Council, no statutory complaints body, nor any requirement for journalists to be licensed. Anyone can start a newspaper. Again, there is no requirement to be licensed. Newspapers are not required by law to be impartial, or even honest in their reporting. The Press Complaints Commission is a private body set up and run by the newspapers themselves. Otherwise, the newspapers are subject to the same civil and criminal laws as everyone else. (Preston, 2009, p. 216)

Other Countries

The situation is different in many other countries. In the Nordic countries, France, Italy, Holland, the Czech and Slovak Republics, and Austria, among others, there is state subsidy of newspapers. This is support given generally or to niche publications that might not otherwise survive. (Trappel, 2018, pp. 83-87)

The problem with state subsidy is that it can slide into state censorship. If subsidies can be given, they can be withheld, and may be withheld when a newspaper annoys the authorities. In 1999, the Council of Europe tried to address this problem by recommending that subsidies should be

granted on the basis of objective and non-partisan criteria, within the framework of transparent procedures and subject to independent control. (Trappel, 2018, p. 88)

Or there is openly hostile regulation. In Uganda, for example, the Press and Journalist Act 1995 requires journalists to be qualified and licensed – renewable every year. There is also a statutory Media Council, reporting to the Minister of Information, that is responsible for supervising the press. In 2010, the Government tried, but failed, to extend this to licensing newspapers, thereby shutting down any newspaper said to be undermining “national security, stability, or unity,” (Freedom House, 2011)

Looking at the world in general, Freedom House estimated that 38 per cent of media was “free,” 30 per cent “partially free,” and 32 per cent “not free.” (Coyne & Leeson, 2009, pp. 1-7)

Stronger Protection as a Fact in Britain

In November 2012, Lord Justice Leveson delivered his report on the ethics of the British Press. This recommended that the newspapers should be made subject to a new statutory regulator similar to Ofcom. (Leveson Inquiry, 2012) Whatever its merits, such a body would end the special status of the newspaper press in Britain. However, the present Conservative Government promised in its 2017 election manifesto not to follow the Leveson recommendation. This was confirmed by the Culture Secretary in a statement to the House of Commons on the 1st March 2018. (BBC, 2018)

Indeed, press freedom has expanded in recent years. Until the Human Rights  Act,  1998  (“HRA”) came into force, freedom of expression existed in England as a residue. It existed where Acts of Parliament or the Common Law left it alone. (Barendt, 2005, pp. 39-48) There is now a presumption in favour of freedom of expression. This presumption can only be set aside when there is a more powerful competing right or principle.

One of the first and most important applications of the HRA was to defamation law. In 2001, the House of Lords developed a new “public interest” defence, stating:

Above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication. (Reynolds v Times Newspapers Ltd, 2001)

This judgment and its subsequent effect on the Defamation Act 2013 applies generally. But, so far as the newspaper press is more likely than the broadcast media to make what would once have been actionable statements, it underlines the strong protection given in England to the newspaper press.

Therefore, in terms of freedom from positive regulation and avoidance of subsidy, the newspaper press does enjoy stronger protection of its freedom of expression in Britain. Newspapers do not enjoy total freedom of expression. As said, they are subject to the general laws governing expression. Some of these can be strict. In particular, the defamation laws, until their reform in 2013, often limited expression more strictly than in other countries. But there is no specific regulation of newspapers. In this respect, the newspapers are in the same situation as Internet reporting and comment, but are much more free than the broadcast media.

Should the Press be Uniquely Privileged?

I turn now to the second part of the question. Should the newspapers be more strongly protected than other types of media? The part of the question can be taken in two ways. Either it asks whether the press should be given additional protections now denied to other types of media. Or it asks whether these other types of media should be regulated in ways that the press is not and should not be. Now, the most likely additional protection must be subsidy of minority newspapers. Since I have already questioned the value of this for protecting freedom of expression, I will take the question in this second sense. Its meaning becomes: Should blogs and radio and television stations – particularly foreign stations – and social media platforms, such as Facebook and Twitter, be regulated in their news coverage, and regulated in ways that would be considered censorship if applied to newspapers?

To this, my answer is a firm negative. I say that that no type of media should be privileged against any other. But, without at all endorsing controls of the type proposed by the Leveson Report, and actually existing in some other countries, I make a negative case, that the British newspaper press – in common with elsewhere in the world, no longer deserves special protection.

Diminishing Reach

When the Newspaper Libel and Registration Act 1881 was passed, and for nearly half a century after that in Britain, newspapers were the news media. They had already been that for nearly two hundred years. Just about every campaign for freedom of expression could also be called a campaign for freedom of the press. They amounted to nearly the same thing. Partly because of this, the press enjoys a unique status among the various media Britain has inherited from the twentieth century. (Preston, 2009, p. 217)

But this uniqueness has lost its basis, in Britain and in other developed countries. Obviously, there is radio and television. There are also the new Internet sources. The impact has been undeniable. British newspaper circulations peaked in the 1960s, before declining. In the second decade of this century, they began to collapse. In November 2000, the ten national titles together sold a total of 12.2m copies. By 2009, this was down to 10m, a decline of 19.7 per cent. (Greenslade, 2009) On overlapping figure gives a further decline 11.2m in 2007 to 6.1m in 2017. (Hancock, 2018)

In the United States, sales of daily newspapers declined from 62m in 1990, to 55m in 2004, to 35m in 2016. (Dawson, 2017) As newspapers declined, social media as a news source enjoyed a steady climb, by about six per cent per year between 2012 to 2017. (Dawson, 2017) These figures could be paralleled for many other territories.

This being so, the case for the press as a unique subject for protection is diminishing with every year.

The Declining Quality of What the Newspapers Report

The Leveson Report, published in 2012, is withering in its critique of the British newspaper press. It finds that, as a matter of course, many newspapers were:

  • Recklessly pursuing sensational stories. “There has been a recklessness in prioritising sensational stories, almost irrespective of the harm the stories may cause and the rights of those who would be affected.”
  • Classifying actors, footballers, writers and pop stars as “fair game, public property with little if any entitlement to any sort of private life or respect for dignity.”
  • Willing “to deploy covert surveillance, blagging and deception in circumstances where it is extremely difficult to see any public interest justification.”
  • Steeped in “a cultural tendency… vigorously to resist or dismiss complainants almost as a matter of course.” (Leveson Inquiry, 2012)

It appears to be the same in the United States. In a long attack on the American media in general, Robin Barnes highlights a claim carried in The New York Post that the younger son of the Prince of Wales was actually the son of James Hewitt. (Barnes, 2008, p. 108)

One of the various arguments for freedom of expression given by Eric Barendt is that it is an “aspect of self-fulfilment.” It is an “integral aspect of each individual’s right to self-development and fulfilment.” (Barendt, 2005, p. 13) We all need to find our own way in life, and freedom of speech is central to our search for what is true for us. Another argument is that it is essential to a democratic system of government. Making the right decisions requires letting the people see all arguments for and against. Without free discussion, democratic opinion cannot form in a meaningful way. Furthermore, all voting involves winners and losers. The losers can only be expected to accept the winning vote if they themselves have been allowed to put their own case to the very best of their ability. (Barendt, 2005, pp. 18-21)

It would be unjust to taint the whole newspaper press with the failings mentioned above. At the same time, it is hard to romanticise a news medium that appears to be compensating for its collapse of circulation by printing trash – and that by printing trash is contributing to this collapse. Again, this is not to endorse the possibly alarming solutions proposed in the Leveson Report. But it is to deny the need for special protections of a medium evidently declining in both outreach and morality.

The Alternative Media

The digital revolution has transformed the media. It has transformed our lives. The amount of data produced every day is now beyond clearly conceiving. As of 2018, the daily creation of data was running at 2.5 quintillion bytes. During the previous two years alone, about ninety per cent of all the data ever produced had come into being. (Marr, 2018) It is estimated the every book ever published could fit onto a 2.1 terabyte hard disk – that is onto a medium that can be bought for about £30. (Malley, 2016)

Much of this data was video, but much was the written word. Much of this was published on the Internet and made freely available to all who might want to read it. There are now four billion users of the Internet. We access the internet by computers, but increasingly by the mobile telephones most of us carry with us wherever we go. With these telephones, we look at mainstream news sites. We listen to music and watch videos. We connect with friends all over the world. We find what we want by using search engines like Google. All this has come about since the turn of the present century. In just twenty years, digital content has become an intimate fact of almost every life on the planet.

The practical result where this essay is concerned is that news has become, in restaurant menu terms à la carte. Just a short while ago, most people took their news from one or two sources. In Britain, they might read The Daily Telegraph or The Guardian every morning, and then watch the BBC news on television. None of these is by any means a worthless source. But the fact of drawing information from one or two sources meant that outlooks were often limited. Nowadays, increasing numbers of people draw their news from various kinds of aggregator.

One of these is Facebook. Another is Twitter. These social media platforms allow their users to form their own communities of information. Facebook, in particular, seeks to transform the world of news. Its mission is to give people “the power to share and make the world more open and connected.” (Facebook, 2013) Users post a combination of news items drawn from across the global media, mixed in with their own reporting and commentary. Certainly, much of this news is drawn from the mainstream media – particularly from newspapers. But it is the mixing of content, the removal of items from their original context, that creates a new experience of news. (Trottier, 2012, pp. 29-30)

Then there are media organisations that that are ultimately very mainstream, but that derive their global reach from the globalising power of the digital revolution. These are foreign television companies, such as Russia Today (Russia), PressTV (Iran), and al-Jazeera (Qatar). These are funded or run or both by the governments of the countries in which they operate. The mere fact of their availability gives a viewers in the countries where they are allowed to operate a diversity of viewpoints that did not previously exist.

In the sixteenth century, long before the rise of newspapers, the main source of national and international news in England was church sermons. Elizabeth I was famed for her skill in “tuning the pulpits.” (Hunt, 2012, p. 390) She was able to sit in London and determine what people learned about the world outside their own communities. Without alleging positive censorship, this is what national governments were able to do before the present century. The diversity of modern news sources has put news into the hands of the people in ways that could not once have been imagined.

Fake News

This is not a universally welcome development. Daniel Trottier is concerned about the potential for abusing the privacy of users of the new media. (Trottier, 2012, pp. 29-32) Others worry about the rise of “fake news.” For all their faults, the newspapers have some filtering mechanisms to prevent the publishing of outright falsehoods. Journalists have degrees, where they have been taught to check their stories and not to violate the dignity of people. One of the key facts of the new digital media is that there are no gatekeepers. Anyone can set up a media organisation, and reach a potential audience of millions.

Ever since the 2016 election campaign that culminated in the victory of Donal Trump, or the British referendum of that year on membership of the European Union, there have been widespread fears that fraudulent news stories could bias electoral outcomes. These fears have led governments throughout the world to make or propose regulations on what can be published in the new media. The British Government has proposed a “fake news unit” to deter people from creating misinformation. President Macron in France is preparing a fake news team to stop the spread of electoral misinformation. Germany’s hate speech law is being interpreted to a similar purpose. (Priday, 2018)

Conclusion

My own view of fake news is that it is a problem. At the same time, freedom of expression has always been problematic. One reasonable answer to worries about fake news is to repeat with Eric Barendt that freedom of speech is needed exactly because the authorities cannot be trusted to control speech in any way other than sinister. Most arguments for freedom of expression are positive. They emphasise the benefits of freedom. This argument proceeds from suspicion of the government. Even if it can be shown that certain opinions cause many practical evils, this argument requires the government not to act. All regulation of speech is seen as inherently biased and unfair. (Barendt, 2005, pp. 21-23)

For this reason, I conclude by stating that the press should not be more strongly protected in terms of freedom of expression than other forms of media. Instead, all forms of media should enjoy the same lack of statutory regulation as the press enjoys in Britain and America.

Bibliography

Cases

Reynolds v Times Newspapers Ltd (2001) [2001] 2 AC 127 (HL)

General

Barendt E, Freedom of Speech (OUP 2005)

Barnes RD, Outrageous Invasions : Celebrities’ Private Lives Media and the Law (OUP 2008)

BBC ‘Leveson Inquiry: Matt Hancock axes proposed second stage’ BBC News (29 March 2018)

Coyne CJ and Leeson PT, ‘Media Development and Institutional Change’ (2009) </wwwresearchgatenet/publication/228541961_Media_Development_and_Institutional_Change> accessed 20 April 2019

Dawson R, ‘Decline of News-on-paper: United States’ (2017) <rossdawsoncom/blog/united-states-news-paper-erosion/> accessed 20 April 2019

Facebook, ‘2013 Statistics’ (2013) <newsroomfbcom/Key-Facts> accessed 18 April 2019

Freedom House, ‘License to Censor: The use of media regulation to restrict press freedom – Uganda’ (2011) <wwwrefworldorg/docid/4eccefc31chtml> accessed 20 April 2019

Gibbons T, ‘Club Government” and Independence in Media Regulation, in: M E Price S G Verhulst and L Morgan (eds) Routledge Handbook of Media Law (Routledge 2013)

Greenslade R, ‘Newspaper sales plunge over the decade’ The Guardian (14 December 2009)

Hancock M, Tackling the threat to high-quality journalism in the UK  London (Department for Digital Culture Media & Sport 2018)

Hunt A, ‘Preaching the Elizabethan Settlement’ in: P McCullough and E Rhatigan (eds) The Oxford Handbook of the Early Modern Sermon (Oxford Handbooks 2012)

Leveson Inquiry Leveson Inquiry – Report into the culture practices and ethics of the press (2012) <wwwgovuk/government/publications/leveson-inquiry-report-into-the-culture-practices-and-ethics-of-the-press> accessed 20 April 2019

Malley JO, ‘Every Book Ever Published Could Conceivably Fit On To A Single Storage Device’ Gizmodo UK (08 December 2016)

Marr B, ‘How Much Data Do We Create Every Day? The Mind-Blowing Stats Everyone Should Read’ Forbes Magazine (21 May 2018)

Mill JS On Liberty (first published 1859, OUP 1912)

Ofcom ‘The Ofcom Broadcasting Code (with the Cross-promotion Code and the On Demand Programme Service Rules)’ (2019) <wwwofcomorguk/__data/assets/pdf_file/0016/132073/Broadcast-Code-Fullpdf> accessed 20 April 2019

Preston P ‘British Press Regulation’ in CH Sterling (ed) Encyclopedia of Journalism (Sage 2009)

Priday R 2018 Fake news laws are threatening free speech on a global scale Wired 05 April

Tait R, ‘British Commmercial News Broadcasting’ in CH Sterling (ed) Encyclopedia of Journalism (Sage 2009)

Tracey M, ‘British Broadcasting Corporation’ in CH Sterling (ed) Encyclopedia of Journalism (Sage 2009)

Trappel J, ‘Subsidies: Fuel for the Media’ in L d’Haenens H Sousa and J Trappel (eds) Comparative Media Policy Regulation and Governance in Europe Unpacking the Policy Cycle (University of Chicago Press 2018)

Trottier D, Social Media as Surveillance : Rethinking Visibility in a Converging World (Ashgate 2012)

UAE ‘Media in the United Arab Emirates’ (2019) <wwwgovernmentae/en/media/media> accessed 10 April 2019

 

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