LAUGHEY'S Media Theory Blog

The Leveson Inquiry has finally reached its conclusion – thank goodness, I really didn’t want to witness any more celebrities sulking over media institutions they otherwise depend on for their livelihood – and the verdict is, I think, disappointing in two senses.  Disappointing because Lord Justice Leveson’s call for an “independent, self-regulated” press is hopelessly ambiguous, if not oxymoronic. It was a weak call that plays into the hands of those on the side of a status quo. And also disappointing because, despite the ambiguity, Leveson does ultimately lean towards a form of statutory regulation by recommending special laws that would apply only to print/online newspapers and not, strangely, to other online communications such as blogging and tweeting.

My second point here indicates my position on press regulation. I’m not in favour. Yes, ordinary people – as well as celebs – have had their privacy invaded and their lives disrupted by irresponsible tabloid hackers. Yes, some very nasty and underhand business, involving shady private detectives and corrupt police officers, has dragged investigative journalism into the gutter. But no, a press watchdog is not the answer to better media ethics.

My anti-regulation argument is threefold. First and foremost, state regulation of the press is premised on the false assumption that newspapers exert a deep influence on public opinion. Politicians and other elite public figures are terrified of the press and spend much of their time either loving-up, or avoiding, the journalists who write about them. But all the evidence points in the opposite direction. The truth is that newspapers are losing readers – and huge amounts of money – year after year, and that most people are seeking news and entertainment elsewhere, with Facebook now far more powerful than any news organisation could ever dream of becoming. So why waste public money legislating a dying public institution? Politicians should seek out and take note of real public opinion, as should other guardians of public service, and that way they would start building public trust again (what a novel concept!).

Second, and related to this first point, the best form of regulation, also known as democracy-in-action, is the decision being made by people every minute of the day to stop purchasing newspapers (and other media products) that don’t satisfy their ‘public’ interests. We all have a choice to buy or not to buy. The need for TV regulation in Britain, of course, evolved from the initial power-monopoly enjoyed by the BBC. With the press, however, choice has always been available, and now, more so than ever, competition for consumers is desperately fierce. And the history of democracy-in-action tells us, with one or two exceptions, that the good will come out… Interestingly, consumer response to yesterday’s news is an excellent case in point. While the BBC News site (along with all the other major UK news outlets) led with the Leveson headlines, that story only appeared at #9 in the list of most read stories – indeed, more people were interested in the banning of bestiality in Germany!

Third, there is actually no need for more regulation. The existing regulation, also known as the law, would have been quite sufficient in preventing the phone hacking scandal, had it been properly enforced. What The News of the World committed, when hacking the phones of Milly Dowler and others, was a criminal offence. Sadly, certain corrupt police officers colluded in these criminal acts and failed the people they were supposed to protect. But no one should be above the law, and at least criminal proceedings are now under way.

Which brings me to a final point, in support of press freedom, in that we shouldn’t forget that is was investigative journalism of the good variety that helped to bring bad journalism to book – and it was also good journalism that exposed the MPs’ expenses scandal – and it was great journalism that overthrew the corruption of the Nixon administration all those years ago. No form of regulation should interfere with what is good about free speech, and a free press.

It’s the end of free tweet as we know it. Sad but true, that microblogging site that once threatened to bring about new world order has caved in to political and economic pressure - enabling censorship of its operations on a country-by-country basis.

What with Facebook preparing to float on Wall Street for $75 billion or more, and Google allowing the Great Firewall of China free reign, it all sounds deeply depressing for those advocates of what Tim Berners-Lee believed would be a world wide web synonymous with free and open human knowledge . Maybe in the next world…

Which just goes to show that the web is not immune, as some people seem to think, from the influence of political power, ownership and control that besets so many traditional media organisations across the world. The web can be turned into a tool of social control much like television and radio, though, of course, the web does allow space for alternative/dissenting voices – if they can be heard once marginalised by Twitter, Google, Facebook and other online big guns.

An interesting case in point is Twitter in Thailand. The Thai authorities are delighted that Twitter will now comply with their local laws – laws that suppress political and other forms of protest. Perhaps this orchestrated and long-running campaign restricting freedom of speech explains why the people most likely to fall foul of Thai laws have not been the mostly conformist natives, but tourists and Thai expats.

So bye bye Twitter as we knew it, hello Twitter Corp - or, for some tweeters among us, the Ministry of Tweet (Minitweet).

So who’s the footballer behind The Sun’s frontpage headline NITWIT HITS TWITTER WITH WRIT (21.5.11)? And who are all those other famous people taking out injunctions to prevent the media reporting about their alleged affairs, corruption, wrong-doing, etc?

The answer to the first question is widely known by anyone with basic search-engine skills and an internet connection, and even those without Google Power may well find out by word-of-mouth (after all, social networks are basically mediated word-of-mouth gatherings). And the answers to the second question are likely to be reasonably widely known, unless, of course, that especially ruthless legal measure known as the super-injunction (where the injuction is not even declared outside the courts) remains leak-proof.

Debate about the relative merits of a person’s right to privacy (upheld by the European Convention on Human Rights notably) and the public’s right to know about news that may be in their interests is raging right now. But what’s all the fuss about? The fault, dear Brutus, lies not in accusations of press intrusion, but in the cowardliness of public figures afraid about losing their fat-cat jobs, assets, sponsorship and endorsements, lacking the guts to fight out their claim to innocence in an open court of law.

It’s a disgrace, quite frankly, that these censorship laws exist in England (unlike in most other countries, including the United States) and that Parliament/the Prime Minister has to waste public time and money debating whether or not to change them. Injunctions should never be necessary (unless in circumstances that endanger national security), and the burden of proof in libel and slander cases should fall on the accuser, NOT the defendant. 

So if the accusation cannot be proven, the defendant should walk free and be left in privacy, his/her financial status and reputation intact, untainted by the trial-by-media campaign against him/her. As for the accuser, if he/she is found to be fabricating a kiss-and-tell type of story for their own financial/personal gain, they should receive the same punishment that the accused, if found guilty, would have received.

But blanket injunctions that restrict universal freedom of expression are not only immoral; they are unworkable. Social networks like Twitter and Facebook are far too popular and resilient to be controlled by anyone or anything, legal or otherwise, unless, perhaps, they reside in the People’s Republic of China. Whilst the analogy is not strictly true, social networks are much like groups of people, throughout the world, on streets, in parks, in pubs, on buses and so on, gossiping about the latest news and happenings. The cat’s been out of the bag for at least four years now, and no-one and nothing can find the bag, nevermind the cat.

The fact is, though, that social networks and social media are nothing to write home about, and certainly don’t warrant the legal and political attention centred on them currently. They’re like lots of little people with phone lines, calling lots of their little friends with their latest conversation piece… and then their little friends tell little others. To make such a fuss about Twitter is to endower it with powers it does not possess – at least, not until someone tries to repress the democratic freedom to speak.

What to make of a Tory Councillor’s tweet calling for a British woman to be stoned to death? Or the man who tweeted his wish that an airport be blown up because of its poor customer service? Or amazon’s decision to continue selling a book on the pleasures of paedophilia? And so on, and on, and on…

My views on freedom of speech/expression are somewhat at odds with current laws, though the problem is often to do with interpretation of those laws rather than the laws themselves.

First, the law against incitement to religious or racial hatred should be split in half, and the religious element abolished. It should not be an offence to express criticism or hatred towards any religion or faith. Expressing hatred of any kind is not pleasant and is often morally repulsive, but such an act should not be criminalised. I draw a line at racism however – racial hatred of any kind should be policed (preferably self-policed) and deemed illegal.

Second, the Public Order Act needs to be revised (or, at least, re-interpreted) so that the offence of offending others is not enforced willy-nilly, and is only enforced in situations where racist forms of offence cause public disorder (or, at least, a threat to public order).

Third, the Communications Act 2003 – the section on malicious communications – needs a serious re-think. Under this Act, it is an offence to send by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character. In principle, this may appear just, but in practice we are left with a wide-open and - as the Public Order Act – completely uncertain set of criteria for what constitutes grossly offensive, indecent, etc. Surely cases of obscenity and indecency are able to be dealt with by the Obscene Publications laws on pornography, sexual violence, etc. - there’s no need for this extra piece of legislation. But as for cases of offensiveness – what’s considered offensive to some people (say, denying the holocaust) brings no offence to others, so who decides where to draw the line? (Big Brother! I hear you cry with intrepidation… Orwell must be turning in his grave! And Milton for that matter.)

I would hazard a guess there are few more difficult legal terms to apply/interpret than the term offensive. After all, isn’t the term offence – and the term offender – used in a very general sense to mean all law-breakers? If a term has such general usage, it’s a dangerous route trying to apply it to a specific clause of a specific law.

This country is already a highly-policed, highly-censored state, with some of the strictest libel and slander laws in the developed world, and legislation needs to be cropped rather than expanded. Let people say what they wish – unless they are explicitly discriminating against others on the grounds of their race or ethnicity – and let lay people, not lawyers, judge for themselves the relative merits of different voices, with different points of view. Surely this is a core panoramic principle of democracy that must be defended by us all?