Statutory regulation of the press will hurt free speech

This article was originally published in The New Statesman

Between the Leveson Inquiry and the crisis at the BBC, it seems journalism is all we ever read or hear about these days.

These crises are heightened because journalists are, essentially, gossips who like talking about journalists. In this, we’re no different from people in any other line of work: programmers talk about other people’s code, plumbers slag rivals’ work – it’s human.

Note I wrote “line of work” rather than profession. That’s because it is very, very important to remember that journalism is not and cannot ever be a profession.

This is at the very heart of the debate over what Lord Justice Leveson should conclude from his findings when he reports in the coming weeks. Can you legally force journalists to behave in a certain way without damaging free expression?

Some point to regulatory bodies such as the Law Society or the General Medical Council, and say that regulation does not affect those professions. But think. One can strike off a doctor or a lawyer – how does one strike off a journalist? Sure, you can sack her, but what if she starts a blog? Starts making phone calls? Starts covering stories?

How do you stop people doing journalism? The old distinction will become ever more blurred as we all now carry publishing apparatus in our pocket. Journalists in the traditional sense had desks, telephones, expense accounts and bad habits. But most importantly, access to a printing press and means of distribution. A decent smartphone carries all this in one (apart from the expenses and habits).

Journalism is one way in which people can exercise their right to free expression, and the danger with statutory regulation is that one can actually create separate levels of access to a right – giving the journalist less of a right to free expression than anyone else. That’s not how rights work.

Some will point out that there are many “statutes” that apply to journalists, and this is true, but these statutes – contempt, libel etc, do not apply just to journalists – they are universal.

Creating a new law governing the press compromises that universality.

Many point to the “Irish model” as an example of statutory underpinning. But this is not entirely correct. The Press Council of Ireland was already established before it was recognised in statute, and then only with membership as a mitigating factor in a libel defence. It was not established by statute. (Bear in mind, by the way, Leveson watchers, that it took five years of negotiation to set up the Irish Press Council. This may go on for some time.)

Meanwhile, Germany (in terms of market size, possibly a better example for the UK) does not even permit specific laws on the press.

A press regulator cannot carry legal compulsion. Politicians already try their hardest to influence newspapers, and allowing them to create statute that will rule over the press will almost inevitably prove too tempting for a parliamentarians fed up of their eternal role as lamposts to the press’s dogs (as HL Mencken had it). Statute specifically dealing with the press will hurt free speech, no matter how much its advocates say it won’t.

Padraig Reidy is news editor at Index on Censorship

BBC stumbles, but will it fall?

You couldn’t make it up – and any 21st century Evelyn Waugh’s hoping to match his tales of journalistic folly must be wondering how art or the comic novelist can outdo reality. As George Entwistle becomes the second BBC Director General to resign in the last decade over the credibility of a key BBC news story, is the BBC really in crisis? Or can a rapid new appointment stop the rot?

In a nutshell, the BBC first spiked what by all accounts was a piece of very serious journalism on alleged child abuse by a leading national figure, Jimmy Savile — leaving rivals ITV to broadcast the story first — and then it let through a piece of shoddy journalism on child abuse wrongly implicating, albeit anonymously (’til Twitter got to work), another national figure. While some have suggested the second, lax editorial signoff two weeks ago may actually show that caution over the Savile story was appropriate, this looks like the wrong conclusion.

Only some insiders know the full story of both process and content. But we do know that in the Savile case substantial evidence had been gathered, and five women were interviewed on camera about their allegations. Whether there was pressure from above, fear of libel, a casual attitude to child abuse involving young teenage girls or all these and more, the decision not to broadcast looks wrong — and has led to a storm of criticism since the story broke at the start of October. The BBC’s subsequent crisis management was inept — Entwistle sounding inadequately informed and turning in a weak performance before MPs, while Newsnight editor Peter Rippon, who shelved the programme, had to amend his blog post on how the decision was taken to correct inaccuracies.

A month after the Saville fiasco broke, Newsnight then broadcast its programme interviewing Steve Messham who alleged child abuse at a North Wales home in the 1970s by a senior Conservative politician. On Monday evening, the BBC issued a summary of its internal report confirming that Newsnight neither showed Messham a photo of the politician — nor put the allegations to that politician.  Lord McAlpine – mentioned in a series of tweets by a range of people after the Newsnight broadcast — has threatened legal action. Messham came out publicly after the programme and said McAlpine was not the person whose photo the police had shown him in the 1990s, and apologised. The BBC also apologised. Entwistle resigned, as did the director of the Bureau of Investigative Journalism, Iain Overton, the Bureau having been involved in making the programme.  As the summary BBC report says some “basic journalistic checks were not completed.”

Some suggest a libel action from McAlpine against Newsnight may fail, as the peer was not named in the programme. But wherever the legal case goes, the journalism looks shoddy and the editorial judgement in broadcasting the programme a bad call.

Perhaps one of the few brighter points of this dismal tale is that the most senior people in the two organisations resigned so fast — a lesson that ought not to be lost on hesitant politicians, heads of banks and others in recent years who have failed to step up and take responsibility for failures on their watch, or only reluctantly, slowly and after continuous pressure. But the large pay-off announced for Entwistle has rather diminished some of the impact of the honourable rapid resignation.

In a trenchant statement, Newsnight’s leading presenter, Jeremy Paxman blamed the post-Hutton inquiry BBC culture of appointing “biddable” people and “bloating” management at the expense of programme budgets. This sounds like the NHS, that other British icon, where years of changing reforms have repeatedly seemed to prioritise managers over medical staff. But if biddable managers is the problem, that can explain the Savile case — not taking a risk — but not the McAlpine case — taking a risk in spite of inadequate journalistic output. And it is how the BBC learns the lessons of these two opposite failures that will determine the eventual outcome of this crisis.

In the short term, the BBC will surely ride the crisis out. Chris Patten, heading up the BBC Trust, is right to be moving quickly to appoint what will have to be a top quality, credible new Director General.

But the BBC cannot afford another scandal of this sort soon. And the danger must be that serious, high quality, challenging journalism will be held back. If a battered, bruised and risk-averse BBC chooses to avoid any repetition of the second Newsnight weak journalism scandal, or holds back on anything risky as a second line of defence, then the crisis will have done real damage. If the BBC loses its courage on decent investigative journalism, this might create a false sense of calm for a while, but at the cost of undermining its reputation in the longer term. Steering between the twin hazards of weak editorial control and risk averse editorial control will be the test for the BBC and its next Director General.

 

Censorship, self-censorship and the Olympic spirit: Confusion over blocking of BBC content as Olympic rules kick in

Chilling free speech in the name of brands, rights and commercialisation is not what promoting the Olympic spirit is about, says Kirsty Hughes

This piece was originally published on Huffington Post UK

Friday’s opening of the Olympic Games, with the extraordinary spectacle created by Danny Boyle, ranging from the industrial revolution to the digital age, from children’s literature to the National Health Service, has received plaudits and praise along with some bemusement and criticism. It may be just as well though that it didn’t celebrate another British icon, the BBC.

The impact of the commercialisation of the Games, with lucrative sponsorship and rights deals, means another British virtue — freedom of speech — is rather less free than normal for the duration of London 2012. A particularly disturbing example of this is the BBC — which has said that due to rights restrictions various radio programmes, ranging from the prestigious Radio 4 Today news programme to the lighter Radio 2 Chris Evans’ Breakfast Show and Radio 5 Live, whether live or on iPlayer, may not be available to audiences abroad for the duration of the Games.

While the BBC World Service has a proud history of broadcasting into authoritarian regimes, faced with its lucrative rights deal for UK broadcasting of the Games, the BBC is blocking its own output from being available internationally. It has a helpfully succinct explanation of this on its own news site where it says: “The BBC’s agreement with the International Olympic Committee means we are not allowed to broadcast anything online outside the UK from the Olympic Park or Olympic venues. As a result this programme may need to be blanked for International listeners due to rights issues surrounding Olympic content in programmes.”

Perhaps conscious of quite how ludicrous this is, and damaging to the BBC’s own image and values, by Sunday the BBC had apparently carried out some damage-limitation negotiations with the International Olympic Committee so at least the Today programme could be restored to international listeners — though the announcement of this appears to be confined to a small blog update which states:

After discussion, the IOC and the BBC have agreed that there is no need to block our international streams of Radio 4 programmes with a wide news agenda. Radio 5 Live (apart from the news programme Up All Night) and 5 Live Olympics Extra will remain available only in the UK.

We knew that the Olympic commercial brands deals had put money ahead of free speech — Locog published months ago two lists of words that must not be combined at risk of legal action for breaching the brand/copyright rules. These include not combining the words “games”, “2012” or “twenty twelve” with, for example, “gold”, “silver” “medals”, “sponsor” or “summer”. But more examples keep coming in of the censorship effects, and the chilling of the right to peaceful protest.

Unauthorised YouTube videos of the Games are reportedly being taken down with alacrity. Meanwhile, a group of cyclists has been banned from cycling in Newham for the duration of the Games.

The Olympic charter celebrates a number of human rights, declaring that: “The practice of sport is a human right… Any form of discrimination with regard to a country or a person on grounds of race, religion, politics, gender or otherwise is incompatible with belonging to the Olympic Movement.” The charter makes no commitment to that other key and universal human right — freedom of expression. But chilling and censoring free speech in the name of brands, rights and general commercialisation is surely not quite what promoting the Olympic spirit is all about.

Kirsty Hughes is Chief Executive of Index on Censorship

MORE ON LOCOG’S OLYMPIC CENSORSHIP AT INDEX’S FREE SPEECH BLOG

PLUS NATALIE HAYNES GETS TO GRIPS WITH THE RULES POLICING THE BRAND OF THE LONDON GAMES HERE

AND READ MORE ON SPORT AND HUMAN RIGHTS IN INDEX ON CENSORSHIP MAGAZINE’S SPORTS ISSUE