Sunday, 28 October 2012

Quis Custodiet Ipsos Custodes?

At all points in the events of the past year or so the media has been at great pains to aggressively assert that independent regulation with a statutory basis would, in effect, be the end of the free press, and with Leveson's recommendations soon at hand, those same voices in the press are now heating up their campaign to head off any chance of changing the system before it can get started.

I realise I tend to bang on about this, and I'm not minded to rehash arguments on the detail of independent regulation itself today. Rather I want to write about why the freedom of the press matters and what that freedom means in a democratic society. It is not the same as freedom of expression, which is an individual right-- itself limited, as was famously said, when it comes to "falsely shouting fire in a theater" among other occasions-- but rather entails a necessary responsibility. The freedom of the press exists as a necessary and positive component of a democratic society for the purpose of giving the voting public critical information about their society.

The Value of the Press

Independence-- which is the perennial question in this case-- from Government exists so that the press can fearlessly criticise and analyse actions taken by the state and by other powerful groups. You might also argue the press should be independent from all manner of fear or favour, including commercial, personal and political biases, but as this is unreasonable in the context of a free press, pluralism becomes its proxy, providing diversity in place of independence and, hopefully, preserving the public good.

And the public good is why we need the free press in the first place: The public need information about many things, be it the functioning of institutions other than Government, the current state of science in relation to health or dietary advice, the state of the law (for ignorance is no defence), economic data, and so on. We also desire a balance of views in and of itself, and separation between objective factual reporting and opinion. Ideally, we should see well researched arguments presenting clear evidence on matters of importance which will help us to decide how to vote, and to behave in our own lives.

A varied press made up of many entities provides a great deal of freedom for individual and differing views to break through, and reduces the power commanded by any single publication, or any single voice. Of course, smaller publications may also lack resources to engage in expensive investigations, but as it happens, the UK market is in fact highly saturated and dominated by very large players.

The Perils of the Press

Unfortunately, while it is inevitable that none of our newspapers can be consistently relied upon to give entirely accurate information on all topics, some of our papers cannot be relied upon to give good information a majority of the time on a majority of topics, many of them important. Worse, some papers at times incontrovertibly distort information with manifest presence of mind. If you, as a citizen with the right and the duty to vote, wanted information on European directives and regulations, on the state of science as it related to your decisions, or even in many cases on individual judgments in UK courts, you would do well to avoid tabloid journalists in particular as a source for that information.

The press have a campaigning mentality, not just on issues such as paedophiles and child protection, famously, but on political questions, be they as broad as general elections or as narrow as the recent AV referendum, and even on how to regulate the press themselves. In this, the press have engaged routinely in epistemic myopia and disingenuous and deceptive arguments in order to get their own points across. Additionally, they know their individual audiences, and they prefer to cater to them in much the way politicians seek to garner votes, pandering in order to sell copies of their papers. This commercial interest functions as an informational feedback which helps to ensure ordinary people find the information which supports their pre-existing beliefs, something they are already predisposed to do, as are we all.

The Practice of the Press

Of course, the press does get many things right, and it does many fine things, and there are many individual journalists who cannot be faulted. But the problem is, that's irrelevant. Many doctors cannot be faulted, many lawyers cannot be faulted, many politicians cannot be faulted. Regulation does not exist for the best cases, but for the worst. The press would say their accountability comes in whether or not we buy their product, but  most of their consumers have placed their trust in the papers they customarily read, and have no other reliable source, nor the time to conduct detailed research of their own.

Even so, despite the horrendous and persistent failure of many papers to fulfill their most basic duty and do proper research and present information with nuance and clarity, there is almost no chance of any attempt by Leveson or Government to deal with the question of factual inaccuracy, or over the porous division between opinion pieces and news.

Instead, the most likely main purpose of the current drive is to provide an independent basis for complaints to be made when serious abuses come to pass, as they did repeatedly before the hacking crisis finally became news-- in one recent and well known case leading to vast damages being awarded after several of them repeatedly proclaimed the guilt and assaulted the character of an innocent man. And there is no basis for believing that an independent regulatory authority could not be contrived in a way which left it entirely separate from Government. This has been done countless times, and in many contexts.

In Conclusion

The press is not merely a 'negative freedom', one which is free from interference by the Government, but a positive one, the papers are empowered by their access to millions of people and their control over the flows of information. They are needed, to play a crucial and indeed central role in our democracy but they must be held to the minimum responsibility to the basic rights of individuals that comes with that power.

Self-regulation has failed time and time again, because self-interest does not align with the public interest for the media. In an ideal world the media would serve their role by investigating those in power, presenting information clearly, with detail, nuance and with care to the evidence and how evidence should be properly analysed and presented. It should be diverse, and it should be virtuous. But if we cannot have that, we must insist at least on access to justice for those directly wronged.

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