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THE GUARDIAN
Monday, 1 October 1990
Eric Barendt today takes up his chair as Britain's first professor of Media Law, with a healthy attitude of scepticism…
Giving full voice to freedom of speech
NOBODY doubts the significance of a free press and broadcasting media for our society. Freedom of speech is often regarded as the most fundamental political right.
That is why it enjoys a prominent place in written constitutions, as in the First Amendment to the US Constitution, and why it is the first freedom to be curtailed in totalitarian societies.
This year is a particularly eventful one for media law. The Broadcasting Bill will provide the legal framework for radio and television until the end of the century. A new Press Complaints Commission has been recommended by the Calcutt Committee, which, if it does not work effectively, will be replaced by a statutory tribunal with power to impose prior restraints on publication a power which has not existed generally in English law since the end of the 17th century.
The courts have continued to issue important rulings on the scope of press freedom in the context of libel and contempt proceedings, including a major pronouncement limiting journalists' privilege not to disclose their sources of information.
It is the media, particularly television, which provides most people with information and opinion about politics and social affairs. For this reason it is imperative that the values of freedom of speech are respected when their regulation is contemplated.
These ideas should be familiar, but often seem to be neglected by politicians and lawyers. A function of the media is to subject the programmes and conduct of politicians to criticism in the interests of all of us, and that is often understandably resented. The hostility of some judges to the press is harder to explain. One factor must be the absence of any Bill of Rights in this country. This means that courts can easily ignore or devalue arguments about free speech and freedom of the press, in cases presented to them largely in terms of breach of confidence, libel or contempt. And judges are as offended as other citizens by aspects of the popular press.
Calcutt reveals characteristic legal attitudes to press freedom. Much is said about its value indeed the last paragraph of the report admits that it is vital in a democracy. But implementation of the report's detailed recommendations could seriously erode that freedom. It envisages an informal procedure for redressing press wrongs, under which it will be easier to get damages from a newspaper than from, say, a reckless motorist or careless employer.
Its formulation of the defences available to a newspaper to a complaint of invasion of privacy is far too narrow. It is, for example, unclear whether an editor would be free under the rules proposed by Calcutt to publish a story, however well-founded, about a Cabinet minister's extra-marital affair or even his financial peccadilloes.
In the context of these proposals, the report's tributes to press freedom look like lip-service. There should be a remedy for serious invasions of privacy, but the recognition of a civil action with a broad "public interest" defence would be far preferable to the Calcutt solution.
IT IS surely time that the libel law itself was fully reconsidered. The prospect of actions imposes significant restrictions on press and broadcasting freedom. Editors will refrain from publishing a possibly defamatory story, unless they are absolutely confident that they could satisfy a jury that it is true, or that it amounts to fair comment based on substantially accurate facts. It may be that in some cases they are relatively sure that it is in essence accurate, but they must prove this to the jury.
This is the "chilling effect" of libel laws, which led the US Supreme Court to formulate the famous New York Times rule, under which public official plaintiffs have the onus of proving that the defamatory story is untrue and was published maliciously. The rule was extended later to all public figures trades union officials and film stars included.
The result is that the media in the US are much freer than here. It may be that the US rules should not be adopted in Britain without modification, but it would be worth investigating how many stories of real public interest are not published in England because of the libel laws, and what impact the US rules would have.
In recent years the Government has frequently made use of the civil action for breach of confidence to stop the publication of information acquired by civil servants or (former) security service agents during the course of their employment. There is no jury in these cases, so there is no risk of a "perverse" acquittal, as happened when Clive Ponting was prosecuted under the Official Secrets legislation. The courts have almost always been ready to grant an interlocutory injunction, a remedy which has the effect of postponing publication at least until after the case comes to full trial.
Many judges appear particularly unsympathetic in these cases to the press and are inclined to consider that it is merely acting in its own interests when it publishes such revelations.
Consider Lord Ackner in the first Spycatcher case: "It will be readily appreciated by the public that the temporary … remedy given to safeguard the efficiency of our national security service was … rightly preferred to satisfying immediately the desire of the newspaper appellants to increase their circulation."
This ignores the legitimate interest of the public in reading about the antics of the security service and the role the press plays on our behalf when it publishes. Even an interlocutory injunction amounts to censorship, albeit for only a year or so that would clearly be unconstitutional in the US.
Broadcasting has always been subject to a degree of legal control we would not tolerate if it were applied to the press. The 1988 White Paper referred to the need for less and lighter regulation. As cable and satellite permitted greater viewer choice, there was, in the Government's view, little justification for the tight legal regulation which had been imposed on broadcasting in the preceding decades.
The Broadcasting Bill does indeed remove the authority of the new regulatory body, the Independent Television Commission (ITC), to preview programmes and impose particular scheduling requirements. But overall programming requirements (for Channel 3 licences "a sufficient amount of time" for news and current affairs, for educational, religious and children's programmes, etc) appear to be broadly similar to those imposed under earlier legislation.
Moreover, the Government is tightening the controversial requirement of "due impartiality" by writing more requirements into the statute. And the Bill puts the new Broadcasting Standards Council (BSC) on a legal footing. A television company may be directed to broadcast a BSC finding that its code on the portrayal of violence or sexual conduct has been transgressed.
(Continues overleaf)
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