This post was first published at the Huffington Post UK on 1st July 2014
What do these three things have in common? Over the course of a week in January 2012 Facebook deliberately manipulated the news feed of almost 700,000 users in order to compare the effects of positive and negative news. In June 2014 Instagram disabled the account of Courtney Adamo after she posted an innocent photograph of her eighteen-month old daughter showing her bellybutton, saying it violated their rules. Research by Psychologist Robert Epstein released in May claimed that Google could, simply by adjusting its search algorithms, influence the outcome of an election by an average of over 12% – easily enough to swing the vote in marginal contests.
All three are within the power and scope of Facebook and Google (Facebook owns Instagram). All three caused public consternation and, in the case of the first two, a popular backlash (it should be emphasized that the third was conceptual rather than actual – the researchers were testing a theory).
When Facebook, Google and other new media behemoths do something that causes public angst or anger they generally apologise and often shift their position.
But they are under no obligation to change their behaviour. These new media behemoths are public companies. As such they are run as autocracies not as democracies. They may perform a positive public role, but only insofar as it suits their aims and continues to support their business model.
As Rebecca MacKinnon wrote of the two big social networks in Consent of the Networked: ‘both Google Plus and Facebook share a Hobbesian approach to governance in which people agree to relinquish a certain amount of freedom to a benevolent sovereign who in turn provides security and other services’.
We know this but often appear to be in denial about it. Yet as we come to rely on these behemoths more and more, we need to remind ourselves that a benevolent sovereign is still a sovereign, and may not always act benevolently.
We need to be especially conscious when it comes to our reliance on these digital sovereigns to perform a civic function. According to the 2014 Reuters Institute Digital News Report Facebook is ‘by far the most important network for news everywhere’. Google, Bing and Yahoo together account for between a third and a half of people’s pathway to news. News is broken on twitter rather than mainstream media.
We may rely on these digital sovereigns, but we have little control over how they perform this civic function, how they choose to evolve it, or when they stop providing it. Google just announced it would be stopping Orkut, one of its social networking platform on September 30th.
In the same way these organisations can choose what content their users are allowed to publish. Breastfeeding photographs fell foul of Facebook’s rules and were removed (the ban was quietly dropped last month). Beheadings were initially allowed, then banned, then allowed again on Facebook. They are now allowed as long as they are posted in ‘the right context’ (hard to imagine what the ‘right context’ is for a beheading).
We should not fool ourselves into believing that algorithms are somehow neutral. Algorithms are like recipes. If you change an ingredient in the recipe, you change the dish. Tweak an algorithm and suddenly, invisibly, the results you receive will change (for good examples see The Filter Bubble).
Algorithms can be as influential in defining an editorial agenda as a newspaper editor. In its experiment Facebook chose to adjust its algorithm to censor specific news updates on the basis of key words. How is this different from a newspaper editor deciding not to publish a news story because of the effect it may have on the reader? Or the advertiser? The chief difference is that people know news stories are chosen subjectively. Many believe that algorithmic results are objective.
This may account for why lots of people appeared to be shocked by Facebook’s psychological research experiment in which its users were the guinea pigs. But this was not the first experiment nor will it be the last.
But whereas one can debate with an editor, or question editorial decisions, it is very hard to see how one can do the same to an algorithm. Especially since these algorithms are closely guarded secrets, the equivalent of the Coke formula.
Revelations about Facebook experiments are waking us up to the fact that these services are not neutral, neither are they simply there for the public good. Yet they are now an integral part of our lives – not just our social but our civic lives too. Our influence over what they do, however, or over what services they provide, or how they use our personal information, is tiny. If you think firing a peashooter at an elephant is ineffectual, try firing emails at Facebook HQ in Menlo Park California.
This post was originally published at the Huffington Post on 9th May 2014.
In his short statement accepting his appointment as Chair of IPSO (the ‘Independent Press Standards Organisation‘), Sir Alan Moses uses the word ‘independent’ or ‘independence’ five times. ‘The public and the press are entitled to a successful system of independent regulation‘ he says.
He then refers to those who have voiced concerns about the ability of IPSO to be independent. In response he points to his career, which he says has been characterized by ‘independent mind and independent judgment‘. ‘I do not‘, he says, ‘intend to do away with that independence now‘.
There is no reason to doubt Sir Alan’s sincerity, nor his personal desire to act independently. But it will be fascinating to see how he tries to put his personal independence into practice from a position where the independence and freedom to manoeuvre is so seriously compromised and constrained before he has even stepped over the threshold.
IPSO has been structured in such a way that few significant decisions can be taken by the Chair, or his Board, without first consulting the industry. Sir Alan will not be expected to determine IPSO’s regulations or structure, these have already been set by the industry, and will be maintained by the industry body behind IPSO – the Regulatory Funding Company (RFC).
The RFC, the successor to PressBoF, is the power behind the whole IPSO system. Its role goes far beyond funding; it stretches into appointments, regulations, investigations, sanctions, arbitration, and the Code. Whatever the Chair’s personal convictions, his powers are fundamentally circumscribed.
Nor is Moses the first judge to believe he can bring his judicial experience and previous independence to bear on press self-regulation, only to be frustrated once in position (see Roy Greenslade).
If Sir Alan wants to avoid the frustrations of his predecessors and does not want to be directed by the principal funders of IPSO (the biggest news publishers), then he will need to test his authority and independence of action early on. Right now he has more leverage then he will ever have later.
So what should Sir Alan do? He could start by trying to:
Free IPSO from direct financial control by the industry
‘It is also clear to me that the funding made available to the PCC is barely sufficient to enable it to conduct its complaints handling functions effectively. Further, in so limiting the funding available to the PCC, the organisation was unable to exercise other functions that might be properly expected of a regulator, for example, in relation to investigations into industry conduct, and the promotion of standards’ (The Leveson Report, p.1521)
If Sir Alan is to be independent, then IPSO will need sufficient funds. He will therefore need to:
Recalculate the budget for IPSO and tell the RFC how much IPSO needs to do its job properly (IPSO’s budget is currently drawn up by the RFC)
- This requires change to RFC Articles of Association 24.4 & Schedule: 1.10
Make the industry’s budget commitment for a minimum of four years – so that it does not need renegotiation on an annual basis
- This requires change to RFC Articles of Association 24.4
Make clear that it is IPSO’s responsibility, not the RFC’s to determine the pay of Board members, members of the Complaints Committee, and members of the Appointment panel.
- Therefore IPSO Articles 24.2, 26.8, and 27.9 will need changing
Remove the RFC’s veto over key IPSO responsibilities
‘The powers of the Independent Funding Body [the proposed successor to PressBoF], which run throughout this proposal, undermine claims to independence of the regulatory system’(The Leveson Report, p.1,630)
An independent regulator does not give its funding body the power of veto over critical decisions.
Sir Alan should tell the newly appointed directors of the RFC that the RFC’s veto in certain areas needs to be removed, such that:
- The RFC does not have a veto over any changes to the IPSO regulations (IPSO Contract, Clause 7.1)
- The RFC does not have a veto over any changes to the Code – variations to the Editors’ Code, ‘must first be approved by the Directors [of the RFC]‘ (RFC Articles 10.11)
- The RFC does not have a veto over the arbitration service (IPSO Contract, Clause 5.4.3)
Give IPSO the freedom to make independent appointments
‘The power of PressBoF in relation to appointments, the Code Committee and the funding of the PCC means that the PCC is far from being an independent body.’ (The Leveon Report, p.1,576)
IPSO should not be required to take account of the views of the RFC when making appointments, either to the Board (via the Appointments Panel) or the Complaints Committee
- This requires a change to IPSO Articles of Association 22.5 and 27.4 and Regulations 34
Give IPSO the freedom to investigate
‘[I]f there is to be any value in the investigations process, which is itself the only genuinely new part of this proposal from the industry, then it is essential that it should be capable of operating without continually being frustrated by those subject to regulation’ (The Leveson Report, p.1,636).
The power to investigate should be central to IPSO’s effectiveness, but – as currently set out – it is difficult for IPSO to initiate an investigation, and once started, is open to frustration by publishers. To have the freedom to investigate and sanction Sir Alan should seek to:
Enable IPSO to investigate if it finds evidence of serious or systemic breaches of the Code
- This requires a change to IPSO Articles of Association 8.1.2.b
Reduce the number of opportunities available to publishers to intervene and potentially obstruct investigations
- This requires a change to IPSO Regulations 40-62
Find out the size of the investigations fund, and alter IPSO’s articles so that IPSO – not the RFC – determines the size of the investigations fund
- The IPSO Contract, Clause 10 will need altering to reflect this
Give IPSO – and the public – a proper say in the Code of Practice
In addition to outlining the public’s right to privacy, and the publishers’ responsibility to accuracy, the Code of Practice defines the ‘public interest’. The definition, and interpretation, of public interest was central to the Leveson Inquiry. It would therefore seem strange to give Editors’ decisive control over this definition (as the industry currently proposes to do). Therefore if he wants to comes closer to Leveson’s recommendations and ensure the independence of regulation Sir Alan should:
Make the Code of Practice committee a subcommittee of IPSO, not – as now – of the RFC, including the power to appoint members, in consultation with the industry
- This would require a change to RFC Articles 2.2
Appoint a minority of editors to the Code of Practice Committee
- This should be part of IPSO’s responsibility as the parent of the Code Committee and would require changes to RFC Articles 2.2 and additions to IPSO’s articles of association
Institute a formal biennial open public consultation on the Code of Practice
- This would require additions to the IPSO articles of association
Give IPSO the freedom to accept complaints on their merit, not based on who they come from
‘The Board should have the power (but not necessarily in all cases depending on the circumstances the duty) to hear complaints whoever they come from, whether personally and directly affected by the alleged breach, or a representative group affected by the alleged breach, or a third party seeking to ensure accuracy of published information’ (The Leveson Report, p.1,765)
If Sir Alan wants IPSO to accept complaints on merit, he will need to:
Remove the restriction that only allows IPSO to accept complaints from representative groups if they represent a ‘significant’ breach of the Code and there is a ‘substantial’ public interest in accepting the complaint
- This would require a change to the IPSO Regulation 8
Give IPSO the evidence to launch investigations & publish league tables
There is currently no obligation for IPSO to record whether complaints that cannot be resolved by the news publisher have breached the Code. Indeed it has the opposite obligation. After a publisher has failed to resolve a complaint IPSO is obliged to begin trying to mediate that complaint. No record is kept as to whether a mediated complaint breached the code. Without such a record IPSO will find it difficult to justify launching an investigation, especially an investigation justified by ‘systematic’ breaches of the Code. To give IPSO such evidence Sir Alan should:
Give IPSO the obligation to record all breaches of the Code that cannot be resolved at the publisher concerned
- This would require a change to IPSO Regulations 14-21
Give IPSO adequate powers to secure meaningful remedies and end the practice of burying apologies
‘the power to direct the nature, extent and placement of apologies should lie with the Board [of the Regulator]‘ (The Leveson Report, p.1,767)
If Sir Alan wants IPSO to have the powers the public believe are necessary (according to opinion polls), he will need to:
Give IPSO the freedom to direct the placement and prominence of apologies where it deems that one is appropriate
- This would require a change to the IPSO Regulation 22
Take responsibility for the financial sanctions guidance (the guidance which determines the scale of fines)
- This requires a change to IPSO Contract, Clause 1.1
This is not an exhaustive list, but were Sir Alan Moses to achieve these changes, then he might find he was much freer to maintain his independence of mind and judgment. It might also give IPSO some of the credibility it so sorely lacks at the moment.
On how the British press has denied the British public a proper debate on press regulation. This post was originally published on Free Speech Debate on December 12th 2013
It rarely takes long, in arguments about free speech, before someone refers to John Milton or John Stuart Mill. Most of us remember one particularly strong defence of free speech made in both Milton’s Areopagatica and Mill’s On Liberty. Any attempt to censor, suppress or constrain free speech, Milton and Mill argue, denies people access to the truth.
Truth and falsehood should do battle, Milton wrote, in a free and open encounter. Only in such circumstances could truth triumph.
Silencing an opinion, Mill wrote, either robs people of the truth, or – if the opinion is wrong – deprives people of “the clearer perception and livelier impression of truth, produced by its collision with error.”
In the heated, often fractious, debate about press regulation in Britain, the rhetoric of freedom has been widely deployed. Barely a day went by in October 2013 when a national newspaper did not publish a report, editorial or leader about the importance of our free press. This freedom was, most of those pieces argued, put in jeopardy by the system of regulation set out in the cross-party royal charter and agreed on 30 October 2013.
Yet it would be hard to find a debate in modern times that has been less free than the one about press regulation. Far from being Milton’s “free and open encounter” between different views, the debate in the press has been virtually monopolised by those with one perspective. The public have, to use Mill’s terms, been deprived “the clearer and livelier perception of truth” since they have, with notable exceptions, only been presented with one view.
The public have not been given the facts, the arguments, or the diversity of perspective from which to make up their own minds about press regulation.
On the facts, the public have been deprived of even the basic material from which to make up their own minds. During the Leveson Inquiry, for example, the press simply failed to report on potential alternative systems of press regulation. Though numerous proposals were put forward for new systems, including ‘A Free and Accountable Media’, from the Media Standards Trust. almost none were reported on. This is despite the fact that Leveson based many of his eventual recommendations on these proposals. By contrast, there were 56 articles about the press’ own plan (see our ‘Analysis: Press Coverage of Leveson, Part 1′)
When it came to the report itself, the misreporting of Leveson’s main recommendation was, as the renowned editor Harold Evans said in the Hugh Cudlipp lecture, “staggering.” David Yelland, former editor of The Sun, said in his inaugural Leveson Anniversary Lecture, there was a party line amongst newspapers about what Leveson said which was “not really true.” Leveson wrote: “Despite what will be said about these recommendations by those who oppose them, this is not, and cannot be characterised as, statutory regulation of the press.” Yet this is exactly how they were characterised.
Leveson’s system would, many newspapers claimed, allow for state censorship. This is despite the fact that Leveson was adamant, throughout this recommendations, that the state should have no role in the system beyond its establishment, and that no regulator should have the power to stop anyone publishing anything.
Leveson’s recommendations would enable government interference, other papers claimed. Yet Leveson recommended the opposite, going so far as to say that the UK needed a law to prevent government interference. This recommendation was not even referred to in the Daily Mail, the Mail on Sunday, The Sun, The Times, The Sunday Times or in the Daily Express. It was referred to only once in most other papers when the report was published.
Then there was the coverage of, or failure to cover, the process that followed the publication of the report. In January and February 2013 the Prime Minister David Cameron and two other key ministers, Oliver Letwin and Maria Miller, together had more than 30 meetings with senior executives and editors from the press. You would not know this because not a single one of those meetings was reported. In February, we – the Media Standards Trust – wrote to Lord (Guy) Black, one of the key figures drawing up the industry’s response to Leveson who attended at least eleven of these, requesting that they be made public. He refused. We only now know of them because of the official lists of Ministers’ meetings published in the autumn (Oliver Letwin meetings, January-March 2013; Maria Miller meetings, January-March 2013; David Cameron meetings January-March 2013). Yet they remain unreported in the press.
Instead, newspapers chose to fixate on a single meeting that was held on the evening of Sunday 17 March, at which representatives of the victims’ campaign group – and the author of this piece – were invited to view the agreed cross-party charter before it went before parliament on 18 March. At this meeting, newspapers claim, a royal charter was cobbled together over pizza. Except it wasn’t. What happened at this meeting, and context for it, has been described in detail by Oliver Letwin to a parliamentary select committee (Oral Evidence, 16th April 2013). Yet Letwin’s account has been ignored because it contradicts the press’ narrative.
Therefore by the time a cross-party royal charter was agreed on 18 March, a member of the public would probably have thought – based on what they had read in most papers – that Leveson concocted a new system from his head, that this new system allowed for state censorship and government interference, and that the agreed royal charter to implement the system was improvised by campaigners for the victims in the middle of the night in Ed Miliband’s office. None of this is true.
Members of the public have been similarly ill-served by much of their press when it comes to argument and diversity of opinion. There has not been “the collision of adverse opinions” as Mill argued there needs to be. In the lead up to the publication of Leveson’s report there were 28 leader columns about press regulation in national newspapers. 23 were wholly negative. Three had negative and positive comments. Two were neutral. Not one was wholly positive. Since publication of the report, editorials and opinion pieces have been just as consistently negative.
What is remarkable is that throughout this period, despite the consistently negative press coverage, public opinion has remained stubbornly steady. The public want tougher regulation of the press. They are in favour of a system similar to the one proposed by Leveson. They are comfortable with a system of regulation underpinned by law. In other words, the majority of the public disagree with the press (see this list of polls since May 2012). Yet their views are not represented in the papers.
Instead of representing the views of their public, much of the press have chosen to deploy the rhetoric of press freedom to stamp on dissenting voices. Ironically, Leveson predicted the press’ response to his own report. Buried in Volume Three, amongst a detailed examination of the Data Protection Act, Leveson lays out the modus operandi of certain newspapers when put under pressure to reform. First, there is “resistance to independent regulation of both law and standards.” Next, the press present “a confrontational, aggressive and personal approach to its critics.” It then engages in “powerful behind the scenes political lobbying in its own interests.” Finally, it uses “the deployment, through a very loud megaphone, of the rhetoric of the freedom of the press to stifle rational criticism and debate about where the public interest lies”(Volume 3, p.1,107).
The rhetoric of press freedom has been, and continues to be, used by parts of the press as a way of preventing a “free and open encounter” between truth and falsehood in the debate over press regulation. The British public, sadly, have been the losers.
Press Freedom, Leveson, GCHQ and the Mad Hatter’s Tea Party
This piece was originally published at the New Statesman on 25 November 2013
At the Mad Hatter’s tea party in Alice and Wonderland the March Hare upbraids Alice for claiming she can solve a riddle:
“Do you mean that you think you can find out the answer to it?” said the March Hare. “Exactly so,” said Alice.
“Then you should say what you mean,” the March Hare went on.
“I do,” Alice hastily replied; “at least – at least I mean what I say – that’s the same thing, you know.”
“Not the same thing a bit!’ said the Hatter. “You might just as well say that “I see what I eat” is the same thing as “I eat what I see”!”
“You might just as well say,” added the March Hare, “that “I like what I get” is the same thing as “I get what I like”!”
“You might just as well say,” added the Dormouse, who seemed to be talking in his sleep, “that “I breathe when I sleep” is the same thing as “I sleep when I breathe”!”
In Britain today, you might just as well say ‘The press is free’ as ‘Free the press’, or ‘the end of press freedom’ as ‘freedom to end the press’ or ‘state controlled press’ as ‘press controlled state’. So back-to-front, upside down, and misshapen has the debate about press freedom become.
On the one hand we have had a chorus of newspapers thundering about how the press Royal Charter on self-regulation of the press agreed on 30th October represents the end of 300 years of press freedom, and would allow politicians control of the British press.
On the other hand we have had many of the same newspapers accusing one of their own — the Guardian — of ‘treason’ and helping terrorists, for revealing the extent of secret surveillance by the British and US governments.
Both in principle and practice these newspapers have got the debate the wrong way round. They claim the Royal Charter represents an end to press freedom without providing evidence to support such a claim. At the same time they fail to see any danger to press freedom from the types of threats made by the government against the Guardian. Continue to mix the debate up and we will end up with a press cowed and politically compromised. But see the Royal Charter and Snowden affair for what they are and Britain could become a freer and fairer country.
The press Royal Charter has earned hundreds of column inches in the UK press in the past month. Countless leaders and news reports have intoned about the dangers for press freedom from political interference. ‘A press free from political interference is a precious inheritance’, The Times’ leader of 31st October read. The Royal Charter ‘grants politicians the right to meddle in press regulation for the first time since the licensing of newspapers was abolished in 1695’, claimed the Daily Mail. Whilst The Telegraph said that ‘The question of how our press is regulated is a question of how best to defend free speech. It is about ensuring that responsible newspapers have the freedom to publish what they wish and that the public have the freedom to read what we publish. That is why we cannot accept the current proposals for regulation by statute’.
We should take these claims seriously because, if true, they would justify the boycott of the system by many news groups, and undermine separate claims – made by Leveson, politicians, the group representing victims of press abuse, and others — that the Charter will protect press freedom and even enhance it.
So, does the Charter grant ‘politicians the right to meddle in Press regulation’, and does it in any way threaten newspapers freedom to publish what they wish, or the public’s freedom to read what they publish?
The first thing to make clear is that the Charter does not establish a regulator. It establishes a body whose sole task will be to check the independence and effectiveness of regulators set up by news organisations themselves, administering their own code of conduct. The body will base its assessment on a series of basic standards, written by Lord Justice Leveson, and copied into a schedule in the Charter. Those newspapers who have claimed the criteria were drawn up by politicians should compare Leveson’s wording with the wording of the Royal Charter. It is hard to fit a cigarette paper between them.
Politicians are explicitly excluded from the body established by Royal Charter. Further, they are excluded from the staff of that body, and from the Appointments Panel that appoints that body. Any regulator that wants to be recognised by this body is also explicitly banned from having any politicians on its Board. It is hard, therefore, to see how this corresponds to the Daily Mail’s claim that the Charter ‘grants politicians the right to meddle in press regulation’.
Royal Charters are, however, instruments of royal prerogative. As such, with most Royal Charters it is possible for privy councillors (of whom there are hundreds, including serving government ministers) to meddle. It was for this reason that an amendment was passed in the Enterprise and Regulatory Reform Act (2013) that prevents — by law — any interference in this Royal Charter by privy councillors. Again, it is hard to see how this corresponds to the Daily Mail’s claim.
What about The Telegraph’s view that the Charter jeopardises newspapers freedom to publish what they wish? No evidence is given to support this assertion, and it is hard to see what it could be based on. The Charter states that no regulator should ‘have the power to prevent publication of any material, by anyone, at any time’. Any regulator established should only have the power to offer redress to members of the public after publication. This contradicts The Telegraph’s assertion.
But what about future amendment of the Charter? This argument, which is perhaps the one made most frequently, is that the Charter provides a device that future politicians can change such that they can exert control over the press. The argument has been made more broadly than just by The Daily Mail and The Daily Telegraph.
According to these articles, this is how it might work. A future parliament, angry at the press for revealing something like MPs’ expenses, changes the Royal Charter in a way that constrains press freedom to do something similar in the future. For example, a future parliament alters the so-called ‘recognition criteria’ in the Royal Charter to include a clause preventing examination of MPs’ financial affairs.
This scenario might sound reasonable and credible. As such, it will cause sensible people who care about press freedom to worry. Except that, when examined, it becomes clear that it is neither reasonable nor credible.
This is how such a scenario would actually play out under the Charter system. If MPs were angry at the press they would first have to agree on what to do about it. Having agreed that a change in the Royal Charter was the best approach (highly unlikely, as you will see later) they would then need to convince two thirds of their number. Having convinced two thirds of their number, they would then have to convince two thirds of the House of Lords. They would then have to gain the unanimous agreement of the independent Board of the Recognition body (none of whom can be politicians). They would have to do this against a backdrop of public debate about the changes and, no doubt, many concerned voices published in the pages of national papers and elsewhere.
But let us, for the sake of argument, accept that the proposed change to the Charter passes these hurdles and the Charter is changed. What does this then mean? It means that, at the next three-year cyclical review (or at an emergency review – if the independent recognition body can make the case that one is necessary), a regulator or regulators – taking into account the change to the Charter – will have to decide whether to put themselves forward for recognition under the amended Charter criteria.
Given that the board of any regulator will include those working in the press, those with experience of the press, and independent members, it is unthinkable that they would put themselves forward if they thought the changes represented a serious infringement of their freedom to publish in the public interest. Why would they?
Assuming, therefore, that the regulator — or regulators — did not apply for recognition, then there would be no recognised regulator. The court costs incentives for participation, and penalties for non-participation, in a regulatory system would therefore disappear (since these only apply when there is a recognised regulator).
This is the failsafe that has been ignored by those in the press that rail against the Charter. It is not simply for the publishers to choose whether they join, or do not join, a regulator. It is also for the regulator to decide whether to put itself forward for recognition (as the industry’s Independent Press Standards Organisation has said it will not do). If they believe the Charter has been made too restrictive, then they can choose not to participate.
The regulator, or regulators, could then continue to do its job, without the court cost penalties or incentives of the Leveson system (in other words, essentially what we have right now). The change to the Charter, which would have needed to pass numerous democratic hurdles, and would have been years in the making, would turn out to be counter-productive, and would have no impact on the press’ ability to publish anything, at any time, to anyone. There would be no end to press freedom, no government control, no political interference.
Contrast this with an alternative scenario. Imagine that MPs are angry at the press for revealing MPs expenses and are determined to prevent it happening in the future. By a simple majority they introduce a change to the Freedom of Information Act to exclude the personal financial affairs of MPs. Or they could amend the Data Protection Act to protect the privacy of MPs’ spending. Each change only requires a majority vote in the House of Commons. The change comes into force within months and suddenly MPs can rest easy that their future purchases of bath plugs and film channel subscriptions will remain hidden from public view.
This is a real threat. This is something that could happen now. MPs can, and do, use and amend existing legislation in a way that genuinely threatens press freedom. Equally, they can turn to their existing powers and legislation already available — though not meant for journalism — to constrain and attack journalism.
In July, a senior editor and a computer expert at the Guardian destroyed a number of computers with angle grinders. The computers contained files leaked by Edward Snowden on the activities of GCHQ and the NSA. The destruction was directed by the UK intelligence service and was overseen by technicians from GCHQ.
In August, David Miranda was stopped while in transit through Heathrow airport. He was held under Schedule 7 of the Terrorism Act (2000). He was interrogated for nine hours and various personal items taken from him and not returned. Subsequently the authorities said he had been stopped based on the belief that he was engaged in espionage and was promoting a “political or ideological cause”. Miranda was promoting no such cause, unless the authorities define ‘journalism’ as a cause.
In October, the Prime Minister David Cameron stood up in the House of Commons and said that the Snowden files were ‘dangerous’ for Britain: “The plain fact is that what has happened has damaged national security”. He encouraged parliamentary committees to investigate the Guardian’s actions. In a subsequent debate he went further and threatened the Guardian with pre-publication censorship:
“I don’t want to have to use injunctions or D notices or the other tougher measures. I think it’s much better to appeal to newspapers’ sense of social responsibility. But if they don’t demonstrate some social responsibility it would be very difficult for government to stand back and not to act”.
Some MPs went further still. Julian Smith MP wrote to the head of the Metropolitan Police asking him to investigate the Guardian and calling on the police to compel the Guardian to cooperate.
This is what it looks like when a government attacks press freedom. Smashing computers in news organisations. Using existing terrorist laws not meant for journalism. Threatening pre-publication censorship and prosecution.
In the US The Washington Post also has access to some of Snowden’s documents. It has published a series of stories based on those documents. It has written opinion pieces about the NSA and Snowden, including one calling Snowden a patriot. Has the US government attacked The Washington Post? No it has not. Has it sent intelligence officials to destroy its hardware? It has not. Obama has even acknowledged the benefits of the debate triggered by Snowden’s leaks. ‘There’s no doubt that Mr. Snowden’s leaks triggered a much more rapid and passionate response than would have been the case if I had simply appointed this review board’ Obama said. Though this does not mean the US government applauds Snowden, far from it.
It is not surprising that the UK government should be angry about the Snowden leaks. Nor is it surprising, though it is depressing, that the government should threaten a newspaper that is publishing stories based on the leaks. Governments do not like their secrets exposed, and it would be strange if they did not react strongly to the possession of 58,000 intelligence documents (the number — we are told — that were leaked to the Guardian).
Much more surprising – and more depressing – has been the reaction of much of the British press. The Sun accused The Guardian of ‘treason’. The Daily Mail called it ‘The paper that helps Britain’s enemies’. The Telegraph has uncritically reported claims by the government and intelligence agencies that it has helped terrorists around the world (‘Terrorists are ‘rubbing their hands with glee’ after Snowden leaks’).
The press attacks on the Guardian are framed as patriotic attempts to promote security. Yet the arguments made and language used do not balance security with freedom to publish. Indeed, these papers urge the government to constrain the Guardian’s freedom, and egg on the most vociferous MPs. The MP Julian Smith even referenced The Sun’s coverage to ask if it was not ‘time for any newspaper that may have crossed the line on national security to come forward and voluntarily work with the Government to mitigate further risks to our citizens?’ (HC Deb, 28 October 2013, c666).
To what end are these newspapers doing this? If the government does investigate and prosecute, or institute new laws to better secure ‘national security’ then we will live in a more secretive country, one in which news organisations have to be careful not to publish material that may, in the Government’s view, damage our safety and security.
If that sounds familiar it is because most non-democratic states in the world have laws that prevent media organisations from publishing information that may threaten the security of the state. In Russia, for example, the law on Combating Extremist Activity (2002) can be used against media organisations whose behaviour is considered dangerous to the State. In Syria for decades the government was able to exert control over the media through the state of emergency law. In Belarus you can serve up to five years in prison for insulting the president.
Laws such as these give broad powers to the state to prevent publication of material they do not like, or that they believe may damage their reputation internationally. Stories, for example, like MPs’ expenses.
We live in a world of leaks. Storing vast quantities of information, removing it from government or corporations, distributing it, and publishing it, has become straightforward. Leaking, to a general or a restricted public, will become more, not less, prevalent. Manning and Snowden are not anomalies, they are forerunners.
When such leaks happen, what would the government and security services prefer? Would they prefer that future Snowdens simply dumped their documents on the web? Or would they prefer that future leakers approached responsible news organisations?
No doubt the intelligence agencies would most like leakers to come to them. Yet technological, political and societal developments are such that it would be foolish to imagine information available to more than a hundred thousand people will remain secret indefinitely. The information Snowden had access to was reportedly available to 850,000 people.
We need models of how to use these leaks responsibly. We need media institutions that have the capabilities, the expertise, and the journalistic ethics, to properly assess and manage these leaks. Attack these institutions and we encourage data dumping. What whistleblower will now choose to go to The Telegraph, The Times, The Daily Mail or The Sun?
The actions of certain UK newspapers will discourage responsible whistleblowing and cow brave journalism that is in the public interest. Worse, it could encourage the government to behave in a way that discourages other news organisations from accepting data in the future. Fearing, for example, that the government will enter their offices and smash their computers.
We cannot rely on the UK government to restrain itself. Nor can we rely on our media to defend media institutions from government interference. This is why Britain needs to have an equivalent of the United States’ First Amendment. Something that Leveson recommended in his report but which, bizarrely, was ignored by most newspapers:
‘In passing legislation to identify the legitimate requirements to be met by an independent regulator organised by the press, and to provide for a process of recognition and review of whether those requirements are and continue to be met, the law should also place an explicit duty on the Government to uphold and protect the freedom of the press’ (Leveson Report, Summary of Recommendations, #33).
Sadly, no newspapers have taken up Leveson’s call for a press freedom law. Instead, quixotically, many have tilted at imaginary windmills of their own making. They have chosen to rail against a voluntary system of independent self-regulation that will not constrain their freedom, rather than defend a newspaper that is being subjected to state interference under existing laws.
The rhetoric of press freedom seems to have disappeared into Lewis Carroll’s Wonderland, where up means down, left means right, and almost everyone has forgotten what freedom really means.