Undoubtedly a lot - most, in fact - of the press behaviour being uncovered in the ongoing Leveson Inquiry is abhorrent. Nothing I say below is intended to justify in my attempt to explain and understand.
It's not that many of the practices and methods employed to monitor celebrities' and sports stars' every moves would be unwarranted if, for example, investigating serious corruption in politics or a police force.
Whilst phone and computer hacking are both clearly illegal (I'm yet to decide how I'd feel if a very serious high-level corruption scandal was unearthed using such techniques) I certainly wouldn't be worried if journalists or private investigators tailed contacts in public, or used covert recording, in pursuit of a story of genuine public interest.
However we're not talking about investigating high level corruption; we're talking about singers, writers, footballers and comedians.
Whilst many of the press methods and practices used to keep tabs on celebrities are not illegal, they are clearly unethical and anti-social when applied indiscriminately in search of dirt on, or to deliberately blacken the name of, someone in the public eye.
Forgetting for a moment about the clearly illegal behaviour, the conundrum of press regulation is to keep press behaviour towards the green end of the spectrum without unduly shackling the press.
And, if the press do need shackling, how to we prevent the manacles of regulation being abused by state or corporate interests to hide stories of legitimate public concern?
Essentially, who will be the arbiters of public interest?
This question of how to regulate is irrelevant if we can work out why the Social Contract failed. Why did it take so long for any other organisation or institution pick up on the antisocial behaviour of the tabloid press and allow public contempt and market forces to act together to moderate it, thereby working to keep the behaviour of the press in the green zone of the Harm Spectrum?
Note: the press abuses scandal was, eventually, uncovered by sections of the press.
Celebrity and public interest
Before I continue, I need to briefly explore celebrity and its link with public interest. Whilst some of the footballers, movie stars, singers and novelists try and portray themselves as ordinary people who have not overtly courted publicity - publicity, they say, is a by-product of their profession - such people, along with some successful businessmen, public servants and similar are, like it or not, in a position of privilege.
Anyone with a dedicated following finds themselves, accidentally or by design, in a position of potential influence over others. Successful footballers can influence, if they choose, the brand of football boot we buy or whether we choose Coke over Pepsi, or vice-versa.
Novelists and musicians, as indeed some sports stars, also choose to push a political agenda. Many choose not to, but the simple fact is that, because of their celebrity, they have a large, often malleable ready-made audience at their disposal.
There is therefore some legitimate public interest in the lifestyle choices of all figures in the public eye. Such public interest acts as a moderator of their behaviour, preventing abuse of wealth and power and stopping those with more obscure beliefs pushing an extreme agenda.
This is not, however, an excuse for wholesale invasion of their privacy.
Inventing news: the agenda of the commissioning editors
One of the most shocking aspects of the Inquiry so far has been hearing about the commissioning of stories.
It is quite clear already that intrusive surveillance is not used as a method of last resort to investigate an emerging story of public interest (whether or not that public interest is legitimate). Surveillance, it is alleged, is used as a fishing net to trawl for stories.
It has also been used, we have heard, to gather snippets of information and photos appearing to "corroborate" false stories.
There have been few better illustrations of press fabrication than when the Daily Mail and other outlets ran a seemingly pre-prepared story about Amanda Knox being found guilty at her appeal this autumn, when in fact she was found innocent.
The article, published online the very moment the verdict was read out, contained an eyewitness account of emotions in the court room that, bearing in mind the subject of the article, can only be described as fabricated to emphasise the story.
In a similar way we've heard at the Inquiry photographs of celebrities and other public figures are stockpiled and used - often out of context - to illustrate a story, which, in many cases, has since been shown to be demonstrably false.
A brief history of a strong press
Many news publications have, over a very long period of time, built themselves into a position of power. And it's not without good reason. 240 years ago a printer who dared to publish the goings-on in Parliament started a chain of events which lead to the then Lord Mayor of the City of London being committed to the Tower.
Although released, the imprisonment of the Lord Mayor over his refusal to act to stem the publication of reports about the procedures of Parliament indicates the challenge a free press have faced to make those in power accountable.
The reporting of parliament was "legalised" after a free speech campaign by an MP of the era, John Wilkes, but this was by no means the last challenge faced by the press.
Even today, citizen journalists and other new media publishers are facing eviction and arrest for daring to film, tweet or otherwise report on the procedures of local councils.
And the traditional press still face an uphill legal battle when reporting allegations of malpractice, unethical behaviour or corruption by corporations or wealthy individuals.
The traditional press grew strong because it had to. One has to be strong to fight the rich and powerful.
Now, the problem is not taming the power of the state, but taming the power of the press.
Press dominance and corruption of official information channels
I think it's fair to say the all-powerful press became a bit of a problem for the state and public bodies like police forces, and such bodies found their own way of taming the press.
When I first started blogging, under a pseudonym several years ago, the press offices at most organisations would not talk to me. They would only talk to "accredited journalists" or "affiliated members of the press."
Even when I learned to blag my way (after all, what makes a journalist a journalist?), many organisations would not talk to me. And even when I started blogging under my real name it didn't help much.
The BBC asked what publication I was writing for. When I explained, they once told me they didn't have the time or money to deal with bloggers. Questions to Surrey police over the closure of Farnham police station went unanswered. Railtrack and South West Trains wouldn't talk to me about snow closures.
Journalism, I found, works through contacts and prior relationships. Either a personal relationship, or a relationship between an organisation and a news outlet.
Not such a problem when considering private corporations, after all, they're pretty much free to talk to who they choose. But when public bodies have favoured press outlets there is a serious risk of abuse.
Publications will be dissuaded from running damning stories about an organisation like a police force if it puts future information flows in jeopardy. I was shocked to hear even the mighty ITN faced a press conference ban by Avon and Somerset Constabulary for its reporting of the Jo Yeates murder investigation.
Collusion between public bodies and the press
I predict such collusion has made press abuses more likely, since it has had two likely consequences:
- It has probably stemmed competition in the press, since newer publications have found it hard to build the same level of relationship with public bodies like police forces as existing national media outlets. Also, newer publications don't command the same audience, so won't be given special "off the record" titbits to keep them sweet. The net result is newer publications have struggled to compete, and existing publications have retained their dominance.
- Corruption and unethical behaviour in such bodies colluding with the press is now far less likely to be investigated than if the relationship between the press office and press was strictly formal. In fact, why aren't all disclosures to the press by a public body made in public at the same time? Off-the-record briefings allow public bodies to spin stories without scrutiny, and support the dominance of preferred media outlets.
The law as a blunt tool with unintended consequences
The law is useful where there are clear boundaries between legal and illegal behaviour. Also, where there are grey areas or conflicting principles, the law can be used to enforce a set of principles, such as the European Convention on Human Rights; or create a regulatory framework providing obligations for transparency and fairness, such as the Freedom of Information Act or the Competition Act.
In other cases the law can be unhelpful. Not only burdensome, in erecting regulatory obstacles of questionable value, but actively unhelpful; it can make things worse. The law of unintended consequences.
Overly-complex or onerous regulation can prevent new entrants entering a market, leaving a few dominant players to profiteer in the absence of free and open competition. Regulation can actually make things worse for the consumer than if the market was left to itself. A good example here is the banking and financial services sector, although I'm sure that there are other monopolistic drivers in this sector besides regulation.
As for laws which actively make things worse, the Georgian and Victorian Corn Laws make a good case study. In order to prevent the British farmers and the wider British economy suffering from cheap foreign imports of corn, imports were limited, and the net effect was to raise the price of corn.
The farmers were happy, the economy richer, all seemed good.
But the laws took money out of other sections of the economy, hitting the manufacturing sector particularly hard. Factory workers were laid-off and this caused an economic downturn worse than that predicted had cheap foreign imports been allowed.
The regulation of information - the way we communicate - is so fundamentally important to our social and democratic structures. The domain is more complex than any financial market. Regulation of journalism might prove worse than no regulation. We need to tread carefully, wary of any potential unintended consequences.
The social contract: why did it fail, and is the failure fatal?
The Social Contract is our way of describing how good (ethical) behaviour can be driven without the need for micro-regulation.
The law of the land plays only a very small roll in preventing the vast majority of antisocial behaviour in everyday life. Our behaviour is primarily governed by social norms, preventing us from yelling abuse at our noisy neighbours for one minor indiscretion or passing-on scurrilous tittle tattle we hear from the neighbourhood gossip. We don't want to be known as the ranty guy next door or the neighbourhood gossip.
Clearly some level of state control through the law is needed. A free-for-all will in all likelihood lead to a less fair society than all but the most extreme dictatorships. But we're urging caution when regulating in a complex area such as privacy and press freedom.
After the lines have been drawn and clearly uncivil behaviour and practices have been outlawed (and outlawed in such a way that the ban is workable, laws abided by), a large spectrum of behaviour still remains legal, but not all is harmless.
In a free, fair and open market, consumers do not reward "bad" behaviour forever. It might be possible to make short term gains, but eventually the customer "wises up" and withdraws their custom - stops buying. The market acts as a regulator. Self-regulation as an effect, not to be confused with businesses and market players getting together to create a self-regulatory body; two completely separate concepts.
Where unethical behaviour is identified, rivals should in theory enter the market to provide an "ethical" alternative. Ethical sells; I'm not sceptical on this point. Whilst there are always new challenges, (e.g. palm oil), and some old ones, I've seen countless products and manufacturers improve their ethical credentials over the last 20 years without the need for micro-regulation. Only today we heard of continued action by Nestle to eradicate child labour on its cocoa plantations.
Ironically, the press works to out unethical behaviour like the use of cheap overseas child labour, guiding consumer choice and driving standards through setting a good, moral agenda.
So where did it all go wrong for the press itself? Why has it taken so long for the ethics and standards of some publications come under scrutiny by rivals? Why has questionable, unethical and outright illegal behaviour gone unpublished for so long.
The Social Contract didn't fail completely. It is worth nothing at this point that the phone hacking scandal did eventually come to light through the actions of journalists from a rival publication (although I doubt journalists from the Guardian see their publication as a rival to the papers involved in the scandal!).
Privacy and censorship
I don't subscribe to blogger Guido Fawke's (Paul Staine's) comments at a recent parliamentary inquiry into social media and injunctions:
"When we talk about privacy we are really talking about censorship..."I've explored this topic before. Essentially, privacy is the ability to act unobserved. Censorship is the suppressing of the resultant information once an act has been observed.
To defend privacy we have to defend our private spaces, spaces where we are free to act unobserved. Such spaces I believe are critical to our personal and social development. Surveillance, phone tapping and computer hacking are clear invasions into what should be private spaces. It's important to prevent and punish such surveillance - the root cause of loss of privacy.
Clearly illegal acts like breaking into private voicemail servers, computers or installing covert listening devices and video recorders in private spaces must be punished under existing laws. Police forces and prosecution authorities need to understand the public interest in aggressively pursuing those who break the law.
But I don't think it's helpful, once information of a private nature has emerged, for the state or other statutory regulatory body to gag the press from reporting it. It may seem like a good idea to the judges involved, there are weak analogies with handling stolen property or benefiting from the proceed of crime.
But such an approach will surely have wider consequences. Any gagging mechanism can be abused. It is already apparent that judges are sympathetic with applicants requesting an injunction when an allegation of blackmail exists. Maybe this is a proportionate approach, but surely the injunction on privacy grounds should be intrinsically related to an ongoing investigation or prosecution for the serious offence of blackmail.
Also, censorship, however valid, breeds public mistrust. Injunction-busting blogs have sprung up, claiming to receive a million visitors a month, indicating money could be made through running such sites. Few readers know for sure whether information on such blogs is correct, yet sections of the public are minded to believe such sources where no official information is forthcoming due to an injunction. A judge recently took the unusual step of issuing a public statement to the effect that the man was innocent of the smears.
Widespread use of injunctions may encourage news organisations to move overseas, subcontracting their intrusive "journalism", free from the shackles of a UK "privacy" "censor". It won't stop UK readers reading the allegations on the internet. Read more in our paper Injunctions, social media and the concept of privacy (pdf).
Conclusions
Whilst some of the identified abuses are clearly illegal, the biggest questions surround grey areas on the Harm Spectrum. When is it ethically or socially acceptable to follow a public figure in a public place, spaces where there's no realistic expectation of privacy, yet the behaviour of press and investigators borders on harassment?
Behaviour in the grey areas is usually driven towards the green end of the Harm Spectrum by collective social conscience and market forces, what we call the Social Contract.
But transparency is critical in driving good behaviour, the public need to know about and understand harmful behaviour before they change their purchasing habits; the newspapers they buy, etc.
Effective, free and open market competition is also key; consumers must have an ethical alternative, and that ethical alternative must sell itself as such, highlighting the unethical behaviour of its rivals.
The British press has built itself into a dominant force, through necessity and also through unhelpful collusion with some public bodies. This collusion in particular has helped to tip the playing field in favour of the powerful incumbents. Until relatively recently it has been in no-one's interests to expose the unethical behaviour of the press.
In this case there has not just been a failure of the Social Contract, but - it is strongly alleged - a failure also of the criminal justice system; why did clearly illegal behaviour go largely unpunished?
It's highly likely the Social Contract would act to regulate press behaviour if just three measures were introduced to level the playing field:
- Find out why clearly illegal behaviour was allowed to go unpunished, and ensure future illegal behaviour is always punished. Privacy crimes may seem trivial to a police officer used to dealing with dangerous criminals, but they have wider damaging effects on society.
- Remove the opportunity for press favouritism with public bodies. Public bodies should be bound by law to engage with all legitimate enquiries, whether they be from bloggers, established news outlets or other publications. In effect there is a lot of overlap between press interest and public rights under freedom of information laws, and ideally press offices of public bodies should be merged with the freedom of information function of that body.
- Ensure the unethical and immoral press methods and practices are remembered for as long as possible. They should form the cornerstone of both media/journalism training courses and business courses, since the cost to date for the scandal to the Murdoch empire alone must be huge.
@JamesFirth
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