The news that the Sun were supporting an application to the European Court of Human Rights over the Met’s gathering of the communications data of the Sun’s political editor, was greeted with more than a few raised eyebrows. The levels of irony and hypocrisy here are almost magnificent in their chutzpah. The Sun, central to a Murdoch empire that has been mired in scandals over phone-tapping, furious at one of their own having his phone calls (and more, to be fair) looked at – the communications data surrounding them at least. The Sun, whose close links to the Met were a part of the whole scandal that brought about the Leveson Inquiry, calling the Met out for unethical procedure. The Sun, who just days before had been railing against the whole European Human Rights regime, and the court itself, trying to use those very rights to defend themselves.
Despite this, and despite my dislike of the Sun, I, and many others, would support the Sun in their action. Journalists do need protection from surveillance. They do need privacy. They do need to be able to protect their sources. As the Sun said:
“A free press is fundamental to all of our other freedoms. And to have a free press reporters need to be able to protect the identity of their sources.”
It’s a bold statement and one worth further examination. The role of the ‘free press’ can sometimes be understated, particularly when we look at the excesses of the current crop of tabloids. Anyone who followed the Leveson Inquiry knows quite how badly the press can and do behave. Desperate, despicable stuff at times – cruel, selfish, manipulative, voyeuristic, racist, sexist, homophobic, transphobic, divisive, misleading (or worse), doing their best to bring out the worst in people. Just plain nasty in so many ways – but that should not blind us to the importance of at least something of a free press. Without the press, things like the MPs expenses scandal would never have come to light. Without the press, Edward Snowden would have found it far harder to get his information out – and would have been far less likely to be believed. There are many more stories like this – too many to count.
So a free press is important – and for that reason, the press get privileges. They do get – and might well deserve, though more of that later – better protection for privacy and confidentiality. They get more access to information – through briefings from politicians and others or from ‘press-only’ events, through networks of sources and supporters and so forth. They have an audience that ‘ordinary’ people find it very difficult to reach. They have even had specific legal protections – against defamation, for example, in what used to be known as the ‘Reynolds Defence’, though since the Defamation Act 2013 came along, that has broadened a little so as to be potentially accessible to non-journalists.
All this has historically been entirely right and proper – but there’s something of a deal going on here. Why should journalists get special protection, above and beyond that of ordinary people? What makes the ‘professional’ journalist special – and different from that increasingly common species, the ‘citizen journalist’? What makes a columnist in a newspaper different from a blogger? The unspoken deal was, just as with lawyers and doctors (and even priests) who also make claim to special rules on confidentiality, journalists were bound by different ethics, and had been properly and professionally trained so they could be more trusted – at least to do things like protect their sources. Journalists get protection, and in turn they protect us – and they need to behave ethically in response. Just as lawyers and doctors have ethical guides (which they may or may not follow) press journalists have their own ethical guides. In the past, as far as UK press journalists were concerned, this was the Code of Practice of the Press Complaints Commission – what it is now is still up in the air, and the new regulator IPSO tries to assert itself whilst the supporters of the Royal Charter try to bring about implementation of the Leveson Report. Either way, most journalists would claim that they have ethics.
The real question, then, is whether they follow these ethics – because if they don’t, there’s far less to differentiate them from the rest of us. I write a blog, have had a few pieces published in magazines and on newspapers’ websites – am I a journalist? Should I have the same rights as journalists do? My suspicion is that the lines between ‘real’ journalists and ‘citizen’ journalists, bloggers and so forth will if anything get more blurred. There are already many people on the borderlines, many who sometimes act as journalists, other times as bloggers and so forth. Where does that leave journalistic ethics, and where does that leave journalistic protections for privacy, freedom of expression and so forth?
There are two very different possible approaches. One is to strip away journalistic protections – the other is to broaden them to cover the rest of us too. Personally, I much prefer the latter. Now that technology has given us the capacity to exercise our freedom of expression, the law should help protect our ability to do so. I may not be a journalist, but I do want confidentiality, and I think I have the right to it.
In the meantime, though, we should rally behind journalists in their fight against intrusion. We should, however, also expect them to understand the deal that is going on – and to understand that the pressure is on them to behave more ethically. The less ethically they behave, the less responsibly they behave, the harder it is to justify a special deal. One particularly painful story this week has made this point to me: the death of Brenda Leyland, the women accused of being a ‘Twitter Troll’ towards the parents of Madeleine McCann. This is a story that has almost nothing good to be said about it. What actually constitutes a ‘troll’ is subject to a great deal of doubt, and even if some kind of definition is settled upon, whether Brenda Leyland fits it is another matter. These are complex questions. For better or worse, the law has been getting increasingly involved in activity on social media, whether for malicious communications, bullying, public order offences or defamation – and as the number of people participating in social media has grown, the incidents have similarly grown.
I’m not in any way a defender of ‘trolling’ – but neither am I a supporter of ‘counter-trolling’. Trolling the trolls does go on – and on my Twitter timeline (I follow a lot of people) I’ve seen people make deeply passionate arguments both in favour of the McCanns and defending Brenda Leyland and others. I don’t want to get into that argument – other than to say that I don’t know what happened to Madeleine McCann, and I’m a believer in the presumption of innocence – but the actions of the press, and Sky News in particular, are another matter. We don’t necessarily expect ordinary people on Twitter to behave responsibly, let alone to a special, higher standard of ethics and responsibility. We should, however, have higher expectations of the press. That’s part of the deal. Was the doorstepping of Brenda Leyland appropriate, ethical or well considered? Was it necessary? I hope Sky News is considering these questions – because press ethics matter, just as protection of the press matters. We need a free press – but we need a responsible press too.
UPDATED TO MAKE CLEAR THAT IT WAS TOM NEWTON DUNN’S COMMS DATA GATHERED BY THE POLICE, NOT HIS CALLS LISTENED TO.