It’s those Platonic Guardians again…

By skepticlawyer

The Leveson Inquiry, as readers of this blog well know, has exposed Britain’s tabloid media in ways that shouldn’t just make journalists or newspaper proprietors ashamed. The exposure has also shamed, by extension, the British public, as well as emphasizing the gulf between those who don’t read tabloid newspapers and those who do. Just as the tabloid press is vile and disgusting, the spectacle of Britain’s social betters looking down their (our?) long snouts at the tastes of some among their (our?) fellow citizens is vile and disgusting…

Or is it? Are some tastes so debased they ought to be regulated, and if so, by whom?

I was put in mind of this most awful of conundrums when reading two pieces of writing, one good, one bad. The first is by philosopher Onora O’Neil, a prominent Rawlsian-cum-Stoic. Her piece is so good that no summary of mine can do it justice, and (just for once), although in the Financial Times, it hasn’t been locked behind a paywall. Read and enjoy, agree or disagree (I haven’t made up my mind yet); it repays careful attention. I will quote some of her piece to give you a flavour:

[Mill] then points out that much individual speech is merely self-regarding (today we would say self-affecting). Since it does not affect others, it does not harm them, so issues of self-protection will not arise. Given the harm principle, such speech should neither be prevented nor constrained. Mill concluded that individuals should enjoy extensive rights to self-expression, which he saw as including “absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological”. He claimed that this extensive freedom was “practically inseparable” from “liberty of expressing and publishing opinions”.

Mill’s defence of individuals’ rights to self-expression is, however, an awkward basis for an account of press freedom. If individuals have rights to publish opinions that will not harm others, they will need media that enable them to do so, but the last thing they will need is media with rights of self-expression that parallel those of individuals.

The phrase “freedom of expression” is central both to Mill’s account of individual rights to self-expression and to contemporary claims about press freedom. But this may be no more than an unfortunate convergence of terminology. Powerful institutions, including media organisations, are simply not in the business of self-expression, and should not go into that business. An argument that speech should be free because it generally does not affect, a fortiori cannot harm, others can’t be stretched to cover the speech of News International or of the BBC, any more than it can be stretched to cover the speech of governments or large corporations.

This argument should be familiar to any lawyer with a basic knowledge of English constitutional law. We learnt the hard way — through the various wire-tapping cases — that the government cannot have the same rights and powers as individuals (the old rule, since abrogated, was that the government, like the citizen, could do anything that wasn’t prohibited). Government has to be constrained. If it isn’t constrained, we really are dealing with Leviathan on steroids.

O’Neill’s article applies the same principle to media corporations, and various persons in both the Tea Party and the Occupy Movement have since applied it to non-media corporate bodies, as part of a general irritation with what is being called ‘corporatism’ on various sides of politics. In this piece, I am concerned only with media bodies, be they public or private. So far, so simple.

The second article was a not very good piece about sexism in the British tabloids — which I found via Ophelia Benson’s Butterflies & Wheels — by Laurie Penny in the Guardian. Why it is bad is illustrated admirably by this quotation:

Here’s what you learn, if you’re a woman and you grow up with British tabloid newspapers in the house: if you get raped or murdered, it’s your fault; if you are old, overweight or just having a bad hair day, you are disgusting. You must work to appear as sexually attractive and submissive as possible, at which point you will be called a slag, a disgrace and a “loose-knickered lady lout”, in the words of Quentin Letts. Women who have careers are miserable and pathetic. You were born to be a wife and mother, and succeeding at these things is the only thing that will fulfil you. Having a baby is the most valuable thing you can possibly do, unless you’re poor, or unmarried, in which case you’re society’s scum. If you complain about discrimination or sexual violence, you’re a shrill, jealous harpy.

It is vital that we understand that sexism is not just one more naughty thing that the tabloids do. Sexism is the dirty oil in the engine, the juice that makes the whole shuddering sleaze-machine run smoothly. The eyes that are drawn to the topless teenager on page three skim lightly over page two, where propagandists on the Murdoch dollar peddle torrid justifications for the waging of wars and the slashing of public sector jobs and call it news.

As a general rule, it is a good idea to attempt to prove one’s assertions, and not argue by anecdote. The last paragraph is also bunkum; tabloid sexism may indeed be nasty, but a page three girl is not quite the same as hacking a dead serviceman’s telephone, or attempting to run down an elderly pedestrian in pursuit of a story, or stalking schoolchildren. That said, as I commented on the B&W thread, we do have a serious problem, and it’s not just one of taste, although a large part of the problem is debased taste (of which sexism is part), because the debased taste feeds into criminality: one can’t spread much (popular, but salacious) gossip on everything from celebrities to murder trials unless one is willing, it would appear, to engage in significant criminality. My comment on the relevant thread was as follows:

The issue is this: Britain’s tabloids are awful along every dimension; sexism is but one. They are full of lies. They are full of errors. They have and do facilitate criminal behaviour on the part of their employees. They have been engaged in bribery of the police, the theft of private information, the blagging of medical records, perverting the course of justice, generating mistrials, promoting vigilantism, suborning Parliament, the stalking of persons from all walks of life (including, in a particularly egregious incident, J. K. Rowling’s children), the defamation of persons great and ordinary. They are shamelessly and disgustingly exploitative, of everyone and everything that comes within their grasp.

Even Nick Davies, the Guardian reporter who first broke the phone-hacking story acknowledged when he appeared before the Leveson Inquiry that the tabloid press in Britain cannot be trusted to regulate itself. Which means we will get Ofcom, but for newsprint. And the people who are expected to staff and monitor regulators of this type, in Britain, are lawyers. And I must admit (because of the area of law in which I specialise) I am just the sort of person likely to be asked to do a stint on a media tribunal. Perhaps I should start printing business cards with ‘Platonic Guardian’ on them, in addition to my legal qualifications, position and firm name.

The thought of being a Platonic Guardian fills me with dread, and yet addressing Laurie Penny’s claims in the last two paragraphs quoted (among many other claims) is precisely what people will expect of the lawyers who manage the new regulator when it comes into being. They have no idea how mind-bendingly difficult this is, how hard it is to walk the line between not only censorship and freedom of the press, but also the wider problem of persons of very similar background (the thing to remember about lawyers is the fact that we are lawyers; this is far more important than our gender, our race, or our religion; law is a process of intellectual rewiring) making decisions on behalf of persons who are unlike us in almost every way.

The greatest evil perpetrated by the tabloids is the arrogation to themselves of unelected power, when they claim to speak for the people but enjoy no mandate beyond sales figures. Clearly ‘something’ has to be done – I am with Nick Davies on that. However, I am worried that the Leveson Inquiry will respond ‘here is something, let’s do that thing!’ and it will be members of my profession who are invited to arrogate to themselves vast amounts of unelected power.

One of the follow up comments to mine opined (I hope in jest):

Let us abandon the Great War Against Awfulness, because it gives lawyers a headache!

We are probably doomed always to have ‘vast amounts of unelected power’ washing through society. I’d rather it was in the hands of people who gave a damn, than in those of reptiles who specialise in generating human misery to profit from.

Perhaps the gentlemen in question has forgotten that the jokes we now tell about journalists were once directed at lawyers, as was the contempt now routinely directed at journalists. Yes, really!

And, I might add, engaging concerned and thoughtful citizens to make taste choices on behalf of others only works if there is no rent-seeking or regulatory capture or confirmation bias, as is evidenced by the continued absence of an R18+ certification for computer games in Australia (the Australian computer games classification regime tops out at MA15+). This means that Australia bans an unusually large number of them, despite having an R18+ classification for films. Gamer Geordie Guy observes:

At least the average Australian game player – an early-30s man or late-20s woman according to industry statistics – can be confident decisions such as these are made by an arm’s length body that represents the length and breadth of Australia, right?

Members of the classification board that banned Syndicate are not politicians per se, but either the Attorney General or the Minister for Home Affairs appointed each of them. They represent everyday Australians in so much as out of the 12 of them almost all are tertiary educated, white, Australian-born members of a range of other boards and community groups. Nine span from their 30s to 50s with only two members in their 20s. Teenagers or older Australians are entirely unrepresented on the board excepting the director who doesn’t disclose his age but admits to two grandchildren. Classifications (or the refusal of one, ie bans), are handed down by panels of as few as three members that the director handpicks from the board under his exclusive powers.

Perhaps in acknowledgement that a likely decision by three middle-aged, university educated community group participants might not have captured every imaginary moral dilemma facing Australian adults, there exists a classification review board. While the review board is designed to review the decisions of the classification board, I would caution against optimism that it corrects things as per the stated aim of appointees being from “a range of backgrounds”. Four of the seven-member classification review board are middle-aged women with arts degrees; of them, three combine it with law. Two have degrees in psychology. There is only one man. All of them have rather extensive community group exposure (like other boards and committees); two even served on the same board (the Young Women’s Christian Association, of which all media-consuming Australians are surely members at least in spirit).

Having quoted all these people and made the observations above, I confess that I am no closer to a solution on any of this. Clearly, there is a difference between the gamer unable to play a game banned by the OFLC and the work of Ofcom (and what will be its press successor) in ensuring that media corporations do not break the law. However, both regulatory mechanisms have (will have) their origins in the policing of taste. Both say, in effect, ‘your taste is debased, so therefore we’re going to use the law to stop you feeding it’. The argument against policing the gamer’s taste just happens to be a stronger one, because there is no whiff of criminality involved.

Will we be reduced to a ‘taste in media’ version of the famous quip on pornography?:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that. [Emphasis added.]
— Justice Potter Stewart, concurring opinion in Jacobellis v Ohio, 378 U.S. 184 (1964), regarding possible obscenity in The Lovers.

It’s one of those situations where I am truly at a loss.


  1. Posted January 4, 2012 at 6:27 am | Permalink

    Very interesting post SL. I agree; “something” needs to be done – but how to make that something work and reflect community standards? We have related issues here although by and large the Australian media has not approached the depths of the Red Tops.

  2. kvd
    Posted January 4, 2012 at 9:55 am | Permalink

    Maybe a broad-based multi-stakeholder approach, in which:

    Effectiveness requires evaluation across five key domains – compliance, ethics, deterrence, accountability and risk (CEDAR). This framework allows for a granular mapping of the complex interaction of rules, principles and social norms governing market conduct. Measuring and evaluating performance of both the regulator and the regulated within and across each dimension allows for an integrated approach to assessing the extent and value of intervention.

    The author of the above missed one important factor: Timeliness. An opportunity lost because apart from the centrality of timeliness to any action/reaction, it also would have given him the acronym REDACT – which somehow seems appropriate.

  3. kvd
    Posted January 4, 2012 at 10:05 am | Permalink

    Sorry, should have noted the above as an excerpt from an article on the integrity of the banking system by Professor Justin O’Brien University of New South Wales.

    However I maintain my point: none of it matters without appropriate timeliness – and I wonder why this is not considered important in any regulatory regime.

  4. Posted January 4, 2012 at 10:28 am | Permalink

    Prosecute breaches of the law and make correction of error easy for those misrepresented and expensive for those who misrepresent. The rest can take care of itself, surely.

  5. Patrick
    Posted January 4, 2012 at 1:48 pm | Permalink

    I agree with Lorenzo. Surely this post is interesting mainly as a watershed in SL’s libertarianism? Something must be done, really!?

    We learnt the hard way — through the various wire-tapping cases — that the government cannot have the same rights and powers as individuals (the old rule, since abrogated, was that the government, like the citizen, could do anything that wasn’t prohibited). Government has to be constrained. If it isn’t constrained, we really are dealing with Leviathan on steroids.

    True. Absolutely incontestably true. Of course what we learnt was not a lesson about steroids but a lesson about leviathian itself.

    O’Neill’s article applies the same principle to media corporations, and various persons in both the Tea Party and the Occupy Movement have since applied it to non-media corporate bodies, as part of a general irritation with what is being called ‘corporatism’ on various sides of politics. In this piece, I am concerned only with media bodies, be they public or private. So far, so simple.

    Or not so simple!! As a general rule, it is a good idea to attempt to prove one’s assertions, but I can’t see anything that even suggests proof of the implicit assertion that there is some link between government and media corporations. Is it the regulatory environment? Is it something to do with some kind of symbiotic relationship and pseudo-co-dependency? Is it ‘birds of a feather’: both have power, thus both are the same? The mind boggles at the possibilities!

    Was it in O’Neill’s article? Even here we have to look a bit, as far as paragraphs 17 and 18, to get a hint:

    Inaccuracy, insincerity and gaps in … self-expression … in media communication would frequently be risky, even damaging. Both false and unreliable reporting, and reporting that misrepresents its aims and its evidence, can silence, confuse or marginalise important issues or voices, can promote manufactured or manipulated ‘news’, and can make it hard or impossible for audiences to judge what they read, hear and view.

    Earlier, O’Neill has, several times and in several ways, claimed that Mill’s harm principle is not applicable to ‘powerful institutions’. Her particular concern with media is set out in the next paragraph:

    Failure to maintain standards for adequate communication, including adequate standards for truth claims, can have heavy costs. If the media misrepresent serious matters as a contest of celebrities, as scandal and sensation, they may promote a culture of apathy, cynicism or mistrust and fail to convey to their audiences what matters and what is trivial. Equally, if they misrepresent the riff and raff of celebrity activity as serious matters they may mislead in other ways. If they systematically exclude, marginalise or mock certain voices or topics, they may foster deep forms of discrimination.

    I’m sorry, I don’t get it. I’ll set out why line-by-line:

    Failure to maintain standards for adequate communication, including adequate standards for truth claims, can have heavy costs.

    I agree. I think this is why defamation continues to exist.

    If the media misrepresent serious matters as a contest of celebrities, as scandal and sensation, they may promote a culture of apathy, cynicism or mistrust

    But if they accurately and sincerely report on our honourable elected members they will promote a culture of…oh wait. Damn.

    and fail to convey to their audiences what matters and what is trivial.

    Because of course they know what is and isn’t. You can hear Frank Rich’s desperation echoing in (the vastly smarter) Ms O’Neill’s comments: ‘why don’t these idiots vote according to what I perceive to be their best interests???

    Equally, if they misrepresent the riff and raff of celebrity activity as serious matters they may mislead in other ways.

    Such as?

    If they systematically exclude, marginalise or mock certain voices or topics, they may foster deep forms of discrimination.

    Again, such as? What even is a ‘deep form’ of discrimination? My next sentence contains a big hint as to where I’m going with this. The SMAge here, the Grauniad in the UK and the NYT in the US have practically waged war on libertarian and conservative ideas, thinkers and politicians over the last few decades, whilst the Murdoch press has often (but less predictably and less boringly) assailed socialists. Neither appears to be suffering from deep forms of discrimination that I can see, regrettably in the case of the socialists.

    So from where I am, and maybe that is just cretinville or blindspotston, the problem everyone is talking about, including SL, is ‘powerful’ corporations disseminating material that they don’t like, apparently or at least allegedly in pursuit of an agenda.

    And what this seems to require, for the dickheads at the Grauniad but (to my shock) apparently to SL as well, is some kind of regulatory standard for determining what is suitable for mass dissemination. On the strength of SL’s post I assumed that O’Neill also supports this idea, as rankly offensive to liberty as it is (in fairness to SL the first 23 paragraphs of O’Neill’s own piece do little enough to dispel the conclusion!).
    Whereas I have always believed, much closer according to my reading of him to JS Mill than anything in O’Neill’s piece (note earlier warning that I may be reading from blindspotson or cretinville!), that what is required is the greatest ease of dissemination and greatest diversity of pathways of dissemination.

    Imagine my shock then when I find (but not even hinted at until the very last paragraph!) that O’Neill appears to agree with me:

    A promising approach to this conundrum might be to permit the regulation of media process but to prohibit the regulation of content. For a small illustration, consider how things might look if the press were subject to demands for transparency about their process. Journalists, editors and proprietors could be required to declare their interests (like others in positions of influence). They could be required to list payments made to informants and payments and favours received in relation to specific stories (where relevant without naming recipients or sources). They could be required to make such transactions explicit in company accounts. The media have often been keen on transparency for others with power or influence, and what is sauce for political geese is surely also sauce for media ganders.

    Which seems to me to be a slight tweak on what Lorenzo said, more than sufficient answer to your apparent conundrum, and an excellent solution!

    ~ ~ ~
    Quick PS: the Australian censorship of games is beyond ludicrous. Have they heard of Stephen Conroy should be tarred and feathered.

  6. Posted January 4, 2012 at 2:04 pm | Permalink

    However, both regulatory mechanisms have (will have) their origins in the policing of taste.

    There’s a bit of a difference between a system where every publication has to be positively authorised and a system that focuses on punishing breaches of a particular standard. The former is bound to be more authoritarian and censoring than the later.

    The rest can take care of itself, surely.

    Isn’t the lesson from this whole debacle that: no, it won’t take care of itself? You also avoid the question of where exactly to draw the line of the law. At what point does journalism switch to stalking/harassment/breech of privacy/etc?

    (Although I do wonder if laws against organised crime could be used to shut-down and seize the assets of publications utilising criminal behaviour).

  7. kvd
    Posted January 4, 2012 at 3:01 pm | Permalink

    [email protected] quotes with approval the last para of the O’Neill piece. Regulation about ‘transparency of process’; that’s almost as farcical as the piece I quoted tongue in cheek.

    The things wrong with the present process of redress or protection are the time it takes and the expense involved. For which we have what passes for a ‘justice system’ to thank. That recent Bolt debacle arose from articles published ages ago, and however you thought justice was served, it was at best done slowly.

    And as for ‘platonic guardians’ – the suggestion is that lawyers might fulfil that role? Bat, bowl and now umpire; how does one politely say ‘conflict of interest’ again?

  8. kvd
    Posted January 4, 2012 at 3:22 pm | Permalink

    And Patrick re your continual reference to the ‘Grauniad’ I have to say that the Guardian has some quite thoughtful and in depth analysis of issues which are given little if any space in the Torygraph – to use your terminology. I think you are intelligent enough to find value in both places, without the mocking – if you would approach same with an open mind 😉

  9. Posted January 4, 2012 at 10:00 pm | Permalink

    The problem is not diversity (or lack thereof) in opinion. One argument I have had with many lefties over the years is over the politics of the tabloids. As far as I can tell, their politics are irrelevant. The likes of Manne complaining about the Australian being slanted is bollocks; as far as I’m aware, no Australian paper of whatever stripe has hacked anyone’s phone. When I was hounded by the media in Australia, the ABC was the worst offender (up to and including obtaining by stealth or bribery an unlisted landline telephone number). The problem (in Britain at least, and maybe other places, too) is flagrant criminality and pervesion of the course of justice (in the pursuit of profit, which adds an extra tasty fraudy bit to the base criminality). I have no problem with profit (it is, after all, a cost of business), but the moment it is achieved by criminal means, desipis’s quip above about organised crime becomes apposite.

    If we were only dealing with crime and error, then Lorenzo’s solution would work. Instead, we are dealing with a situation where large institutions have as much (or more) freedom to act as/than private individuals. After cases like Malone v Chief Constable, we learnt that governments cannot have this power. The lesson of Leveson (and part of O’Neil’s argument) appears to be that media corporations cannot have this power either. I say ‘media corporations’ advisedly, too, because another relevant point is that media bodies can engage in behaviour not permitted to other corporations. Few people in Australia realise that they enjoy a content exemption from s52 TPA. There are other exemptions, too: various ‘public interest’ exemptions, various reporting exemptions. Make no mistake – if McDonald’s did this, the legal shit would hit the fan.

    Like Patrick, I am sympathetic to O’Neill’s proposal. It’s a very Stoic solution: maintain the standards you seek to have others uphold or lose the right to speak. Like kvd, however, I have grave difficulty seeing how it would work in practice, apart from the obvious and worthwhile suggestion of a publicly available register of interests. Many other corporates do that, and it does encourage accountability.

    Finally, I must not have been clear enough, despite my best efforts. I was not suggesting (or using the argument) that the media was somehow in the pay of the government or vice versa, even though it was true for a long period in Britain, in a process that politicians actively facilitated. That sort of thing energises many lefties, and probably isn’t much good for public life, but last time I looked, it wasn’t criminal. Maybe it should be. I don’t know.

    The point I was making was a far simpler one: media bodies should not have the same (or more) rights and powers as/than private individuals. They also (reaffirming the point I made above) should not enjoy rights and powers unavailable to other corporations.

    Finally, as you should all know by now, I am not an apriori libertarian, but a consequentialist one. Principles avail one nothing if they do not work in practice. I have just read a book that has definitively refuted the bulk of Murray Rothbard and about half of Ludwig von Mises, two thinkers for whom I have the utmost respect. That book is Steven Pinker’s ‘The Better Angels of our Nature’. The moment libertarianism turns into an atheist version of Catholic natural law, it is doomed, and for the same reason.

    [Edited to add: just because something should be done, doesn’t mean something can be done. ‘Do nothing’ may well be the only possible response. It may not be possible to preserve the tabloids as a going concern after removing their various corporate exemptions and undermining their capacity to commit crime. Does that mean ‘do nothing’, however? As I hope I have made clear in the main post, I don’t know.

    And another thing: a taste or value is not given particular valency because it is engaged in by people who are working class or uneducated or ‘salt of the earth’. One of my bêtes noires is the persistent tendency to credit culture and taste ‘from below’ because it is engaged by persons who are politically sympathetic to the creditor. It used to be mainly Labour that did this, and it persists (in Britain) in an uncritical acceptance of everything from working class pride in stupidity to nasty dogs to tattoos. In the US, it is mainly Republicans and left Democrats who do it: with Southern Cracker culture in the case of the former, and the utterly deracinated music and lifestyle of many African-Americans in the case of the latter. Both Theodore Dalrymple and Steven Pinker are very clear about the positive benefits of taking cultural cues from one’s betters. The latter even has extensive data to back him up].

  10. Posted January 5, 2012 at 12:25 pm | Permalink

    I think this is almost, but not quite, a non-problem. The only reservation I have about calling it a non-problem is that I don’t think people who have met with misfortune (like the parents whose kids were kidnapped) deserve the sort of treatment they receive from the press. There should be a law to protect those people.

    I have no sympathy for the Hugh Grants of the world and the run-ins they have with the press. They court public attention because they want it. Having courted it, they demand the right to assert the terms on which it is given. For the most part, these people create little of value. It could hardly be said that the twentieth century witnessed the zenith of human artistic endeavour or that, if it did, the difference was the newly arrived capacity for mass public adulation of those whose principle motivation was to attract it. I don’t want to legislate to stop them carrying on like the vacuous dickheads they are, but I strongly object to the introduction of new regulations (including new torts) principally to protect them.

    If there is to be a tort to protect “innocent” victims (those being persons who haven’t engaged in careers which depend for their success upon the public being interested in who they are) it should include a strong public figure defence.

  11. Posted January 5, 2012 at 12:39 pm | Permalink

    It was the mother of Hugh Grant’s girlfriend who a journalist attempted to run down when pursuing him (Grant had not at that point appeared). It was my parents’ unlisted telephone number that the ABC obtained by nefarious means (and then kept them up all night, for several nights running, using it). I hadn’t lived at home, at that point, for five years.

    The attention cannot be contained to the ‘famous’ person. I am also a big fan of the rule of law. Either everyone has dignity and privacy, or no-one does.

    There is a part of me that would like to see the media utterly eviscerated as an institution, mainly because I think it attracts the sort of people as employees that the law took care to clean out of the profession some thirty years ago. I haven’t met a journalist yet who couldn’t be negatively compared with what floats around the toilet bowl.

  12. kvd
    Posted January 5, 2012 at 12:49 pm | Permalink

    So Nick you’re saying it’s ok to hack Hugh Grant because he starred in Four Weddings, but not Dowler’s phone because she was dead, and couldn’t therefore defend herself?

    The enquiry as far as I can see has been a parade of victims’ statements and – while that has its place (more normally after guilt has been established) – I can’t really see how the experience qualifies anyone to be an expert on possible solutions. A bit like asking Sting about African famine relief.

    The other issue I have with your approach is that it seems to depend upon a pre-qualification of victim status. So, while I see where you are going, I’m not sure I agree with your chosen route.

    You cannot legislate for integrity. And that’s all there is to it, as far as I can see.

  13. Posted January 5, 2012 at 12:52 pm | Permalink

    SL I detect a difference between those used to the Oz media and those regularly exposed to the British tabloids. Equality before the law is a powerful value.

    A register of errors might be powerful. Requiring companies to publish their level of pollution was found in the US to lead to less pollution on its own. Not only are there the reputational effects, forcing people to confront their own record should not be underestimated as a factor.

  14. Posted January 5, 2012 at 1:18 pm | Permalink

    kvd, I’m not saying that. I’m not sure about England, but I’m reasonably sure that hacking someone’s voicemail in Australia would be an offence already.

    I don’t think my view involves pre-qualification for victim status. Someone becomes a victim when the damage is done to them. What I’m saying is that if you pursue a career dependent upon public approval of your persona, you invite trouble.

    A couple of other things: I don’t consider that a person who writes a book (eg SL) is primarily in the business of seeking public approval of his/her persona. Sure, it is hoped that the book will sell (and, by extension, obtain approval), but the persona of the author is not usually central to the book. And if it is, then the person is probably already a public figure for other reasons.

    Secondly, I didn’t say that persons who suffer as a result of their relationships with public figures should not have recourse. They have not invited the invasion of privacy.

  15. Posted January 5, 2012 at 1:18 pm | Permalink

    I think you’re partly right on that, Lorenzo. I encountered the moral posturing combined with gormlessness in Australia, but what criminality I encountered was minor (such that it struck me as less serious than the gormlessness and the moral posturing).

    In Britain, one has gormlessness, moral posturing and criminality on a vast scale. It is quite extraordinary, hearing passionate defences of freedom of speech and assertions of moral goodness from people who take pride in their flagrant wrongdoing. It is so bad that Lord Leveson has had to warn quite a few of them that they were incriminating themselves. One charmer (who had worked for both News of the World and The Mirror) opined that ‘privacy is for paedos’.

  16. kvd
    Posted January 5, 2012 at 1:36 pm | Permalink

    NF “Secondly, I didn’t say that persons who suffer as a result of their relationships with public figures should not have recourse”

    Neither did I. What I did say is that being the victim does not necessarily qualify a person to proffer solutions. Yet that is what appears to be happening thus far at the Leveson enquiry. Sympathy – yes; expert status – no.

    Accept what you say re pre-qualification. Was trying rather ineptly to say that when there is an offence, why should it matter if the victim invited the injury? Reminds me of the Slutwalk reaction.

  17. Posted January 5, 2012 at 1:48 pm | Permalink

    Yes, I don’t buy the ‘invited the injury’ argument either, as drawing the boundary between a ‘public’ and ‘private’ figure would be impossible. Nick put me outside the public figure circle; I put myself (and not just for the purposes of argument), within it. Working out who is right on that distinction would be a nightmare in court, and could in many cases lead to a crime being treated as a tort. Overcoming that sort of reasoning took us years (and the process is arguably not yet complete) in the case of rape. I really don’t think that ‘you brought in on yourself’ should be encouraged anywhere in the criminal law, if only because it has the potential to cross-contaminate other areas.

  18. kvd
    Posted January 5, 2012 at 2:02 pm | Permalink

    Just an explanation of my previous comment.

    This is not my ‘house’ therefore I always feel compelled to keep my comments as short as possible. But inevitably that leads to a ‘shorthand’ such as my reference to ‘Slutwalk’. I just hope that others will accept that any such comment is made in goodwill, and forgive possible negative interpretations.

    My main fault is honesty, and if I wish to be offensive you can be assured it will always be quite plain.

  19. Posted January 5, 2012 at 2:05 pm | Permalink

    kvd, I saw your point immediately. It is a perfectly valid one. Please don’t feel you have to apologise, you are a very valuable and insightful commenter!

  20. Posted January 5, 2012 at 2:06 pm | Permalink

    I think the point on deceptive and misleading conduct SL raises @10 is an interesting point. I also wonder if regulation of other industries might provide ideas on how to reduce the problem:

    A do not call (“No Comment!”) registry.

    Plain packaging (make people think for half a second if the last edition was worth the money rather than being duped by a sensationalist picture/headline).

    Regulate a clear indication of the source(s) of information under the headline: “Eyewitness”, “Government press release”, “The Masquerading Marketing Material as a News Report Company”, “Anonymous Insider – Warning: May be fabricated bullshit”

    Or maybe on the content of the material: “This news report is 93% fact free!”

  21. Patrick
    Posted January 5, 2012 at 2:12 pm | Permalink

    [email protected], in your last paragraph, did you mean salience instead of ‘valency’?

    I do agree with the point you apparently meant to make:

    media bodies should not have the same (or more) rights and powers as/than private individuals. They also (reaffirming the point I made above) should not enjoy rights and powers unavailable to other corporations.

    Also, to be clear, I don’t think I ‘credit culture and taste ‘from below’ because it is engaged by persons who are politically sympathetic to the creditor. ‘ I credit culture and taste that I agree with and discredit culture and taste that I don’t, generally. But I am very alert to lefties dismissing ‘lower class’ culture and taste mainly because it seems to happen so often.

  22. Posted January 5, 2012 at 2:13 pm | Permalink

    kvd, the point about persons associated with public figures was responding to SL’s point not yours.

    SL, I would rate you a public figure as well. I don’t think a public figure defence ought to be absolute. I think it ought to apply on the basis I have outlined.

    And SL, when I suggest a defence, I’m talking about a defence to a tort (eg a tort of invasion of privacy). Notwithstanding the decay of volenti as a defence because judges like handing out cash, tort law still accepts that sometimes you invite injury and that negates liability.

  23. kvd
    Posted January 5, 2012 at 2:49 pm | Permalink

    Nick, I see that now. Apologies for thinking it’s all about me – but hey..

  24. Posted January 5, 2012 at 4:02 pm | Permalink

    [email protected], it’s an interesting point to compare invitation of injury in this context with invitation to rape.

    I have always understood the argument in the context of rape to be that a woman’s conduct (eg dressing in what might be thought to be a sexually provocative way) cannot justify rape. The point is that conduct of the kind usually discussed in that context is not a substitute for consent.

    By comparison, going into the world and creating a career based on selling who you are as a commodity is an obvious invitation to people to be interested in who you are.

    Putting the question on an even footing with the rape context, it is: does someone who seeks fame as a means of obtaining a fortune invite people to inquire into their lives? I can’t see how the question can be answered negatively.

    There are subsidiary questions about the means by which people do it: eg searching garbage or stalking or whatever else. There are plenty of offences already attached to that sort of conduct. What is the compelling basis for creating new offences or torts? As far as I can see, it is limited to protecting people who, through misfortune, have been pushed into the public eye and become persons of interest. I do not see the justification for protecting those who sought the spotlight in the first place.

  25. Posted January 5, 2012 at 9:07 pm | Permalink

    I don’t accept apportioning in the context of any criminal offence; we have removed it in rape, and the principle with media crime is the same. You act in a film or write a book, and therefore have to promote it to the press. In my case, I was obliged to do this contractually; so is every author – grab an industry standard contract off the Society of Authors webpage. An actor would be similarly bound. How can this be construed as consenting to the crime?

    And as I also discovered when the ABC obtained my parents’ private information: when we reported it to the police, I found the media were protected by a public interest exemption, even in the case of crimes. This principle also exists in Britain, although Lord Leveson wants to see it abolished (otherwise it creates a special, weakened class of plaintiffs, and a special, strengthened class of defendants).

    The case for apportionment in tort is stronger, although it must be remembered that the ability of both celebrities and ordinary folk to take on the media in Britain arises out of Article 8 ECHR (the right to privacy). This means the court has to ‘balance the rights’ and is not permitted to rank one above the other (the other right is Article 10, freedom of expression). It does not work in the same way as a tort/delict would.

    Inevitably, this involves the Court making decisions about the quality of expression – the taste judgments I discussed in the main post. Typically, political speech is valued the most, because it is essential for democracy, while sexual information is valued the least. Eady J’s phrase is that ‘sex is inherently private’, and he will only allow exposure where it intersects with politics: the example everyone gives, of course, is the hypothetical Christian conservative politician who turns out to be secretly gay, or has a mistress he has encouraged to have an abortion.

    Maybe we are adopting O’Neill’s Stoic position by default. There is a lot to be said for it, although I do worry about the practicalities.

  26. Posted January 5, 2012 at 10:14 pm | Permalink

    Just to make it clear, I’m not proposing a new defence to any existing offence.

    Rather, I think that no new offence should be introduced and, whilst I can see an argument for a tort of invasion of privacy, I think there should be a strong public figure defence. I don’t think that should be available vis-a-vis those who suffer damage of a collateral nature.

  27. Simon
    Posted January 6, 2012 at 8:38 pm | Permalink

    I know this is mostly a legal argument but doesn’t the law and the justice sytem in general pretty well own 100% of the blame? Was it not the publics right to know in criminal cases that first gave us our inquisitorial tastes for how the other guys lived, was it not the public court and particularly the jury system that first gave the commons their equality of questioning and elevated what’s of interest to them to the same lofty heights as philosophical conjecture at esteemed institutions? Originally a jury was supposed to know the offender and give context to their actions whilst finding verdicts. Tabloids now fulfill this parochial void of intimacy just as middle class rags bring hypothesis and conjecture to the learned, it’s not all true and it’s not all gained above board but so what, you can’t manage curiosity nor maintain control through consensus. Bigger and better things than the parliament of England have tried and failed abysmally. The pursuit of knowledge is ugly, really ugly. Go to any anatomist and have good look at the jars. This whole argument is starting to smell very post war and political rather than academic( gee should we use the knowledge obtained by Nazi scientists doing unethical things to Jews to advance biology and medicine or just leave it there where nothing good comes of it?) This is just another post modernist moment where we attempt to deconstruct a highly evolved institution cum business to fit with our prejudices rather than our needs. Humanities need to know always outweighs the rights of the individual to any esoteric freedoms like decency or privacy. The press is doing it’s job properly, merely mirroring the debauched and pathetic society other estates have failed to mould into a cohesive and tastefully sound ediface. As Blake said “The path of excess leads to the tower of wisdom”.

  28. Adrien
    Posted January 8, 2012 at 8:40 am | Permalink

    I can’t see anything that even suggests proof of the implicit assertion that there is some link between government and media corporations.

    I don’t see why one would have to provide evidence for such an assertion in the same way I couldn’t see such a need everytime someone spoke of the Moon’s orbit to actually prove that the satellite did indeed circle the Earth.

    By their very functions there are links between the the media and the government. The nature of the relationship is something which we should heed if the political situation is to remain relatively healthy. One problem with media concentration is that the State now has only a handful of calls to make if it wants to cajole the media into some kind of crony capitulation. In fact it doesn’t even have to do that. The circle is so small that it all gets very matey Friday afternoons on a regular basis.

    Whatever the causes it’s clear that the media now acts as a courier of press releases from the government in many cases.

  29. Adrien
    Posted January 8, 2012 at 8:47 am | Permalink

    Another is that the commercial interests of the media are both much narrower (fewer firms) and more extensive (much greater inter-industry connectivity).

    The solutions to this are media regulation but this usually only closes the market. Michael Oakeshott objected to the capacity of corporations to invest own shares in each other and he was right on the money. Gore Vidal recollects somewhere that, in some historical documentary he made (I think about the CIA’s nixing of Jacabo Arbenz in the ’50s) he was presented by the network as a bit, shall we say, eccentric. Apparently the cause was that the network was owned by General Electric who were implicated in some past State Dept skulduggery.

    Vidal is supposedly part of the American ‘far left’ so there’d be an inclination to put that anecdote on the never mind list. But think about it. There’s an allegation of collusion between government agencies and private firms. Is that no the sort of thing that Fourth Estate is supposed to police in the interests both of honest government and a free market? And does not the conglomeration of commercial interests, at least in this case, go against that?

    There’s nothing ‘far left’ about such an objection. Perhaps it’s pertinent that, when Vidal first found out about the situation in Guatemala he was a self-described ‘Tory’.

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