Mishcon Thinks: Freedom of Speech and Privacy

Mishcon Thinks, a new series of films brought to you by Mishcon de Reya, explores some of the topics affecting our clients, our business and the social, political and economic landscape at large.


Katie Derham (KD)
Anthony Julius (AJ)

KD: [00:00] Anthony Julius, Deputy Chairman of Mishcon de Reya, what is going to change for journalists and for individuals in terms of the new balance between privacy and freedom of speech?

AJ: [00:29] I don’t think there’ll be very much change. I think the change has been in the coverage of the misconduct. I think the changes in the legal framework will be minor and probably unnoticeable.

KD: [00:48] Of course, arguably the legal framework ought to be adequate, but has not been enforced.

AJ: [00:54] I think so much delinquent behaviour is essential to the actual proper performance of the industry, that it’s hard to imagine the industry sustaining itself without that delinquency. So it’s a bit like water finding a crack, whatever legal regulation is in place it will be evaded.

KD: [01:17] We pride ourselves in the UK on living in a very free society, the freedom of speech is king, especially when one looks at other states – China, Syria, and Libya. Do you think that has been affected in any way by the revelations of the Leveson Enquiry?

AJ: [01:34] Well I don’t think we live in a society which freedom of speech is king. I think our society is much more heavily regulated than America, for example. I think we still don’t have a freedom of speech culture in the way in which America does. So what we have instead is a society in which there is a patchy and rather chaotic state of affairs with their own bits of freedom, restrictions and abuses of the law.

AJ: [02:07] In other words, there are some things we can do; there are other things we can’t do. Why we can do those things and can’t do those other things has never been the proper subject of any enquiry. While all of that is going on, people are disregarding the rules anyway.

KD: [02:21] Can I just ask you, to give some examples of the kind of areas in which you feel we don’t have freedom of speech?

AJ: [02:26] We don’t have really any freedom of speech in relation to what the American lawyers call, commercial speech. Commercial speech, patents, copyrights, speech in relation to brands, the use of brands are so heavily protected. There is such financial investment in these kinds of speech as private property. Our inability to use them critically, to expose the economic interest behind them is so limited we are actually not significantly different from the citizens of China in that respect.

KD: [03:03] However, if I wished to write a letter to a newspaper which had an unpopular point of view it would be printed, I wouldn’t be castigated for that.

AJ: [03:13] Can you say something, for example, which is offensive about the founder of a particular religion?

KD: [03:21] As long as I’m not inciting anybody to violence I can.

AJ: [03:24] Well I’m not sure that’s right. I’m not sure that’s right because I think that there would be extreme concern on the part of the editor or the publishers that there may be an approach from the police for fear of the letter being regarded as a provocation. There may also be considerably concern by the editor, the publisher the proprietors that regardless of police interest, it may be that the letter would provoke some unwelcome civil disturbance or a targeted nature or worse even, and so there may be an element of self-censorship involved.

AJ: [03:59] When one’s understanding, when one’s trying to understand the extent of freedom in a society, it is critical not to overlook the element of self-censorship, which is a significant issue I think, post Salman Rushdie.

KD: [04:14] I think many people would agree and we live in a complex world where pragmatism often overrules editorial ideological perhaps. But there is still – we do still live and work in a world where investigative journalism in the public interest is supported.

AJ: [04:29] No, I’m sure good quality investigative journalism is not going to be compromised by post Leveson regulation. I think it’s much more likely to be compromised by commercial interests enforcing brand and other intellectual property interests.

KD: [04:50] How are you going to – or how do you think that we will be able to ensure that good behaviour is maintained?

AJ: [04:58] I don’t think we will be able to. I think probably the most that can be achieved is to have a system of sanctions so that bad behaviour, when caught once in a while, will be penalised.

KD: [05:12] And yet you have at Mishcon de Reya suggested that perhaps and in-house ethicist at media organizations could be an interesting new appointment. How would that work?

AJ: [05:24] There’s a kind of pedagogic aspect to this I suppose, which is not improving people, but allowing them to actually better understand what they’re doing if they’re amenable to that. We think it would be a good idea for major news organisations to have an ethicist, somebody with a professional obligation to consider the ethical issues that arise in the writing of journalism available to journalists as part of the writing and indeed investigative process.

AJ: [05:53] Rather like ethicists exist now in hospitals and elsewhere to help the professionals do their job properly, I’m entirely sceptical about anyone taking us up on that suggestion, even though it was championed by the former Editor of the Daily Telegraph, Will Lewis, when he gave his evidence to the Leveson Inquiry.

KD: [06:15] He also suggested that if you gave somebody an economic motivation to behave well, then there has slightly more chance of being imposed. Could you expand on that a little?

AJ: [06:23] Well the idea is that there should be a triangular agreement between the regulator, the newspapers and advertisers that an attractive discounted tariff for advertising would be available to newspapers that agree to conform to certain standards.

KD: [06:47] If that is the case that there will be frankly some pretty mucky/grubby behaviour by journalists, regardless of what Leveson or anybody else suggests, where does that leave us as the individual? How can we protect ourselves from that behaviour?

AJ: [07:01] Well, so that’s a – this is another thing of course. The question of the general quality of journalism and the way in which readers relate to it is one thing. The question of the rights of the subjects of those stories is another thing. How do we protect ourselves against gross intrusions into our privacy? It’s partly a question of technology and it’s partly a question of statutory protection. Ultimately it’s a question of sanction.

KD: [07:35] Do you feel there is a move to try and change the legal landscape to keep pace with these technological advances?

AJ: [07:43] It’s possible, but I think in the end I think the law is essentially a super-structural phenomenon and I think the answer is going to be at the technological infrastructure. If the technology exists or comes into existence which can identify the invaders of privacy and allow them to be apprehended then yes, the law should actually make that happen. At the moment I don’t think we’re quite there yet. We need more techies before we need more lawyers.

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