The transcripts of the official inquiry into the culture, practices and ethics of the press. More…

  • PROFESSOR JENNIFER HORNSBY (affirmed). PROFESSOR SUSAN LESLEY MENDUS (affirmed). PROFESSOR JOHN TASIOULAS (affirmed).

  • Professor Hornsby, you are professor of philosophy at Birkbeck College University of London; Professor Mendus, professor of political philosophy at the University of York; and Professor Tasioulas, professor of jurisprudence at UCL. Each of you has put in a submission, for which the Inquiry is grateful.

    That submission doesn't contain any fact, although we might debate about what that means, but as far as the opinions we can see in those submissions are set out, do you sincerely believe in those opinions? Sorry, that sounded rather cack-handed.

  • It gets quite difficult. Thank you all very much for coming and for participating in this exercise. I hope you can see the value that I place on trying to understand how these competing interests should fit and whereas the newspaper men can speak about it from their perspective, I think it's also very important to put it in the context of the wider concepts with which you are very familiar. Thank you.

  • May I ask you, first of all, shortly, please, to set out your main areas of academic interest and research? First of all, Professor Hornsby.

  • My main areas are philosophy of mind and language but I teach courses relating to issues about free speech, hate speech, pornography, in connection with gender and philosophy.

  • Thank you. Professor Mendus?

  • My main area of interest is modern political philosophy and I have specialised, over the past 25 years or so, in concepts of toleration.

  • My main areas of interest are in moral and legal philosophy and in recent years I've specialised in human rights punishment and issues about international law.

  • First of all, please, may we establish a lexicon? We've heard terms -- indeed, have used terms -- such as rights, interests, freedoms, prejudicial, in the context of freedom of expression, free speech and a right to each of those, but Professor Tasioulas first of all, what are rights and how and why should we be distinguishing them from the other juridical and moral concepts I've just mentioned?

  • We need to distinguish them because typically in political and other forms of discourse they're supposed to carry a great deal of weight, and because they carry this great deal of weight, people are often eager rhetorically to present various arguments in terms of rights and that leads to a kind of proliferation of rights claims that threatens to debase the currency of rights language. So it's important to differentiate what a right is from other sorts of values or non-values, for example. So there may be an interest that someone may have in something and it may be quite an important interest -- maybe even, say, an interest in preserving their life -- but it doesn't follow that whatever would preserve their life is something they have the right to. They only have the right to that thing if somebody else is under a duty to deliver this thing. So a right will exist not just when I have an interest in something but when my personal interest has sufficient weight to impose a duty on others to act in certain ways and whether it imposes a duty on others will in part turn on what the costs would be to those other people of imposing that duty.

    But I think one of the systematic problems with discourse about rights generally is people move too readily from asserting there's an interest in a certain area to the claim that it therefore follows they have a right to that interest being fulfilled.

  • So when one asserts a claim to a right, is there always a correlative duty?

  • It's possible that "rights" gets used in all sorts of different ways, but I think there's a kind of consensus, at least amongst philosophers, that the strict sense of a right is one that implies the existence of a duty and that's why the idea that violating someone's right is a moral wrong because it is a violation of a duty that bears on you, rather than simply some kind of reason that you might ...

  • The law is very familiar with the difference between absolute and qualified rights, and of course in the European Convention of Human Rights, certain rights are absolute -- Article 2, Article 3 -- and certain rights are qualified -- Article 8, Article 10. But how does one determine whether a right is, on the one hand, absolute or, on the other hand, qualified?

  • Good question. It assumes that there are absolute rights and it's not clear to me that there are absolute rights. There might be some rights that we quite properly treat as absolute for legal purposes. So, for example, it might be that there are very compelling reasons for treating the right not to be tortured as an absolute right for legal purposes, even though morally we might concede that even that right there may be situations where it could be overridden by competing considerations but you wouldn't want that to be embodied in law. So that raises this much more sort of background issue that even getting the morality of free speech rights at an abstract level is one thing. How this gets implemented in law is another thing.

    But going back to your question, you distinguish the absolute rights by the question: are there some rights the duties generated by those rights can never be overridden by any competing consideration? So someone who says that the right not to be tortured is an absolute right, the duty that you have not to torture arising from that right could never, under any circumstances, be defeated by any other consideration.

  • You say that's legal. That's the famous example of the terrorist who knows where the bomb is that will destroy the railway station and 2,000 people and that's the philosophical issue.

  • That's the philosophical issue. I would want to distinguish two questions. One is whether, as a matter of morality, the right not to be tortured is absolute, and the second question is an institutional question, whether we should have absolute rights in law. There might be good reasons for the law to present these rights as absolute and then to deal with cases as they come up, because if the law says, "Look, it's not an absolute right", you have to look at the consequences of that, and amongst the consequences would be a tendency for people then to abuse that thought and then to engage in torture in cases where it's absolutely not justified in any way, assuming it's ever justified.

  • Thank you. May I move on to is the first main topic: free speech in a mature democracy, as distinct from freedom of the press. Is there a right to individual free speech or freedom of expression, first of all, Professor Hornsby?

  • Yes, I think there is such a right which accrues to individuals as autonomous citizens but I think that in understanding why a right to free speech should be accorded to people in a democracy, one needs to see beyond the questions of individual autonomy and to understand that in a democracy, people need to be informed, as voters whose will is supposed to be implemented by governments, and they can't be informed and make up their own minds unless speech, which is communicative and thus informative, is free.

  • Thank you. Professor Mendus, do you agree with that or would you like to expand on that at all?

  • I certainly agree with that. It's very often said that the importance of free speech for individuals is, as has been said, for the development of autonomy, so that people shall be in a position to act in a way which they themselves believe to be correct and they can only do that if they have information.

    The move from the right to be informed or an interest in being informed in a democracy and an extensive free speech or free press commitment is quite a difficult one. So it doesn't follow directly from commitment to autonomy and to being informed in a democracy that there should therefore be very extensive free speech, much less that there should be no limits on free speech or free communication.

  • Thank you. It may be implicit in what's been said already but is the right to individual free speech an absolute right or a qualified right, Professor Tasioulas, first of all?

  • If you mean by "an absolute right" a right that can never be overridden by competing considerations under any circumstances, which is how I characterised it earlier, then I would say that it's not an absolute right. But I think that's the less interesting question. I think the more interesting question is: how do we specify what that's a right to, ie, how do we specify the duties generated by that right? In order to specify those duties, we need to take into account a series of considerations.

    So I think it would be wrong -- so it's qualified in this sense: my right to spree speech does not extend as far as my interest in free speech. It might serve my interest in free speech to get all the leading philosophers to listen to my theories about free speech, but they have no duty to do that so my interest goes beyond any right that I have, and so I have to think about, insofar as I have this interest, to what extent this will impose duties on others, and taking that into account -- determining that question will take into account things like: well, what burden will it impose upon others who have to listen to me giving my philosophical views about those things.

  • But quite apart from the burden on others, isn't there also a question about the qualification to the right to free speech? The example -- I have to keep this grounded in examples otherwise you're going to lose me -- is shouting "fire" in a crowded theatre. Would that be an example?

  • That's right. The question is: could my interest in shouting "fire" in a crowded theatre generate a duty on anyone else to let me shout and not to interfere with me doing that and not to punish me for doing that, and the answer is: clearly not. So to specify the content of the right, the duties it involves, I have to think about what benefit I would get and what cost it would impose upon others.

  • If any of you want to come in at any time, don't feel driven by the questions. The purpose of having the number of you together is to encourage the debate between you because you know far more about the topic certainly than I do -- I won't speak for Mr Jay because that would interfere with his right -- but I'm very keen that I generate the discussion between you to try and distill what I can from your views and the slightly different windows you put upon the issue.

  • Can I say something about the qualification of the right? This is often thought of in connection with "fire" in a crowded theatre and John Stuart Mill had inciting a riot against the corn dealers or whatever -- so positive harm coming from a piece of speech -- but it does seem to me that we know from what the European Convention says that there must be other qualifications. So the Racial and Religious Hatred Act in this country and the Criminal Justice and Immigration Act -- it seems to me quite proper that they're in place and that they do impose restrictions on free speech and expression.

    I think when one hears the term "free speech", one thinks of that which is heard in the marketplace of ideas, but of course it's usually thought free speech and expression, so people should be allowed to sound off, they're expressing their opinions, but it does seem to me there are qualifications to that because of the harm to groups of people, not a direct effect, as in the case of a crowded theatre or the riot, but an effect on individuals who are caused to feel hatred and groups who are vilified by pieces of speech.

  • When we speak, even in this qualified way, to a right to individual free speech -- and taking on board the difference between rights and interest -- may it be more helpful to talk not in terms of correlative duties but rather in terms of the state not having a right to interfere with individual rights unless there is a good justification capable of being advanced? Can I ask each of you to comment on that possible formulation?

  • Could I comment on that? I wouldn't myself phrase the debate quite so clearly in terms of rights and duties. That's just a personal preference. That's not the way I personally would approach it, but I guess we're here, to some extent, to try to understand why free speech is important and what its importance is.

    Now, there are any number of accounts of the importance of free speech. One claim -- it's been alluded to already -- is the claim: well, free speech, Mill seems to think, will deliver truth in the free marketplace of ideas. So he seems to think the world is like a huge seminar room: everybody says the thing that they want to say and sooner or later, truth comes out.

    Now, that defence of free speech strikes me as very, very limited indeed, partly because there are significant power interests in modern democracies, so it just isn't the case that my speech is heard as well as the speech of people who own vast areas of the press, also because it isn't clear anyway that freedom of speech will deliver truth even in a free marketplace of ideas, where there's rough equality of power.

    I cited in the evidence I gave a book by Bernard Williams called "Truth and Truthfulness", in which he says: if you look at those institutions which are most closely associated with trying to discover truth, like courts of law and universities, what you'll find is that there are very considerable restrictions on freedom of speech. I don't, in my seminar, allow my students to heckle one another or to shout offensive remarks at one another. That's not legitimate.

    So in fact, the pursuit of truth is something which calls for restriction of free speech just as much as it calls for free speech. So that argument seems to me slack.

    There's an argument in terms of autonomy, which we've mentioned already, and then an argument in terms of democracy, which has also been touched upon, but what we need to think about here, if we're arguing or trying to consider the importance of free speech, is: what is free speech for? Why do people want it? I think there are different answers to that, depending on whether you're looking at the individual or the press, press freedom as opposed to individual freedom.

  • May we move into the topic now of press freedom?

  • Let's just then, as you're about to do that, just develop that a bit more and try and distinguish between the two, if you can.

  • I don't know if this is what Jennifer was referring to, but my thought is my free speech is just the speech to say what I think to the world. I just announce my -- I'm not really interested, necessarily, in whether anybody's listening. But if you're talking about freedom of the press, the press actually are trying, at least on the surface, to communicate. They're not just expressing their view. They have a persuasive, informative dimension to their work too, and that's very different. But maybe that's not what you're thinking?

  • Yes. I mean, speech has an expressive dimension and it can when it's in print as well as when it's spoken, though it more readily is expressive, for instance, of hatred when it's spoken.

    If I could just say, I was trying to distinguish speech que communicative of beliefs and perhaps knowledge and this expressive function and I think when one thinks, as Mill did, about free speech, one thinks not of its expressive functions specifically. But I have to agree that I think Mill was extraordinarily optimistic in thinking free speech is conducive to truth all round, but I think there's a conception of speech such that the hope is that via free speech, truth will be reached. But there's more to speech than that.

  • Can we move to the related but distinct area of press freedom. Does individual freedom of expression imply press freedom? If not, why not? And if so, are the two concepts coterminous? If not, why not and to what extent aren't they?

    Can I ask, first of all, Professor Hornsby to deal with that conglomeration of points.

  • There were a considerable number and I haven't written them all down.

    It seems to me that individual freedom of expression of course accrues to journalists. I don't think freedom of the press could possibly be coterminous with individual free expression because I think the public has an interest in the freedom of the press, which has nothing to do in particular with freedom of speech, and if one thinks that free speech is, as it were, beneficial -- that's to say, in a democracy there's a positive reason to promote it -- then it may be that one needs specifically to recognise the freedom of speech of the press as opposed to individuals, and it may even be that the press has a duty, to use John's word, to ensure that individual freedom of speech is promoted.

  • Professor Tasioulas, what's your take on that?

  • I think there's always been a tendency to think of press freedom under the rubric of individual freedom of expression or communication. I think that's probably a mistake. The sort of reason that Professor Hornsby gave the subjects are different. In the one case, you're talking about an individual with their particular sorts of interests; in the other case, you're talking about institutional structures.

    Now, of course, it may be that the individual interest in expression gets fulfilled in part from certain sorts of institutional structures -- the press -- and that the press should be shaped accordingly, but there's a lot more going on in the context of freedom of the press. Think about the underlying interests. The underlying interests wouldn't necessarily be interests in expression only, but they would be interested in things like the way in which a press can help curb abuses of power by government or the role that it plays in a democracy, et cetera, et cetera.

    So it's the institutional character of the press that makes it the case that you can't simply go from thoughts about individual interests and expression to claims about freedom of the press. It's a kind of different topic, although overlapping.

  • Is that your view?

  • Yes, I would agree with that entirely, and I think if we don't hold onto that distinction, then there is very serious danger of endorsing in two areas different items which ought to be treated differently. I think that is very, very important distinction.

  • There are certain other issues which the Inquiry has touched on over it's sort of 95 days to date. Can I ask you, please, to address those? The first is the press use of the megaphone, as we've liked to describe it, the consequence of press power, that we're not talking about one voice, and to the extent to which we are, in relation to any one organ of the press, it's an extremely loud voice cf our individual voices. Do you think there's any deeper analysis one could make of the megaphone point than that which we've attempted thus far? Professor Hornsby, first of all.

  • It means that publications in the press are peculiarly vulnerable to promoting stereotypes, because it's -- what's heard is widely heard. If it's assumed that a member of a group is portrayed as a typical member of that group, then attitudes at large towards the group will be affected. I'm thinking specifically of what's said in some of the evidence submitted by Equality Now, Object, Eaves, which represent -- I don't read the newspapers that they analyse but represent that stereotypical views of women are portrayed in the press, and they're certainly detrimental to women.

  • I wonder if it's worth noting that part of -- one of the consequences of the megaphone effect is to take up a limited amount of space and time with a certain sort of view or position. To give an example, it seems to me that the more time that is spent, let's say, presenting a stereotypical view of women, or presenting "information" about who paid for the duck house, the less space is available for discussion of wider and more important political issues. So the megaphone effect takes up space and crowds out more important -- what seem to me to be more important issues. It's not a limitless resource.

  • That begs the question what an important issue is.

  • I hesitated, and that's the reason, but -- I don't have the argument now, but I put it to you that questions about the euro, about Afghanistan are more important and more deserving of space in newspapers than questions about who cleaned the duck house and for what sum of money, but I absolutely take your point that there is -- that raises the question: who decides what's more important?

  • And the press are very firmly of the view that that's exactly what they do, and the fact that some people may think it's more important to discuss one thing as opposed to another is neither here nor there. They must reserve the right to do it themselves and if they want to be offensive, they must reserve the right to be able to be offensive too, and that's what their free speech rights are.

  • Yes, absolutely, and I think there are a number of things to say there. One is that in doing that they need perhaps to think about the extent to which they report upon the news and the extent to which they make it.

  • Another thing to say is that there is an asymmetry between the individual case and the case of the press. One of the reasons we tolerate the fairly broad-ranging right of individual expression is that individual's remarks are typically limited in their impact, if it's one individual making some offensive remarks. But as has already been pointed out, this megaphone effect is a kind of culture-shaping effect, so it can't be equated with the speech of an ordinary individual. It exerts much greater influence and power on people, how they're perceived by others, creating stereotypes or creating certain assumptions in society, and for that reason this institutional consideration makes it the case of greater institution power. There might be limitations on that form of expression that don't apply in the individual case.

  • Yes. Once you get into talking about limitations, then all sorts of press interests will talk about muzzling their freedom.

  • But anyone who believes in free speech presumably also believes that there are limits to things like: you can't defame other people.

  • So no one is credibly going to say any restriction on freedom of expression in itself constitutes some kind of unacceptable muzzling. So the question then becomes, in a kind of piecemeal approach -- careful piecemeal approach, when you start to identify certain forms of restriction: what case can be made for them? But the mere fact that it's a restriction doesn't of itself show that it's a mistake, because we already accept the need for a series of restrictions.

  • Can I make a comment on this question of importance and whether the press is focusing on that? You suggested, I think, that it was, as it were, a subjective matter. Who is to say what's important? But I think the megaphone effect does raise a question about importance, which isn't simply one that's a subjective matter.

    Imagine that there's some crime that we're all concerned with which is committed once a week but it's low level, it doesn't get an enormous amount of press attention. Then one week in five years the victim is a celebrity and we all hear about it. So we're suddenly focused on concern with this person but no interest is shown in the 500 other victims, as it were. So I think that the megaphone effect can make us think about the issue of the day and forget about issues which pervade life but don't get reported.

  • There are lots of parallels or examples of that very point in the context of what I've been considering.

  • Well, particularly in relation to interception of communications, phone hacking.

  • One can identify clear and distinct areas where restrictions are legitimate. Defamation has been mentioned. Criminal law in relation to hate crimes, that has also been mentioned. But is it a sound working presumption that unless a good justification could be advanced for imposing a restriction, the free market in terms of the freedom of the press should otherwise exist? Professor Tasioulas, first of all.

  • I think that's, as a presumption, probably correct. I'm not sure about using the word "free market", but in general, as a way for the state to proceed, it does seem to be correct that if it's contemplating any kind of measure that restricts people's freedom, then the question is: what justifies restricting that freedom?

    But there is a caveat, and that is that not all forms of freedom are valuable. Some forms of freedom are valuable in the sense they generate rights; other freedoms are valuable in the sense it's just a worthwhile thing to be able to have the freedom to do something, but not every restriction of people being able to do what they want is a restriction of something that's valuable. If you think about laws against murder, you're restricting people's freedom, but the freedom to murder is in no sense valuable to anyone.

  • Professor Mendus?

  • Again, there's a very great tenancy in the world to think of freedom as an unalloyed good. So once the word "freedom" comes in, we all put our hands up and vote for it. That's a mistake for reasons that have been given more than once, but beyond that, it seems to me we need to ask why we're interested in having a free press. What's the value of a free press? Having answered that question, we then need so ask ourselves: is a free market the way that is most likely to deliver whatever value it is that we value in the free press?

    So, I mean, in true philosophical fashion, I'm not answering your question; I'm moving around it. But we do need to know: why is a free press such a good thing?

  • I'm very comfortable for you to formulate the questions that you think the answers to which will assist me.

  • Okay, this is the question. I always tell students they mustn't do that. I always say you must answer the question, not the question you wish you'd been asked.

  • I'm very conscious, Professor, that this takes me back 40-odd years to a jurisprudential tutorial and I'm very concerned about it because I'm bothered about only getting a beta plus. So I'd better keep myself quite quiet and allow you to develop the ideas.

  • Okay. That's where I think difficulty where confusion arise or can arise quite dramatically: the move from the free press to the free market. These are quite different things, so we need to think what's the value of the free press, why is it important to have a free press. Then we need to ask: is the free market the best way to deliver that?

    Now, suppose the answer is no -- and I think it is no. It doesn't follow that we should therefore abandon the free market. The free market might be important for all sorts of other reasons, but not for the instrumental reason that it delivers the aims -- the main aims and objectives of a free press.

  • Professor Hornsby?

  • I think it's extraordinarily important to distinguish between the free market, in which capitalists all believe and if it's restricted it's by competition law, and a free market and ideas, and in -- I agree that the free market isn't conducive to the best sort of press and that's because it would seem that in a free market the press does not participate in a free market in ideas. I think we've seen that. Financial power ensures that one sort of idea is more likely to be promoted in the newspapers people read than another sort of idea.

    So it does seem to me that if one's thinking of regulating how much ownership there is of one or another portion of the press, it really shouldn't be a question just of competition law.

  • Can I make a point about the free market point and that's that it's dangerous to think of the free market as a law of the jungle situation. A free market can only exist if certain fairly stringent conditions are satisfied: conditions like people having roughly equivalent knowledge, the enforceability of laws relating to contract and property, and even more broadly, probably, a certain kind of ethos or culture, a certain kind of moral understanding of the people engaged in these negotiations which, if it breaks down, can lead to disastrous effects.

    So it's not as if merely talking about the free market -- and I agree there might be serious issues about thinking about free speech in terms of the free market. Free market itself, properly understood, requires a whole lot of restrictions to be in place in order to function.

  • The public interest in a free press -- I'm sure we can all agree that there's an interest in the press as a disseminator or communicator of information -- it serves as a bulwark against tyranny and holds power to account -- but why isn't there a public interest in the free press operating as a source of entertainment for two reasons: that entertainment accords a direct benefit -- it makes people happy -- and secondly, an indirect benefit, that the happy people will be buying more of the newspaper which supplies their happiness and enables that newspaper to continue to thrive, because otherwise that newspaper may go to the wall? Is it possible that not sufficient weight or focus is being directed to this entertainment function, if I can so characterise it? First of all, Professor Hornsby.

  • Oh, I'm sure it's fine that the press should entertain. There's a question how it should entertain and whether one has concerns which ensure that certain modes of entertainment have other effects than entertaining. But I do the crossword every day. It's entertainment. I realise you're thinking of other species of entertainment, but fine. People buy a daily newspaper or look online at one.

  • But is the issue then that one has to be careful about whether, in entertaining, one is impacting adversely upon the legitimate rights of others? Whereas your crossword example wouldn't.

  • Sure, sure. No, indeed, and I qualified -- of course --

  • No, no, I wasn't suggesting otherwise.

  • Yes, that surely is the issue. Once one's acknowledged that entertainment can be a function, one has to take examples and see what the effects are of things which purport to entertain are doing besides possibly entertaining.

  • I have nothing against entertainment, but I think we need to think quite carefully here because -- about the sort of entertainment we're considering, because -- and it's a second danger, it seems to me, in thinking about press freedom -- where the press provide, on a daily basis and in a blanket form, entertainment which takes the form of exposure of details of people's private lives, that could have very serious implications for democracy, and I think some of it has been seen here in this very room.

    The danger, it seems to me, is if we live in a society where anybody who is a public figure or politician must thereby expect to have their whole private life exposed to public scrutiny, you may find that the wrong kinds of people are -- only the wrong kinds of people will be willing to become politicians or public servants.

  • Or at least some of the right types of people will be warded off.

  • Quite a lot of the right types of people will feel that if the price is that the medical records of their small children are to be displayed across the whole country, that's too high a price.

  • I think it's hugely important to emphasise that entertainment is something in the public interest, that it is a collective public good. That's its importance, and you identified, I think, two aspects of that. One is just the intrinsic value of people being entertained, but then we have to really interrogate that question and say: well, you know, what are the legitimate sources of entertainment? What really is something that adds value to my life by getting entertained by it? We would normally think that people sort of taking pleasure in the humiliation of others or the privacy of others being invaded is not something that enhances their lives. Whether or not they think it does is a different matter, but whether something makes your life better is an objective question; it's not down to whether you think it does.

    The second argument, the instrumental argument, that by entertaining people you maintain a certain industry and it creates jobs and wealth -- again, we think that there are limitations to what you can do to generate income, to generate wealth, and amongst these limitations are, very minimum, that you can't generate income by taking someone else's property, for example, but nor can you generate income by systematic invasions of someone else's privacy.

    So both of those points are valid, but they're compatible with the restrictions.

  • Is it possible to say that the public interest in a free press is stronger when one's dealing with issues such as bulwark against tyranny than it is when one is dealing with issues such as entertainment? In other words, in relation to the latter, it'll be easier to find other private interests which will be violated or capable of being violated, but more difficult to find those in relation to our bulwark against tyranny justification? Is that a useful analysis or is it hopeless?

  • I think it is a useful analysis. It goes back to the question: why do we think it important to have a free press? We think it important to have a free press because a free press will, in many contexts, be our, the people's, bulwark against tyranny. The press will inform us of those things which government might not wish us to know about, and that's very important if we are to be fully informed, democratic citizens of a democratic society.

    Of course, it doesn't follow that that's the only thing that the press should do, nor does it follow, actually, that if the press only did that, it would be as effective a bulwark against tyranny as it is if it also provides entertainment. People might buy newspapers for crosswords, for Sudoku, for news about what's on television and become informed about important government matters in the meantime. So actually the provision of entertainment is itself very important as part of a route to informing citizens.

  • Anything you want to add to that?

  • I think I agree with that, but the question is: how do you operationalise the idea of bulwark against tyranny? I mean, you could be claiming to be operating as a bulwark against tyranny. I think the most you can say is: well, when the press is dealing with certain types of issues, there might be a greater case for non-interference -- for example, political issues -- than issues to do with celebrity and popular culture in some ways. But it's not clear to me.

  • I move on to the concept of an ethical press and try and approach it from this angle: that the law imposes constraints on free speech, both as regards individual and press organisations but within the law, private individuals exercising freedom of expression are at liberty to speak ethically or to apply no ethical code to themselves whatsoever. It's a matter of personal choice. So the law creates considerable space for individuals to define their own morality or lack of it. But should the position be the same for the press, which, after all, is not an individual but a commercial person? Can I ask maybe Professor Tasioulas to address that one first, please.

  • I'm not sure that I buy into the contrast that you're drawing --

  • -- that's assumed there, because it seems to me that the law in many ways tries to shape people to have at least morally decent characters. For example, through the education system, through the various sorts of rules and requirements about public interaction and offensive behaviour and so forth. So I think one thing might be you might have laws that, in effect, enforce a certain kind of behaviour, but there may also be laws the rationale of which is to create certain kinds of attitudes, to foster a certain kind of ethos, and I think you already have that outside of the press context.

    So it wouldn't be some sort of thought that: well, this doesn't exist in the press context; should we introduce this in the press context? I think this is a kind of legitimate function of law, to shape people to be certain kinds of decent, law-abiding individuals who have the virtue of civility, we can broadly call it. That's a legitimate purpose of law, one that law constantly, I think, engages in with respect to individuals and there could be a parallel argument about the particular issue of regulation of the press.

  • Is there a point here about the extent to which it's noticed? If most people are merely exercising their right of free speech in the pub or elsewhere, that's one thing, but -- and it's not noticed. Therefore nobody does anything about it and one could take your education in an attempt to improve the thing as a matter of generality rather than specifically. But if you do it -- well, there's a present case going through the Divisional Court at the moment on Twitter, about the gentleman who said that he would blow up an airport, or if you do it on a football field, which is another very recent example, it is noticed and therefore more likely to generate concern or interest. Is that a fair point?

  • I think it is a fair point. That's right. The impact of a certain kind of speech is relevant both in the individual case and the institutional case. Whether something's liable to be noticed, what effects it's liable to have on other people's perceptions must be very relevant.

  • Professor Mendus?

  • The question of impact I think is also -- the case you mention is not simply a matter of a wider audience and impact but also of the sort of esteem in which certain people are held. So if Fred in the pub makes a comment, nobody will notice, but nobody probably pays a lot of attention to Fred's opinions anyway. If someone in a position of moral or political authority makes a statement about race or about gender, it isn't simply that there will be a wider audience for that but also that the opinion comes with a greater degree of -- with an imprimatur, or seems to, and that itself is problematic. That's why positions of responsibility in society are very difficult, because you have to take a lot of care about what you say because people pay attention to it.

  • Can I just say something about your question?

  • You wanted to know whether we would distinguish between press ethics and individual ethics, and when you spoke of the individual, you talked about morality and people can define their own morality. It does seem to me important to make a distinction between morality and ethics, and in the case of the press, one might ask individual journalists what their moral opinions are but if one is to see the press as an institution with a role in civil life, then questions of its ethics and its culture aren't questions of morality narrowly construed.

  • Well, that's an important distinction, but can I just ask you to elaborate on that? What precisely is the difference between minority and ethics?

  • Well, there's a view which I think in this country has been held since 1960 that what people do in private is up to them. That's a question of their morality; it's not a question for the law. And that could be true, but that doesn't mean that if a consideration is ethical, it's up to an individual.

    So I'm suggesting that when one introduces the idea of morality, one is thinking of people on their own, but when one turns to questions of ethics -- and in particular ethics of the press, which is an institution -- one is actually just not concerned with bits of individual behaviour and what someone might do in private; one is concerned with questions of culture, which the press surely influence.

    So I'm talking now not about the culture of the press but the culture in which the press participates and the kind of culture which it might be that organs of the press promote.

  • Thank you. That's helpful. Can I ask you, please: what are the ethical duties on the press, if any? If you don't like the term "duty", we can substitute for it "responsibility". Professor Tasioulas?

  • They may be different questions, duties and responsibilities.

  • Right. There are interesting questions about what the difference might be, but I'm happy to go with duties. Duties I take to be particularly sort of compelling reasons which, if you violate, either you should certainly feel guilty about and others should be legitimate in blaming you or sanctioning you in some way.

    I think that pretty much all the duties that ordinary human beings have apply to the press, and then, in addition to that, extra duties arising from the special institutional role, in particular the power that they possess. So they have extra duties to be careful about images they portray of people and so forth, precisely because, one, the point about it gets noticed, but two, as Sue said, it has a certain kind of imprimatur, because it is a certain kind of position in society to be the press. It comes with a certain kind of authority.

    So I think the idea that somehow there's this notion of legal regulation and then ethical sorts of considerations are somehow optional or foreign just seems extra, Inc. to me. The way we should think about the law is trying to implement a certain kind of minimum, at least, of ethical standards, and we may have then further reasons to implement even higher ethical standards, although the law, being a blunt instrument, might not necessarily be the best way of going about it but might try to help to do that sort of thing.

    But there is this kind of squeamishness about words like "morality" and "ethics" which I think we should resist. Morality, as I understand it, is basically about the fact that we have reasons to care about and respect other people. They're quite fundamental reasons that extend from reasons not to torture them to reasons that help them out and assist them when they're in dire need, for example. That's what morality's about.

    The way we should understand the law is trying to give some kind of institutional force to at least some of these moral requirements.

  • Professor Mendus?

  • It seems to me that I don't mind in this context whether we use the word "duties" or the word "responsibilities", but it seems that the duties or responsibilities of the press follow straightforwardly from the reasons that we have for wanting a free press. So if one of the main reasons for wanting a free press is that we be fully informed as citizens, then there are responsibilities on the press to be accurate, honest, open and accountable.

    I think there are also responsibilities -- and this is something on which Onora O'Neill has written very eloquently -- to make declarations of their own financial and other interests so that we are not left, as a citizenry, under any doubt about the financial interests which lie behind the reporting -- financial or other interests which lie behind the reporting of any particular story.

  • Yes, I want to mention the press' special responsibility or duty in respect of legislation, all of it relatively recent, which enshrines a right to equal treatment. So it's legislation under the broad head of anti-discrimination. It seems to me that the press -- given there's such legislation, the press must have a special role in ensuring equal treatment, so that, for instance, it has an obligation when reporting a story not to make needlessly pejorative reference to a group. Where it's irrelevant to the story, the fact that someone's a member of a certain group shouldn't be mentioned, and so on. So that's a case where I think the press has a special responsibility, whereas if one is telling one's mate about the story, it doesn't matter nearly so much that one should offend against the principle of non-pejorative reference.

  • I think it may matter, but not to the same extent in an individual context?

  • Not matter so much, yes.

  • And presumably in that case it reflects on one's own character, so to speak, but it has very little wider -- I mean, it tells me that certain people aren't the kind of people I'd like to have dinner with, but it has very little wider influence, whereas if we're thinking about the press, then it would have a much wider impact.

  • Yes, I'm thinking that the legislation would certainly not prevent someone saying to his mate something which ensured that pejorative reference was made to a group, and it would -- we'd be extraordinarily restricted if there was legislation which prevented that. Nonetheless, when the press is reporting a story, it should not make pejorative references. That's the distinction I'm trying to make. And that's by verdict of -- I mean, one can justify that by reference to the legislation.

  • So there are different rules, if I can use that word with some caution, that should apply to those that are responsible for publishing newspapers than to those who are responsible only for what emanates from their own mouth or their own pen?

  • Yes. Yes. I mean, there are so many contexts in which speech is used. Professor Mendus has referred to the seminar room, and there I take it that an academic will ensure that no student is vilified by virtue of their being a member of a group and they have a responsibility so to do. But the press, I take it, in general -- their words appear in print -- has a special responsibility.

  • Can I try and pick up --

  • I would agree with that. I have nothing to add. That seems right.

  • Can I try to pick up one theme which has run through this Inquiry, that's the rights to privacy and the relevance of personal morality as opposed to personal ethics. Some people would say that it is relevant, if we have a politician, to know whether he or she is indulging in personal immorality, by which I mean usually adultery. Some would say it's not relevant because matters of that sort, either in practice or in theory, can't impinge on the way that person carry out their public functions. What is the correct ethical approach to that question? And perhaps as a follow-up question: if there is room for two competing views, why should an ethical code differentiate between them or rather judge between them? Why shouldn't it be left to the individual discretion of the editor? Maybe Professor Tasioulas first on that question.

  • It's a difficult question. I think you could come to certain questions -- we think both answers are legitimate answers. You could have a situation where -- when one society would say, "The way we're going to understand privacy is pretty deep going and it excludes people prying into things like politicians having affairs." Other societies may say, "But look, there are these other countervailing reasons. What about someone who is a moral crusading politician, who's built his reputation on certain kinds of ideas about personal morality? Shouldn't we be able to expose him as a hypocrite?"

    I'm not saying this is one such case, but this might be such a case where you think that the abstract right to privacy doesn't actually dictate an answer, and in a way we have two, in principle, eligible alternatives, and what we might then do is say that but we need to have something to operate on. It's not clear that we want to leave this to the discretion of editors. We need to have some kind of understanding of where the right to privacy goes to, how far it extends, but we recognise that we make that decision now in the light of certain wider public interest sorts of issues, as opposed to the basis on which an editor presumably might be inclined make the decision, which is about issues about profitability and so forth.

    So what are the wider issues? Issues like: well, if we did have -- if we didn't protect the privacy of politicians in this regard, would this have a chilling effect on the sort of people who go into politics, for example? Would it encourage a certain kind of prurient interest more generally that we want to discourage? Those are the sorts of consequential effects one would have to look at. But it would be premised on the thought that either way -- I mean, I feel this about American free speech. American free speech is often far more expansive, the rights that it confers, than rights in most European legal systems, but that's okay; there might be legitimate reasons for having this variation.

  • Professor Mendus?

  • I used to think that personal immorality mattered a lot, and now I think it doesn't matter so much, or that it's dangerous to let it matter, and the reasons have been alluded to already.

    It depends in some part, I think, how much we believe a person's character is of a piece, and how much we think that the kind of job you do in the office is separated from your personality more widely. In some cases, it's been -- in what's called virtue ethics, the thought has been that a person's character is of a piece, so if a person is morally disreputable in private life, then there's every chance that he or she will be disreputable more widely. So the question that's often put is: if this politician cheats on his wife, why would we think that he's not going to cheat on us, the public?

    I used to be quite persuaded by that argument but I'm not persuaded by that argument so much any more. I'm not persuaded for two reasons. One is just the historical evidence, which is that there are huge numbers -- possibly the majority -- of very, very good statesmen, politicians, who were philanderers of one sort or another and they were, as a matter of fact, extremely good at their job but not terribly good to their partner. So there's that evidence.

    But the second and more powerful philosophical consideration is that to the extent that we start to investigate the private lives of politicians or public figures more generally, we may find that we are creating a world in which only the most brazen and shameless are prepared to go into politics at all, or public life at all, and that can't be right. So I now feel that we should try to retain a distance between personal morality and public duty.

    Though there are specific cases where I think this is a problematic position, and I think particularly of the Clarence Thomas/Anita Hill case, where there were questions about whether it was appropriate that a man who apparently was a sexual harasser should hold a position of great authority in which he was called upon to exercise extensive judgment, and I think that is a very, very tough call.

  • Yes, I'm inclined to think that people's morality, whoever they are, whether public officials or not, is a private matter and protected as private. But I also think that there are things individuals can do which put their right to privacy in jeopardy, so for instance by ensuring that one is much exposed to the press and one's life is laid open, perhaps for the entertainment of others. One shouldn't then be at liberty to conceal such aspects of one's life as one suddenly cares to. Suddenly this is private.

    Again -- and this connects with questions about public officials -- it seems that if someone is a representative because they've been voted for by the electorate and they've stated certain views, then if their personal morality is contrary to those views, people deserve to know, and it may be that what would otherwise be a private matter then needs to be exposed.

    So I think privacy is important even for public officials, but public officials and others can put their right to privacy in jeopardy.

  • But simple exposure to the press may not be sufficient, may it? If I take the example of a famous person who is famous only because of what he or she does, be it as an actor or a writer or a football player, without in any sense seeking to obtain benefit from image rights. Why shouldn't such a person say, "Well, simply because I've made money writing a book or acting in a film or playing football well should not be sufficient to expose any aspect of my private life"?

  • Yes. I think one's private life is put in jeopardy only by voluntary acts which ensure that one's in the public gaze in ways that one otherwise wouldn't be. People who earn large sums of money, whether because they play football are not, are likely to be in the public gaze, but so long as they haven't voluntarily done anything which ensures that they should be, they've done nothing to ensure --

  • But they have voluntarily, because they've joined the football club. Do you mean they've not voluntarily done something to put their private lives into the public domain or do you mean rather more than that?

  • I mean that they haven't tried to bring it about, for instance, that they earn money by virtue of public exposure. They haven't stated opinions which --

  • But simply being of interest to the public because you've made a lot of money, whatever you've done, is not sufficient in your view? Am I understanding it?

  • In my view, it's not sufficient.

  • Personally I agree. I don't think it's sufficient, but I think people who do earn a lot of money and are in the public view have to recognise that that is a danger. I don't think it's legitimate. I very much agree. I don't think it's legitimate to intrude in that way, but I think it goes with the territory, as they say.

  • Well, yes. The question then arises -- and I don't want to take Mr Jay out of order -- as to how one tries to moderate or mediate into that situation and whether it's simply a question for the editor or whether it is appropriate in our society that somebody else should be able to say, "Hang on, I think that's a line that you've just gone beyond unnecessarily." But Mr Jay, you take that in whatever way you want. I don't want to jump ahead of you. That turns over two pages, so don't do that.

  • Mm. I come back to a point that came from Professor Tasioulas: the possible difference between legal duties and ethical duties. I think what you were hinting at or perhaps saying is that ethical duties may, as it were, impose higher obligations than legal duties and it's insufficient merely to concentrate, say, on legal risk; one should be moving on to the issue of ethical risk. Is that a useful analysis in your view?

  • That's right. I think we have to understand law as not a kind of self-enclosed system. It's a set of norms. It's trying to achieve some valuable purposes and these purposes are appropriately described as ethical purposes, generally, on a suitably broad understanding of what the ethical is, which is the pursuit of whatever is of human value. But law's a particular kind of mechanism and -- in particular, enforceable law is a particular kind of mechanism and it might not be at all appropriate to pursue all ethical considerations through law for two main reasons. One is that some of these considerations might properly fall within a sphere of kind of private domain, and the example of adultery would be one example. It's not the law's business to concern itself with discouraging that sort of behaviour, even if it is immoral. Another reason is that it could just be tremendously counter-productive for the law to do this because it's a certain kind of blunt instrument.

    So there's always a very complicated question. Once we've identified the ethical ideals we want to affirm, including the ethical duties, to what extent are any of them properly pursued through law and in what way? It's very, very difficult.

    And then the further consequence of that is it's never enough then to say, "Oh, well, I'm complying with the law, therefore ethically I'm impeccable", because the law only embodies some of these considerations and there may be other very compelling reasons that apply to you. That's why I think it's important to talk about this notion of a culture, because a culture embodies norms that go way beyond and law and beyond legal forms of enforcement. There can be forms of enforcement where you lose the esteem of your colleagues which in some ways can be more potent than getting a slap on the wrist from the law.

  • Do you have a take on that?

  • Can I agree with that? I think it connects with how one thinks about a right to free speech. Because it's much discussed in connection with the First Amendment of the US constitution, one tends to think of the right to free speech in legal terms, and given recent legislation in this country, again, one thinks the law is ensuring that people have had this right and that it's taken away from them in certain cases.

    But I take it that one can think that a principle of free speech should be in place in many contexts not because there's a danger that anyone might be criminalised by virtue of what they say but because a principle of free speech is a correct ethical principle.

    I think when one thinks about the freedom of the press, one should recognise that if we think we have a right to free speech, that's not only because some constitutions say that we have but because we should be free to communicate with one another. That's a good thing.

  • Crucially what's underlying all of this is the very clear and simple claim that rights don't exhaust the realm of the morally good and bad, or, as one of my colleagues used to say, there are rights but the good man doesn't always stand on his rights, so although you have a right to certain things, sometimes it's not appropriate and not morally good to exercise that right. You won't be breaking the law, but you won't really be showing yourself up as a particularly good person either, and that's just straightforward and simple, I think.

  • It becomes rather more difficult when one seeks to apply it away from the individual --

  • -- to an organ such as the press.

  • Absolutely, and it becomes more difficult also, of course, if one wants to codify that, because that doesn't allow a great deal of room for judgment and nuance and all this kind -- that is very, very problematic.

    So the moral philosopher stays within the realm of the individual in part, but political philosophy does need to extend more in the direction of the law where there are questions about where it's appropriate for the law to intervene. Now, whether the law then -- it's John Stuart Mill. Whether the law then should intervene in all those cases is a different matter.

  • Is this a fair analogy -- and correct me if it isn't. I'll be getting myself into trouble. It's not black and white. There is an enormous area of grey in the middle which covers the ground where it's not appropriate to stand on your rights, this point that you've just made, and whereas for individuals that can be left grey for all time, there is at least an argument that for an institutions as significant and as potentially powerful as the press, that band of grey should be narrowed -- so as still to leave an area of discretion, because that's also extremely important -- but within a narrower bandwidth than one could allow an individual?

  • I may not have expressed that very well.

  • If I understand you, then I think that that's right and I take it that it's part of what was -- what Jen was saying earlier about the difference between somebody in a private context, the individual who makes a -- I don't know, a racist remark or a sexist remark, and that may be left in the grey area. We don't think terribly well of such people, but we aren't going to go to a court of law for all sorts of reasons. It's a different matter with the institution of the press, where there has to be -- where there is more authority, more impact. If that's what you're saying, then I would agree with that, that that can't be left grey.

  • It connects directly with the megaphone effect. It would be intolerable that individual speech should constantly be monitored in case they were offending in any way but that's not the only reason why one cares more about press speech than individual speech. It's also because a million people are hearing what's said in the printed words of the press, rather than the two or three who might hear an individual. If there was a small wrong, it's a million fold wrong in the press context.

  • Can I just add something? There are sort of two points at which you might think the institutional extra power of the press -- institutional (inaudible) extra power -- creates more limited space. One is in the right itself, so individuals may have a right to express certain things that the press doesn't precisely because of the effects of the press expressing them being so much greater.

    Then there's the second point that I think that you were raising, about: even if it's within their right to do certain things, they may be subject to further restrictions because we want to discourage them or certain further considerations we want them to be subject to because you want them to use their right in a certain kind of way.

    But I certainly think the case of the racist expression -- I wouldn't think that if individuals have a right to make some sort of offensive remarks in a private context, you should say the press also has this right but we impose extra restrictions. I think the press wouldn't have that right, precisely because the power of the press and the significance of its speech as against the sort of private speech of individuals.

  • So it may be that this is merely a manifestation of the consequence of the megaphone, that the bandwidth should be narrower.

  • The problem then becomes -- and again I'm moving ahead, but just keeping an eye on the overall goal -- how one monitors not the available bandwidth but the bit of bandwidth that we've just said that goes too far.

  • There's not just the megaphone effect but the cumulative effect.

  • I mean, if one takes a particular piece of vocabulary. Imagine that a word which now we know no one uses had continued to be used and with the same force, and that had been done through the press, cumulatively, to all. The consequences would be terrible.

  • Can I go back to the privacy example and our celebrity footballer or whoever -- it matters not. We're referring to a discretion with a narrow bandwidth. It might be said that there's room for reasonable people to disagree as to where the notional mid-point of the bandwidth might be, and we've heard some slight disagreement as to that. But should one be setting the notional centre of the bandwidth at a point which favours freedom of expression or at a point which favours privacy, given that I think we said before that unless there's a clear justification for interfering with freedom of expression, then that right, as it were, to the extent to which it is a right, wins out? Do you see the point?

  • I don't think I'd want to concede to that particular point. So I think it might be the case that you really are confronted with a situation where there are just two alternative ways of specifying a legal requirement or a right and that require you to balance issues of privacy versus issues of freedom.

    Now, one of the first things to say there is that a lot of people think that the value of privacy just is the value of freedom. So it's not as if you're bringing in some other consideration; the idea of people being autonomous individuals is under threat if they can't have a domain of privacy. So it might then just be a freedom versus freedom kind of debate, but even if we leave that aside, I don't think there's any reason to regard freedom as a kind of privileged value that in any conflict has to win out. I just -- that just seems to be a piece of dogma.

  • Okay. Professor Mendus?

  • I feel less clear about that. I'd like to introduce something that we haven't specifically alluded to here, and that is the importance of freedom of speech/freedom of expression in a society such as ours, which is multicultural and where many faiths are adhered to. So -- there's a bit of disagreement here, but of course there will be a lot of disagreement outside about religious matters, cultural matters, ethical matters, about the role of women in society, and it seems to me that in a liberal democratic state which is characterised by diversity and conflict, then there is an argument for -- I think freedom weighs quite heavily there.

    So I think I'd be more inclined than John is to say: well, the balance goes slightly in favour of freedom of expression over privacy in cases of that kind.

  • I think I'm not clear what kinds of cases we're thinking of as being weighed in the balance, but it seems to me it would misdescribe certain cases to think that it's freedom of expression that we're weighing against privacy. If a journalist reports a story which some individual has a right to protest against by virtue of their right to privacy, then it isn't the motive of the journalist to exercise their right to freedom of expression. Nothing which justifies a right to freedom of expression has any particular bearing on their publishing this particular story.

    So it raises the question what the motive is of publishing the story in a case where privacy would seem to have been violated, and there's a question about whether a right to privacy wins out.

  • I understand. I raise one final question in this way: if -- but only if -- the culture, practices and ethics of the press or a section of it are demonstrated to be deficient, is the correct ethical response either: one, to simply enforce the law better, on the basis that the law should cover all aspects of comportment in this domain; two, make new and more stringent laws; or three, attempt to promote culture change through a range of measures, which would include better ethical guidelines, a better regulatory system and overall an endeavour to enhance the culture, practice and ethics of the press? Or is it none of those three things or a combination of two and three? What do you think, Professor Tasioulas? It may be implicit in what you've said already what the answer may be.

  • Just be warned that if you choose the last, I'm going to ask you how.

  • I think the initial answer is one and three. Of course, you should always enforce the law. If the law's not being enforced, it should be enforced, and of course you should be doing things to promote the culture that realises values beyond those necessarily that can be in any way enforced by the law. And then you visit two if you realise that doing one and three by themselves aren't producing the desired effect. You then can contemplate new legislation. But if it is the case that the law as it exists hasn't been properly enforced, then that would be the first step, and to do the third thing as well. You should always be doing that.

  • It's not necessarily easy to do that because, for reasons which I'm sure you'll understand, for the law to be enforced requires somebody to complain, it requires the investigative tools to be available, it requires the resource to be directed towards it, and it would be a poor society, would it not, where we said, "Well, everything's all right unless the police catch you."

  • No, absolutely, and that's why three has a kind of priority, because the law really should operate as a backstop measure where things go dreadfully wrong, and ideally what you want is to have a situation where people have been habituated to complying with certain standards that make it the case that just in virtue of their professional ethos, they won't be in danger of violating the law. So one and three are actually intimately related.

  • Well, I agree that ideally the law is a backstop, but I suppose one reason you're here is because it's not an ideal world and the backstop hasn't really been as effective as it might.

  • And I'm not sure that an ideal would have it different because the idea that you have the authorities looking over everything to pick up every breach suggests a society which I'm not sure that we would necessarily enjoy.

  • Okay, that's the sort of Benthamite world where everything is exposed to the public gaze and nobody can want that. I suppose my compromise, in a way, perhaps, is to go for three, but to say: well, surely guidelines, codes of ethics, changes to the regulatory system, these are -- it's not exactly more stringent law but it is moving in that direction. It's moving away from just self-regulation.

  • In answer to the question I think I'm inclined to say "all of the above", as it were, but -- well, one should have more enforcement of whatever codes or laws are in place, and it does seem as though a culture change is needed and that more stringency in the code or more definition in the code in certain areas would help that. But I'm afraid there are practical questions which I just can't answer. I just don't know how it could have come about that there wasn't enforcement in a case where very obviously there should have been, and it's not only the press as an institution which I take is to be blamed for that.

  • And the law itself is a very powerful means of changing culture, or can be. Has been in the past.

  • Only if it is enforced or capable of being enforced.

  • I'd be very interested -- if I take something away, removed from this -- to know to what extent the law in relation to exceeding the speed limit has been -- the enforcement has been changed by the abandonment of those police officers with speed guns that could catch you whatever you were and the creation of speed cameras, where everybody can see as soon as the lines appear on the road that they'd better slow down, and one visibly sees brakes go on and then people speed up past it. So there are real questions about law enforcement and that affects people's view of speeding.

  • Of course, of course. But insofar as the question is how do we effect a culture change, it could be that part of the answer to that question is by changes in the law. The decriminalisation of homosexuality served, over the medium to long-term, to change the culture. If you ask why the culture changed, the change in the law is a very significant feature there. It wouldn't always be the case, but there are instances that can be cited.

  • So if I now move on to the question that I said you'd be asked if any of you chose the last -- that is the third. Do you have a view, from a philosophical perspective, of the way in which one can narrow the grey matter, as I've put it, in a way that satisfies the public but doesn't harm the rights that we've been talking about all morning unduly or inappropriately and so preserves the right of the press to be offensive, for people to be offended by what the press does but their ability to hold us to account? How can one best achieve that end? I appreciate I'm not asking you to give me the answer to my Inquiry in the back of the book, but for those who have thought about it from your perspective, I'd be interested if you have anything to offer on the subject.

  • I don't know. I think, you know, we can almost only speak as amateurs, but what I would say is: in a way, it's problematic to talk about someone trying to achieve this effect. The sort of culture we're talking about is one for which we're all responsible. It's not just legislators or people in the media; it's also individuals as consumers of what's in the media. It's how people talk to their children, it's what they get them interested in. It's how they set certain ethical boundaries in their own lives and so forth.

    So we're talking about how you create a culture where people spontaneously act in accordance with certain standards, and it's hugely important because, you know, there is a law against murder but I would hope that most people -- the reason they don't murder is not because of the law but because of inculcated certain standards, and you want that to be the case in other areas as well.

    In the case of the media, there are powerful countervailing forces with respect to profit-making which create powerful incentives to go against and undermine the sorts of values ideally we would like to see this culture manifesting, and I simply have an amateur-ish view, which follows the view of others, that self-regulation by the media doesn't seem to be working. It's been something that's been attempted over recent decades and it's continuously seen to fail, and that some sort of statutory basis is probably going to be necessary, but what that is I would leave to experts.

  • I think in the most general terms, it seems to me that the incentive structure has to be changed so that -- at the moment, as John said, one of the problems is that there are serious, serious profit-making incentives for the press which act against what it seems to me is the main purpose of a free press from our point of view, which is to provide information. So the provision of information is why you want a free press but that's not the motivation that the press necessarily has. There's motivation there to make profit, which is fine, but if the making of profit is something which actually cuts against, conflicts with the provision of appropriate information, then there are ways -- through guidelines, regulatory systems and so on -- of dealing with that which are such as to change the incentive structure to ensure that those vast profits cannot be made in that way, so there would be monitoring of those areas. But I'm really out of my depth now.

  • To be honest, you're just getting my view now.

  • But actually, it's not -- two of you have said that, and I understand that, but you are looking at the problem through a very different window from the background of your experience.

  • So nobody will hold you to task for anything you say. They will all hold me to task for whatever I say. I take your views precisely with the caveat that you've expressed them.

  • Another comment, if I'm allowed to, from an amateur: it does seem to me that it's important that editors should be seen as in charge, ethically speaking. That's -- so of course, it's their judgment whether a story is published, but it also ought to be under their control how information which leads to a story is garnered, and they, it seems to me, have responsibility for ensuring that not they alone know what codes the press is governed by but also that the journalists should know them and that it should be assumed that there's some oversight from the editor.

  • I think that was extremely helpful. Thank you very much.

  • Thank you very much. I'm very conscious that the three of you have put a lot into writing and have come along as well. I repeat my thanks to you. I'm equally conscious that this sort of dialogue is not necessarily the best way to get the nuanced views that you wish to express, which is why we've done them in the way that we have, but we have your written views.

    If, in the light of the discussion we've had, there is anything you want to add to what you've said or express differently -- the transcript will be available online so you'll be able to see it, but if there is, please do not hesitate in just dropping a note. That's not a requirement; it's only if you want to in the light of your reflective thoughts. Thank you all very much for coming.

    We'll take a break.

  • (A short break)

  • The next witness is Dr Rowan Cruft, please.