Freedom of Speech and Media Regulation

 

In two recent blog posts I returned to the issue of lack of media regulation, and the way lack of regulation is helping right wing populism to grow. We saw it with Trump, and we are seeing it with Reform and the rightward drift of the Conservative party in the UK. We are seeing it in many other countries.

Whenever I write about this, I get comments about freedom of speech, and why better media regulation puts freedom of speech at risk. Freedom of speech, like freedom itself, is something that everyone agrees is a good thing, until you get into the details. Partly as a result, the concept is often weaponised by the right, who use it as a rallying cry against giving the state any power. This post is about freedom of speech or otherwise for media organisations, not individuals

The idea that freedom is always a good thing comes unstuck when that freedom impinges on others. With very few exceptions, most agree that people should be free to do what they like if it doesn’t involve or affect another person. But as humans are very social animals, a lot of the things we do have an impact on others. People are generally not free to inflict harm on others.

Freedom of speech almost by definition involves others. So immediately we can see that freedom of speech can never be an unqualified right. Like freedom itself, the obvious examples where it needs to be qualified involve harming others. I don’t have a right to demand money through threats, for example.

Media regulation can be justified through this route. A media outlet that gave extensive and uncontested time to those who said all vaccination was dangerous could be rightly accused of harming others. But the idea of speech or words that create harm can be extended to lesser evils. A media outlet that persistently said that crime was rising, for example, when all the evidence was that crime was falling, could be accused of creating unnecessary worry among the media’s users.

We could generalise this by talking about another right besides the right to free speech, and that is the right not to be misled or lied to. Most media users rightly expect not to be misled or lied to by their media provider, and this is a very reasonable wish. Once we think about the right not to be misled, then we inevitably have to involve the concept of truth and facts. A media outlet that is knowingly distorting the truth in the material that it provides its users is misleading them and therefore harming them.

But who decides whether a media outlet is doing this? The standard argument of those that place the right of free speech above the right not to be harmed or misled is that the only external body that can referee the media is the state, and we should not give the state the power to decide what is true and what isn’t. That is what happens in totalitarian regimes which suppress free speech to protect the regime.

In rebutting that argument it is important to note that a media regulator, like OFCOM in the UK, is not the government. Regulators like OFCOM are designed to be independent of government, and a government that told OFCOM what to do in specific terms would be rightly accused of overstepping its democratic mandate. In the UK the government is in theory able to appoint the head of OFCOM, but when Johnson wanted to put Paul Dacre in that role, an independent interview panel is said to have reported that he was totally unsuited, and Johnson or Dacre eventually backed down. The degree of independence a regulator has, and how it is held accountable, are very important issues, but this example shows that independence need not be a sham.

Of course any government determined to use a regulator like OFCOM as a way of influencing the media for its own political ends will do so, but a government so determined doesn’t need a pre-existing regulator to do that. For that reason media regulators are hardly the beginning of an inevitable slide to totalitarianism. Far more likely, in fact, is that a potential totalitarian would use deals with private media owners to achieve that end. (See Trump and Musk.)

Oddly, I haven’t seen those critical of media regulation worrying about other regulators that tell organisations what they can say and what they can’t. The example in the UK that I think is very useful is the Food Standards Agency (FSA), which among other things stops companies making false claims about their products on its packaging. This is a clear restriction of the right of free speech for those companies and those who work in them.

We don’t think about the FSA in this way because who wants to be given false information by companies. But media organisations are companies, so why are we happy to see them give out false information?

Is this because what a product contains is or can be an established scientific fact, whereas media companies deal with political issues that are contested? No, because media regulation is not about telling media companies to take a particular position on policy issues or values. What it should be about is ensuring that its customers are not misled by its contents, much as governments through regulators try to ensure product packaging does not mislead potential customers. In my view that should have two components: being truthful, and where the truth is unclear presenting both sides of any debate.

An example of the first I have already mentioned is vaccines. When an employee of GBNews used official statistics incorrectly to suggest vaccines were harmful OFCOM found that the company had breached its rules. To make judgements like this the regulator has to rely on expertise (statistical and medical), which is as it should be. The fact that some people believe vaccines are harmful is irrelevant here: some people may believe the earth is flat.

I think much the same applies to man-made climate change, and the BBC concluded the same (in theory, although not always in practice). The only issue here arises because some parts of the political right encourage climate change denial, so this truth is politically contested. But within science it is not, with only a tiny minority of climate scientists disputing the accepted science. (Whenever powerful monied interests are involved, it is not too surprising that a few scientists might take views that are helpful to those interests.) Science has to trump politics and ‘balance’ in such cases.

Of course that doesn’t mean contrarian views should never be aired. But if occasionally they are, it should always be made clear just how contrarian they are, and why the consensus is different from the one being put forward. The broadcasters favoured format of two-sided debate doesn’t do this, however good any debate moderator might be. I know that defining the difference between a consensus view and an issue where experts are divided is difficult, but scientific bodies should be the reference point on this. So, for example, the consensus view among economists during the Brexit referendum was that the economic effects would be negative, and media organisations should have made that clear every time the economic impact of Brexit was discussed.

Free speech advocates sometimes say that this involves censorship, and it’s better to allow all views to be expressed so the public can make up their own mind. Once again, the analogy with product regulation is useful. We don’t want to have to judge between competing claims every time we buy a product. Equally everytime we watch or read news media or someone on the media making a case we don’t want to spend time reading around to judge for ourselves whether the facts being stated are true or not. That is the job of media organisations, and we need media regulators ro make sure they do that job.

It isn’t a paradox that some of those that shout loudest about the need to preserve free speech are also those that spread the most lies and disinformation. It also shouldn’t come as a surprise that they can also be those most likely to curtail free speech when that involves telling truths they don’t like. Free speech may be a rallying cry against tyranny, but freedom from being misled can help stop voters inadvertently creating tyranny.