Written evidence submitted by Guardian News & Media (GNM) (OHC0018)
Introduction
The protection of freedom of expression, particularly comment, is essential to the maintenance of a free society. As the Council of Europe has said previously, “Freedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man.”[1] The right to freedom of expression is not without limits, but the right to hold and express an opinion has been seen as critical to the progression of society.
GNM has consistently opposed attempts to impose additional limits to freedom of expression on publishers. Submitting to the Leveson inquiry module on “Newspapers, columnists and provocative or offensive speech”, GNM wrote that
“Subject to existing and relatively clear constraints imposed by the criminal and civil law, attempts to interpose an additional layer of censorial regulation on such articles in an attempt to ensure that they stay within the bounds of ‘acceptable’ societal standards should be avoided. Similarly, imposing conditions of accuracy on opinion or comment is a very slippery slope and, moreover, an approach which is squarely at odds with legal authority.”
GNM recognises that the focus of the Home Affairs inquiry has turned to examine what role if any role the print media may play in creating anti-Muslim and anti-immigrant sentiment in the UK. However, if acts of terror against the Muslim community are the ultimate outcome of such sentiment, research suggests that there are multiple pathways along which perpetrators travel to get to that place. The recent trial of the Finsbury Park Mosque terrorist suggested the was apparently radicalised by a piece of television drama. “The catalyst, police believe, came three weeks before the attack, when his attitudes began to metastasise after he watched Three Girls, a BBC TV drama about the Rochdale grooming scandal. He also read extremist rightwing propaganda online that left him “brainwashed” and a “ticking timebomb”[2].
A 2016 issues paper, published by the Radicalisation Awareness Network, on the ‘The root causes of violent extremism’ set out the kaleidoscope of factors that can lead towards such extremism.
“There are some basic primary colours which create complex interlocking combinations: 1) individual socio- psychological factors; 2) social factors; 3) political factors; 4) ideological and religious dimensions; 5) the role of culture and identity issues; 6) trauma and other trigger mechanisms; and three other factors that are a motor for radicalisation: 7) group dynamics; 8) radicalisers/groomers; and 9) the role of social media. It is the combined interplay of some of these factors that causes violent extremism.”
The paper goes on to set out the role of social media, “which provides connectivity, virtual participation and an echo-chamber for likeminded extremist views. The internet “reaches otherwise unreachable individuals“; it accelerates the process of radicalisation; and increases opportunities for self- radicalisation.”
There are clearly questions for the British press about anti-Muslim, anti-immigrant, anti-refugee or indeed misogynistic perspectives, but clearly this is a complex global issue.
The legal basis for free expression
The legal basis for free expression is covered in detail in Article 19 (1) of the International Covenant on Civil and Political Rights (ICCPR) (a multilateral treaty adopted by the United Nations General Assembly on 16 December 1966, and in force from 23 March 1976) which states that the protection of the right to hold opinions should be without interference.[3] The Covenant sets out that “No person may be subject to the impairment of any rights under the Covenant on the basis of his or her actual, perceived or supposed opinions. All forms of opinion are protected, including opinions of a political, scientific, historic, moral or religious nature. It is incompatible with paragraph 1 to criminalize the holding of an opinion.”
The Covenant does however contain qualifications on that right, which include:
● The first of the legitimate grounds for restriction listed in paragraph 3 is that of respect for the rights or reputations of others.
● The second legitimate ground is that of protection of national security or of public order (ordre public), or of public health or morals.
The Covenant notes that any “such limitations must be understood in the light of universality of human rights and the principle of non-discrimination. Restrictions must be “necessary” for a legitimate purpose. Restrictions must not be overbroad. “
Commentary on the Covenant provided by the United Nations suggests that “Regulatory systems should take into account the differences between the print and broadcast sectors and the internet, while also noting the manner in which various media converge.”
“The penalization of a media outlet, publishers or journalist solely for being critical of the government or the political social system espoused by the government can never be considered to be a necessary restriction of freedom of expression.”
“Any restrictions on the operation of websites, blogs or any other internet-based, electronic or other such information dissemination system, including systems to support such communication, such as internet service providers or search engines, are only permissible to the extent that they are compatible with paragraph 3. Permissible restrictions generally should be content-specific; generic bans on the operation of certain sites and systems are not compatible with paragraph 3. It is also inconsistent with paragraph 3 to prohibit a site or an information dissemination system from publishing material solely on the basis that it may be critical of the government or the political social system espoused by the government.”
“Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant. Such prohibitions must also comply with the strict requirements of article 19, paragraph 3, as well as such articles as 2, 5, 17, 18 and 26. Thus, for instance, it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.”
“Laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression. The Covenant does not permit general prohibition of expressions of an erroneous opinion or an incorrect interpretation of past events. Restrictions on the right of freedom of opinion should never be imposed and, with regard to freedom of expression, they should not go beyond what is permitted in paragraph 3 or required under article 20.”[4]
Article 20 of the covenant attempts to balance freedom of expression, stating that “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”
Balancing these fundamental rights in a world of interconnected global networks, which allows the unedited and uncontrolled propagation of speech, is a particular challenge.
UK laws against hate speech
The UK Parliament has already legislated to create a number of criminal statutes that seek to balance and to protect the Article 20 rights referred to above. The CPS ALSO has guidelines in place in relation to racist and religious hate crime[5], homophobic, biphobic and transphobic hate crime[6], and hate crime perpetrated against disabled people[7]
The human rights organisation Liberty, provides a useful summary of offences speech offences in the UK[8]. Liberty notes that “These offences can be counterproductive (giving extreme groups publicity in the event of any trial), can have a chilling effect on legitimate debate and peaceful protest and have been extended in an ad hoc and piecemeal way. There have been very few prosecutions under these offences, and there is therefore an urgent need to review their efficacy and impact.”[9]
In recent years, there have been an increasing number of prosecutions of people commenting on social media platforms under these provisions. This caused some concern as to whether this was an appropriate or proportionate response[10], and in part resulted in the publication by the CPS of a code of practice:
● Social Media: Guidelines on prosecuting cases involving communications sent via social media[11]
However, the increase in the use of social media in recent years and the violence of the threats that have been directed, particularly at women such as Stella Creasy and campaigner Caroline Criado Perez has reaffirmed that some sort of criminal sanction is needed in such cases. The difficulties involved in balancing these various rights, freedoms and responsibilities are also recognised by the CPS’ publication of another code of practice:
● Media: Guidance for prosecutors on assessing the public interest in cases affecting the media[12]
In addition to a range of legal protections, the UK press has also, via the IPSO and other codes, adding a further level of self regulation in this area:
● Clause 1 (iv) of the IPSO Code states that “The Press, while free to editorialise and campaign, must distinguish clearly between comment, conjecture and fact.”
● Clause 3 of the IPSO Code on Harassment, states that
○ i) Journalists must not engage in intimidation, harassment or persistent pursuit.
ii) They must not persist in questioning, telephoning, pursuing or photographing individuals once asked to desist; nor remain on property when asked to leave and must not follow them. If requested, they must identify themselves and whom they represent.
iii) Editors must ensure these principles are observed by those working for them and take care not to use non-compliant material from other sources.
● Clause 12 of the IPSO Code on “Discrimination” states that
○ i) The press must avoid prejudicial or pejorative reference to an individual's, race, colour, religion, sex, gender identity, sexual orientation or to any physical or mental illness or disability.
ii) Details of an individual's race, colour, religion, gender identity, sexual orientation, physical or mental illness or disability must be avoided unless genuinely relevant to the story.
The primary legal liability of news publishers for the content they publish, combined with the creation of cross-industry codes of practice, and the transparent placement of advertising within news environments - both in print and online editions - place multiple pressures on news publishers to publish material that accords to a set of standards and norms.
Tech platform regulation
By contrast, global tech platforms do not have transparent editorial codes, nor do they have established cultural or public interest norms which their users understand. Legally they are exempt from most primary publishing liabilities thanks to exemptions in the EU eCommerce Directive and in the US under s230 of the Communications Decency Act. The absence of legal liability for content they publish has undoubtedly contributed to the rapid user and advertising growth these platforms have experienced, also enabling them to collect vast swathes of personal data in the process.
The business model of social media platforms is to create engaged user bases through which to collect personal data that is processed to create intelligence, which is then used to address advertising to citizens on any device, at any time of the day, wherever they are engaged on and off that social media platform. This activity enables social media platforms to merge multiple data sets to enable perfect sight of user data, and facilitates expansion into new markets with relative ease.[13] It is not a business model that relies on the publication of high quality content, rather it relies on the continued ability of those platforms to capture and retain the attention of the user and the network of friends and associations with whom they wish to communicate on a regular basis.
The absence of primary legal liability means that the content regulation that there is on social media platforms has been generally conducted only according to a set of ad hoc community guidelines[14], often by contractors working in poor conditions[15]. The only legal liability that seems to limit their activities in any way was unlawful hate speech[16][17], and even that liability is fairly restricted.[18][19]
The news that Facebook and Google YouTube are both to significantly expand the teams of moderators reviewing content on their respective platforms should be seen within that context.[20]
For traditional publishers, content regulation is supplemented by the transparent placement of advertising, linking the brand values of the advertiser with the environment in which they appear. In the world of programmatic platforms, advertising is often disconnected from the content it funds, meaning that advertisers can’t audit where adverts appear, making it harder for brands and citizens to hold platforms to account for the content they publish.
Social media platforms form an increasingly central part of the daily life of billions of citizens across the world. As the CEO of Netflix, Reed Hastings, recently said that “The great thing now is it’s easier to create a TV network, called an app”.[21] ComScore - an online measurement firm - reported in 2017 that smartphone users’ favourite app accounts for half of all time spent on apps, while the top ten account for almost the entirety. ‘Facebook and Google account for 8/10 of the most used mobile apps in the US.’[22] Many public services and major businesses now use platforms such as Facebook as their primary point of contact with the public.
In its submission to the Leveson inquiry (the relevant section from which is included at Annex A), GNM highlighted how legal precedent has developed to foster differential levels of content depending on the medium through which that content is discovered. In R (ProLife Alliance) v BBC [2004], Lord Hoffman set out that the ‘power of the medium is the reason why television and radio broadcasts have been required to conform to standards of taste and decency which, in the case of any other medium, would nowadays be thought to be an unwarranted restriction on freedom of expression. The enforcement of such standards is a familiar feature of the cultural life of this country. And this fact has given rise to public expectations. The Broadcasting Standards Commission puts the point with great clarity in paragraph 2 of its Code on Standards (Codes of Guidance, June 1998): ‘There is an implied contract between the viewer, the listener and the broadcaster about the terms of admission to the home. The most frequent reason for viewers or listeners finding a particular item offensive is that it flouts their expectation of that contract—expectations about what sort of material should be broadcast at a certain time of day, on a particular channel and within a certain type of programme, or indeed whether it should be broadcast at all.’[23]
Given the growing centrality of a few social media platforms in the lives of the vast majority of citizens, delivering personalised services that are built to satisfy the wants, needs and political views of the individual user, who views and interprets information that is streamed to the user - rather than the user pulling the content from the platform - it is arguable that social media platforms are the inheritors of the traditional relationship between user and broadcaster. It is certainly the object of Facebook’s marketing teams to suggest that the level of engagement that Facebook has with its users is akin to that of the medium of television[24]. That being the case, it appears logical that some of the same principles of regulation should flow across from the world of broadcast content to the social media context.
By contrast, while news content is available on Facebook, news represents just 4% of the total volume of content on the platform[25]. News consumption is therefore a small aspect within the context of social media apps.
Stories in focus through this enquiry
Evidence sessions held by the Committee have identified three articles that Members believed to feature hate speech. The articles in questions were:
● A Trevor Kavanagh opinion piece which appeared in the Sun, entitled “Now Philip Hammond is finally Out he must shut the door behind him and take control over our laws, our trade and especially immigration”. The piece was the subject of a complaint to IPSO (17562-17 Elgy v The Sun), the ruling on which found that “The Committee made clear that there is no clause in the Editors’ Code which prohibits publication of offensive content. It was clear that many, including the complainant, were offended by this aspect of the article, but there was no breach of the Code on this point.”
● A Katie Hopkins opinion piece from 17th April 2015, again in the Sun, entitled “Rescue boats? I'd use gunships to stop migrants”. This piece was also the subject of a complaint to IPSO (02741-15 Greer v The Sun) the ruling on which “acknowledged the strength of feeling the column had aroused. It took this opportunity to note publicly that the terms of Clause 12 specifically prohibit prejudicial or pejorative reference to individuals; they do not restrict publications’ commentary on groups or categories of people. In this instance, the references under complaint were not to any identifiable individuals. As such, Clause 12 was not engaged. The Committee made clear that it does not have jurisdiction to deal with potential breaches of the law, but understood that the police were currently investigating the matter. The complaint was therefore considered solely under Clause 1 (Accuracy).”
● An Andrew Wakefield news story for the Times, entitled “Christian child forced into Muslim foster care”. This article was the subject of a number of complaints from the public, though the lack of a complaint from the person most directly affected meant that there was no investigation by the regulator.
Guardian coverage of these stories
The Guardian sought to provide different perspectives on the stories at the heart of the Committee’s enquiry.
In the case of the Trevor Kavanagh article, the Guardian has published at least five articles, including,
- News article - Sarah Champion distances herself from Sun article on British Pakistani men
- News article - Sajid Javid says Jeremy Corbyn 'wrong to sack Sarah Champion'
- A comment piece by Shaista Aziz - The Sun wants to make child abuse all about race – that doesn’t help the victims
- A news article about the IPSO determination - Press watchdog clears Sun writer who referred to 'the Muslim problem'
- A further news article about the IPSO determination - Press regulator Ipso faces first legal challenges to rulings
In the case of the Katie Hopkins article, the Guardian published around twenty five news pieces which mention Hopkins’ comments, over ten comment pieces which respond to the issued raised, and at least two features that attempt to understand the motivations of the deliberate controversionalist, including,
- A comment piece by Suzanne Moore entitled “Banning things isn’t the way to confront the far-right”
- A collection of perspectives from leading writers on “The turmoil of today's world: leading writers respond to the refugee crisis”
- A comparative feature entitled “Refugees welcome? How UK and Germany compare on migration”, with contributions from Luke Harding, Philip Olterman and Nick Watt. The article compared the responses to the refugee crisis between Germany and the UK, including the response in the media. Referring to the Hopkins article, the article suggests that “Two newspaper cuttings have highlighted the differences in tabloid attitudes between the UK and Germany. Writing in the Sun, Katie Hopkins likened refugees crossing the Mediterranean to cockroaches. By contrast Bild, Germany’s bestselling title, ran the front-page headline “We are helping” above a picture of two refugee children. Arguably, neither gives an accurate picture of media coverage. The German press may traditionally be more restrained when it comes to anti-immigration rhetoric, but Bild in particular has run articles implying that refugees get an “easy ride”.
- A news story entitled “NUJ condemns regulator's decision on Katie Hopkins 'cockroaches' column”
- A Zoe Williams comment piece entitled “Katie Hopkins calling migrants vermin recalls the darkest events of history”.
In the case of the Andrew Norfolk news story about a Christian girl being placed into care with Muslim foster parents, the Guardian wrote over ten articles, including:
- A news story by Jamie Grierson entitled “Council in fostering row hits out at 'errors' in Times report”
- A editorial editorial on the family courts: openness is the cure. We subsequently ran an opinion piece entitled “Details of care cases are concealed for good reason. The press must respect that”
- A further news story by Jamie Grierson entitled, “Muslim fostering row: how the Times and Mail gave a skewed portrayal”
- An opinion piece by Nesrine Malik, entitled “Can’t talk about Muslims? It seems we do little else in the UK”
- An anonymous opinion piece from a social worker highlighting the reality that many muslim children are fostered into non-Muslim homes, entitled “
Muslim fostering row: Careless press must be held to account” - As well as a piece [26]from Andrew Norfolk defending his article
This article by the Transparency Project Shows what a complex and multi-faceted story this was.
In Suzanne Moore’s piece about Katie Hopkins’ comments about refugees, she says that “When earlier this year, the Sun published some toxic waste by Katie Hopkins using the language of genocide to describe drowning refugees (“cockroaches”), there was a sharp intake of breath. The issue was not whether she was allowed to say such things – she is – but what a tabloid newspaper was doing publishing this poison. Was such language now an acceptable part of public discourse? The public answered with mass revulsion. The answer to Hopkins’ hate speech was more speech expressing that revulsion – not to ban her.”
The value of media plurality
GNM has long advocated for a strong media plurality framework in order to ensure that there are a wide range of independent voices producing news and comment in the public sphere. Media plurality does not mean that views that we might find offensive are subdued, but does mean that when those views are raised, there are alternate viewpoints expressed within the public sphere to provide a counterview. Media plurality can sometimes feel like an academic concept that is only dusted off at moments when a contentious media merger takes place. But in the context of the issues raised by the Committee, the breadth of coverage outlined above demonstrates why it is so important to have strong, independent voices in our media ecosystem.
GNM’s commitment to media plurality was evident before, during and after the Leveson process, having recent expressed concerns about consolidation in the media that would reduce the number of independent voices participating in public debate[27]. In the context of the sort of hateful views identified by the Committee, media plurality ensures an essential counterpoint to the expression of these views in the public sphere.
Media plurality differs from the chaos that has emerged out of the creation of social media platforms. While social media platforms have benefited citizens in many ways, the fact of people being connected, or the suggestion that this gives everyone a voice have been shown shown in recent months to be naive and simplistic. The inherent weaknesses of the systems that govern online social platforms have meant that platforms like Facebook have been used to propagate lies, falsehoods, misinformation and hate online. The properties of these platforms have been used by entrepreneurs to generate revenue, and by foreign states and malicious actors to stir up mistrust and hatred. They have been used by the social media platforms themselves to generate user engagement and attention, which is in turn used to sell the opportunity to pitch advertising at those users.
Citizens’ perceptions of the UK media
Research published the Reuters Institute, produced as part of its digital news report, suggests that the UK news ecosystem does benefit from a diverse range of news sources that are seen to provide news and comment across the political spectrum. The report provides comparative data for the perception of respondents on where news organisations sit across the political spectrum. In the UK, the report finds a spread of news organisations across the political spectrum, ranging from a perception of the Guardian on the left, through to Mail Online on the right.
The report findings in the United States suggest a public perception of media organisations that are skewed towards the left of the political spectrum, with just a single outlier - Fox News Online - catering for citizens who regard themselves as being of the right. This research suggests that the UK benefits from a more balanced spread of news sources.
In addition, annual research by Ofcom suggests that citizens can and do differentiate between the quality, accuracy and diversity of the news sources that they regularly access. Research examining citizens consumption of news media, published annually by Ofcom, demonstrates a disparity in attitudes of regular readers of different news publications across a range of key aspects.
● When asked whether a news source helps readers to make up their mind, 65% of Guardian & Observer readers say this is the case, compared to 29% of readers of the Sun & Sun on Sunday, and 35% of readers of the Mail & Mail on Sunday.
● On the question of whether a news source offers a diversity of opinions, 79% of regular readers of the Guardian & Observer confirm positively on this point, compared to 37% of Sun & Sun on Sunday readers, and 38% of readers of the Mail & Mail on Sunday.
● In terms of accuracy, 80% of regular readers of the Guardian & Observer regard the source as accurate, compared to 30% of regular Sun & Sun on Sunday readers, and 39% of regular Mail & Mail on Sunday readers.
● In relation to public trust, 83% of regular readers of the Guardian & Observer say that they believe it to be a trustworthy news source, versus 30% of readers of the Sun & Sun on Sunday, and 39% of Mail & Mail on Sunday readers.
Looking at the views of UK citizens more broadly, research commissioned by the BBC from the pollsters IPSOS-Mori found that the Guardian is the 5th most trusted news source amongst the UK population with a ranking of 6.1 out of 10. By contrast, the Mail has a trust score of 4.4 out of 10, with the Sun ranking on 3.2 out of 10.[28]
Increasing trust in news - diversity and transparency
On becoming editor in chief of GNM, Katharine Viner commissioned a project to analyse the 70m comments left on The Guardian since 2006. As part of this series, the Guardian commissioned research into the 70m comments left on its site since 2006 and discovered that of the 10 most abused writers eight are women, and the two men are black. To date, 1.4 million comments (2% of the total) have been blocked by Guardian moderators because they violated the Guardian’s community standards. Most of these are abusive to some degree (they may use insulting language, or be ad hominem attacks) or are so off-topic that they derail the conversation.
Speaking about the outcomes of the Web We Want project, GNM editor in chief Katharine Viner said that “It’s an attempt to imagine what the digital world could and should be: a public space that reflects our humanity, our civility and who we want to be. It asks big questions of all of us: as platform providers, as users and readers, as people who write things online that they would never say in real life… Since the Guardian opened up its online articles to comments by readers in 2006, tens of thousands of conversations have taken place below the line between readers and journalists, and between readers and other readers. Many of these conversations have been excellent; thoughtful, engaged and rewarding. But some subjects – latterly Islam, refugees and immigration– have become magnets for racism and hate speech, while others – feminism, domestic violence and rape – can attract highly misogynistic responses.”
Further research showed that, in the last five years, a significant majority of our journalists have experienced online comments which they felt were abusive. Around half of our staff agreed that online abuse creates poor conditions for press freedom. The lack of action by the platforms to deal with these issues, or the provision of clear routes through which to escalate concerns about the safety of our journalists is something that GNM has raised with the platforms.
In terms of the GNM workforce, in a recent speech about the past, present and future of Guardian journalism, GNM editor in chief Katharine Viner set out the need for our editorial workforce to reflect the communities that we serve, saying that
“journalists must work to earn the trust of those they aim to serve. And we must make ourselves more representative of the societies we aim to represent. Members of the media are increasingly drawn from the same, privileged sector of society: this problem has actually worsened in recent decades. According to the government’s 2012 report on social mobility in the UK, while most professions are still “dominated by a social elite”, journalism lags behind medicine, politics and even law in opening its doors to people from less well-off backgrounds. “Indeed,” the report concludes, “journalism has had a greater shift towards social exclusivity than any other profession.
This matters because people from exclusive, homogenous backgrounds are unlikely to know anyone adversely affected by the crises of our era, or to spend time in the places where they are happening. Media organisations staffed largely by people from narrow backgrounds are less likely to recognise the issues that people notice in their communities every day as “news”; the discussions inside such organisations will inevitably be shaped by the shared privilege of the participants.
After 71 people died in the devastating Grenfell Tower fire in west London – which residents had forewarned for years – the Channel 4 News presenter Jon Snow said that the failure to attend to these warnings showed that the media was “comfortably with the elite, with little awareness, contact or connection with those not of the elite.” As Gary Younge, the Guardian editor-at-large, has put it: “‘They’ are not ‘us’ – ‘their’ views are not often heard in newsrooms, and they know it.”
If journalists become distant from other people’s lives, they miss the story, and people don’t trust them. The Guardian is not at all exempt from these challenges, and our staff is not diverse enough. Because of our history, values and purpose, we are committed to addressing these issues – but there is still a long way to go.”[29]
One of the ways in which The Guardian seeks to expand opportunities to access the world of journalism is through the The Guardian Foundation’s Scott Trust bursary scheme[30]. The scheme offers a number of bursaries each year for aspiring journalists to study for an MA in journalism. The primary aim of these bursaries is to assist students who face financial difficulty in attaining the qualifications needed to pursue a career in media.
Specific questions from the Committee
Whether there is a problem with hate in the British media, with particular regard to anti-Muslim and anti-immigrant sentiments;
The articles cited by the Committee appear to be comment or opinion pieces. The fact that the CPS has not taken action in these cases suggests that they do not stray into legally actionable hate speech, but the reasoning for those decisions must be a question for the CPS.
What is clear is that in two out of the three cases they were considered and adjudicated upon by IPSO.
While the views expressed in the articles are not ones that GNM would endorse, we respect the right of rival publications to express robust opinion. As outlined above, the role of a diverse, plural media is to provide a counter view, to question views expressed, and to attempt to win the argument in the public sphere.
GNM’s view on some recent controversial articles, and how they were handled and adjudicated – for example, Katie Hopkins’ article calling refugees “cockroaches”, Trevor Kavanagh’s talk of “the Muslim Problem”, the case of a young girl placed with Muslim foster carers
As outlined above, the Guardian published multiple news and opinion pieces highlighting concern about the tone and content of the articles highlighted by the Committee. The views expressed in the articles are not ones that GNM would express or endorse, but we respect the right of rival publications to express robust opinion. The fact that the CPS has not taken action in these cases suggests that they do not stray into legally actionable hate speech, but the reasoning for that decision is a question for them.
Whether perceptions of hate or discrimination are the result of deliberate actions by journalists/editors (we heard from witnesses who suggested some papers are publishing what their readers want to see, and publishing anti-Muslim stories because they sell), and what solutions could be (e.g. better training for journalists, hiring more journalists from minority backgrounds, greater engagement with communities and community groups);
GNM is not in a position to comment on the reason why other publications choose to print or commission the stories that they do.
In terms of creating a diverse workforce, GNM recognises that our workforce needs to be more representative of the societies we aim to represent. Members of the media are increasingly drawn from the same, privileged sector of society: this problem has actually worsened in recent decades. Through the The Scott Trust bursary scheme, and other measures, the Guardian seeks to open up the world of journalism to a diverse range of potential candidates.
Views on current press regulation, particularly the adequacy of the Editors’ Code, and whether anything needs to change, particularly with regards to Clause 12 on Discrimination;
The editor’s code has been developed over many years, originally by the Press Complaints Commission (PCC). Although the Guardian is not a member of the PCC’s successor, IPSO, its journalist still operates according to the standards set out in the editor’s code, and GNM’s own separate code of conduct. The Leveson enquiry was broadly positive about the content of the document. The recommendations made through the Leveson enquiry primarily related to ensuring the independent enforcement of that code, and the ability of the regulator to act to enforce those standards.
The role and responsibilities of social media platforms, and whether there needs to be greater regulation or oversight.
As outlined above the absence of primary legal liability means that content regulation on social media platforms is conducted according to a set of ad hoc community guidelines[31], often by contractors working in poor conditions[32]. The lack of a clear channel through which to escalate concerns about the abuse of journalists is also a concern. The recent Cambridge Analytica stories have demonstrated the need for policymakers to determine whether the legal framework in which these dominant platforms operate remains appropriate.
Guardian News & Media
April 2017
Annex A - Relevant excerpt from Interim submission to the Leveson inquiry on behalf of Guardian News & Media
Newspapers, columnists and provocative or offensive speech
6 During the course of Module 1, the Inquiry’s attention has focussed at times on the propriety of provocative articles or columns which have been published by the press in respect of sensitive, emotive or contentious issues. Comparisons have also been drawn with the degree of content and standards regulation applicable to the broadcast media.[1]
7 Subject to existing and relatively clear constraints imposed by the criminal and civil law, attempts to interpose an additional layer of censorial regulation on such articles in an attempt to ensure that they stay within the bounds of ‘acceptable’ societal standards should be avoided. Similarly, imposing conditions of accuracy on opinion or comment is a very slippery slope and, moreover, an approach which is squarely at odds with legal authority.[2]
7.1 The important role of the press in maintaining and stimulating the full and free ventilation of debate in a modern democracy has been repeatedly emphasised by the courts:
‘In a modern, developed society it is only a small minority of citizens who can participate directly in the discussions and decisions which shape the public life of that society. The majority can participate only indirectly, by exercising their rights as citizens to vote, express their opinions, make representations to the authorities, form pressure groups and so on. But the majority cannot participate in the public life of their society in these ways if they are not alerted to and informed about matters which call or may call for consideration and action. It is very largely through the media, including of course the press, that they will be so alerted and informed. The proper functioning of a modern participatory democracy requires that the media be free, active, professional and inquiring. For this reason the courts, here and elsewhere, have recognised the cardinal importance of press freedom and the need for any restriction on that freedom to be proportionate and no more than is necessary to promote the legitimate object of the restriction.
(McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277, at 290G–291A, per Lord Bingham)
7.2 The freedom afforded to journalists to perform their democratic function in this regard covers possible recourse to a degree of exaggeration, or even provocation: De Haes & Gijsels v Belgium (1998) 25 EHRR 1. Thus in Dichand v Austria (App No.29271/95, 26th February 2002), sanctions levied in respect of a strident editorial column published in a national newspaper on the alleged immorality of a well-known public figure was held to constitute a breach of Article 10:
‘It is true that the applicants, on a slim factual basis, published harsh criticism in strong, polemical language. However, it must be remembered that Article 10 also protects information or ideas that offend, shock or disturb.’
7.3 Ever since Handyside v United Kingdom (1976) 1 EHRR 737 the ECtHR has consistently recognised that offensive speech requires equal protection in a democratic society:
‘Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to Art 10(2), it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society".’[3]
7.4 The same point was memorably reiterated by Sedley LJ in Redmond-Bate v DPP (1999) 163 JP 789:
‘Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.’
8 The distinction between statements of fact and opinion (or ‘value judgments’ in Strasbourg terminology) is an important one in this context.
8.1 While the existence or otherwise of facts can be demonstrated, the truth of value judgments is not susceptible of proof. That dichotomy means that any attempt to require a publisher to prove or justify a value judgment under the threat of sanction will almost invariably constitute a violation of Article 10 (Lingens v. Austria (1996) 8 EHRR 407, § 46; Oberschlick v. Austria (1991) 19 EHRR 389, §63).
8.2 Equally, the law of defamation makes no distinction between comment which is ‘prejudiced’, ‘pig-headed’ or ‘obstinate’ and that which is reasonable and careful. The previously emphasised threshold of fairness implicit in the name of the former defence is now considered misleading. As Lord Nicholls emphasised in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, at 193:
‘Traditionally one of the ingredients of this defence is that the comment must be fair, fairness being judged by the objective standard of whether any fair-minded person could honestly express the opinion in question. Judges have emphasised the latitude to be applied in interpreting this standard. So much so, that the time has come to recognise that in this context the epithet 'fair' is now meaningless and misleading. Comment must be relevant to the facts to which it is addressed. It cannot be used as a cloak for mere invective. But the basis of our public life is that the crank, the enthusiast, may say what he honestly thinks as much as the reasonable person who sits on a jury.’
9 In this context, the ostensible attraction of drawing analogies between the degree and nature of content regulation applicable to the licensed broadcast media and the standards to be applied to future regulation of the content of the print media needs to be approached with some caution.
9.1 As the courts have repeatedly emphasised, audio-visual journalists have additional duties and responsibilities (going beyond those imposed on the print media) as a consequence of the more immediate, pervasive and powerful effect of the medium through which they choose to operate (Jersild v Denmark, §31; a point endorsed by Lord Bingham in R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15; [2008] 1 A.C. 1312, §30). As a consequence, the ECtHR has agreed that it is reasonable for national authorities:
‘... to be particularly wary of the potential for offence in the broadcasting context, such media being accepted by this Court and acknowledged by the applicant, as having a more immediate, invasive and powerful impact including... on the passive recipient.’
(Murphy v Ireland (2004) 38 EHRR 13, §74)
9.2 That greater degree of intrusion has been held to justify a level of content regulation which would otherwise be inappropriate (and a violation of Article 10) if the state sought to impose it in respect of any other media.
‘The power of the medium is the reason why television and radio broadcasts have been required to conform to standards of taste and decency which, in the case of any other medium, would nowadays be thought to be an unwarranted restriction on freedom of expression. The enforcement of such standards is a familiar feature of the cultural life of this country. And this fact has given rise to public expectations. The Broadcasting Standards Commission puts the point with great clarity in paragraph 2 of its Code on Standards (Codes of Guidance, June 1998):
‘There is an implied contract between the viewer, the listener and the broadcaster about the terms of admission to the home. The most frequent reason for viewers or listeners finding a particular item offensive is that it flouts their expectation of that contract—expectations about what sort of material should be broadcast at a certain time of day, on a particular channel and within a certain type of programme, or indeed whether it should be broadcast at all.’
Lord Hoffmann in R (ProLife Alliance) v BBC [2004] 1 AC 185, at 227-8 (§21)
[1] See in this regard the evidence given by Ed Richards and Colette Bowe on content regulation in the context of licensed broadcasting at D35(a.m.) 65:5 onwards.
[2] See e.g. the exchange between Mr Jay and Stephen Abell at D33(p.m.) 63:7
[3] §49