14 May 1998 - 16 May 1998

The Media and the Law

Chair: Justice Sandra Day O’Connor

As we assembled for the conference we were keenly aware that the interface between the media and the law - each a vital component of healthy polities, yet often in tension - had in recent times generated, and would continue to generate, a rich variety of stresses and frictions. We foresaw also that there would be significant divergence between the approach of United States participants, deeply imbued with the letter and spirit of the First Amendment, and that of most others.  So indeed our debate turned out;  but we found amid the vivid contrasts more connecting and even unifying strands than we might have expected.

It was common ground that free and effective media were a cardinal need for the working of sound democracy and civil society, at “emergent” phases at least as much as in maturity;  they were an essential mechanism of challenge, information, accountability and adjustment in ways which no other structures could rival.  It followed that the onus of proof in any proposal for constraining them, whether by law or otherwise, must lie very heavily upon the would-be constrainer, and that the risks and discomforts which their working continually entailed were in principle a price necessary to be paid.  That was true in especial degree of speech in the political and social realms;  some of us were ready to see balances struck slightly differently in respect of “commercial” speech (such as advertising) and, more warily, of “artistic” speech.

This powerful commitment to media freedom nevertheless sat at times uneasily in our discussion alongside a sense - particularly marked, it seemed, in respect of Britain - that much of media content and method had become in several ways increasingly distasteful and sometimes downright objectionable.  The tabloid dailies were frequently cited to this effect, though voices were to be heard suggesting that the tabloid-broadsheet distinction was less sharp than of old, with commercially-driven “dumbing-down” widely taking increasing hold.  Serious foreign news, for example, was less and less carried, and trivialisation, cheap xenophobia and (most markedly) aggressive personal intrusion were more and more frequent - horror stories were readily to be found in almost every country.  But we did acknowledge that if blame for all this was indeed apt, it must lie in large measure at society’s own door; no-one was compelled to buy a tabloid newspaper.

That said, most - albeit definitely not all - of us were disposed to believe that some sorts of excess ought to be curbed - notably as protection of citizens from one another, not merely to facilitate public functions and responsibilities of the state.  Obscenity, we acknowledged, might well be a lost cause amid social change and definitional difficulty;  if children needed to be protected, that must be primarily a matter for control - by technical means or otherwise - at the point of delivery.  Among other possible grounds of constraint, we viewed “public interest” in any general sense as hopelessly imprecise and indeed likely to be pernicious, though many of us were ready to accept considerations of national security (over-claimed though they often were) as in limited circumstances legitimate barriers, for example in respect of the precautionary deployment of force against terrorism or the conduct of military operations.  Even there, though, we preferred to look primarily toward informed editorial cooperation rather than sweeping legal constraint.

We found privacy more difficult.  Subjective and elusive though the concept was (and despite our reluctance to see it exploited as a shield for bad behaviour by public figures) we were sympathetic to the idea that the individual was entitled to some protection.  Even in the First-Amendment environment of the United States, we were reminded, there were significant instruments of such protection available under the law.  We noted however considerable differences between countries about what was or was not to be viewed as intolerable;  several of us were surprised to hear of one national setting where there existed a right to control almost any use of one’s own image, as in a photograph.

Cultural difference was perhaps at its most pronounced in respect of content control, notably in respect of broadcasting.  Non-US countries often maintained significant powers to direct or shape its content by one means or another, for example in respect of broad news coverage, minority-arts provision or political-campaigning balance.  Some believed broadcasting to be of such power, immediacy and political leverage (and the off-button on its own so incomplete a protection) that governments must undertake some ring-holding;  others argued powerfully that law-based powers of such kinds belonged to a past age where broadcasting channels were a scarce resource.

In this and other respects the impact of new technology infused almost all our themes.  Besides the massive upsurge in channel availability, it arguably dissipated the risks of ownership concentration;  but it also made any idea of content exclusion - even in respect of plainly-undesirable material such as child pornography or race-hate propaganda - increasingly hard to implement within national boundaries;  and though the maintenance of intellectual-property-rights régimes showed that legal constraint was not to be despaired of, it was not easy to see how controls of any kind could long be sustained effectively at any level more limiting than that of the most liberal régime existing anywhere.  We noted also that technology-driven convergence would accelerate the breakdown of compartmentalisation between different media forms;  and we heard it said in this regard that digital broadcasting might soon prove a swifter and more powerful spreader of information than the Internet itself.

Some participants were largely unconcerned at such recitals of difficulty about attempts at legal restraint;  the market was often rough, no doubt, but any regulation was ultimately based upon some élite’s concept of value and to be mistrusted accordingly.  Nevertheless, even the most libertarian acknowledged that boundaries must somewhere exist, as in the US prohibition of campaigning for the President’s assassination;  and - so the middle-of-the-roaders argued - once the door to limitation was thus ajar debate about trade-off between risks, and about line-drawing, must become legitimate.  Moreover, said vigorous opinions, the fact was that many “ordinary” people in most countries disliked a good deal of what currently happened;  and the media must accordingly face the reality of a public demand that would sooner or later, if not reasonably responded to, find political outlet in new constraints.  There were already sporadic signs of greater media responsiveness, for example in more regular acceptance, without legal compulsion, of duty-to-correct or right-of-reply;  but it was not clear that the media - especially newspapers - had yet done enough.

If there was to be more systematic constraint, what should be its mechanisms?  National-cultural differences were again to the fore : there was for example a deep US mistrust of any provision for pre-publication restraint, as likely to benefit the undeserving;  and a counter-view that the prospect of ex post facto remedy was inadequate when manifest mischief not reversible by subsequent penalty was known to be imminent.  What were the chances of effective media self-regulation, for example by the establishment of solid standards of professional behaviour?  Poor, most of us feared.  We heard that the non-statutory Press Complaints Commission in Britain had probably done something to hold back the tide of bad press behaviour, and it was suggested that it might usefully do more yet, for example by the positive development of codes of good practice.  Such devices, even buttressed by concepts of shaming, were however not proof (and especially without the existence or credible threat of ultimate legal underpinning scarcely could be) against editorial resolve to seize perceived competitive advantage;  and journalism as a whole was largely lacking in the characteristics, motivations, shared identity or consensus which in other fields had generated tolerably effective systems of professional self-regulation.  Given this, we noted briefly, the media might be unwise to assume the permanent acceptance, without offsetting recognition of special responsibility, of claims to special media privilege, as in the absolute right to withhold the identity of sources and in exemption from aspects of data-protection law.

We were reminded that the media had their own grievances about current conditions;  most notably, in some countries defamation laws were (so many thought) both over-burdensome - and thus damaging to properly-vigorous investigative or critical journalism - and capricious in their outcome.  Might there be scope, for example in Britain, for a new legislative bargain trading abatement in this regard for some broadening and tightening of protections for privacy?  Rather reluctantly, we doubted this;  the worst media offenders were typically the least interested in such a bargain, and there was no sign of Governmental readiness to risk the barrage of criticism which the unwilling media would bring down on any attempt to carry it through.  Against that background, and despite the arguments in principle - often shared by the judiciary - for having any new defences of privacy shaped by democratically-debated statute rather than developed incrementally by case-law in the courts, it seemed likely that the latter method would often have to remain the prime instrument, and one to which the further application of human-rights law might in Europe (to media displeasure) give increasing play.

We exchanged ideas about the interaction between the media and the court system itself;  in particular, should television be allowed into the courtroom?  The O J Simpson trial had disconcerted many non-US observers;  but it was perhaps too special a case to found general conclusions, and there was anyway no basis for supposing that TV presence had in the outcome caused injustice.  It was argued, more broadly, that US experience of camera presence - still subject to judicial discretion - did not bear out fears of malign influence upon fair process;  and there was evident value in giving publics an accurate and unglamorised insight into courtroom realities.  Misgiving however continued to be expressed from other countries that (variously) the publicity might deter victims from coming forward;  might create “grandstanding” temptations for participants;  might distract witnesses, or affect the straightforward candour of evidence;  might facilitate intimidation;  or might lead to unfair public “pre-conviction” of defendants.  And, suggested the uneasy, practical experiment to test these suspicions would not readily be reversible.  The cultures, in brief, remained some distance apart. 

Should the law bear in special ways, reaching beyond normal anti-trust safeguards, upon media ownership and competition?  We noted in passing an argument that competition was no guarantor of healthy diversity of content or source, or of standards;  in some fields it might indeed prompt a rush to the bottom of the market.  We reached however no clear consensus about media-peculiar controls, for example related to alleged predatory pricing or cross-subsidy.  We agreed that excessive concentration of ownership ought to be prevented;  but there were different views about whether it had arisen already on any important scale.

The basic cultural divide, albeit better illuminated at the end than at the start of our conference, remained evident throughout.  We might perhaps have illuminated it further could we have plumbed more deeply alternative views about the prime core value in freedom of public speech - effective democratic challenge, or individual self-expression?  But we did seem to agree that there were no absolutes, and that our exchanges had been essentially about different habits of social and political judgement, mostly rooted in different histories, about where and how inescapable trade-offs of risk and advantage should be arrived at.

This report reflects the Director’s personal impressions of the conference. No participant is in any way committed to its content or expression.

Chairman: Justice Sandra Day O’Connor
Justice of the Supreme Court of the United States


The Hon Mr Justice Frank Iacobucci
A Judge of the Supreme Court of Canada
Mr M David Lepofsky
Counsel, Crown Law Office, Ministry of Attorney General, Ontario
Mr Roger D McConchie
Litigation Partner, Ladner Downs, Barristers & Solicitors, Vancouver

Dr Eckhard Bremer
Attorney-at-Law, Berlin
Professor Dr Georgios Gounalakis
Professor of Media Law, Private Law, International Private Law and Comparative Law, University of Marburg

Dr Miguel Herrero y Rodríguez de Miñón

Professor Eric Barendt
Goodman Professor of Media Law and Vice-Dean, University College London
Mr David Bell
Chairman, Financial Times
Lady Browne-Wilkinson
Solicitor;  Member, Press Complaints Commission
The Rt Hon Lord Browne-Wilkinson
Life Peer;  Lord of Appeal in Ordinary
Mr Martin Eaton CMG
Deputy Legal Adviser, Foreign & Commonwealth Office
Mr Philip Harding
Controller of Editorial Policy, BBC
Mr Simon Jenkins
Columnist (Editor, 1990-92), The Times
Lord Lester of Herne Hill QC
Life Peer (Liberal Democrat);  President, Interights
The Rt Hon Lord Lloyd of Berwick DL
Life Peer;  Lord of Appeal in Ordinary
Lord McIntosh of Haringey
Life Peer (Labour);  Deputy Government Chief Whip, House of Lords
Sir Derek Oulton GCB QC
Barrister-at-Law;  Life Fellow, Magdalene College, Cambridge
Mr Steve Reardon
Government Information Service
Mr Joshua Rozenberg
Legal and Constitutional Affairs Correspondent, BBC News
Mr Alan Rusbridger
Editor, The Guardian
Mr Stephen Silber QC
Criminal Commisioner, The Law Commission
Baroness Smith of Gilmorehill DL
Life Peer (Labour);  Member, Press Complaints Commission
Mr David Walker
Chief Leader Writer, The Independent
The Rt Hon Lord Windlesham CVO PC
Principal, Brasenose College, Oxford
Mr Hugo Young
Political Columnist, The Guardian;  Chairman, Scott Trust

Mr Bruce D Collins
Vice President and General Counsel, C-SPAN, Washington DC
Mr Edward Felsenthal
Supreme Court Correspondent, The Wall Street Journal
Professor A E Dick Howard
White Burkett Miller Professor of Law and Public Affairs, University of Virginia School of Law
Mr Don Howarth
Partner, Howarth & Smith, Attorneys at Law, Los Angeles
Ms Jane E Kirtley
Executive Director, The Reporters Committee for Freedom of the Press
Ms Linda Lightfoot
Executive Editor, The Advocate, Baton Rouge, Louisiana
Ms Suzelle M Smith
Partner, Howarth & Smith, Attorneys at Law, Los Angeles
Dean Sanford J Ungar
Dean, School of Communication, American University, Washington DC

Mr David Manasian
Legal Affairs Correspondent, The Economist