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Date
30 October 2012

Mishcon Thinks: Freedom of Speech and Privacy

In the first of these films Deputy Chairman Anthony Julius is in conversation with broadcaster Katie Derham on the subjects of privacy and freedom of speech – as well as the inherent tensions between the two.

Transcript

Mishcon Thinks:  Freedom of Speech and Privacy

Katie Derham

Anthony Julius, Deputy Chairman of Mishcon de Reya.  What is going to change for journalists and for individuals in terms of the new balance between privacy and freedom of speech?

Anthony Julius
Deputy Chairman

I don’t think there will be very much change.  I think the change has been in the coverage of the misconduct.  I think the changes in the legal framework will be minor and probably unnoticeable.

Katie Derham

Of course arguably the legal framework ought to be adequate but has not been enforced.

Anthony Julius
Deputy Chairman

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

Katie Derham

We pride ourselves in the UK of living in a very free society, the freedom of speech is king especially when one looks at other states; China, Syria, Libya.  Do you think that has been affected in any way by the revelations of the Leveson Inquiry?

Anthony Julius
Deputy Chairman

Well I don’t think we live in a society which freedom of speech is king.  I think our society is much more heavily regulated than America for example.  I think we still don’t have a freedom of speech culture in the way in which America does.  So what we have instead is a society in which there is a patchy and rather chaotic state of affairs with their bits of freedom, restrictions and abuses of the law.  In other words there are some things we can do, there are other things we can’t do, why we can do those things and can’t do those other things, there’s never been a proper subject of any inquiry and while all of that is going on people are disregarding the rules anyway.

Katie Derham

Can I just argue, to give some examples of the kind of areas in which you feel we don’t have any freedom of speech.

Anthony Julius
Deputy Chairman

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

Katie Derham

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

Anthony Julius
Deputy Chairman

Can you say, can you say something for example which is offensive about the founder of a particular religion?

Katie Derham

As long as I am not inciting anybody to violence I can.

Anthony Julius
Deputy Chairman

Well, I am not sure that’s right.  I’m not sure that’s right because I think that there would be extreme concern on the part of the editor and the publishers that there may be approached by the Police for fear of the letter being regarded as a provocation, there may also be considerable concern by the editor, the publisher, the proprietors that regardless of Police interest it maybe that the letter would provoke some unwelcome civil disturbance of a targeted nature or worse even and so there may be an element of self-censorship involved.  When ones understanding, when one is trying to understand the extent of freedom in this society it is critical not to overlook the element of self-censorship which is a significant issue I think post Salman Rushdie.

Katie Derham

I think many people would agree we live in a complex world were pragmatism often overrules editorial ideologic perhaps, but we there is, we do still live and work in a world where investigative journalism and the public interest is supported.

Anthony Julius
Deputy Chairman

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

Katie Derham

How are you going to, or how do you think that we will be able to ensure that good behaviour is maintained?

Anthony Julius
Deputy Chairman

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

Katie Derham

And yet you have at Mishcon de Reya suggested that perhaps an in-house ethicist at media organisations could be an interesting new appointment.  How would that work?

Anthony Julius
Deputy Chairman

There’s a kind of pedagogic aspect to this I suppose which is not improving people, but allowing them to actually better understand what they are doing if they are amenable to that.  We think it would be a good idea for major news organisations to have an ethicist, somebody with a professional obligation to consider the ethical issues that arise in the writing of journalism available to journalists as part of the writing and indeed the investigative process.  Rather like ethicists exist now in hospitals and elsewhere to help professionals do their job properly.  I am entirely sceptical about anyone taking us up on that suggestion even though it was championed by the former Editor of the Daily Telegraph, Will Lewis when he gave his evidence to the Leveson Inquiry.

Katie Derham

He also suggested that if you gave somebody an economic motivation to behave well then it has more chance of it being imposed.  Could you expand on that a little?

Anthony Julius
Deputy Chairman

Yes.  Well the idea is that there should be a triangular agreement between the Regulator, the newspapers and advertisers that an attractive discounted tariff for advertising would be available to newspapers that agree to conform to certain standards.

Katie Derham

If that is the case that there will be frankly some pretty mucky, grubby behaviour by journalists regardless of what Leveson or anybody else suggests.  Where does that leave us as the individual, how can we protect ourselves from that behaviour?

Anthony Julius
Deputy Chairman

Well this is another thing of course, the question of the general quality of journalism and the way in which readers relate to it is one thing, but the question of the rights of the subjects of those stories is another thing.  How to we protect ourselves against gross intrusions into our privacy, it’s partly a question of technology and it’s partly a question of statutory protection and ultimately it’s a question of sanction.

Katie Derham

Do you feel there is a move to try and change the legal landscape to keep pace with these technological advances?

Anthony Julius
Deputy Chairman

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

Mishcon de Reya