Independent regulation and dog whistlers
28 October 2016
Kelvin MacKenzie’s article on Fatima Manji presenting the Channel 4 news item on the Nice terrorist attack was a masterpiece in testing the boundaries of a free press.Free speech is something of a myth. There are many laws that govern what we can say to whom. We are not free to say whatever we like. Famously we are not allowed to shout fire in a crowded theatre (unless there is one).
We are now also prohibited from inciting racial and (in England and Wales) religious hatred. The 2006 law against inciting religious hatred was controversial at the time. The law says that:
A person who uses threatening words or behaviour, or displays any written material which is threatening, is guilty of an offence if he intends thereby to stir up religious hatred.
But goes on to say:
Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.
So you can ridicule and and insult a religion, but you must not stir up hatred against its adherents.
MacKenzie was not prosecuted in court. His article was explicit that he was not blaming Fatima Manji herself, for sticking “one in the eye to the ordinary viewer who looks at the hijab as a sign of the slavery of Muslim women by a male-dominated and clearly violent religion”. Rather it was the insensitivity of the editor who had not removed her from the roster.
Manji complained to IPSO, the regulator established by the newspapers, including the Sun, which is represented on the board by Trevor Kavanagh. Her complaint said that The Sun had breached the following editors code provisions:
1. Accuracy, for describing Islam as a violent religion
The harassment clause in the editors code seems clearly directed at the intrusive behaviour of reporters, and does not seem relevant in this case.
Is it inaccurate to say that Islam is a violent religion? I would say it is grossly inaccurate, but would have to concede that it is a matter of debate, and it is therefore opinion, and not subject to the code.
The discrimination clause says that journalists must avoid prejudicial or pejorative reference to an individual’s religion. The article surely makes pejorative and prejudicial references to Islam, describing it as ‘violent’ and suggesting that we are ‘entitled to have concerns about what is beating in their religious hearts’. Since this is a generalisation, it cannot be said to be explicitly prejudicial to Manji in the way that saying ‘we know that violence beats in her heart because she is a Muslim’ would.
As the IPSO judgement says, the code does not constrain “the freedom of the press to engage in discussion, criticism and debate about religious ideas and practices,” just as the law does not restrict “expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents”.
MacKenzie has deftly tiptoed through the gaps in the law and the code carefully checking he is on safe ground before tooting on his dog whistle. Certainly you do not need to be a dog to hear it. I have little doubt that if he could get away with it, he would make all kinds of more explicit incitements of hatred. He is a typical shock-jock, and pushing the boundaries is how to get attention, which after all is his job.
The new regulator Impress is still drafting its code of standards, but they are based on the Editors Code and it seems to me very unlikely that Impress would have come to a different judgement.
Neither law nor regulation can prohibit dog whistles. That is what dog whistles are. They are signals that we can all identify, but that the law and regulations cannot. The best we can hope for is to make him tiptoe.
So how will the new independent regulator make things better?
For one thing, people are likely to be more trusting of the regulator’s decisions if they know that MacKenzie’s partner in crime Trevor Kavanagh is not sitting on the board, and that the regulator is not under the full control of the newspaper proprietors whose primary concern is to protect their own businesses.
But perhaps more importantly, one reason the proprietors so fear independent regulation is because they know that their business models are based on breaking the editors’ code. Apart from the accuracy and weak discrimination clauses mentioned above, the code is relatively silent on what cannot be published. There are clauses about identifying children and victims, and about private information, but most of the code is concerned with the practices of information gathering. These rules are broken all the time, as was demonstrated during the Leveson Inquiry and related court cases.
When the code is not enforced, it is economically rational to repeatedly break the rules, because following the rules make it more costly to produce the newspaper. And since competition is fierce, any extra cost is an existential threat. Without enforcement, there is constant pressure to diverge further and further from the code. If your competitors are getting away with cutting corners, you cannot afford not to cut them yourself. It’s a classic race to the bottom.
But why don’t the proprietors want real regulation then? Good question. That’s a long story for another post.
My hope is that real regulation would change the culture of tabloid newsrooms. Journalists would be reoriented towards good stories with a genuine public interest. (The code permits these clauses to be broken when there is a public interest justification.) They would recover their reputations as decent public servants, and who knows, perhaps the whole tone of the tabloid press would become gradually less nasty.