A few thoughts on press freedom

Herewith another endurance test, or perhaps a surefire remedy for insomnia.
The following is a speech I gave at a Waikato University seminar last July on free speech. I understand it will be published in due course as part of a report of the seminar proceedings, but I decided to post it here because I believe press freedom is an issue that doesn't get enough attention. I would like to thank the Law Faculty at the University of Waikato for the opportunity to speak.


I would like to start by asking you to answer a couple of simple questions by raising your hands. I would like to know how many of you normally read the Waikato Times or the New Zealand Herald each day. And how many of you would have listened to either Morning Report or Paul Holmes this morning. And how many would have watched the TV News had you been at home tonight.

[Blog readers: predictably, nearly all hands were raised.]

Pretty much as I thought. We take it for granted that as one of our rights in a free and open democracy, we are entitled to receive uncensored information about what happens in government, in the courts, in our city councils, in business and so on.

We take it as a given that our politicians will be grilled, often quite aggressively, on radio and TV. After all, that’s part of the process of accountability that we regard as crucial in an informed democracy. And we consider it unremarkable that commentators, columnists and bloggers are free to analyse and criticise the policies and actions of our leaders, often very scathingly. That’s part of the process of public debate by which we form our conclusions about who is most fit to govern us.

But we rarely pause to think that in enjoying these democratic rights, we are in a minority internationally. That is borne out very starkly by the latest annual survey of world press freedom by the Washington-based group Freedom House, which shows that New Zealanders are among the 18 percent of the world’s population who live in a country with a free press. That’s eighteen percent, not eight-zero percent. Forty percent of the world’s population live in countries that are rated as having a partly free press and 42 per cent live in countries where there is no press freedom.

Put another way, that means 82 percent of the world’s population don’t share the freedom that we enjoy as New Zealanders to be informed about matters of public interest and importance and to engage in the exchange of ideas and opinion that is crucial to an informed democracy. These people live in what the American journalist Walter Lippman called the invisible society, denied the truth about what is going on around them; denied the knowledge they need to empower themselves politically and economically.

I mention this because I think we need to be reminded constantly of how precious this freedom is. And it’s becoming more precious rather than less, because the Freedom House survey for 2008 shows that global press freedom was in decline last year rather than in the ascendancy.

The decline in press freedom occurred in supposedly democratic countries as well as authoritarian states and has gone on for six years, the greatest setbacks occurring in Russia and some of the former Soviet republics.

Now there are two ways we can respond to this survey. We can sit back smugly and compliment ourselves on being in the international elite – New Zealand, after all, is in the top 10 countries for press freedom, as it has been for many years. Or we can take it as a reminder of how precarious press freedom really is.

I would like to quote the American satirical newspaper columnist Art Buchwald. Buchwald wrote many years ago: “The people who attempt to do the same thing I am doing in 95 percent of the world are either in gulags, under house arrest or are jobless. The problem is that because we have a free press [Buchwald was talking about America here] people have no idea what it’s like to live in a country that doesn’t.”

I take the view that rights and freedoms that are taken for granted are rights and freedoms that can very easily slip away, or be taken away. And the fact is that although we do enjoy a very high degree of press freedom in New Zealand, it’s more fragile than most people realise.

We do not, for example, have a written constitution that enshrines press freedom in supreme law. In this we differ from many countries – most notably the United States, where press freedom is protected under the First Amendment to the Constitution.

I don’t think it necessarily matters a great deal that we don’t have a formal constitutional guarantee of press freedom. Even without it, we enjoy greater press freedom than America – at least according to Freedom House, which ranks the United States well below us on its international table. And it’s worth noting that some of the most repressive countries in the Freedom House rankings have written constitutions whose high and mighty statements about freedom of the press are flagrantly disregarded.

But what the lack of a written constitution does mean in New Zealand is that without the protection of supreme law, we have to be constantly vigilant against attacks on press freedom. These attacks occur more or less constantly and can come from any number of directions.

“Attacks” is possibly not the right word, because that implies the primary purpose is to hobble the press, when quite often that may only be a side-effect or unintended consequence. “Threats” may be a more appropriate word. But whatever terminology is used the effect is the same: to undermine the ability of the media to tell people what’s going on.

I will deal more specifically with some of these threats shortly. But first I would like to set out a brief history of press freedom in New Zealand, and also the legal and constitutional standing of the media as I understand it. In doing this I am conscious of the fact that I’m sharing the stage with some distinguished authorities on the law and our constitutional arrangements, and as a layman I expect to be challenged if I get anything wrong. [Blog readers: I wasn't. Perhaps my fellow speakers, who included Sir Geoffrey Palmer, were just being polite.]

The history of the press in New Zealand and its relationship with those in power has followed an erratic course. In the New Zealand of the 19th century, newspaper publishing was a feverish activity and in many towns a newspaper was one of the first businesses to be established, along with the pub and the general store. There was a huge appetite for information and a realisation that newspapers were essential for creating a sense of identity and cohesion in new communities.

Many of those early newspapers were intensely partisan and outspoken politically. The first decades of European settlement were marked by constant skirmishing between newspaper proprietors and the colonial authorities. Bear in mind that many of these early proprietors and editors had migrated from Britain, where democracy was stirring and with it a demand for information and free speech.

As both the newspaper industry and the organs of government matured, things settled down. Many of the more partisan papers went out of business, while those that were non-aligned politically – such as the New Zealand Herald and Wellington’s Evening Post – not only survived but prospered. (An exception to this pattern, incidentally, was The Dominion, which was set up in 1907 to oppose the Liberal Party government, and of course is still going strong today. But that’s a story in itself.)

As the 20th century progressed, the press generally became tamer and more respectful toward authority. One of the most shameful episodes in New Zealand newspaper history, I believe, was the imposition of fiercely undemocratic restrictions on what the press could publish during the 1951 waterfront dispute – restrictions which proprietors and editors seem to have accepted without protest.

Back then the press genuflected to those in power. David Lange commented in 1994 that prime ministers’ press conferences were once formal occasions where journalists would ask questions in a deferential manner. They considered themselves privileged to get whatever information the prime minister chose to give them. Helen Clark would probably agree that’s not the case now.

I think we have broadcasters like Brian Edwards, and later the enfant terrible Simon Walker, to thank for the fact that from the late 1960s onwards, the media showed a bit more steel. It was TV programmes like Gallery and Compass that established the principle that politicians were accountable and could be confronted with awkward questions. It was television that pushed back the barriers, and the newspapers, led by papers such as the Sunday Times under the editorship of the late Frank Haden, were emboldened enough to follow. But even as late as the 1980s, politicians like Sir Robert Muldoon were still doing their best to exert control over the media. Winston Peters is still trying, but obviously no one’s told him the game is up.

Today we have, I believe, a healthier and more balanced relationship between politicians and the media. Indeed some might say the pendulum has swung too far in the other direction, and that some media figures have too much power.

I’ve compressed 160 years of journalism into a few paragraphs here, but I could sum it up by saying the relationship between the media and government is constantly shifting and redefining itself. Part of the reason is that in New Zealand, there is only a very loose constitutional and legal framework within which the media operate.

As I said before, there is no written constitutional guarantee of press freedom. What we do have in New Zealand is a complex but rather ill-defined system of customs, conventions, traditions and common law principles which allow the press to operate freely, in recognition of the fact that an informed public is crucial to the functioning of an effective democracy. Much of this we have inherited from Britain, but we have tacked on some of our own additions, some of which I will come to shortly.

The most obvious and fundamental of these press freedoms is the right to observe and report Parliament, for which we can thank the battles waged by English editors and journalists in the 18th and 19th centuries. Interestingly enough, as I understand it, nowhere is the right of the media to report Parliament unequivocally set out in law. On the contrary, journalists sit in the Press Gallery at the pleasure of the Speaker, and any MP can put a motion demanding that they leave. That this doesn’t ever happen is just one of those conventions that has evolved in a haphazard and one might say uniquely eccentric English way.

The same is largely true of the courts. There’s nothing to say that judges have to put up with reporters in their courtrooms, and indeed judges have extraordinarily wide powers to suppress whatever they like. But fortunately they recognise that to command public confidence, the workings of the courts must be visible – or to put it another way, that justice must be seen to be done.

There’s a quotation that’s applicable here. I haven’t been able to find out who said it, but it hardly matters because its truth is self-evident. Whoever it was said that freedom of the press in the British tradition was “simply an idea – a remarkably powerful and enduring idea, but never a fact of law”.

The interesting thing about our constitutional arrangements is that despite the media being arguably as crucial to the functioning of democratic government as any of the “official” branches, its role remains ill-defined. Parliament, the government and the courts all have their roles and relationships spelled out and their powers and limitations understood. But to all intents and purposes the media seem virtually invisible in the constitutional sense.

In my slim book The Right To Know, published by the Newspaper Publishers Association in 2005, I put it this way:

“Though New Zealand has no written constitution, elaborate rules, precedents and protocols set out standards for the satisfactory conduct of public business. The press, though arguably as crucial to the functioning of democratic government as any of these institutions [meaning Parliament, the executive and the courts], stands outside these mechanisms. Its place at the constitutional dinner table is that of a guest who is not on the formal invitation list, but without whom the occasion would be incomplete.”

The reason the dinner would be incomplete without a bunch of grubby reporters sitting at a table in the corner is that democracy cannot make sense without some means of communicating to the public what these other branches of government are doing. Representative democracy demands that the public know what their representatives are up to, and it also depends on those representatives knowing what the public thinks. The news media provide the vital link in the democratic chain without which the public simply cannot engage in the political process.

It was presumably this that Edmund Burke had in mind when he made his famous statement that there were three estates in Parliament – meaning the church, the aristocracy and the commons – “but in the reporters’ gallery yonder, there sat a fourth estate more important than they all.”

I’m not trying to portray journalists as noble or saintly. No one who knows any journalists would fall for that. But I would say that in a sense, they’re doing God’s work.

Neither am I trying to make an argument for a more robust constitutional protection of press freedom in New Zealand, because the extraordinary thing is that it works pretty well the way it is. What I am pointing out is that it’s fragile, and can easily be put at risk. But when threats to press freedom arise, it’s often only the press itself that opposes them, and invariably when it does so it’s accused of acting out of self-interest. That suggests to me that there is not a wide enough understanding or appreciation of how a free press and an open, transparent democracy benefits us all. It’s not ultimately about the right of media barons to have more power or make more money; it’s about the public right to know.

I mentioned earlier that New Zealand has tacked a couple of its own additions on to the constitutional arrangements we acquired from Britain. I would like to touch on these now, because they suggest that notwithstanding what I have just said, Parliament at times has demonstrated a very strong commitment to openness and press freedom.

The Official Information Act of 1982 was a milestone, overturning a long history of official secrecy. Unfortunately, although the Act’s purpose was noble, its full potential hasn’t been realised because secrecy remains the default setting of many bureaucrats and politicians, at local as well as central government level, and there are too many ways of negating or undermining the intent of the legislation. Still, we’re far better off with it than without it.

Another groundbreaking statute, although its full significance possibly wasn’t grasped at the time it was enacted, was the Bill of Rights Act of 1990, for which Sir Geoffrey Palmer can take much of the credit. Whereas the Official Information Act could be said to have failed to live up to its promise, the reverse is true of the Bill of Rights Act. Its impact has arguably been greater and wider than was anticipated.

The crucial part of the Bill of Rights Act, in so far as press freedom is concerned, is Section 14, which holds that “everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and opinion of any kind and in any form”. It also says that “the rights and freedoms contained in the Act may be subject only to such reasonable limits … as can be demonstrably justified in a free and democratic society”.

Astonishingly, it was the first time these fundamental democratic precepts had been enshrined in New Zealand law. And though the Act does not have the status of supreme law, meaning it could theoretically be overturned by a simple parliamentary majority, it has had a far-reaching impact on media freedom and freedom of expression. Canterbury University media law authority Ursula Cheer put it nicely when she said the Act has allowed judges to breathe life into our rights – even those rights that existed beforehand.

Being a curmudgeonly type, I would like to finish on a negative note. I want to return to some of those threats against press freedom and transparency that I referred to much earlier in my speech.

These take multiple forms and arise constantly. They are like the hydra of Greek mythology: slice off one head, and two others will grow in its place. Some of these threats arise from initiatives that are well-intentioned but wrong-headed; others are more malevolent in their purpose. Some target the media specifically; others pose broader threats to the right to obtain and exchange information and ideas. I will touch briefly on several.

Suppression of names and proceedings in courts is an issue that never seems to go away. It is antithetical to openness and the right to know. Suppression is not so much an issue at High Court level, where there have been some emphatic rulings about the importance of transparency, but it’s rampant in the District Courts, where some judges now seem to regard name suppression – at least on an accused person’s first appearance – as the norm rather than the exception.

Even in the High Court, where judges should know better, there have been cases of blanket suppression – and I mean blanket, even to the point where no one was allowed to disclose that proceedings were taking place, still less the detail of them. I know I would feel extremely uncomfortable if I had to defend myself in proceedings that no one outside the courtroom was even allowed to know about, but that was the Kafka-esque position the Foxton author and journalist Anne Hunt found herself in several years ago.

There is another form of suppression that is perhaps less obvious but no less insidious, and that is the continuing tendency for public business to be conducted behind closed doors. In many municipalities it has become routine for the press to be shut out of important council deliberations, so vital decisions are made about matters of public interest without the press being able to inform the public how or why those decisions were arrived at.

At the legislative level, threats to press freedom can come out of nowhere. An example was the sneaky attempt in 2001 to introduce a criminal defamation clause into an electoral reform bill. I won’t go into the detail but the effect, as the government’s own legal advisers pointed out, would have been to stifle public political debate in forums such as newspaper correspondence columns and radio talkback shows.

In a similar vein we have recently seen the fiasco of the Electoral Finance Act, which leaves the news media relatively untouched but has woven a tangle of legal red tape around the most basic of democratic rights, the right to express a political opinion.

Regulatory creep is another issue. There has recently been a storm of controversy over a public health bill that would give the Director-General of Health – a bureaucrat, not an elected politician – power to impose regulations controlling the advertising and marketing of certain foods. Once you allow that level of control, it’s only a relatively short step to suggesting that wine columns and restaurant reviews should be banned on the basis that they are injurious to the public health.

There is a relatively new but very real tension between press freedom and personal privacy. Professor John Burrows QC, a member of the Law Commission and a leading authority on media law, describes privacy as the “new kid on the legal block”. There are circumstances in which privacy issues can clash head-on with freedom of information, usually where public figures are concerned, and as John Burrows has said, these competing interests can sometimes be hard to reconcile. This is an area of the law that is still evolving and it’s hard to predict how it’s going to pan out.

Compared with newspapers and television overseas, I think the New Zealand news media have been generally respectful of personal privacy and for the most part have no desire to pry gratuitously into people’s private lives. There is, for example, a long-standing convention that politicians’ personal lives are off-limits unless they do something that reflects on their ability to do their job or exposes them as hypocrites. But these long-standing arrangements are coming under pressure as a result of a celebrity culture that feeds on the private lives of public people. One of the problems is that many public figures welcome and even encourage media attention as long as it’s favourable, but quickly call in the lawyers when the media expose the murkier side of their lives. There have been examples of this overseas, such as the celebrated case involving the supermodel Naomi Campbell, and it’s only a matter of time before similar things happen here.

We have also seen privacy concerns intrude into other areas of the law, with serious implications not just for freedom of the press, but for freedom of information in the broadest sense. An example was the government’s attempt last year to close off public access to the births, deaths and marriages register. The ostensible purpose was to prevent identity theft, but the real reason, judging by an explanatory note attached to the Bill when it came before Parliament, was that public registers were “inappropriate in light of current attitudes toward privacy and protection of personal information”. Whose attitudes? you might ask. Certainly not the public’s, because the public was never consulted. The Bill was hatched behind closed doors by public servants who decided the public had to be protected from information about itself. Here you get a coming together of the old bureaucratic obsession with secrecy and the more recent preoccupation with personal privacy. It’s a potent combination with dangerous implications for the public’s right to know.

Freedom of expression, which is indivisible from freedom of the press, is under constant attack. The Danish cartoons episode, in which newspaper editors were subjected to a gang-up by powerful figures in government and the bureaucracy, was a vivid demonstration of how fragile free speech is in New Zealand. The courts of Britain and New Zealand, to their great credit, have a long history of upholding the right to publish material that offends some people. Far from expressing censorious disapproval, Helen Clark should have been defending the right of those editors to publish the cartoons even if she disagreed with their decision.

For much the same reason I strongly disapproved of the government’s ban on the Holocaust revisionist David Irving. I believe that our liberal democracy is robust enough to cope with the views of cranks and nutters, and that by driving their views underground all you do is risk giving them a sort of fugitive mystique. I love the resounding call of the poet Milton: “Let truth and falsehood grapple; whoever knew truth put to the worse, in a free and open encounter?”

More recently I have seen letters in the papers exhorting editors not to publish the views of climate change sceptics. It seems that for some people, free speech is fine only as long as it happens to express views they agree with.

I could go on at some length about other forms of interference in press freedom – of the way Official Information Act requests are routinely obstructed, for example, or Parliament’s stubborn refusal to allow cameras to show what really goes on there. But time doesn’t permit it.

I don’t want to over-dramatise the threats to press freedom in New Zealand. Editors and journalists here don’t risk murder, torture or imprisonment as they do in some countries. You don’t have to get a government licence to publish a paper and the government doesn’t seize your printing press if you say something it doesn’t like. Journalists don’t get harassed and intimidated as they do in Fiji and they aren’t threatened with imprisonment if they refuse to disclose confidential sources, which has happened only recently in Australia. New Zealanders are free to seek and obtain information from more sources than people in North Korea, Cuba or the Sudan could ever dream about. But we will enjoy these rights only as long as we value them for the precious freedoms they are. The day we become complacent about press freedom is the day it becomes vulnerable to attack.

I would like to finish with two thoughts. The first is that freedom of the press is about much more than freedom of the press. Cynics like to dismiss press freedom as being solely about the freedom of media owners to make money. In fact it is about people’s right to know, their right to live in an open society, their right to engage in the decision-making process and to participate freely in debate about matters of public interest.

My other final point is that I’m not here to defend everything the news media do. We could argue all night about whether the press performs its functions properly and responsibly. As a journalist I cringe with embarrassment at some of the stuff I see in the papers and on the TV news. But I leave you with a quotation by the French author and philosopher Albert Camus, who said: “A free press can of course be good or bad, but most certainly without freedom it will never be anything but bad.”