In the last two decades or so, the growing reach of the Internet and exponential growth in related mobile communications technology has brought seismic changes to the way in which information is disseminated and views exchanged. News generation has become decentralised – once newspapers, TV and radio stations fed the news to their consumers, but now anyone can be a journalist by writing or posting videos on his blog or social media account. Thus, in the current context, it is my view that the only meaningful definition of “the press” would be all forms of media old and new seen as a collective whole. Today social media often has greater influence over the public than traditional media, and so any discussion of the regulation of information cannot exclude social media. For this essay, desirability shall be defined in terms of both positive practical outcomes and ethical considerations. I hold the position that the regulation of the press by means of rules or restrictions is desirable only insofar as it provides a reasonable balance between conflicting human rights and aspects of the public interest, and only if regulation is carried out by truly independent entities.
At times journalists and media outlets, in their zeal to obtain information and gain an edge over their competitors, carry out actions that are illegal, unethical or both. This can lead to the violation of the rights of individuals and lower the moral character of a society. A prominent example is a phone-hacking scandal that brought down British tabloid The News of the World in 2011. Reporters from the paper were found to have hacked the phones of celebrities, politicians and members of the British royal family. What shocked the country and world, even more, was the revelation that the newspaper had even intruded into the phones of murdered schoolgirl Milly Dowler and victims of the 7 July 2005 terror attacks on the London Underground train network. The freedom of the press cannot be allowed to extend so far that it eviscerates the fundamental right of individuals to privacy, which is also integral to a person’s dignity. For a society to enjoy dignity and happiness, a reasonable balance needs to be struck between rights and freedoms that conflict with one another. Furthermore, the total lack of respect shown by the journalists for the deceased was also appalling and, if left unchecked, would cause the moral degradation of society. Thus regulations to bar the press from carrying out such aggressive and unethical information-gathering activities are not only necessary but desirable as well.
Another human right that can be encroached upon by excessive press freedom would be the right to safety. Media outlets that choose to incite violence can bring about large-scale violence and harm to life and limb. For this reason, many countries have restrictions on such content. For instance, the United States prohibits speech that is designed to incite immediate violence or unlawful activity. In a court decision, an American judge likened such speech to shouting “fire” in a crowded theatre, creating a clear and present danger. In another case, the Court ruled that such speech has no social value and can thus be curtailed. I concur with the reasoning of the American courts and argue that the right of the press to express itself cannot override the right of the individual to safety, and therefore regulation of the media in this regard is to be welcomed. Having said that, one should note that just as no right is absolute, the circumscription of any right may also not hold water under some circumstances. For instance, if a newspaper incites violence to overthrow an egregiously unjust, tyrannical and murderous regime, it may be justifiable for the greater good of the country and of humanity. In prosecuting such a case, it is hoped that an impartial court would take the context and unique moral and legal calculus into due consideration.
Constraints on press freedom can also be warranted by national security considerations, an important facet of the public interest. It is reasonable to sacrifice a limited amount of press freedom in order to ensure national security, which is vital to the very survival of the state – without which no human rights or happiness is even possible. While the First Amendment of the US Constitution states that “Congress shall make no law… abridging the freedom of speech, or of the press”, the Supreme Court has also recognised that in certain situations, the government is allowed to limit the liberty of the press. One of these is when a confidential source violates federal law in leaking information to the press. In such a case, the reporter can be subpoenaed and be required to name her source. In 2005, New York Times reporter Judith Miller served 85 days in jail for contempt of court when she refused to disclose the source who leaked the identity of undercover Central Intelligence Agency agent Valerie Plame. Except in the most extraordinary of circumstances, for instance, if it was crucial to violate federal secrecy laws to protect the survival of the state or to correct a gross injustice against the people, journalists cannot be allowed to undermine national security in the name of press freedom. In recent times, a particularly notable example of the media undermining (or being used to undermine) national security is the alleged Russian manipulation of the US presidential election in 2016 by spreading fake news on Facebook using highly sophisticated programs such as “bots” or autonomous programs designed to behave like humans online. Such disinformation campaigns, if not regulated, can undermine not only national security but even the sovereignty of a state itself.
Certainly however, legitimate concerns are raised by opponents of press regulation that it can be misused by governments to stifle criticism, dissent and even political opposition. Differing views exist as to what the role of the media should be. In western nations, the media is widely recognised as the fourth estate or fourth power, the latter term referring to an unofficial fourth branch of government in addition to the executive, legislative and judiciary. In this paradigm the media act as a public check on the official branches of government. In other countries, however, the role of the media is defined very differently. For instance in Singapore, the founding Prime Minister Lee Kuan Yew delineated the media’s function as providing “nation-building journalism”: assisting the government in implementing policies and the general governance of the country. In this school of thought, the press should faithfully inform the masses about the work of the government. I subscribe to the former conception of the media as the fourth power, as it is crucial to have alternative sources of information, in particular by professional journalists or truth-seekers, in order for the people to make wise choices in the exercise of their political choices. For this reason, I am sympathetic to the view that press regulation can be used as a tool of oppression or partisan political interests by governments. It is conceivable, for instance, that a government-controlled regulator could fabricate charges and allegations against a newspaper or blog that is critical of it, just to silence it. However, the need for press regulation as outlined earlier is so compelling that it overrides concerns of governmental abuse, the problem of which can be resolved or at least mitigated by having strongly independent regulatory bodies which are not allied to the government or any political party.
In conclusion, it is my conviction that it is sensible and wise to have a rules-based system to govern the press, but only to the extent that a judicious balance is struck between competing rights and conflicting aspects of the public interest, and only if the regulation is carried out by a body that is nonpartisan and independent of the government. As with most other issues of society, a delicate balance needs to be struck through a thorough engagement between all stakeholders – taking into account the constant changes in the landscape of media, technology, politics, culture and society. While a vibrant, robust press is vital to a healthy democracy and good governance, we must also hold the fourth estate to account and ensure that it remains a responsible and constructive actor in society.
