Online only: Commentary from the final day of the Oxford Literary Festival
“The single greatest freedom in Britain today”, asserts John Kampfner, “is the freedom to make and spend your money.” For a moment I’m wondering if I haven’t stumbled into ‘The Economy: what next?’ debate, scheduled for end of play on Day Two of the Oxford Literary festival, rather than a discussion on the state of free speech. But since blatant Mamonian poetics are about as taboo as claiming Josef Fritzl was just a grossly misunderstood man these days, I realise that Kampfner’s provoking our inner offence monitors merely illustrates his point – from our oppressive libel laws, to a “shades of grey” style censorship scuppering artistic freedom, our freedom of expression, he warns us, is being suffocated by a kind of “vacuous conformism”, with self-censorship the most insidious, masochistic form of all.
In the week that the Orwell Prize for journalism announces its long list of nominees, the Oxford Literary festival has woven a robust and sizeable micro-programme of events on matters of censorship and freedom of the press into the schedule. In this opener, John Kampfner, Chief Executive of Index on Censorship is joined by the Observer’s Catherine Bennett, and Geoffrey Robertson QC (who has written for Standpoint), to debate the extent of what appears to be an ever-tightening chokehold on our public freedom of expression.
Each speaker is invited to give a ten minute introduction in which to establish their position. Kampfner’s is as above. Then Catherine Bennett regales a list of some of the public figures that have been chastised to silence or apology in the past year, which includes Jan Moir, Julie Bindel (another Standpoint contributor), all Israeli academics, and the BNP. She alludes to the case of John Savage, the American shock jock who was forbidden entry to Britain by Home Secretary Jacqui Smith on the premise of “fostering extremism or hatred” (telling a “sodomite” caller to his MSNBC radio show in 2003, “you should only get Aids and die, you pig!”). In this case, Bennett is none too impressed by the government’s infantilising attempt to protect the “delicate sensibilities” of the British public. And she is clearly concerned about the so-called liberal media’s blocking of Rod Liddle, to the Independent’s editorship: “You might expect the right wingers to hamper expression”, Bennett postulates, “but not so-called ‘progressive’ journalists.” But later, when Bennett qualifies her commitment to free speech with, a ‘I’m not advocating real violence’ caveat, it exposes the fact that the discussion is in desperate need of a definition of what actually constitutes incitement to hatred, a clarification of when a verbal spat becomes, as philosopher J L Austin had it, a performative speech act, and where the lines should, if at all, be drawn in an utopian, uncensorious society.
Quoted several times throughout the course of the debate, Orwell’s aphorism, ‘free speech is the right to tell people what they don’t want to hear’ has a neatly framing irony when Geoffrey Robertson QC effectively discounts the introductory time limit by about 20 minutes (note to festival coordinators: if you are thinking of repeating the Short Introduction series next year, prolix Judge Boom-box is probably best left off the list). That said, Robertson is no small-talker, and he adeptly contextualises the foibles of the British libel system by way of international comparison – the Americans wax lyrical about the claimant friendliness of the UK, he tells us, while the cost of defending libel law in Britain is 140 times that of doing it in Europe – “We don’t have free speech. We have expensive speech”, he quips. And then perhaps surprisingly for a man who has made a career out of encouraging other people to seek reputational compensation through costs, asserts that libel actions aren’t about money but about journalistic disclosure and intimidation. His solution to the injustice of the system is naturally legislative – shift the burden of proof in libel cases onto the defendant, rather than the claimant, and journalists and their purse-shrunken publications will no longer have to worry about whether they can afford to fight for their freedom of expression – after all, it’s how the Americans do it (So that’s how (in part) the National Enquirer gets away with it – no initial defendants’ bill!)
Once the panel begin to interpolate, it’s far more genial than you might expect, especially considering that Kampfner practically spits his contempt for the British libel system, while, for all his critiquing, Robertson is faithful to a process which reins expression in (balanced of course with right to reply rules, he qualifies). Perhaps there’s some strategic seating at work by placing the moderately vociferous Catherine Bennett between them, who only threatens to slight ire when Robertson turns his ringmaster’s scurrility to the poor standards of UK journalism. The real object of his contempt is the PCC - “nonsense though the press depend on it”, an organisation of which he cites every editor but Ian Hislop as a member, and which he condemns for being a phoney, castrating authority set up by newspaper proprietors to ward off the creation of a British privacy law.
Before the hour is up, there is a brief mention of the issue of superinjunctions, the most recent fad amongst loose-belted premiership footballers, but the debate becomes particularly interesting when the panel discuss the manoeuvrings of a certain Mr Max Mosley, who is currently haranguing the European Court in Strasbourg in an attempt to finally ensnare that elusive beast, UK privacy law. Mosley wants the current law amended to include a notice requirement, by which a public figure will be warned two days before a story on them goes to press, giving them time enough to prepare a case for a potential defamation. Rather officious, considering that all Mosley really wanted was to frolic with the dominatrices in peace – ‘the respect for his or her family and private life’, as the PCC has it. Robertson condemns Mosley’s campaign as a serious undermining of freedom of expression and instead, offers a solution of no prior restraint, basically advocating that claimants argue for libel and defamation after something’s said, not before, therefore protecting the right of the press to say it in the first place. In the meantime, journalists will be forced to tread extra carefully when saying anything about Mosley at all over the coming months. That I considered very carefully how to put the words Mosley and dominatrices together in the same sentence is proof enough of the ‘chilling’ impact of someone like Mosley on journalism – plus the knowledge that he could sue me to the Other World Kingdom come, and force me to bend to his privacy-pursuing will if the fancy took him. For the time being, money will let you say and tart up what you say however you like, and it will take some inspired reworking of current UK law to dictate otherwise.
As an epilogue, it’s slightly puzzling as to why the festival organisers decided to schedule this event before Jack Straw made his announcements on libel reform this week. Not only has Straw agreed to crack down on ‘libel tourism’ – the process whereby European libel cases are heard in British courts as a means of bankrupting the defendants, which Geoffrey Robertson QC alluded to – but he has also announced he will ‘consider’ creating a statutory public interest defence which would go some way to protecting publications deemed messengers of the people. Writing for the Guardian’s online Comment is Free column in response, the Editor of Index on Censorship, Jo Glanville, attributed the Justice Secretary’s thaw to the lobbying of campaigners like herself and Kampfner, but emphasised that the real victory was for civil liberties: ‘libel reform was not simply about protecting the interests of the media establishment, but about safeguarding the free speech of the public as a whole.’
Of course, who decides which publications are free to espouse what in the public interest will soon expose whether this is gestural on Straw’s part, a last stab perhaps at securing the ‘liberal’ electorate before polling day. But it would be interesting to hear the same debate again this weekend at the Oxford Literary festival, in light of these break-in-the-cloud changes to the law governing what we can say, and our rights to defend it.