‘Harms’ and the Freedom of Speech,

A Dilemma on the Regulation of Media

Sirikit Syah

After the waves of freedom of the press in some previously oppressed countries (such as Indonesia, the Philippines), due to long dictatorships of Soeharto and Marcos, now it might be the time for us to reconsider the responsibility of the media. Even the United States, the ‘Mecca’ of freedom of the press, is now rethinking its press role and function. The government, as stated in the First Amendment, would not do anything to limit or regulate the media. However, the consumers demand more responsibility of the media, and the media sometimes willingly practise self-censorships (they call it ‘patriotism’) in their operations to be more responsible.

The genuine questions now for media and society is “do we need to put more regulation in the media?”, “can we do that?”, “to what extent?” To answer such questions, perhaps we could take a look at how irresponsible media could affect social or world order.

In April 2001, Time magazine apologized for the “unintentional affront to the Islamic faith” it made by publishing a picture of the prophet Mohammed meeting the angel Gabriel. The publication caused protests in Indian-administered Kashmir, Indonesia, and other Islamic countries. In February 2002, Newsweek also published images of the prophet Mohammed, causing protests in Indonesia, Malaysia, Turkey, Bangladesh, and other Islamic countries. The protests went further to the governments banning of the distribution of that particular Newsweek edition in those countries.

Newsweek, admitting its awareness that Islam does not allow representation of the Prophet Mohammed, argued that the banning was a ‘censorship’ and an ‘attack to the free flow of information’. However, recipient of Ramon Magsaysay Award (Asia’s version of Noble Prize) for journalism, Atmakusumah Astraatmaja, who was the chairman of the Indonesian Press Council, argued back in Asia Magazine (February, 2002) that, “Freedom of the press is not only based on journalistic ethics and professionalism. It is a social contract as well. If most Muslims in Indonesia and the world are against the visualisation of the Prophet, we have to respect that,” he pointed out.

That was only one example of how mass media might harm their public (readers or viewers), unintentionally or knowingly. The publication of the cartoons of Prophet Muhammad in a Danish newspaper in late 2005 –followed by Muslim demonstrations throughout the world- added to the long-list clashes between the media and the public.

Since the 9/11 tragedy and the media reports on the world affairs afterwards, there have been growing complaints towards the content of mass media, which are regarded as harmful. Complaints come from sources, subjects or targets of coverage, or media consumers and public in general. This phenomenon is especially clear in some newly democratic countries with newly liberalized media, in regions of conflicts, or in multi-race and multi-religion countries. It happens in countries like Indonesia or ex-Yugoslavia, Malaysia, and the United States of America and the United Kingdom as well.

The problem of ‘harms’, in the first place, is that not everybody agrees on the definition. What is harmful to some people, may not be so to others, even though they come from similar backgrounds of politics or religions. This initial obstacle makes it difficult to decide, whether the ideas of harms shall be brought up further into discussion of media regulation. Another obstacle will be the idea of regulating the media itself, which is contrasting to the spirit of free press and free speech.

Yet, there are many areas in public or individual life that can become the objects of ‘harmful’ media coverage, which draw our attention to media regulation. Below are a few examples.

Privacy

Intrusion of privacy is one kind of harms. There are not many countries, where citizens are enjoying protections for individual privacy. Even in the US, where privacy is protected by the Constitution, it is all the time crashing with another protected right, namely ‘the people’s right to know’, which in many cases means intrusion of privacy. In 1988 for example, a presidential candidate was forced to give up his chance after an intrusion of privacy by the media, which disclosed his extra marital affair. In the UK, models like Naomi Campbell and Kate Moss also battled with the media to protect their private lives.

The problem with intrusion of privacy is: mass media always have good reasons to do so. In the case of a presidential candidate (such as Monica-gate in Bill Clinton’s days), the reason is that ‘national leaders are expected to be accountable and morally clean’. They have to be responsible to the citizens, and they merely help citizens to get the information they deserve. In the case of celebrity, the media’s excuse is ‘whatever happens to celebrities, the public is interested in knowing, and we serve them’.

However, Raymond Wacks, writer of Privacy and Press Freedom (1995), who has studied and challenged free speech for more than 20 years, has a significant question for this matter. How does protecting private information of individual against public disclosure diminish the freedom of the press? To Wacks’s point of view, not disclosing private information of individual doesn’t mean protecting it and should not threaten the freedom of the press. In the writer’s (my) point of view, the argumentation of ‘the public has the right to know’ can be argued with ‘the public may not really know what they want to know. They just consume what the media provide for them’.

Intrusion of privacy may damage people’s lives. In Indonesia, the over-enthusiastic free media often broadcast interviews with victims of rape and the family. There is no protection of privacy in the Indonesian law, but there is a journalistic code of ethics that says ‘in cases of sexual crimes, identification of victims should be protected.’ The codes have been guidance since the booming of the press industry in 1970, but it disappears in the practice after the reformation (1998). In the 2002 Broadcasting Law, privacy is not particularly mentioned; however the Codes of Conduct and Broadcast Standard Guide have highlighted it. And still, the Indonesian media are enjoying their liberalisation without considering the damage they could cause; in this case the rape victim’s future and the reputation of the family.

Quite surprisingly, however, the media fail in influencing people’s political attitudes. No matter how tough the American media attacked Bill Clinton over Monica-scandal during his second campaign, he won the election in 1996, proving that the voters (citizens) did not care so much about his private’s life. In 1993 French citizens demonstrated against the media, which exposed Mitterand’s secret life (extra marital affair). Perhaps in one way, these examples could answer Wacks’ question, that, in fact, the freedom of the press and the public’s right to know are not under threat, although the media do not eagerly disclose private information.

One of the crucial matters about privacy is the definition of it. The UK Press Complaint Commission’s revised code describes certain spheres of privacy as ‘private and family life, home, health, and correspondence’.

Decency

Another interesting subject to be included in the debate about harm is decency. When an LA TV station broadcasted live a man committing suicide, in 1998, this event led to a hot debate on decency, especially when the live program interrupted a children program. Many viewers protested this act as indecent and damaging to children. TV station apologized for its insensitivity. However, it shows that the first instinct of the media is always their freedom to publish or broadcast anything, regardless the impact of the report to their audience, and to the society in general.

But even John Mills would have disagreed with such conduct. As the ‘father’ of liberty, Mills puts a clear border on it: “If a public authority or even a private person sees any one evidently preparing to commit a crime, they are not bound to look on inactive until the crimes committed, but may interfere to prevent it.” In this particular case, the TV crew should or must have prevented that act to happen to happen.

Pornography

Pornography is harmful to many, especially in countries like Indonesia, Brunei Darussalam, Malaysia, the Middle East. The problem of ‘pornography’ is that its definitions of ‘pornography’ are themselves always in contention. What might appear to some as erotica –harmless fun- appears to others as an exploitation, in the term of a ‘pornographic’ representation, of women’s already vulnerable position. It is not only in content. Pornography also differs in time and places. Models with their breasts and nipples flashing out at British tabloids are ‘pornographic’ to many Asian countries. In terms of ‘changing time-changing values’, in Indonesia, woman wearing bikini was pornographic in the 60s, but not at the moment. Even Lady Chatterley’s Lover by D.H.Lawrence was considered pornographic by the British society until 1960. After the publisher was taken into trial, the book first published legally in England, while it had been published abroad since 1928.

Blasphemy

The Time and Newsweek cases mentioned at the beginning of this article are the kind of blasphemy case, which is often harmful to some people. The Satanic Verses by Salman Rushdie is considered so harmful to some society. The publication of illuminations of Prophet Muhammad is harmful to Muslim society. On the other hand, publishing opinion on the doubt of Holocaust is harmful to certain European countries. The Passion of Christ (Mel Gibson’s 2004 movie) is enlightening to some and blasphemy/harmful to others.

Hate Speech

Hate speech may become one of the most troubling matters for those who believe in free speech. Hate speech may be abusive, insulting, intimidating, and harassing. It may lead to violence, hatred or discrimination, and it kills. Some people even consider pornography and blasphemy as hate speech, because they cause anger and hatred. There are reports of people killing other people because of insensitive expressions.

Bob Grant, the most popular talk show host at WABC radio station in New York, had spent 25 years of his career vilifying Blacks, Hispanics, and other minorities. He described the former mayor of New York, David Dinkins, as ‘a men’s room attendant’, called African-American churchgoers in Harlem ‘screaming savages’, and advocated ‘drowning Haitian refugees’. He was finally fired because on the day the plane carrying Clinton’s Commerce Secretary, Ron Brown, crashed, Grant speculated that Brown (who was black) might be the only survivor ‘because I’m a pessimist’.

But hate speech does not only kill, it definitely sells. The talk show had been so popular that Bob Grant found no difficulty in finding a new job. He was hired by a rival radio station only two weeks after being fired from WABC.

One of the most famous defence of the right to express hate could be in Illinois, 1977, when a US neo-Nazi group tried to march on a public street in a community populated by many Holocaust survivors. The courts affirmed their right to do so, believing it was ultimately to the benefit of racial and other minorities, who hold the right to express their own views freely. To the Jewish community, of course it was a harmful act.

The defence of freedom of speech and expression seems to ignore its consequences. After an Israeli minister regarded the Palestinians as ‘two-legged beasts’ and ‘lice’, he was murdered by the people who was harmed by his remarks. The murder was condemned, but not the nasty remarks. Freedom of expression shall not necessarily ignore the importance of respect and tolerance. Hate speech creates disrespect, intolerance, hatred, and disharmony.

Media Regulation on Harms

In UK, the debate on the need of Protection of Privacy Bill was heated after the death of Princess Diana in 1997. For some time, media practitioners seemed to follow the trend –more out of respect than admission of its importance- and obeyed the press self regulation imposed by the Press Complaint Commission. But the problem remains.

Actually, Article 8 of the European Convention of Human Rights states that “Every one has the right to respect for his private and family life, his home, and correspondence”, yet it does not clarify the definition of ‘everyone’. Does it include public figures, national leaders and celebrities? On Article 10, the ECHR states that “Every one has the right for information”, which –in many ways- can be colliding with the previous article. However, it states that, “Freedom of speech should only be restricted where there is a pressing social need to do so”.

In present Indonesia, some people are longing for the harmony of society with the strict guidance of SARA (Suku, Agama, Ras, Antargolongan, meaning Ethinicity, Religion, Race, and Class), which was implemented by the media during Soeharto’s presidency. To the extreme point, journalists restrained themselves from reporting something that might have inflicted conflicts of SARA. If they did not restrain themselves, the authority would have warned them and the media could be banned.

When the media are finally free, the first thing they are enthusiastic to get rid of is the rule of SARA. Harmony becomes a negative word. In fact, without it, Indonesia, having hundreds of different ethnicities, races, religions, and languages, and 210 millions people separated in almost 17 thousands of islands, is constantly under the threat of disintegration.

From the discussion above, it is clear that almost every possible harmful subject can be seen as opposition to free speech. The most difficult thing to answer is, under certain circumstances, who is actually served by protecting freedom of speech: the speaker or the audience?

Jean Seaton, agreeing with John Mill’s market of ideas, points out that we should not see the market as the only means of protecting liberty. She says that attention needs to be directed away from the usual concern to protect the right of speakers. It is necessary, as well, to consider, alongside their rights, their obligations, and in particular the duty of those with powerful voices and powerful positions in society to exercise responsibility over their rights to speak.

If only one consider Seaton’s suggestion on obligation and responsibility in addition to right, there would be harmony, based on respect and tolerance, which is not against the ideal of democracy.

In the example of Newsweek (2002) case, the banning of its edition carrying images of Prophet Mohammed in certain Muslim countries could not be blamed as ‘attacking free press’, because it was the society, who rejected to consume such information. It was different when the Singaporean Government –without the citizens objecting to any publication’s content- banned Far Easter Economic Review, due to certain political/economical agenda. In case of Newsweek and Time and the publication of Prophet Muhammad, the media should not enforce information which people do not want, let alone harmful to them. If ‘culture’ means anything, it means a common ground of moral understanding ordering the lives of diverse people. Media should both respect and challenge that common ground. If Newsweek want to be read in Islamic countries, they should respect the values of Islamic society and the need of the population.

Alan Ryan emphasized that Mill’s On Liberty, which defends freedom of expression, was not about legal or political freedom; but social, intellectual, psychological, and religious freedom. People live in a society in order to protect themselves against actions aimed at harming them. So, if an action is wrong or immoral, then society must stop it. How? At least, the pressure of public opinion should be brought to bear, so that the weight of social disapproval can act as a deterrent and as a punishment to offenders.

Regulating harms in the media is a quite significant subject, but yet so complex. At present, most of harmful expressions are not regulated, or regulated in criminal law (defamation, libel, etc). After battling for the lift of defamation and libel conducted by the press from the criminal law, Indonesian media practitioners can now smile broadly, since the specified law is now lifted.

Conclusion

Considering examples of effects of harmful expression in the media, perhaps Press Councils in this region should start paying attention to a number of issues, before promoting a certain (legal) media regulation. One of them could be the agreed definition of ‘privacy’ and the scope of it (who, when, and where privacy matters).

Secondly, it is true that the SARA guideline is not the best to guarantee harmony, let alone democracy. It is undoubtedly against free speech, because with SARA, everybody should restrain him/herself to speak free if it might harm others. But there are some values that I think can be reconsidered out of SARA, which are the genuine motives of tolerance and respect in society, which lead to peace and harmony. We shall also critically question ourselves: is free speech above everything?

If there is any regulation in pornography, it should be in accordance with the enforcement of other law. For instance, in UK, X-rated movies are screened in public cinemas, but under-aged children are not allowed to purchase the tickets. Magazines containing harmful material are put on top shelves, so children cannot reach them. In Indonesia and perhaps in other countries in this region, on the other hand, there is no law enforcement in terms of marketing and distribution. The so-called ‘pornographic materials’ (records or prints) are in the market. Children can easily buy cinema tickets of adult movies or buy adult magazines or VCDs.

I would like to conclude, in this issue of media regulation on harms, that to reach democracy, one should not ignore the importance of harmony, which includes respect and tolerance towards each other, before agreeing on something democratically. However we shall remember that over enthusiastic solution by regulating the media heavily might result in another kind of harm, which is the loss of one of our rights. Media regulation is needed, but we shall consider on the issues thoroughly.

End of Essay
August 2007

Perihal LKM Media Watch
Mass media are watchdogs. But who watch the media? Let's do it together. Watch this very powerful entity, for better journalism, better Indonesia, better world. http://www.sirikitsyah.wordpress.com

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