Amidst Brexit fallout, should media be legally required to reap what they sow?
For this Australian correspondent, English newspapers are often a source of joy. Their headlines really do sell papers. However, this time I was not amused. The Saturday after the Brexit referendum, I had turned to page 12 of The Sun (25 June edition) and read an article called “What it means to you…”.
I had arrived in post-apocalyptic London shortly after Brexit, soaking in the surprisingly normal atmosphere in the streets. I had showed my support for the economy with a little shopping, then made my way to a newspaper vendor. The headlines were newsworthy. I knew this because a photo-journalist was taking shots of the them. He asked the vendor to hold up one of the papers. It had a very gloomy headline (clearly from the Remain camp). The vendor was grinning. “Umm, could you look more serious?”, the journalist said. The vendor immediately dropped the expression and looked like someone had died. “Perfect. Perfect”, the journalist said, snapping away.
I purchased a few papers including The Sun. It had told its readers to vote “Leave”. And they did. It was very proud of this. In case any reader was unsure of the paper’s allegiance, the cover told you ‘19 pages of brilliant Brexit coverage inside’. The headline was ‘So long, farewell, auf wiedersehen, ADIEU: Goodbye Germany, France and the rest… a new Britain is rising from the shackles.’
After the self-congratulations in the following 11 pages, buried on page 12 was “What it means to you…” Here, The Sun sought to explain to readers the effect of what it had advocated for. The article commenced by reassuring readers that Britain would remain a nuclear power, be a leading NATO member, and still have GCHQ spying on terror groups, plus MI5 and MI6. Otherwise, there “will” be changes for you, your family and the rest of the country. “Here, we look at them.”
And the news was bad. The Sun tried to make it appear sort of bad. It is worth examining these negative implications from a pro-Brexit paper:
- Flights – Prices may rise if the Open Skies deal (allowing European airlines restriction-free flights) has to be renegotiated (meaning: Yes, it will need to be renegotiated).
- Mobile phone charges – Leaving the EU means “they” can charge what they want, but readers were assured that the “Brexit government” is unlikely to allow that to happen
- Fuel – likely to cost more due to the fall of the pound
- Property prices – likely to fall by 2018
- Rents – may fall as migration is cut, helping tenants but not landlords
- Mortgages – The Government will try (note, ‘try’) to keep interest rates low, but rates may have to rise to help reduce inflation
- State pensions – Chancellor George Osborne says that the annual 2.5% rise may not be affordable in future
- Private pensions – Stock market falls could hit “private pension pots”
Where was the good news from this pro-Brexit paper? Oh wait for it, it was under ‘Holidays’. Duty-free limits will return on booze. Okay, that’s bad news. But there was a silver lining. It was this:
New breaks may cost more if the Pound falls in value, but Turkey and Egypt are desperate for tourists so there will be bargains. (emphasis added)
Let’s see, why are Turkey and Egypt desperate for tourists? Perhaps Money put it best when it reported that these places are “too scary” for people right now. In the case of Egypt, the cause is said to be multiple aviation disasters and years of political upheaval following the Arab Spring. In the case of Turkey, it is a high profile tourist destination, but is reportedly suffering due to terrorism (multiple terrorist bombings in Istanbul and Ankara) and a high profile political dispute with Russia.
British tourists have been diverting their holiday destinations to places like Spain, Portugal, Italy, Malta and Bulgaria.
However, the message from The Sun is to pay more at the places where you want to go, but enjoy a bargain at the places where you are worried you might die.
No – it was not a joke. And it leads to an important ethical question: If The Sun encouraged its readers to vote Leave to sell papers, reasonably believing when it did so that its promises of a brighter economic future were not true, why should it not be held legally liable for the losses caused to those it influenced?
Of course, establishing that a person encouraged people do to something for its own ends, in the reasonable knowledge that its representation was not true, would be difficult to establish. The lawyer in me points out that the above is a hypothetical.
This leads to discussion and debate about whether there should be limits to journalistic responsibility if the media is reporting ‘opinion’ versus ‘fact’.
Some might suggest that opinion offers a leave pass from accuracy and balanced reporting.
However, others might respond that opinion pieces published by the media should be honest and fair. This is, after all, the bedrock of the defamation defence of fair comment.
For example, it is perfectly reasonable for The Sun to play to its audience, to keep writing amusing headlines, and to offer an editorial perspective (written in the way its audience enjoys). However, balanced comment involves putting both sides of the story and then explaining why you have picked one side. In other words, the matters on page 12 would be put to the readership in conjunction with reasons to leave the EU, so that readers are sufficiently informed about pros and cons before they make a call.
The Sun’s influence on voter opinion should not be underestimated, because it spruiked this itself. On page 5, the paper proclaimed, “SUN WOT SWUNG IT”. The article explained that The Sun had the strongest influence on people voting for Leave, a poll found:
It said 30 per cent of them were most motivated by our Brexit campaign. The Sun’s BeLEAVE in Britain front page, and our Independence Day plea helped to give millions of readers confidence to quit.
The Democracy Institute, which carried out the poll of more than 1,000 voters, said the paper’s impact echoed its effect on the 1992 General Election. Director Patrick Basham added: “It appears a Leave victory would owe a fair amount to The Sun campaign’s resonance among working class, male and older voters especially.
So too, The Sun itself regarded itself as one of the Top 10 Brexit Winners (humbly putting itself at No. 10 – page 10) on the basis that “In the new media age, the country’s best-selling newspaper was written off as irrelevant. But our readers helped take back control from the EU.”
It will not surprise that The Sun counted Twitter as the No. 10 Loser of the Brexit campaign: “Proved once again it does not provide anywhere near a true reflection of Britain, just like at last year’s General Election.”
Australian media should not assume it is legally exempt for the opinions it shapes
In the last decade, Australian media has followed UK media in developing a strong, partisan voice. Many of us now read from multiple news sources, trying to develop our own views from this media mosaic.
The media as an organ of the public interest, fearlessly and without favour reporting on news stories large and small, may not yet be an historical relic of yester-year, but some would argue it is getting close. At the very least, one now needs to engage in an article by article analysis of news ‘stories’, to determine whether it is a ‘report’ or an ‘opinion piece’.
In an election cycle, the issues are in even sharper focus. Often one has to ‘pick a paper’ (leaning to one’s political perspective) or to read all of them (if seeking every angle).
Australian Consumer Law provides the media with an exemption from the operation of section 18 of the Australian Consumer Law. Section 18 prohibits conduct in trade or commerce likely to mislead or deceive.
However, this exemption is not absolute, and the language of the exemption takes an old fashioned view of what the media does.
The media exemption in the Australian Consumer Law (ACL) works as follows:
- Section 19 ACL provides that section 18 will not apply to an information provider making the publication in the course of carrying on a business of providing information.
- An ‘information provider’ is specifically said to be the ABC, SBS, holders of licences under the Broadcasting Services Act and, otherwise, a person who carries on a business of providing information.
- ‘Information’ means ‘knowledge on various subjects, however acquired’ and ‘the act of informing’ (Macquarie Dictionary)
It follows that, if the media wants to enjoy the exemption in section 19 ACL, it will need to satisfy a court that it is in the business of “providing information”.
If we examine what that means, it is strongly arguable that (if it were in Australia) The Sun would be on the wrong side of that line. That newspaper has conceded it is an opinion shaper, in circumstances where ‘opinion’ is a personal view, attitude or estimation (Macquarie Dictionary) not information.
Many Australian media outlets may still be on the right side of the line. Just.
Of course, this discussion concerns whether or when media outlets risk being excluded from the definition of ‘information provider’ and all that entails. To translate this to legal liability requires questions of proof on a case by case basis.
However, as the example of The Sun illustrates, the slide from ‘reporting fact’ to ‘opinion’ is a slippery slope.
Of course, Brexit is unprecedented. It is difficult to conceive of an equivalent, recent example where the consequences of a democratic vote have led to such reverberations. Opinion pieces are typically of much lesser import.
Yet, in light of the tremendous power to influence that these publications have, it is useful to pause and ask: if the media lead people up the garden path in the pursuit of their own business ends, why should they not be held financially responsible for financial consequences that follow?
The Social Litigator 
One Response to “Amidst Brexit fallout, should media be legally required to reap what they sow?”
Yes, Sun would claim to have been a deciding influence, but its readership is just as likely to have been in the 30% who did not vote.
A balanced article could usefully have referred to the doom and gloom forecasts promoted by the BBC in favour of the Remain view.
What struck me during that campaign was that I did not hear or read of any matter which the lowest income section of the population could regard as a befefit to them after 40 years of control from the unelected bureaucracy in Brussels; their EU experience would have been v negative.