Freedom of expression isn't above the law

The news that journalists are going to face criminal charges over phone hacking is already sending ripples of discomfort through the press. In the understandable effort to preserve press freedom, however, journalists must be wary of appeasing the inexcusable.

Even before the Crown Prosecution Service announced that eight people, including former News of the World editors Rebekah Brooks and Andy Coulson, will face charges relating to the interception of voicemail messages, the rumbles of unease had begun. In his evidence to the Leveson Inquiry Michael Gove, the education secretary and former journalist with The Times, suggested that the right to freedom of expression should trump a desire to regulate press behaviour:

He said: “By definition, free speech doesn’t mean anything unless some people are going to be offended some of the time.”

Certainly there are signs that the phone hacking scandal has spread further than many had anticipated, throwing other aspects of the profession under the spotlight. Nick Cohen’s piece for the Observer on Sunday entitled “Persecuting the press diminishes us all” pointed to the arrest of Sun journalist Rhodri Phillips as evidence of a slippery-slope approach by the authorities.

Phillips was arrested by officers from Operation Tuleta which is investigating alleged computer hacking and other privacy offences. For Cohen it marked another worrying sign of corporate failures at News International being passed off onto journalists in an “alliance of the oppressive state and the oppressive corporation.”

Of course, there are a number of good reasons for any society to be concerned about the arrests of journalists. The last decade has seen an unprecedented legislative creep into individual freedoms through anti-terrorism legislation on both sides of the Atlantic. Any erosion of the fourth estate would send out further worrying signals.

Yet if we still have faith in the independence of the judiciary, then overreach by regulators or the police may yield little result. If evidence of a criminal offence is lacking, any charges brought against journalists could go the same way as the case against the BBC, ITN and Sky over footage of the Dale Farm eviction.

In May the High Court ruled that the broadcasters did not have to hand over the footage of the eviction to police. The presiding judge, Mr Justice Eady, said: “it is the neutrality of the press which affords them protection and augments their ability freely to obtain and disseminate visual recording of events.”

If we can trust the courts to take a fair and unbiased view of the evidence presented then fears of state encroachment might prove overblown. With all the noise surrounding the issue it is sometimes hard to focus on the fact that phone hacking is not naughty or unethical, it is criminal. We should trust the courts to act accordingly.