Harm and offence

Freedom of expression is one of the basic rights and one that allows us to say what we like. However, there may be limits that should be placed in this freedom of expression and I have already looked at some of them. The reputation of a person may need to limit what we say; our desire to tell the truth may be another limitation. After all, if we have freedom of expression, then we have the right to lie, but lying will not lead to consumers trusting what journalists write and so it must be a limitation. Another major limitation on freedom of speech involves issues that may cause harm or offence. Harm and offence was identified as a matter of concern in the UK’s Communications Act 2003, and covers issues of taste and decency such as nudity, sex, violence and bad language but also covers issues of harm and offence such as suicide, depiction of drug-taking, exorcism and discrimination and is of particular concern to broadcasters although that does not mean that newspapers, websites and magazines need not concern themselves about this issue at all. The Communications Act requires Ofcom to review broadcasters’ compliance with the standards objectives and so ensure that ‘generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of offensive and harmful material’ (Communications Act 2003 https://www.opsi.gov.uk/acts/ acts2003/ukpga_20030021_en_29#pt3-ch4-pb16-l1g319 accessed 4/3/10). The vast majority of complaints received by broadcasters concerning offensive material are about drama or other entertainment programmes, but the news and factual media still needs to take care about depictions of violence, whether from a war zone or a road accident, and about nudity and bad language and we also need to understand why these issues may place a limitation on the artist’s right to freedom of expression in other types of programming. Images are often the most likely to cause offence. Pictures, whether for print, website or broadcast, carry more potential for upsetting readers or viewers than is normally the case for text. Many good pictures can be offensive. Several of the award-winning pictures from the Vietnam War contained stark and disturbing images that many will have found upsetting and offensive. A police chief’s street execution and a naked young girl fleeing a napalm raid are images that were widely used at the time and since, and stick firmly in the minds of those who saw them. They are offensive in the way that any picture of violence and destruction is offensive, but they say more about the war and what it meant than even the best of writers could have managed and it is probably these images rather than any text that turned the US public against the war and brought about its early end. The whole topic of harm and offence is one of constant controversy. Free expression, as we have seen, must include the right to offend, but does it include the right to harm, and when does offence turn to harm? Even more complicated is when offence becomes solely a matter of taste and decency. One person’s distasteful picture is another’s ‘bit of a laugh’ and taste can vary widely within the normal parameters of a well-balanced society. The law has some say here and it is tempting to suggest some level of censorship. After all, if it is permissible for editors and producers to decide against using this image or that quote, why is it wrong for governments to do the same thing? Judith Andre has some help here: ‘‘‘No one else has the right to decide what I can read” may work against governmental censorship; it will not work in areas where others are already and necessarily deciding among competitors for limited space’ (1992: 78). So Andre explains to us that it is right for us to oppose government censorship because, when we get into making choices about what we may see, then it is more appropriate that this applies in areas where we can have a direct and significant say in the limitations in a way that government can never allow, no matter how democratic. Anyone can set up their own publication and make their own decisions about what is or is not published in it – in theory at least. Although there is no censorship in the UK, though, there are

a number of laws that limit what may or may not be published in the area of taste and offence in the UK. The Obscene Publications Acts 1959 and 1964, Race Relations Act 1976, Broadcasting Acts 1990 and 1996, Public Order Act 1986, Terrorism Act 2000, Terrorism Act 2006 and the Coroners and Justice Act 2009 are just some of the laws which limit what may be published or broadcast in an attempt to avoid causing offence (see any good media law book for further details such as Frances Quinn’s Law for Journalists, 2nd edn). Sexually explicit pictures and text are frequently edited in Britain because they are likely to offend. Pictures of death and violence are also handled with care for fear of upsetting consumers. However, people can be just as offended by religious images or the ideas some politicians put forward, so should these ideas also be edited to protect people? If not, why should there be protection from emotional offence but not religious or intellectual offence? Issues of taste and decency can be put under a number of headings: obscenity, sedition, blasphemy, violence, bad language, sex, explicit pictorial or video images (e.g. of death), bigotry, nudity. In all the above areas, decision making is tough for journalists, and often even more so for others in the arts and media. The Viewers and Listeners Association, a group led throughout the 1970s and 1980s by the vociferous Mrs Mary Whitehouse, believed that no images, pictorial or textual, that might offend their very traditional sensibilities should be used. They wanted to see tougher laws brought into force to allow government to censor such images. Some of their opponents take the ethical standpoint that all censorship is wrong and that all people should have full access to all information. Many pro-censorship moralists use religion as their ethic and the traditional view of family life inherent in the ethos of many religions explains their viewpoint. Inevitably, there is another group of people who see things differently. They take a consequential approach and tend to be for or against censorship depending on whether they believe that images of a sexually explicit or violent nature are likely to corrupt and cause more crime or violence or the break-up of the family; in other words a real harm, as identified in the Communications Act. They do not believe that using such images is either right or wrong, only the pragmatic effect should be considered. According to Rajeev Dhavan and Christie Davies (1978), the intention of the journalist is irrelevant. They are only concerned with whether the article is likely to cause a bad effect. On the other hand, motivists are concerned with the author’s intention because this could have a direct effect on whether the image is presented for morally sound reasons. While a motivist standpoint that there should be a law ruling out all images that are likely to offend is debatable, the vast majority of people in Britain tend to believe that there can be arguments made for using explicit images on occasion. This makes it almost impossible to work out a code of conduct for the use of nudity, describing or showing sexual practice, violence or death. Ofcom has drawn up a section of its Broadcasting Code concerning harm and offence:

To ensure that generally accepted standards are applied to the content of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of harmful and/or offensive material.