Mediating Human Rights

Media, Culture and Human Rights Law

Lieve Gies

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317950578
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Drawing on social-legal, cultural and media theory, this book is one of the first to examine the media politics of human rights. It examines how the media construct the story of human rights, investigating what lies behind the apparent media hostility to human rights and what has become of the original ambition to establish a human rights culture.

The human rights regime has been high on the political agenda ever since the Human Rights Act 1998 was enacted. Often maligned in sections of the press, the legislation has entered popular folklore as shorthand for an overbearing government, an overzealous judiciary and exploitative claimants. This book examines a range of significant factors in the mediation of human rights, including: Euroscepticism, the war on terror, the digital reordering of the media landscape, press concerns about an emerging privacy law and civil liberties.

Mediating Human Rights is a timely exploration of the relationship between law, politics and media. It will be of immense interest to those studying and researching across Law, Media Studies, Human Rights, and Politics.

Chapter 1

Introduction

Human rights and culture wars

Human rights have permanent news value. Media freedom, in particular the freedom of the media to report on government activity without censorship, intimidation or other interference, is itself considered a key indicator of a state’s human rights record.¹ Journalists worldwide lay claim to the right to expose regimes whenever these fall short of human rights standards enshrined in international law. In keeping with the age-old maxim that only bad news has sufficient news value to make the headlines, stories about human rights violations have long formed the staple diet of humanitarian news: the Holocaust, Vietnam, the Former Yugoslavia, Palestine, Iraq, Afghanistan, Syria – the list of atrocities is ever expanding. The news media and increasingly social media join forces in reporting, exposing and admonishing governments caught violating the human rights of their citizens. It seems that the only thing worse than actual human rights abuse is when the media fail to bring such abuse to the attention of the wider world. Many a war or conflict is neglected or goes unreported, much to the frustration of non-governmental organisations (NGOs) and other agencies campaigning to ratchet up the political pressure on offending regimes by shaming them in full view of global public opinion.

One of the most striking features of Western human rights discourse is that violations are often treated as the aberrations of non-democratic regimes to be found in far-flung corners of the Earth. As a trope, this appears to reflect the selective appropriation of human rights to suit specific political agendas and benefit power relations enabling the West to influence governments elsewhere (Douzinas 2000). It also conveniently deflects from occasions when Western governments fall foul of their own human rights standards. To use Hannah Arendt’s words (1984), human rights abuse exposes the banality of evil in which the limits of power are too easily overstepped, making abuse a mundane and routine feature of its exercise. It is deeply ironic, for example, that European countries assisted with the post-war renaissance of human rights by drawing up the European Convention on Human Rights (ECHR) at a time when many of them were still reigning supreme as colonial powers which distinguished themselves by their disregard of human rights in various parts of the world (Simpson 2004).

More recently, it was the war on terror which offered plenty of scope to turn the spotlight on human rights violations perpetrated by Western countries. At the time of writing, we are well into US President Obama’s second term and Guantanamo Bay is still open for business, with stories of Muslim prisoners on hunger strike who are continuing to be force-fed during the holy month of Ramadan making the news. Meanwhile, the need to intern terrorism suspects indefinitely without trial seems to have been obviated by the use of drones eliminating enemy combatants extra-judicially, something that is increasingly decried by human rights organisations. In a parallel development, the whistle-blower Edward Snowden is caught in limbo in Sheremetyevo Airport in Moscow following his revelations about the global surveillance programme of the US National Security Agency.

In recent times, media audiences have had plenty of opportunity to bear witness to the dramatic tussle between rights and security. Citizens have been repeatedly told by political leaders that the price for their collective freedom from terrorism is to accept significant restrictions on individual civil liberties. Words such as extraordinary rendition, Guantanamo, Abu Ghraib, waterboarding and collateral damage entered our vocabulary in the last 13 years. Countries which are usually very vocal about human rights and are quick to admonish other nations have regularly featured in the news with their own human rights failures, although the public response has been very muted and even indifferent at times.

A fascinating if perhaps politically inconvenient fact is that the UK Government only a few years prior to 11 September 2001, when the international political outlook was relatively calm, ostensibly decided to set the human rights bar even higher for itself. The mood at the time was one of optimism: there was a new Labour Government after 18 years of Tory rule, the conflict in Northern Ireland with its tainted human rights legacy was nearly resolved and the movement for a bill of rights had gathered momentum with the aid of the progressive constitutional reform movement Charter 88 (Unlock Democracy 2013). The time seemed ripe to make the ECHR part of UK domestic law and put an end to human rights tourism forcing UK citizens to travel all the way to the European Court of Human Rights (ECtHR) in Strasbourg to assert their Convention rights. The Human Rights Act 1998 (HRA) was part of a wider ambitious constitutional project described by Bogdanor (2004: 246) in the following terms:

The constitutional reforms since 1997 offer a spectacle unique in the democratic world, of a country transforming its uncodified constitution into a codified one, there being neither the political will nor the consensus to do more. The end-point of this piecemeal process of constitutional reform is, therefore, unclear. Perhaps, however, the cornerstone of the new constitution will prove to be the Human Rights Act which is likely, in the long run, to transform both our understanding of human rights and the relationship between government and the judiciary.

These words leave very little doubt about the transformative effect of the HRA. Since the Act was placed on the statute book, there has been a considerable amount of media introspection about the place of human rights in British society, with different stakeholders competing to reframe popular notions of what rights should and should not be about. It is rare for an individual piece of legislation to become a familiar and emotionally charged term in the popular press. Where there is prolonged media criticism, as in the case of health and safety laws in the UK, it does not tend to single out a specific source of law.² If an Act is controversial or appears to be malfunctioning, the debate is usually confined to the chambers of Parliament, the courts and a few other specialised outlets such as academic journals and law books, alongside some niches in the mainstream media. Yet, the HRA holds the dubious honour of gaining such widespread fame and notoriety that it has almost become a term of abuse in some media circles.

The barrister Hugh Tomlinson QC (2013), a member of the pressure groups INFORRM (International Forum for Responsible Media) and Hacked Off, recently characterised the public debate on media law as a kind of ‘culture war’ between media actors who insist that their freedom has been the subject of excessive restrictions and the legal profession which views media law as a ‘sophisticated instrument’ allowing for an appropriate balancing of rights. While he was making these observations principally in relation to libel law, they could also be extended to the media’s position on human rights law, which has often veered towards the view that an improper balance is being struck, with the right to privacy outweighing freedom of expression on too many occasions. The culture war description is also particularly apposite considering that there was originally an ambition to foster a widespread human rights culture through the HRA (see, for example, Joint Committee on Human Rights 2003); instead, the legislation proved very divisive and became something of a scapegoat attracting a chorus of critics who have held it responsible for all manner of social ills.

This book is principally concerned with the cultural struggles sparked by the UK’s domestic human rights framework. The battle to define and refine the scope of human rights law is being waged in the courts, resulting in a steadily increasing body of case law, but it has also been the subject of animated public debate elsewhere. As we shall see in Chapter 4, the media’s involvement in this debate has gone beyond the usual reporting and commentary; the press in particular has proved a prominent stakeholder in the debate. Evidence for this includes vigorous press lobbying when the Human Rights Bill was making its passage through Parliament and the fact that newspaper defendants have found themselves in court on numerous occasions as a direct result of the expanding reach of privacy law which received a significant impetus from the HRA.

The press figures prominently in this study because more than any other type of news media it has taken a very close interest in the domestic human rights framework, with some newspapers such as the Daily Mail and the Sun pursuing an increasingly outspoken anti-HRA agenda, to the point of actively campaigning for its repeal, and with other titles occupying a more ambivalent position on privacy matters. Furthermore, by focusing on the domestic human rights framework in the UK, this book seeks to understand how the media put together the story of human rights which for once was not about some despotic foreign regime, but centrally involved their own government and courts. This scenario is not unique or unprecedented: for example, there are definite parallels between the public debate that was set in motion by the HRA 1998 and that engendered by the 1982 Canadian Charter of Rights and Freedoms (see, for example, Schneiderman 2007) or the debate as to whether Australia should have its own federal Human Rights Act following the adoption of the Charter of Human Rights and Responsibilities Act 2006 by the State of Victoria. This book is one of the first studies to focus specifically on the media’s involvement in these public discussions.

Nash (2009) argues that a range of stakeholders are invested in the struggle to define the meaning of human rights: the legal profession, judges, politicians, public administrators and activists all attempt to shape and influence the politics of human rights. The media constitute a ‘meta-field’ (Nash 2009: 51) in this respect, acting as an overarching forum in which other actors participate – although not necessarily on an equal footing – in order to win over public opinion. This multi-agency model of mediation offers a way of understanding the attempts undertaken by a variety of communicators to influence public discourse about the HRA. This is not to suggest that the media’s role has been confined to that of passive receptacles of the messages of other interest groups; instead their interaction with the latter is best understood as one of negotiation for access, intense competition over what should be the accepted definition of reality and an – at times – mischievous editorial slanting in favour or against a particular narration of the HRA’s scope and effect.

Context

This chapter identifies the book’s key themes and sets out the context informing media representations of the HRA. Some of these contextual elements are deeply rooted in culture and history; others were hard to predict when the HRA was introduced. The media landscape, for example, transformed by the advent of the Internet and social media, looked very different in 1998 when broadband Internet, smartphones and an active blogosphere were non-existent. The events of 11 September 2001 and the subsequent war on terror were another unforeseen factor impacting on the way in which the HRA was framed in the media, although we shall see that the causes for the Act’s unpopularity in sections of the press run much deeper.

Other elements were much more predictable: these include cultural resistance to the idea that human rights had an important role to fulfil in a country which prides itself on its ancient civil liberties and has a well-known history of scepticism vis-à-vis human rights, or the deep-seated apprehension that whenever lawyers make something their concern (whether it is negligence, family matters, contractual obligations or human rights), they will turn it into a goldmine for the profession. Long-standing prejudices about specific minorities and undeserving groups perversely exploiting the legal protections afforded to them by a benevolent welfare state also traverse media representations of the HRA in a predictable fashion, giving rise to the claim that the Act is in effect ‘a villains’ charter’ (see Chapter 2).

Another contextual element goes to the heart of human rights. Rights are usually thought of as offering basic minimal safeguards: it would appear that citizens are not asking too much when they expect not to be tortured, not to be forced into slave labour, have the freedom to express themselves or practise the religion of their choice or indeed have no religion at all. Yet, to govern consistently in accordance with these principles is a hard task to master, especially in times of crisis or in the face of persistent social problems when it is politically more expedient to veer towards more punitive policies curbing human rights.

Media, mediation and disintermediation

The media history of the past 15 years has been one of transformation at a dizzying pace. Technologies that are only a twinkle in the eye of a college student one day appear to have the capacity to dominate the world not long after, profoundly reconfiguring human communication patterns. In some instances, the life cycle of technological applications turns out to be remarkably short: sold for $850 million at the height of its success, the now nearly defunct social networking site Bebo was reportedly bought back by its original co-founder for a mere $1 million (Hickman 2013). The net impact of this technological acceleration is that society in the space of just a few years has become one in which ‘mass self-communication’ (Castells 2009) and public modalities of self-expression are riding high. The obstacles and gatekeepers previously standing in the way of an individual broadcasting freely have been removed in one fell electronic swoop, or so it would seem at least, as users often lack awareness of new barriers such as search engine gatekeeping, the corporate rigidity of new media architectures and widespread surveillance mechanisms.

It has been argued that the process of mass self-communication has been one of ‘disintermediation’. Madianou (2013: 258), following Coleman (2005), suggests that:

The varying degrees of disintermediation mean that events and humanitarian campaigns can now enter our mediated horizons when previously they might have been left out. Even though internet-based communication is asymmetrically structured and dependent on the power of new intermediaries, the mediated public domain is broadened.

Thus, ‘campaigners are no longer dependent on traditional gatekeepers in order to reach potentially large audiences’ (Madianou 2013: 257). In this sense, new media have acted as a great leveller: everyone (bar situations of censorship and socio-economic disadvantage) can get a Twitter account or start a blog, whereas not everyone is able to set up a newspaper or acquire a television channel. Moreover, limited carrier capacity meant that the large majority of people previously would never have had their voices directly heard in the traditional mass media, but had to be satisfied with a representation of their viewpoints on a plural basis or with having their say very sporadically in a reader’s letter or on a radio phone-in show. Couldry (2008: 386) talks of a ‘correction’ in respect of ‘the hidden injuries of media power’ in which there is now a possibility ‘to distribute more widely the capacity to tell important stories about oneself’. While power asymmetries persist and there are good reasons to be sceptical as to whether there has been ‘a democratization of visibility’ (Madianou 2013: 258) in the new media landscape, the way in which human rights issues are communicated has undoubtedly changed. For example, during the Arab Spring and various other recent uprisings, protestors were able to bear witness live from the scene of oppression by tapping into the potential of social media.

However, what stood out about these events and other dramatic news stories is the continuing importance of the mass media in bringing human rights issues to the attention of a wider audience. Without what Chouliaraki (2013) calls ‘re-mediation’ of messages across a variety of media, including the established news media, much of what goes on in the social media and elsewhere on the internet would never generate the level of publicity needed to inform and sensibilise public opinion. The discourse about human rights in the UK has been shaped through the intermediations between the press and a variety of other communicators. For example, it would be almost unthinkable that the campaign against the extradition of Gary McKinnon on cyberterrorism charges to the US, which is analysed in Chapter 5, would have had the same resonance without the overwhelming support of the British press. Newspaper sales may be in decline, but the political relevance of the press as a principal mediator of public opinion is still intact. The Leveson Inquiry into press ethics, which is discussed in Chapter 4, confirmed what many critics had long suspected, namely that senior British politicians almost without exception tend to show extraordinary deference to the big players in the press.

The position of the traditional news media is, however, not unassailable: they have had to adapt considerably to maintain themselves in the digital age, resulting, for example, in an acceleration of the news cycle and convergence of different platforms. Whether this has been for the better or the worse is clearly a moot point, but as we shall see in Chapter 6, the digital revolution has created enhanced opportunities for a variety of interest groups to enter the media meta-field. The practices of such interest groups may, in turn, have undergone a process of ‘mediatisation’, involving the adoption of ‘media logic’ as a result of this opening up of the media space. However, the process cuts both ways, which is why it may be preferable to think of these dynamics as ‘mediation’ (a concept explored in depth in Chapter 6). Mediation

[i]s always at least two-way: ‘media’ work, and must work, not merely by transmitting discrete textual units for discrete moments of reception, but through a process of environmental transformation which, in turn, transforms the conditions under which any future media can be produced and understood. In other words, ‘mediation’ is a non-linear process.

Couldry 2008: 380

Applied to the HRA, the concept of mediation makes it possible to capture both the media’s own jostling for influence and that of other interested parties attracted and often also alarmed by the putative power of the media to shape public discourse and ultimately perhaps determine the legislation’s fate.

Human rights culture

Political rhetoric is replete with pejorative references to culture. Newspaper headlines such as ‘Is Britain’s benefits culture a disgrace?’ (Daily Express 2012), ‘Cameron pledges crackdown on jobless to cure sicknote culture’ (Grice 2011) and ‘Ed Miliband pledges to end “something for nothing” welfare culture in tough-talking speech’ (Beattie 2013) suggest that culture is an inexhaustible source of political sound bites. Media references to a ‘human rights culture’ would appear to follow a similar pattern of blaming a specific social problem on a particular mindset or a way of life.³ Considering the negative publicity surrounding the HRA, it is hard to envisage that, politically speaking, the Act originally enjoyed what was a very wholesome association with culture. The Act sought to effectuate some profound transformations, including the creation of a ‘human rights culture’, a term endowed with positive connotations which became part of the legislation’s journey very early on in its existence.

While at one level the enactment of the Human Rights Bill had to be read as a technical-legal intervention, albeit one that was never witho...