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- Herausgeber: John Wiley & Sons
- Kategorie: Geisteswissenschaft
- Sprache: Englisch
The contentious role of social media in recent elections and referendums has brought to the fore once again the fundamental question of media freedom and the extent to which, and the way in which, the media should be regulated in a modern democratic society. This book surveys the history of media in the US, the UK and Europe in order to develop a new theory of media freedom that is capable of resolving current controversies about how best to regulate the media, including the internet and social media. Tambini argues that democratic regulation of the media must build upon - and learn from - the long history of accommodation between the press, broadcasting, the state and corporate power. By attending to this history, we can see that media freedom is not absolute but rather conditional, taking the form of a social contract of privileges and connected duties. Tambini develops this social contract account of media freedom and applies it to different media sectors, from the press and broadcasting to the internet and social media. Above all, he argues for a renewed role for international human rights law standards in media governance, and an end to American exceptionalism. Written for students, scholars, policymakers and media professionals, this wide-ranging book will be of interest to everyone concerned about the role of the media in our societies and about the health of our democracies.
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CONTENTS
Cover
Dedication
Title Page
Copyright
Acknowledgements
Abbreviations
Introduction
1 Media Freedom: Unresolved Tensions
Introduction: Media Freedom and Global Governance
Why Protect Media Freedom?
Is Media Freedom Absolute?
What Are Media?
Freedom From or Freedom To?
Freedom from the State or from Private Actors?
‘Noise Reduction’ or Censorship?
Is Self-Regulation Voluntary?
Information Sovereignty versus ‘Regardless of Frontiers’?
How to Regulate Media Power?
Institution Building or a Slippery Slope?
Tech Giants or Free Media?
Global Standards or American Exceptionalism?
Media Policy Stasis: Why Theoretical Confusion Matters
Dynamics of Change
The Approach of This Book
Notes
2 Constructing Press Freedom
Theory and the ‘Fourth Estate’
The Captive Press
Press Freedom and the American Revolution
Constitutionalizing Press Freedom
Institutionalization: From Licensing to Liability and Social Responsibility
Distribution, Copyright and ‘Taxes on Knowledge’
International Human Rights and American Exceptionalism
The Impact of Article 10 ECHR on Journalistic Privilege in Europe
Press Freedom, ‘Journalism Privilege’ and the Post-War Compact
Political Economy: Monopoly, Tax, Distribution
An Audit of Press Privilege
Press Freedom: Conditional on Duties?
Conclusions. Press Freedom and the Fourth Estate: Thousands of Choices
Notes
3 Broadcasting Freedom
Introduction: The Socio-Legal Construction of Broadcasting
A Spectrum of Approaches
Towards a Broadcasting Market: The Coase Challenge
The ‘Spectrum for Service’ Compact
Fundamental Rights and Broadcasting
The Rise and Fall of Public Service Broadcasting
What is Broadcasting Freedom?
Conclusions
Notes
4 ‘Internet Freedom’
Introduction: What Is the Internet?
The Internet as a Layer Cake
Making the Internet: Access, Interconnection, Net Neutrality and the Data Economy
Absolute Freedom on the Net: A Very Brief History
The First Settlement for Internet Content and Liability
The Clinton Paradox: Internet Freedom as a Policy Objective
Eight Ways to Censor the Net
The Emergence of Pseudo-Media on the Internet: The Search for an Analogy
Building Responsibility, or Censorship by the Blob?
Conclusions
Notes
5 A Theory of Media Freedom
Introduction: A Positive and Negative Approach
Who Should Be Free? Defining the Media
Free From Whom?
Freedom To Do What?
Outline of the Theory: Reconciling Negative and Positive Approaches to Press, Broadcasting and the Early Internet
Conclusion
Notes
6 The New Social Contract
Trumpeting Free Speech
The Impasse
The First Settlement for Media Freedom on the Internet
Surveillance Democracy and AI
Jurisdiction
Content Liability
Will ‘Content Neutrality’ Kill Journalism?
Media Freedom on the Internet: Policy Principles
The Role of International Law and Human Rights
Fiscal Policy
Public Service
Antitrust and the New Social Contract
Copyright and News Revenue
Names, Numbers, Resources, Standards
Constructing the Social Contract
How to Manage Reform?
Conclusions: Recreating Common Ground
Notes
References
Index
End User License Agreement
Guide
Cover
Table of Contents
Dedication
Title Page
Copyright
Acknowledgements
Abbreviations
Introduction
Begin Reading
References
Index
End User License Agreement
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Dedication
To Helen
Media Freedom
Damian Tambini
polity
Copyright © Damian Tambini 2021
The right of Damian Tambini to be identified as Author of this Work has been asserted in accordance with the UK Copyright, Designs and Patents Act 1988.
First published in 2021 by Polity Press
Polity Press65 Bridge StreetCambridge CB2 1UR, UK
Polity Press101 Station LandingSuite 300Medford, MA 02155, USA
All rights reserved. Except for the quotation of short passages for the purpose of criticism and review, no part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher.
ISBN-13: 978-1-5095-4470-7
A catalogue record for this book is available from the British Library.
Library of Congress Cataloging-in-Publication DataNames: Tambini, Damian, author.Title: Media freedom / Damian Tambini.Description: Medford : Polity Press, 2021. | Includes bibliographical references and index. | Summary: “An expert on media regulation develops a new theory of media freedom for the digital age” – Provided by publisher.Identifiers: LCCN 2021003005 (print) | LCCN 2021003006 (ebook) | ISBN 9781509544684 (hardback) | ISBN 9781509544691 (paperback) | ISBN 9781509544707 (epub) | ISBN 9781509549191 (pdf) Subjects: LCSH: Information services industry–Social aspects. | Mass media. | Democracy.Classification: LCC HD9999.I492 T36 2021 (print) | LCC HD9999.I492 (ebook) | DDC 323.44/501–dc23LC record available at https://lccn.loc.gov/2021003005LC ebook record available at https://lccn.loc.gov/2021003006
The publisher has used its best endeavours to ensure that the URLs for external websites referred to in this book are correct and active at the time of going to press. However, the publisher has no responsibility for the websites and can make no guarantee that a site will remain live or that the content is or will remain appropriate.
Every effort has been made to trace all copyright holders, but if any have been overlooked the publisher will be pleased to include any necessary credits in any subsequent reprint or edition.
For further information on Polity, visit our website: politybooks.com
Acknowledgements
This book was written during two research sabbaticals: at the Department of Political Science at the University of Perugia, and at Mansfield College, Oxford, and I would like to thank wonderful colleagues at both of those institutions. I am grateful to the following people for commenting on earlier drafts: Cecile Fabre, David Levy, Paolo Mancini, Martin Moore, Alan Rusbridger, Philip Schlesinger, Jean Seaton, David Souter, Mark Thompson and Hugh Tomlinson. I am grateful to Jun Yu for help preparing the manuscript and to Nick Couldry for advice on an earlier version. Peter Bergamin, Rachel Craufurd Smith, Jonathan Heawood, Sonia Livingstone, Kate O’Regan, Monroe Price and Jacob Rowbottom have all provided input and advice in the process of developing the ideas in this book. There have been numerous conversations along the way with my students, from whom I have learned a huge amount and whom it has, at the LSE and previously Oxford, been a great privilege to teach. I would particularly like to acknowledge the thoughtful contributions of Nikola Belakova, Sally Broughton Micova, Ruth Garland, Eva Marie Knoll, Eleonora Mazzoli, Rufus Taylor III and Maira Vaca Baqueiro. I am grateful to the journal Intermedia for permission to republish some updated and revised sections from an article published in 2018.
Abbreviations
AI
artificial intelligence
API
application programming interface
AVMSD
Audiovisual Media Services Directive
BEREC
Body of European Regulators for Electronic Communications
DDoS
distributed denial-of-service
DNS
Domain Name System
DSMA
Defence and Security Media Advisory
ECHR
European Convention on Human Rights
ECtHR
European Court of Human Rights
EU
European Union
FCC
Federal Communications Commission
FRC
Federal Radio Commission
FTC
Federal Trade Commission
GDPR
General Data Protection Regulation
IBA
Independent Broadcasting Authority
ICANN
Internet Corporation for Assigned Names and Numbers
ICCPR
International Covenant on Civil and Political Rights
IGO
inter-governmental organization
IP
internet protocol
ISO
International Organization for Standardization
ISP
internet service provider
ITU
International Telecommunication Union
NAB
National Association of Broadcasters
NGO
non-governmental organization
OHCHR
Office of the United Nations High Commissioner for Human Rights
OSCE
Organization for Security and Co-operation in Europe
PBS
Public Broadcasting Service
PIPA
Preventing Real Online Threats to EconomicCreativity and Theft of Intellectual Property Act
PSB
public service broadcaster
PSM
public service media
SOPA
Stop Online Piracy Act
TCP/IP
Transmission Control Protocol/Internet Protocol
TLD
top-level domain
UN
United Nations
UDHR
Universal Declaration of Human Rights
UNESCO
United Nations Educational Scientific and Cultural Organization
UNIRMCT
United Nations International Residual Mechanism for Criminal Tribunals
Introduction
Democracy looks shaky. As the world faces a succession of global crises, even advocates of plural, multi-party politics are asking whether citizens can be trusted to select the right representatives to confront those crises, and if publics are capable of deliberating fair and effective policies to surmount them.
Many identify the roots of our democratic tribulations in a crisis in our media: citizens have lost trust in common facts and authoritative voices, which are drowned out by the noise and distraction of the internet. Democratic self-confidence has evaporated as populists both within and outside democracies seek to control media, and construct new tools of targeted propaganda.
The liberal democratic polity based the legitimacy of collective decision-making on a notion of individual liberty and rationality. The media were free as long as they operated according to an ethics of truth, and broadly served democratic government. Democracy was inconceivable without free media, but the media trod a fine line: for the right they were a liberal conspiracy, and for the left a hegemony of the powerful. The legitimacy of the entire system rested on the ability of the media to marshal sufficient trust in the fairness of the democratic game, and the ethical basis of their own craft. This in turn rested on a social compact of rights and freedoms. Media privileges and protections – including media freedom itself – were in theory, and to an extent in practice, based on self-regulated ethical responsibilities to truth, fairness and accuracy in reporting.
Whether media ever were responsible was constantly in dispute. However imperfect they were, democratic media systems are breaking down, and they threaten to take with them the rational basis of democratic politics.
The work of rebuilding media institutions is under way, but it is stalled, blocked by a predictable compound of interests: the new tech giants locked in a lobbying battle against a new regulatory settlement, and the old media, clinging on to their status as the watchdogs of democracy, but denuded of the resources to meet the obligations this entails. Each protagonist claims the mantle of liberty to defend their interests, and democratic politicians seek their own advantages, without a long-term plan for how to fashion a more adequate deliberative apparatus for the post-broadcast era.
This book offers a theory of how a new approach to media freedom can guide reform of media governance and legal judgements on freedom of expression. Popular consent, civil society and genuine public deliberation are evasive phantoms: as recent elections have shown, trust and the minimal consensus over facts can fracture if citizens perceive that the information they receive is controlled, or ‘fake’. Provision of ‘authoritative’ facts and opinions usually backfires if publics doubt the motives or interests behind them. Only an autonomous, decentralized media system can provide democracy with an information quality filter that is rightly trusted. Because that media system cannot be entirely free, but is threatened at every turn by constraint, its regulation must be based on an explicit and agreed set of principles.
The first stage in a mature theory of media freedom is to reject the ideology that free and effective democratic communication can be served by unconstrained liberty to publish. Communication depends on rules and institutions and resources, whether these are provided by languages, grammars, codes, principles, laws, subsidies or management of the airwaves. Once it is accepted that the libertarian ideal of no rules, or the rule of the market, is an illusion, the debate can start about whose rules, which rules, and whether liberal democracy requires a specific regime of rights and privileges for mediating institutions of communication. This book argues that it does, and that we need to learn from the history of broadcasting and the press in order to ascertain what the key values and principles should be, as well as what they should not be. Without such a theory, which draws on the past of press and broadcasting liberty, and also looks to the future of internet governance, constitutional principles of communication in the democratic state will lack coherence, continuity and legitimacy.
This book argues that we need to revisit the legal doctrines and philosophical principles of press, broadcasting and media freedom in order to build a new approach to democratic communication that runs with the grain of the history of press and speech freedom. In order to understand and resolve the conflicts and fissures in contemporary approaches to media freedom, we need to understand more about their origins. It is necessary to excavate the reasoning that lies beneath the principles that have been sedimented in law and policy over centuries.
This book shows that the law and philosophy of media freedom are in danger of becoming further polarized, between a global human rights system in which media enjoy conditional freedoms as institutions, and are able to claim special privileges in return for the ethical function they fulfil, and the exceptionalism of a United States rightly proud of its unparalleled global leadership of media freedom, and wedded to a ‘marketplace of ideas’ ideal of stateless communication. The time has come for an accommodation between the US and the global human rights system. Liberal democracy can no longer afford the luxury of disunity.
Media systems are in turmoil. They will be reconstructed through a wide range of interrelated policy debates which can be made coherent through a common set of normative principles based on existing rights. The system of international human rights has already developed a template for media freedom as a fundamental right, but more needs to be done to align democracies with these core principles. Liberal democracies must agree a core theory of media freedom in order to proceed with institutional renewal. This book outlines this theory.
1Media Freedom: Unresolved Tensions
Introduction: Media Freedom and Global Governance
Media freedom is an integral element of global security and prosperity. People need free media to provide them with accurate information and informed analysis . . . Where journalists and media organisations are free to do their work safely, societies are more prosperous and more resilient. The free exchange of views and information that results allows communities to identify and pursue emerging opportunities and to recognise problems that must be addressed. Attacks on media freedom are attacks on human rights.1
This declaration, from the Canadian and UK governments in 2019, expresses the consensus among the governments of advanced democracies that media should be free. Spurred on by US leadership in the early post-war years, inter-governmental organizations (IGOs) and non-governmental organizations (NGOs) have sought to limit the ability of governments to interfere with newspapers and broadcasters. In doing so, they have developed an international structure of law that creates a protected space for a network of media institutions. When the European Union (EU) adopted a new Charter on Fundamental Rights in 2011 it demanded that ‘the freedom and pluralism of the media shall be respected’.2 EU governments made an agreement in 2014 that they would protect and promote media freedom and the EU funds a project to monitor and map threats to media freedom.3 Since 2012, the United Nations Educational, Scientific and Cultural Organization (UNESCO) has reported annually on trends in media freedom.4 The Council of Europe operates a platform for real-time reporting of threats to media freedom,5 the United Nations (UN) now employs a Rapporteur on Freedom of Expression, and another international organization, the Organization for Security and Co-operation in Europe (OSCE), appointed its Fifth Representative on Freedom of the Media, a post established in 1997, in 2020. In its report of November 2019, the Representative called for all countries to include a commitment to media freedom in their constitutions.6 The world now has a highly developed legal and institutional structure devoted to protecting media organizations.
Intensive, global, governmental and inter-governmental activity is matched in the world of NGOs. ARTICLE 19, with an annual budget of more than £7m, ‘works for a world where all people everywhere can freely express themselves and actively engage in public life without fear of discrimination’.7 Index on Censorship, with an annual spend of around £1m, ‘documents threats to media freedom through a monitoring project and campaigns against laws that stifle journalists’ work’.8 The International Press Institute, with an annual budget of over £1m, described its ‘mission to defend media freedom and the free flow of news wherever they are threatened’.9 Reporters Without Borders, publisher of the annual Press Freedom Index (annual budget around €6m), claimed to be ‘the world’s biggest NGO specializing in the defense of media freedom, which we regard as the basic human right to be informed and to inform others’.10 Another, US-based, international research and advocacy organization, Freedom on the Net, extends to the new medium of the internet: by 2020, its annual budget was $30m.11
Democratic countries attempted to export what was seen as a model framework for the operation of media systems in a democracy to other countries and regions within their spheres of influence: because media organizations have the ability to shape public opinion, they should be separate from the state. Their freedom is not absolute but subject to checks and balances to ensure they meet their ‘social responsibilities’.12 Those checks and balances, because of the potential for collusion and capture between states and media, must be transparent, rooted in civil society and professional ethics.
This liberal democratic framework was constructed in response to an awareness of the potential authoritarian consequences of media freedom, at key historical junctures, such as the American Revolution, the French Revolution and the institutionalization of the post-war international human rights institutions. The post-war movement to shield media organizations from control by the state has been institutionalized in laws to protect journalists and the media through the UN system. New concepts of protection for the media have evolved from the right to freedom of expression, building on the Universal Declaration of Human Rights (UDHR) and the emerging legal standards under the UN human rights regime,13 through the case law of the European Court of Human Rights (ECtHR) concerning Article 10 of the European Convention on Human Rights (ECHR),14 and national laws such as the First Amendment to the US Constitution. These set out increasingly codified restrictions on state censorship of media. Police investigations should not compel journalists or publishers to reveal information if in so doing they may unjustifiably reveal news sources.15 Journalists, reflecting dangers of harassment and even murder, are able in many regions to claim the right to enhanced police protection, and qualified privilege in defamation cases. And across data protection,16 market abuse,17 privacy, defamation and administrative law, news organizations have achieved an array of carve-outs and privileges.18 These can be seen as the fruit of the long-term development of an applied theory of the role of media in a democracy: in order to fulfil the ‘watchdog’ or ‘fourth estate’ function of the media, journalism and the media need legal privileges and protections, in order to be autonomous from the state.
The democratic theory of media freedom has thus been institutionalized in law. In international human rights law, restrictions on freedom of expression must be proportionate, prescribed by law, for a legitimate aim and necessary in a democratic society. Governments should not be able to chill or shape expression simply in order to maintain their own position of power, or shut down legitimate areas of public debate.19
International human rights law acknowledges that, like censorship, absolute media freedom can be the enemy of democracy. Because large media corporations can have a huge impact on popular opinion – and thereby on elections and the course of history – media power has to be subject to checks and balances. The paradigm case of the media cheerleading for fascism, and the role of the Hugenberg news empire in Weimar Germany,20 led to an explicit acknowledgement by all the post-war Allied governments that careful media law construction is necessary not only to protect media from the state, but also to limit the power of particular media organs. The principles which were established to govern the rise of broadcasting institutions especially were based on principles of pluralism that were established for the press, but these needed to be adapted and new ones invented because of the novel technical and economic features of the internet. Broadcasting and media freedom, like press freedom, could be double-edged: an independent press was the lifeblood of democracy, but if the press was too powerful, and too united, it could quickly overwhelm civic life, resulting in a crisis of state legitimacy. At the core of media freedom therefore was its corollary: media pluralism, essentially an admission that media power must be limited.
Developments in the post-war period flowed directly from the application of this paradigm of media freedom: the breaking of state monopolies in broadcasting and the development of a ‘mixed system’ of independently licensed private and public broadcasters.21 Media ownership, plurality and diversity rules were developed to prevent large media owners corralling public opinion. The rules did not always work, and were often resisted by those power brokers. And it was not only Parliaments and law that led the way. Journalists and media professionals also developed their own institutions. Independent self-regulation, grounded in professional ethics in journalism, offered an intermediate space of rule-making insulated from state interference with a degree of transparency and due process.22 These rules were similarly based on an ethic of responsibility and on values of truth and democratic self-government.
So far, so straightforward. ‘Media freedom’ is fundamental to democracy, but it is not absolute and it requires an ethic of responsibility on the part of the media themselves. It must be subject to checks and balances, and the global struggle for media freedom is about standards to separate necessary checks and balances from selfserving censorship by governments seeking to avoid media scrutiny. But the Global Pledge on Media Freedom (quoted at the start of this chapter) was signed at a conference shot through with gloomy talk, not of the steady march of these liberal values and global standards, but of a crisis of media freedom. An award-winning young journalist had recently been shot on the street in the UK.23 Journalists had been ‘disappeared’ in Malta24 and Slovakia.25 Increasingly authoritarian governments in Poland and Hungary had passed laws to increase government control of broadcasters, Turkey had surpassed China in the numbers of journalists it locked up and even bloggers and social media ‘influencers’ were being harassed and pressurized. There was talk of an ‘information war’26 and demands that democracies around the world pass new laws to censor ‘fake news’ coming from abroad. Emergencies – of health and climate – appeared to justify new limitations on media freedom. Just as it had seemed to be consolidating, consensus on media freedom in liberal democracies appeared to be shattering.
And there is the rub. At precisely the moment when a clear and unambiguous concept of media freedom is needed to guide policy, the concept enters a spiral of self-doubt. And if you are wondering whether concepts can doubt, I should explain that it is us, the expert analysts and scholars of media freedom, that are struggling with the concept. The assumption of this book is that the established rules and institutions of media freedom face a multi-layered and fundamental challenge:
On the one hand, there is a deliberate and coordinated assault on the openness of communication systems, by authoritarian governments, and also by powerful private actors. Authoritarian clampdowns27 on opposition are part of this but the global internet enables many other possibilities. Information warfare28 poisons the well of democratic deliberation with hate and disinformation, which in turn invites censorship. Infowar, by authoritarian states and others, is a deliberate attack on liberal democracy itself: a deliberate attempt to force democracies to unpack the existing settlement for media freedom and replace it with a more repressive one, because to do so serves the interests of entrenched authoritarian rulers, who are intrinsically threatened by the free flow of ideas.29 The big tech platforms themselves may be tempted to seek a self-serving settlement in this struggle for new rules. Increasingly, they hide behind the flawed idea of ‘internet freedom’ as an excuse for failing to restrain malign actors and surveillance capitalism.
On the other hand, the institutions and rules that constitute media freedom are in danger of fracturing from within as definitions break down at a time of intense media change. If media freedom is to be conceived of as a loose package of privileges and obligations, rights and duties, which media are granted to enable them to serve democracy, then the rise of new media poses a simple definitional question. Are the new internet companies media? Should social media companies benefit from the legal and administrative privileges and protections that are enjoyed by the press and broadcasting? If there is a journalism privilege, is this also for bloggers and their hosts?
Such questions require us to understand media freedom not as a value or an aspiration, but as a legal and constitutional structure. This book also therefore examines international human rights law. The jurisprudence of the ECtHR and that of the Supreme Court of the United States have taken divergent pathways in the development of the doctrine of media freedom. In a world of separate national markets for newspapers, and regional broadcasting spaces carefully negotiated in the International Telecommunication Union (ITU),30 such US/European divergence was tolerable. We no longer live in such a world. With ubiquitous internet use, and large and growing social and platform media companies bestriding the world with multi-layered services encompassing all parts of our lives, national and regional speech regimes can no longer be kept separate.
Given the consensus, at least among democracies, on the importance of media freedom, the degree of disagreement on what the term actually means is surprising. As the globe struggles to agree common standards, the US remains an outlier, refusing to sign up to international human rights standards, and a growing array of nondemocratic states seek to protect their right to censor and control media old and new.
When we hear from commentators – particularly from the legacy media – that Facebook and other new internet gatekeepers are ‘media’ and should be regulated as such, it raises a question of definitions. What are the media, and why do we consider them as such? This book takes the position that the media are socio-legal constructions. Societies shape and constrain media institutions through myriad decisions about rules, technology design, law and funding. The media are profoundly shaped by historical and political context: North Korean radios that are pre-tuned to state radio and cannot be tuned to other frequencies; the internet standards in their entirety that attempt to ‘design in’ openness or accessibility, or to shut down free exchange, defining it as ‘piracy’. The movement of ‘X-by-design’ mainstreams Lessig’s observation that ‘code is law’31 and also signals that it is the interplay between law, design and user agency, rather than any one element, that will determine what model of media freedom prevails. Surrounding this is a bigger question: media are a platform of privileged public communication: a socio-legal construction of publicness, supported by a political economy of visibility, and a wide range of privileges and protections. Do the platforms deserve the privileges of media freedom, and how are these allocated?
In liberal democratic countries, ‘the media’ have inhabited a particular place in the constitution through the accretion of thousands of policy decisions that together amount to an implicit theory of the place of media in democratic society. I am not the first to attempt to reconstruct this theory by recounting and reanalysing those decisions, thereby conducting an archaeology of the missing liberal democratic theory of the media, but I am attempting to make this explicit, and to bring it out of the folds of specialist discussions in media law32 and media history, into the mainstream of social and political theory and media studies.33 It is my assumption, therefore, that the crisis of media freedom is in part a conceptual and theoretical failure. This chapter and the following seek to identify and then resolve some current tensions and contradictions in the law and theory of media freedom.
Where is the missing liberal democratic theory of the media? This book seeks to locate it in law and public policy. Thus, this is not a law book, but it is a book about law, amongst other things. Parliaments have been engaged in a persistent attempt to institutionalize a place for media in liberal democratic states and the optimal balance of media freedom and accountability, and they have based this on a number of shared assumptions on the appropriate role of the media in a democracy. But difficult questions remain: is it primarily liberty from the state that should be guaranteed, or should states also have the responsibility to protect media, news or journalism from restrictions on their liberty by private actors? Is media freedom absolute, or subject to certain conditions? If it is conditional, is it inevitable that whatever institution is setting these conditions will be captured by the state or some other sectoral interest? If media freedom involves privileges as well as duties, how to decide what should be considered media, and who gets to define the status of ‘media’?
This book attempts to answer these questions, and to construct a detailed theory of the institutionalized forms of reciprocity and conditionality through which media freedom is constituted. I argue that media freedom is not absolute, but conditional, taking the form of a social compact of privileges and connected duties. As the technological basis of the media is transformed, that conditionality must be reconstituted. The shift to the next stage of communication infrastructure, in an internet-based, data-driven world, will require strong, enduring institutions in order to make democracy function: a new settlement on what the media are, and what their responsibilities are.
In short, the central thesis of this book is that defenders of democracy need to reach a shared understanding of media freedom that goes beyond a negative conception of freedom from state-led censorship. Media governance must be based on positive, institutional rights for the media, subject to strict procedural standards of independence and transparency. Not all technological gatekeepers of communication are deserving of the privileges and protections that accompany the status of media. The legal framework that protects media freedom should protect not only against the state, but against concentrations of private power and their influence on public information. The idea and practice of media freedom is influenced by historical context that varies by country and medium. What I will call a negative rights approach is more prevalent in the US and in press law, and a more positive approach in Europe and broadcasting. The attempt to establish governance for the internet has led to a resurgence of a limited and mistaken negative rights approach, which addresses the threat of state censorship but neglects private censorship. Media freedom today hangs in the balance: it depends on whether civil society succeeds in holding at bay competing interests of the state and market as it redefines that social contract. Drawing on the history of press and broadcasting freedom, I argue that democratic media systems require a renewal of the social contract of rights and responsibilities that constitute media freedom.
This first chapter demonstrates that our current understanding of media freedom is in crisis, and outlines key contradictions that illustrate this. Chapters 2, 3 and 4 outline the historical development of media freedom in law and policy, with a focus on the press, broadcasting and the internet respectively, in order to show that the theory of media freedom is based not only on normative exhortation, but on the long-term development of liberal democratic theory and law. In chapters 5 and 6, I set out the implications of this framework for the current predicament facing liberal democracies: how to deal with a new set of threats to democracy, through the rise of internet intermediaries as a new form of media, and new forms of propaganda driven by artificial intelligence (AI). The aim is to show how the concept of media freedom can, and must, be developed in order to deal with these challenges, without departing from long-established constitutional principles.
Why Protect Media Freedom?
There is a prior question that must be dealt with first: why is freedom of the media a good thing? Liberal democratic theory has in the past conflated media freedom with freedom of speech and expression, but more recently, clear distinctions have been drawn between media freedom/press freedom in particular and freedom of expression/freedom of speech in general. In philosophical accounts and also jurisprudence on freedom of speech and expression there are three standard arguments: the argument from truth, the argument from democracy, and the argument from self-expression. Freedom of expression is seen as good because it enables a free marketplace for ideas in which the truth can emerge,34 because it is an essential precondition for democratic self-government,35 and separately because it provides the benefits of human flourishing and autonomy.36 Recent scholarship has pointed out that these fundamental justifications do not apply to press and media freedom in the same way that they apply to speech and expression as human rights.37 Essentially this is a difference of emphasis: individual freedom of speech and expression are necessary for individual well-being and human flourishing. In contrast, press and media freedom, as rights held by institutions, cannot rely directly on the argument from human autonomy. Media institutions have particular responsibilities, and arguably particular privileges and protections because of their value to society and especially the democratic role they play.38 Speech freedom as an individual right is a good in itself, whereas press and media freedom are instrumental goods: they are to be protected insofar as they demonstrably do achieve the goods of truth seeking and democratic self-government. The instrumental nature of this freedom is important: it enables what I will call the ‘conditionality’ between rights and duties.
The First Amendment to the US Constitution protects ‘freedom of speech – or of the press’. Whilst this suggests that freedom of the press is distinct from freedom of speech, the development of the law since then has tended to deny the existence of an institutional press right in the US.39 Thus Onora O’Neill notes that media freedom cannot benefit from the argument from human autonomy because, unlike individuals, organizations cannot, strictly speaking, express themselves, having no self to express.40 But in some senses, media organizations are more important and deserving of specific privileges. According to Eric Barendt: ‘Free press clauses and other provisions guaranteeing media freedom should, therefore, be understood to confer on all communications media – a term not confined to the established press and broadcasting media – some constitutional rights and immunities which are not conferred on individuals under freedom of expression or speech clauses.’41
Such abstract normative theory can only provide limited guidance in the cut and thrust of legal and policy disputes. One tension in both US First Amendment and ECtHR jurisprudence regards this issue of whether ‘media’ should enjoy the same expression rights as humans.42 In the US context, Judge Learned Hand and, later, Alexander Meiklejohn justified First Amendment protections in self-government and democratic deliberation.43 From this is derived the notion that the media should have more protection than expressive speech. Others, for example Baker44 and O’Neill,45 counter that it is humans rather than the media that should have more protection. In the US there is a general preference for denying ‘the press’ any particular organizational protection as an institution. As we will see, our current predicament is that two key jurisdictions, namely the US (through the prism of the First Amendment) and the members of the Council of Europe (through the prism of Article 10 ECHR), are pursuing different approaches, with the Europeans constructing ‘the media’ as a legal category with special rights and privileges, and the US preferring to treat the press and other media as though they were speakers like any other.46
It is worth noting that several established tenets of this normative theory of freedom of communication are controversial.47 Philosophers such as O’Neill, for example,48 have pointed out that liberty appears to be no guarantee of the emergence or acceptance of truth. Relativists in philosophy and Foucauldians stressing the role of power in determining the acceptance of truth challenge the Millian view of the free marketplace of ideas, and there are many instances in which – in scientific communities, for example – highly regulated speech is required for the emergence of truth. The same could be said of courts. This is a highly contested philosophical territory. Suffice it to say at this point that not only the extent to which liberty leads to truth but the nature of truth itself may need unpacking.
So the crisis of media freedom is one of internal contradictions, compounded by threats to democracy. There is a need for a restatement of the basic role and function of media freedom, and a global settlement for democracies resolving doctrinal and constitutional differences, in particular between the US and the EU. In this context it is important to restate the normative principles of freedom of speech, as Timothy Garton Ash49 and others have done. But it is also important to tease out and engage with the genuine contradictions and unresolved conflicts in the theory and practice of media freedom.
If a theory can find some way to resolve the deep contradictions, tensions and ambiguities that follow, then it will be easier to implement across a range of aspects of law and policy. Recent disputes over social media reveal profound disagreement about what the media are, and the extent to which they should be free. Because of the need for widely agreed democratic ‘rules of the game’ it is hugely important that law, policy and ethical media practices are based upon widely shared and understood ideas of media freedom. Liberal democracies cannot afford the narcissism of small differences between their approaches to media freedom and must resolve their contradictions. The following are the questions which are the most important to address and resolve.
Is Media Freedom Absolute?
Few would argue that media freedom is or should be absolute. Media are free, but within boundaries set by certain ‘conditions and responsibilities’, according to the ECHR. Even in the more permissive US, speech has been subject to restrictions, albeit only speech judged to risk causing a ‘clear and present danger’50 or ‘imminent lawless action’. Restraint of speech or media is always a risk in a democracy because it requires an institution to decide if media freedom is deserved, either in the setting of standards (by Parliaments, for example) or in the application of the law.51 The media have particular responsibilities due to their impact. As an extreme example, the finding of the International Criminal Tribunal for Rwanda that two FM radio stations had deliberately incited the genocide of the Tutsis in Rwanda in 1994 set out the principle that media freedom may be restricted, at least in cases of the worst excesses: the question is how to balance freedom with other rights and the rights of others and make sure that the regulator does not slide into censorship. The radio station Radio Milles Collines was dominant within one language group, and there was a dearth of alternative viewpoints available when it was used to issue specific instructions to groups of people to assemble, armed, in certain places and to coordinate actions. According to the judgement of the Tribunal: ‘The power of the media to create and destroy fundamental human values comes with great responsibility. Those who control such media are accountable for its consequences.’52 UN free expression standards and the case law of regional human rights courts and national courts such as the US Supreme Court have attempted to generate standards on what is a justified restriction of speech, and how to balance the competing rights of speakers, listeners, bystanders and the subjects of communications.53
What Are Media?
If media, as the subject of liberty, enjoy privileges, then it is necessary for someone to decide who or what is or is not media: whether, for example, media privileges extend to bloggers, influencers or algorithms. But whoever defines who or what benefits from media privilege gains censorship power. In some cases, related questions, such as whether an activity is ‘journalism’ or ‘news’, are relevant to decisions about whether media privilege can be awarded,54 but the same problem arises. At the risk of overstating what is a general tendency rather than an absolute rule, US law tends to eschew distinction of media from other forms of speech, whereas human rights approaches embrace journalism or media privilege.
Similar principles apply to the question of whether messages generated by AI should enjoy speech or media rights. On the one hand, machines do not have any inherent rights to autonomy or self-expression because they lack an authentic self, and the potential for targeted communication to overwhelm an individual human’s information inputs is a new threat to human autonomy. But that is not to say that listeners or bystanders should not have the right to receive ideas disseminated by an automaton, or that the social value of democratic deliberation would not be served by nonhuman mediation. In many respects, however, there will be divergences. Data-driven AI permits the narrow and specific targeting of messages, which will give rise to a new ethics of propaganda: the targeting of limited and selected messages to individuals or narrow minorities raises the prospect of non-public mass communication. Contemporary concerns about fragmentation and filter bubbles are the tip of this normative iceberg. In time, a new ethics of communicative diversity and pluralism will be required to determine to what extent the privileges and duties of media should be enjoyed by AI.55
According to Harlem Desir, OSCE Special Representative on media freedom until 2020: ‘social media companies, search platforms and other internet intermediaries have responsibilities in dealing with problematic content, but they must not become the controllers of our fundamental human rights. We need to find the right balance in the demands to social media platforms . . . They are and should remain intermediaries, not publishers of every citizen’s opinions.’56
If media freedom matters – and the expanding universe of treaties, NGOs, IGOs and declarations focused on it suggests it does – then rules and codes which articulate and protect it must be based on an agreed definition of the media. Currently, they are not. The definition of ‘media’ will be essentially contested57 to the extent that media freedom engages special privileges and duties. A good deal of commentary – for example that of Kate Klonick58 – seeks to ask whether, on the basis of their current behaviour or performance, intermediaries such as internet platforms should be considered analogous to old media. An alternative approach would be to set out the privileges of media, and describe what intermediaries need to do in order to be considered media. This more ‘constructivist’ approach is adopted by the EU59 and the Council of Europe.60
Freedom From or Freedom To?
One of the key debates in freedom of speech theory is whether the freedom should be considered as a negative right, as freedom fromstate intervention, or whether it should be a positive right, a freedom to achieve certain communicative ends, which may entail some active intervention by the state to promote – even by intervening in the speech field – the conditions necessary to the enjoyment of this right.61 Such considerations also apply to media freedom. Many practical consequences depend on which approach is adopted: a negative rights approach prohibits intervention by state agencies into the speech field and would hold as incompatible with freedom of speech and media freedom any regulation of broadcasters which obliges them to express balanced or diverse views, or offer access to certain interests or perspectives.
As we will explore in subsequent chapters, divergence between European and international approaches – based on a more positive approach in Europe and more negative approaches in the US – can be traced to the founding texts. The First Amendment to the US Constitution obliges Congress to make no law to abridge freedom of speech or of the press (which has been held to include broadcasting). The freedom of expression guarantee in Article 10 of the ECHR, by contrast, expressly permits the licensing of broadcasting, and the ECtHR has held numerous times that there are positive obligations on the state to maintain the diversity and plurality necessary for democratic debate, including the maintenance of public broadcasting.62 It would be difficult to exaggerate the importance of this distinction.
State interference in the speech field can be presented as a restriction of media freedom, but the case can also be made that some form of subsidy or support of media is necessary for real enjoyment of communication and expression rights. Even in the US, a growing number of people are calling for new privileges and subsidies for journalism.63 A negative rights approach to social media would tend to focus attention on the need to find ways of limiting state incursions into the speech field, and ensuring that accountability and balancing of rights take place in courts in ways that prevent state control of media and public opinion. A positive rights approach could inform the opposite: namely that a regulatory framework might be applied to the media to ensure that they actively promote rights including the expression rights of their users. Because media both have expressive rights and are a necessary condition for the enjoyment of expressive rights of others, and because it is difficult to manage this dual role, it may be necessary to constrain them in the name of freedom of speech.
The question of what positive measures are needed to protect the media arises in particular in connection with journalist safety. Case law of the ECtHR has established that states have a positive obligation under Article 10 to ensure journalists’ safety and freedom from intimidation.64 Much of the policy debate about press regulation is a debate about accountability: how to institutionalize an accountability framework for the press without undermining autonomy. But the construction of structures for protection of journalists could have indirect effects, even if the journalist was not originally threatened by the state. When journalist Roberto Saviano, the author of Gomorrah, an exposé of organized crime in southern Italy, was threatened with Mafia reprisals, the home office minister stepped in to provide twenty-four-hour police protection. But when Saviano turned his fire on the corruption of that very minister, the Northern League’s populist rabble-rouser Matteo Salvini, veiled threats were made by the politician’s supporters that the minister could simply remove the armed guard. Saviano’s subsequent outspokenness required bravery. Experiments in Mexico and elsewhere have attempted to provide protection to journalists without compromising independence or chilling speech.
In a European context,65 the doctrine whereby states have a positive obligation to intervene to promote enjoyment of a right, rather than merely a negative obligation not to infringe a right, is increasingly applied to the media. According to the UN Principles on Business and Human Rights,66 such an approach should also be applied globally. The first cases are starting to be brought against social media platforms as censors of other people’s rights.67 The ongoing debate about positive versus negative approaches needs to be addressed directly, and the cul-de-sac of simplistic negative rights ‘content neutrality’ exposed.
Freedom from the State or from Private Actors?
Is media freedom protection from interference only by the state, or also from interference by private actors? Again, there is a distinction between the US approach and others around the world. US doctrine offers less protection from private interference with speech rights and stronger protection against state restrictions, whereas the European doctrines of positive interventions to protect freedoms, and the indirect horizontal effect of safeguards against interference with free speech by private actors, permit of more potential to protect people and media against private acts which have the effect of censoring speech, but may give states or courts stronger powers to decide what the limits on some people’s actions should be to protect the interests of others. The First Amendment to the US Constitution provides protection primarily against restriction of speech by law – which has been taken to mean the state more widely.68 Historically, because of First Amendment concern about any encroachment of state agencies in the speech field, public broadcasting has not benefitted from significant state-granted privileges or funding (aside from spectrum pricing).
Since the emergence of significant intermediaries with power to decide which messages are widely received, such as search and social media platforms in the first decade of the twenty-first century, states have been keen to delegate to those platforms various regulatory or censorship functions, with the result that there has been an expansion of private enforcement of censorship.69 From the point of view of a negative rights approach where state restraint on communication is the chief concern, this enables states to achieve policy objectives – such as child protection or the removal of terrorist content – because private enforcers are not in general constrained by free speech rights.
From the point of view of the individual autonomy and expressive rights of the speaker, however, it may be irrelevant whether a censorship function is carried out by a private or a state actor. What matters is whether their voice is heard. But the development in 2021 of proposals for new regulatory agencies to ensure that private actors censor speech more effectively raises fundamental questions of where the boundary between state and self-regulation is deemed to lie.
The EU has been actively developing and disseminating standards for ‘independent regulatory agencies’70 in the media sector, which are intended to be politically neutral, to introduce procedural and transparency safeguards to ensure that ‘state’ regulation of communication does not operate against the public interest and is not susceptible to capture. In the US, in contrast, the Federal Communications Commission is explicitly a government regulator and its decisions are more politicized. In such a system, the idea of a state-backed but independent, positive regulation of media speech is a non-starter.
‘Noise Reduction’ or Censorship?
Freedom of the media, like absolute freedom of speech, could result in a cacophony of shouting. It could also result in one giant voice that drowns out all the others. Communication inherently relies on rules, codes, turn-taking, grammars and other standards to prevent noise and misunderstanding, as well as on structural rules to shape and limit media power. Especially in an era of online information oligopolies, the absence of rules is an impossibility, if successful communication is the goal. Because of the need to maintain signal-to-noise ratios, regulation of speech is required either by public or by private actors. With no codes or structures to maintain diversity and pluralism, and given the economies and concentration tendencies of media markets, the media could become a single bloc of unchecked power over opinion formation. Because rules are necessary, there is no ‘prepolitical’ original position of free speech or free media, just varieties of rules, and differences of opinion regarding who should and who does shape communication, by what means and in whose interests.71
The paradigm case for communication regulation as noise reduction is wireless broadcasting. Because of the limited spectrum space, it is necessary for a central authority to manage the use of the spectrum, in order to prevent interference. As we see in chapter 3, there are endless debates on how to allocate spectrum fairly, but the presence of the spectrum-awarding authority itself is unquestioned, because the alternative would be a tragedy of the commons72 in which interference and piracy would lead to all voices being drowned out, apart perhaps from those able to access resources to cut interference. The fact that a central allocative authority is required in order to reduce potential noise and promote successful communication grates against the grain of First Amendment reasoning. This is why, for more than sixty years, regulators such as the FCC have been pressured to sell the spectrum in the open market: the assumption is that administrators will abuse the ranking73 and provide spectrum as part of a wider reciprocal ‘understanding’ between intermediaries of public opinion and those that benefit from opinion – for example in elections.
Similar arguments are applied to contemporary questions of social media regulation: if citizens need quality, true information on which to base judgements, but are distracted by a bewildering barrage of fake, misinformed, self-interested, hateful or irrelevant claims, to what extent should private intermediaries such as social and search companies, or public regulators, be involved in creating new forms of noise reduction and selection, when there is no spontaneous demand for these? Should social media be filtering out deliberate manipulation or promoting ‘trusted’ news? Are such interventions going to lead to self-serving definitions of what constitutes noise and what constitutes signal, either by the state or by the companies themselves, or by some other party such as the amorphous interests of big capital? If we accept the necessity of rules, the question is: whose rules, in whose interests?74
Is Self-Regulation Voluntary?
Politicians have always fulminated about the media. But would threats issued, for example, by a US president against the ‘fake news media’ constitute attacks on media freedom? A president surely, like any other person, has the right to express his opinion about the content of the press. At what point does comment tip over into censorship?
Even in the US, the media do not have a First Amendment right to protection from merely being criticized, only protection from genuine restrictions of speech. But the line between direct and indirect restrictions of media freedom is not entirely clear. If a government agency were to interfere in the operation of the media – by denying CNN a licence to use the airwaves, for example – a First Amendment claim might protect them. But there is a variety of other ways in which the fortunes of a CNN, or for that matter a Washington Post or even a HuffPost, are entwined with or even determined by governmental decisions. Government could implement a tax reform, a levy on paper or distribution, revoke net neutrality rules that guarantee free internet distribution, or merely shift a proportion of the government’s huge advertising budget to ‘favoured’ media. Or a government could threaten to do so. And the threat could be implicit or unstated, in the open or hidden in private communications. Because some of these policy decisions are highly technical, and their economic effects opaque, the subtle workings of the relationship among the estates of government quickly become murky. Questions of power, control and potential reciprocity are extremely difficult to resolve. In 1997, when Tony Blair became prime minster of the United Kingdom, he was widely perceived to have reached an ‘understanding’ with Rupert Murdoch that he would not use competition powers to limit the size or scope of Murdoch’s newspapers (which had supported Blair) or his satellite broadcaster.75 Some commentators argued that there was a much broader understanding or quid pro quo for Murdoch’s support: that there was an ongoing dialogue about policy between Murdoch and Blair, a view supported by evidence to the Leveson Inquiry.76
In such contexts, the question of when an ‘understanding’ about ‘responsible journalism’ shades off into government control of media can be difficult to pinpoint. In some widely accepted ways, the media are expected to regulate themselves and avoid publishing certain kinds of information. This is the realm of ‘ethical self-regulation’, and it is important that journalists themselves make the call about what kinds of information (such as facts that have not been checked) are deemed unworthy of publication. There may be multiple conflicting pressures: an editorial team may be split on the newsworthiness of the story, some may question the veracity of the sources or the validity of some of the claims of illegality. The subjects of the story may threaten legal action. Politicians may make public pronouncements denying reports, and even try to ridicule and cow the media, making accusations that it is ‘fake news’. There may be veiled, implicit or simply assumed threats that some consequences may follow in government policy: a denial of advertising revenue here, a regulatory tweak there. At any time, a management and editorial decision could be taken to reduce the resources given to this journalist, to give the story less prominence or to drop it entirely. These decisions can be taken for a variety of reasons and risk calculations, and the boundaries between an autonomous editorial decision, an act of self-censorship, and the shutting down of a story through state action can be difficult to draw. In some countries there may be a relatively open legal and regulatory system for the media, but tacit understandings that some topics are simply not for public discussion. The presence of censorship and the extent of freedom can be hidden away in unconscious decisions with multiple causes, which lie behind the ‘gut’ decisions of busy editors.
