Media Freedom. Damian Tambini

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СКАЧАТЬ 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 СКАЧАТЬ