Media Freedom. Damian Tambini

Чтение книги онлайн.

СКАЧАТЬ 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 СКАЧАТЬ