Routledge Handbook of Media Law

Monroe E. Price, Stefaan Verhulst, Libby Morgan, Monroe E. Price, Stefaan Verhulst, Libby Morgan

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781135109004
• Edition: 1
• Topic: Law
• Subtopic: Media & Entertainment Law
• Index: Law

Featuring specially commissioned chapters from experts in the field of media and communications law, this book provides an authoritative survey of media law from a comparative perspective.

The handbook does not simply offer a synopsis of the state of affairs in media law jurisprudence, rather itprovides a better understanding of the forces that generate media rules, norms, and standardsagainst the background of major transformations in the way information is mediated as a result of democratization, economic development, cultural change, globalization and technological innovation.

The book addresses a range of issues including:

• Media Law and Evolving Concepts of Democracy

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• Network neutrality and traffic management

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• Public Service Broadcasting in Europe

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• Interception of Communication and Surveillance in Russia

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• State secrets, leaks and the media

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A variety of rule-making institutions are considered, including administrative, and judicial entities within and outside government, but also entities such as associations and corporations that generate binding rules. The book assesses the emerging role of supranational economic and political groupings as well asnon-Western models, such as China and India, where cultural attitudes toward media freedoms are often very different.

Monroe E. Price is Director of the Center for Global Communication Studies at the Annenberg School for the University of Pennsylvania and Joseph and Sadie Danciger Professor of Law and Director of the Howard M. Squadron Program in Law, Media and Society at the Cardozo School of Law.

Stefaan Verhulst is Chief of Research at the Markle Foundation. Previously he was the co-founder and co-director, with Professor Monroe Price, of the Programme in Comparative Media Law and Policy (PCMLP) at Oxford University, as well as senior research fellow at the Centre for Socio Legal Studies.

Libby Morgan is the Associate Director of the Center for Global Communication Studies at the Annenberg School for the University of Pennsylvania.

Part I

Media Policy and Institutional Design

1

Tracing Media Policy Decisions

Of Stakeholders, Networks and Advocacy Coalitions

Hilde van den Bulck

Introduction: The Complexity of Media Policy Processes

In recent decades, the area of media policy has become increasingly complex as a result of a number of trends and processes. First, digitization and the ensuing convergence has opened up traditional media markets to new players, most notably those from the once-distinct sector of telecommunications and their spin-offs. Convergence has also led to new configurations between old and new players. Together, this has resulted in new stakeholders to be identified and analyzed in their attempts to influence media policy (d’Haenens and Brink 2001). Second, the growing economic importance of media and information and communication technologies (ICT) as an industry has led to the emergence of new policy actors having a stake, and therefore interfering, in media policy decisions (Hendriks 1995; Neff 2005). This has been encouraged, politically, by what Freedman (2005: 6) calls “the hegemony of market-led approaches to the provision of goods and services.”

Third, the political landscape has evolved considerably. Media policy was never restricted to one political locus of decision-making. Yet recent decades have witnessed a move towards increased multilevel governance (Hamelink and Nordenstreng 2007; Collins 2008). Broadly defined, this refers to policymaking responsibilities being shared by various policy actors at the regional, national and inter-or supranational levels (Hooghe and Marks 2001). In Europe, this was pushed by the growing interest and involvement of the European Union (EU) in media and ICT (Donders and Pauwels 2008). This resulted in a growing homogenization of national media laws and policies through EU directives. What is more, the EU, and particularly the European Commission, has proven to be susceptive to lobby work from other media policy stakeholders, pushing governments to include an ever-wider range of stakeholders into the policymaking process. At a global level, discussions within the World Trade Organization (WTO) about the status and position of media in the context of the General Agreement on Trade in Services (GATS) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) aim to impact on media and ICT policies worldwide (Puppis 2008; Freedman 2008). Many authors (e.g. Moe 2011; Brevini 2010) maintain that, despite these increased European and global interferences and homogenization tendencies, media policies are still mainly a national affair. Yet there is no denying that these trends have widened and complicated the scale and scope of media policy formation, as old and new stakeholders work to influence policies at different levels.

Finally, the introduction of Web 2.0 and social media and thus of audiences not just as consumers but as active producers—the so-called “prosumers”—has resulted in hard-topinpoint, non-traditional, non-institutional and non-industrial stakeholders with, at times, substantial power to mobilize and lobby.

As a result, analyzing media policy has become much more complex. It is increasingly difficult to identify all relevant stakeholders; “the traditional ‘subsystem’ of dedicated civil servants, legislators and select industry players” (Freedman 2005: 6) has expanded to include a much wider range of stakeholders. Governments have come to recognize this trend and show an increasing reliance on multi-stakeholder negotiations (cf. Donders 2011). Many other partners, not yet openly recognized, also push the boundaries for attention and impact. What is more, the policy process has become a much more complicated web to disentangle, and this has made it harder for scholars to study and understand it.

This complexity of the media policy process is in sharp contrast to the attention that is paid to its conceptual and methodological dimensions by scholars working on media and ICT policy. With a few notable exceptions (e.g. Chin 2011; Freedman 2008; Parker and Paranta 2008; Puppis and Just 2012), most books, chapters and articles dealing with shifting media policies limit themselves to a mere mention of key methodological tools (e.g. interviews or document analysis) and rarely go into the conceptual clarifications necessary to understand the key components of a policy process (e.g. demarcation of stakeholders, views on change as brutal paradigm shift or incremental). However, inspiration can be found in study areas within political sciences and sociology that focus more explicitly on a conceptual understanding of the key components of policy processes.

This chapter aims for a better understanding of the growing complexity of the media policy process by providing a discussion of concepts that are central to the analysis of such processes. It illustrates these conceptual insights by analyzing actual policies regarding Flemish public service broadcasting and other cases of media policy as they evolve towards multilayered, multi-stakeholder processes. The chapter starts with a discussion of stakeholder analysis as a way in which to understand different actors, their arguments and logic, their visibility and power, all impinging on a policy decision. Yet while stakeholder analysis is an excellent tool to identify policy actors and their views, it cannot tell us much about their impact on the actual process through which certain policies came about. This chapter also discusses different conceptual tools to understand exactly how certain policies are achieved. Throughout, conceptual clarification is combined with a discussion of key methodological tools and illustrated with contemporary cases of media policy processes. As such, this chapter aims to contribute not only to a better understanding of the ever-more-complex and multilayered policy process, but also to good practices in media policy process analysis.

Identifying and Analyzing the Spiders in the Media Policy Web

Media policy analysis seeks to “examine the ways in which policies in the field of communication are generated and implemented, as well as their repercussions or implications for the field of communication as a whole” (Hansen et al. 1998: 67). Most critical academic media policy research is conducted ex post, tracing how certain policy outcomes came about, why certain policy outcomes became dominant, what parties were involved in the decision-making process and how power was distributed amongst them (Freedman 2008; Fischer 2003). However, as governments move to multi-stakeholder decision-making in media policy, in recent years a growing amount of ex ante or forward-looking policy-oriented research has been set up to contribute to future media policies. Reference can be made to the European Commission’s consultations of stakeholders regarding Green Papers on media and ICT-related issues,¹ the BBC Trust public consultations regarding the 2010 BBC Strategy Review,² or the public hearing contracted by the Norwegian Ministry of Culture, inviting comments from stakeholders regarding the proposed manifesto of NRK, the Norwegian public service broadcasting institution (Øvrebo and Moe 2009). Both ex ante and ex post stakeholder research implicitly or explicitly considers a policy decision as the result of a process characterized by the formulation of different views and interests, expressed by actors or stakeholders who adhere to a particular logic, engage in debate and work towards a policy decision in relevant fora (Hutchinson 1999; Blakie and Soussan 2001). As such, media policy analysis starts with stakeholder analysis.

Stakeholders in the Policy Arena

While stakeholder analysis is applied but rarely identified as such in media and communication policy studies, it has a considerable tradition in other fields of enquiry, including business management (e.g. Mitchell et al. 1997), health care (e.g. Brugha and Varvasovsky 2000), and development and environmental studies (e.g. Prell et al. 2009). Even though “each [policy] sector poses its own problems, sets its own constraints, and generates its own brand of conflicts” (Freeman 1985: 469), and although institutions and loci of power to influence policy outcomes differ across sectors (Howlett 2004), these studies provide conceptual tools applicable to, and useful in, the field of media policy.

Trying to understand the media policy process by means of stakeholder analysis involves a number of analytical steps. It starts from a broad understanding of the main structures and processes of decision-making in a specific country, region, or media and ICT subfield, as well as a study of relevant conceptual–theoretical insights and positions regarding the policy issue under study. The next step involves the identification of all relevant stakeholders (i.e. individuals, groups, organizations and institutions with a vested interest in a particular policy or its outcome). These can include politicians, regulatory institutions, media organizations, citizens and other representatives of civil society, as well as providers of communications services and the advertising industry. Identifying stakeholders is usually a dynamic, iterative, process because unexpected parties may surface during data collection and analysis. Interestingly, the category of stakeholders does not entirely overlap with that of policy actors. Certain stakeholders with a distinct interest in a certain outcome may not actually take part in the policy process (with large sections of media audiences as a typical example), while policy actors with no explicit stake (e.g. academics and civil servants) can considerably influence the outcome of the process.

The next and crucial step is concerned with the identification of actors and stakeholders: who they are; who they represent or belong to; their stake or visibility; and their impact or power. They can further be characterized on the basis of their attitude towards the policy issue and of the main logic they adhere to. The latter relates to the perception of the situation, and the structure of goals and means in a certain situation (Van den Bulck 2008). Within the field of media policy, arguments are formulated mainly within a technological, economic, political and/or cultural logic. Two stakeholders can be in favor of a certain policy outcome (e.g. no product placement in public service broadcasting content) but can argue this on the basis of a different logic (e.g. the economic logic of profit maximization in the case of commercial competitors and a cultural logic of protecting program quality in the case of certain groups in civil society). A shared logic does not necessarily result in the same policy preference. This approach to stakeholder analysis fits in with a recent trend in media policy studies advocating a focus on the role of ideas. Incorporating such an “ideational” view can overcome a too-strong focus on what stakeholders want by also looking at “their worldviews, values and cognitive frames or intellectual paradigms—which may themselves shape actors’ interests” (Parker and Parenta 2008: 4).

A final step involves the mapping of all relevant fora in which each stakeholder can be seen to present and debate their arguments (e.g. a minister’s cabinet, parliamentary committees, political or protest rallies). While in many sectors the media are an important forum, in the case of media policy analysis this forum can be seen to overlap—or at least to have considerable ties—with a number of stakeholders (Freedman 2008).

Data collection in stakeholder analysis typically is based on two complementary methodological tools involving written and oral sources: document analysis (cf. Altheide 1996; Van den Bulck 2002) and elite in-depth interviews (Aberbach and Rockman 2002; Bogner et al. 2009; Dunn 2004; Seldon and Pappworth 1983; Van Gorp 2011). Primary and secondary sources³ in media policy document analysis typically include published and internal policy documents and White and Green Papers, annual reports and other documents of key informants (government, key media institutions, advisory committees, etc.), and communications from stakeholders on relevant fora. Such document analysis is best complemented by in-depth interviews with privileged witnesses who have been part of, or have special insight into, the policymaking process and who can help in the reconstruction of meaning, beliefs or patterns of action.

Case: Multi-Stakeholder Policymaking for Flemish Public Service Broadcasting

To illustrate the usefulness of stakeholder analysis in untangling the increasingly complex web of actors involved in media policy processes, an analysis is made of the Flemish government’s policy with regards to Public Service Broadcasting (PSB), reflective of trends elsewhere in Europe. As a public institution, public service broadcasting across Europe was traditionally regulated and evaluated by the government, which set the regulatory framework that stipulated the rules of the game, including the scope of the remit, the financial constraints, internal and external hierarchies and control, and criteria with which to evaluate the institution’s legitimation. In terms of accountability, PSB answered only to government in some way or another. This close relationship to the state was often ensured through a considerable politicization of the institution, for instance through politically appointed board of governance members, journalists and other key figures (Bardoel and Lowe 2007; Van den Bulck 2007). This changed over the course of the late 1980s and 1990s following the break-up of public service monopolies and shifting views on accountability, influenced by growing interference of a common European policy framework and the “new public management” doctrine (Hood 1991). This led to new forms of governance, seen in the contractualization of relations with political principals, and the externalization of policy and watchdog roles from government to independent agencies (Pollitt and Bouckaert 2004).

In the case of Flemish PSB—today called VRT—the loss of its monopoly in 1989 resulted in a near-terminal crisis that was resolved by a considerable make-over. This included, amongst other things, the introduction of a management contract, renewable every five years, that stipulated the organization’s financial framework and content goals, and introduced benchmarks based on viewing (and later on) appreciation figures (Van den Bulck 2007). Focusing on negotiations in the run-up to the third (2007–11) and fourth (2012–16) management contract stakeholder analysis enables us to understand the policy outcome as the result of the involvement of a growing range of policy actors.

Reconstructing Negotiations Towards the VRT 2007–11 Management Contract

When formal negotiations towards the 2007-11 management contract between the public service broadcasting institution VRT and the Flemish government started in 2005, the existing contract had helped VRT to secure a strong position in the media landscape. This led to both national and international praise for VRT as a prime example of successful public service broadcasting reorientation. However, the cultural and commercial sector criticized VRT, stating that it had regained its success at the expense of some of its core objectives, such as quality and universalism, and had become indistinguishable from its commercial competitors, creating a market imbalance (Donders 2011). Commercial competitors further believed that this imbalance would increase if VRT were given free rein in the field of digitization and new media applications. It is against this backdrop that negotiations started. Administrative procedure (Verhoest and Legrain 2005) stipulates that a management contract is negotiated between the government (i.e. then Media Minister Bourgeois) and an organization (VRT).⁴ However, a comparison of the original views and ideas of these two key actors and the eventual contract shows a considerable shift, suggesting the involvement of other actors in the policy process. A stakeholder analysis was conducted (see Van den Bulck 2008) to understand the trajectory and outcome of this particular policy decision.

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