Media Freedom

Damian Tambini

• Publisher: Polity
• Year: 2021
• Print ISBN: 9781509544691, 9781509544684
• eBook ISBN: 9781509544707
• Edition: 1
• Topic: Scienze sociali
• Subtopic: Scienze della comunicazione

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.

1
Media 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 a...

Table of contents

• Cover
• Dedication
• Title Page
• Copyright
• Acknowledgements
• Abbreviations
• Introduction
• 1 Media Freedom: Unresolved Tensions
• 2 Constructing Press Freedom
• 3 Broadcasting Freedom
• 4 ‘Internet Freedom’
• 5 A Theory of Media Freedom
• 6 The New Social Contract
• References
• Index
• End User License Agreement