Media Freedom. Damian Tambini

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.

Information Sovereignty versus ‘Regardless of Frontiers’?

      The post-war expansion of freedom of expression and free media sought to maintain open communications systems across borders as a means of preventing repression by information