Media Freedom. Damian Tambini

the ability of authoritarian states to control information inputs to individual citizens. If information from outside the country was able to seep in, and if individual citizens had the right to receive ideas from sources of their choice, populations could no longer be controlled through propaganda. Hence Article 19 of the UDHR: ‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.’

The consensus on this model has broken down in recent years, particularly since the democratic shocks of 2016, with a growing number of experts arguing that there is a conflict between defending democratic discourse within a state and maintaining the ‘regardless of frontiers’ standard. This is because it is now widely accepted that hostile foreign actors are using ‘information warfare’ tools to exploit the new openness of increasingly internet-based amplification networks, in order to create mistrust and conflict within liberal democracies in Europe, North America and elsewhere, and to broaden divisions and social breakdown within them.⁷⁷

      As Western democracies examine their policy and legal frameworks in a bid to respond to disinformation, opinion is divided. The military and security establishment argues that defensive interests justify the deployment of various forms of censorship and blocking to prevent foreign interference in democracy, and laws are passed against disinformation and election manipulation.⁷⁸ They point to international legal instruments that recognize national security as a legitimate reason for states to impose restrictions on media freedom.⁷⁹ Others argue that a censorship response would be premature and would sacrifice the very ideals of liberty that are at stake in our defence. They advocate a reinvigorated self-regulation system and citizen-led literacy to shore up media freedom with a new purpose of responsibility. Whether this will work remains to be seen: what is clear is that the normative landscape is fundamentally altered: where once openness, freedom and deliberation were to be seen as an unalloyed good, many now argue that in order to protect democratic debate, defences are required against abuse of speech – for example, regulation of disinformation.⁸⁰

      Globalized communication ‘regardless of frontiers’ also undermines the unwritten codes and rules of ‘fairness’ and ‘social responsibility’⁸¹ that enabled states to maintain a ‘hands-off’ approach to the media. At the same time, migration and multiculturalism bring contrasting expectations on harmful, offensive or taboo content together spatially. The failure of agreement on how to self-regulate is revealed by the frequency with which global opinion is transfixed by yet another scandal and failure of media responsibility. The publication in Denmark of cartoons deemed offensive by Muslims leads to killings; Facebook removes a historical photograph of a naked child war victim to howls of protest at ‘privatized censorship’;⁸² WikiLeaks publishes thousands of secret US spy cables simultaneously on multiple global servers; a court attempts to oblige global removal of content deemed harmful in one country. All of these challenges undermine the notion of media freedom as a ‘gentleman’s agreement’, and raise questions about whether new laws need to replace fracturing ‘understandings’, and whether such a move would represent a slide towards censorship or progress towards independent regulation and due process.

In 2011 the OSCE and UN special rapporteurs on freedom of the media jointly warned of the dangers of fragmentation of the internet as sovereignty is asserted over content and personal information by national states. In the era of information warfare and data extraction, many doubt whether protection to communicate ‘regardless of frontiers’ remains a reasonable standard.⁸³ Those that assert internet sovereignty are opposed by neo-globalists urging deeper commitment to global free communication. As Lee Bollinger put it:

      We are facing the emergence of a global society, with the technological capacity to provide a free and independent press to a world in desperate need of such an institution, but there is a myriad of laws, policies, practices, and conditions that inhibit that from happening. Without a central overriding system of constitutional protections, there is a risk of collapse to the bottom, where jurisdictions that have the least degree of freedom will undermine the freedom of those that value it most.⁸⁴

How to Regulate Media Power?

      Unlike in other sectors of the economy, concentration of ownership in media markets has the potential to create power over opinion formation. Therefore media freedom, in the words of the Council of Europe, has media pluralism as a corollary.⁸⁵ It is no accident that the post-war German constitutional law tradition is most developed in this respect. West Germany was a country that had a media law and a constitution to a great extent imposed on it by liberal democracies that had a keen sense of how propaganda can lead to authoritarianism.⁸⁶ Hence the German concepts of Meinungsmacht (‘opinion-forming power’) and the two doctrines of media pluralism which have relevance here: Innenpluralismus (diversity of content within one outlet) and Außenpluralismus (availability of different outlets, genres and viewpoints to media users).

      In the US, regulators also seek to protect media diversity as one of the key means of protecting democracy from the corrosive effect of propaganda, the assumption being that not only rational political outcomes but individual autonomy and liberty itself are dependent on a wide range of plural viewpoints. Those attempting to strike a balance between media freedom and accountability often face a choice: should the most powerful media companies be broken up and subject to market-shaping rules such as limits on media concentration, or should behavioural rules be set? Both approaches raise problems for legal standards on media freedom and pluralism.

These constitutional protections are in crisis. There now exist new forms of media power that can be just as corrosive as unregulated newspapers and broadcasting, but which are not covered by current regulation to protect democracy: such concerns apply in particular to new media use of personal data to determine which messages people do or do not receive. Media pluralism regulation simply was not designed to protect against sophisticated data-driven campaigns, which can capture and manipulate highly strategic slivers of the electorate with far-reaching political consequences, and without breaching the market-wide thresholds and limits that are set out by media pluralism standards. We are far from updating these principles and doing so is likely to be difficult, but the aims are clear: in a democracy, there should be an inverse correlation between media power and media freedom. The more powerful the media institution, the less free it should be. Such conditionality must not, however, equate to state control of what is said, but rather establish transparent systems of accountability to civil society for the limits of what can be said.⁸⁷

Institution Building or a Slippery Slope?

      Journalism and the media often seek protection through the building of institutions: self-regulatory bodies, funding mechanisms, ethical codes, professional bodies. Increasingly, media governance takes the form of ‘regulated self-regulation’⁸⁸ or the codification of rules and ethics in transparent and accountable organizations which protect media autonomy. But media operators often resist institution building, failing to see this as the construction of frameworks which can protect plural messages, and fearing that it creates new vectors of control. Almost all legal and policy reasoning in this respect derives from two theoretical claims: that building institutions will lead to slippery slopes to state control and that state control will lead to a conflict of interest: powerful interests exert information control to perpetuate their dominance.

The point is often made that to create or augment regulatory structures – even new forms of self-regulation – would be a step on a slippery slope to censorship. Take for example the proposals in the UK, in 2012, for a new law, or a Royal Charter on the Press. Self-regulation was generally deemed to have failed in the light of a scandal about illegal and unethical journalism, and it was proposed to establish a new body, independent of government, which would have a limited role of checking that a new self-regulatory body was in fact doing its job. Even among those that acknowledged the failure of press self-regulation, it was widely asserted that the establishment of a new body which would