Media Freedom. Damian Tambini

slippery slope to censorship: the new body would be given a longer list of duties; it would be used as a vector to transmit demands on the press from powerful ministers.

      For a slippery-slope argument to be successful, however, it must provide an explanation of lubrication and of gravity: why is it that there will be inevitable pressure towards censorship? Will there really be insufficient checks and controls – that is, friction – to prevent the slide to censorship? And why does this reform necessarily lead to more pressure towards government control? It is certainly the case that governments will try to control the media, but why would this specific reform make this easier? Strengthening self-regulation, by a well-resourced but small body that has robust constitutional independence from the state, could protect the press from both future regulation and pressure from publishers. Fears of a slippery slope to censorship could only be justified by a convincing explanation of why and how such a reform would make government control easier. Arguments that institutions per se necessarily lead to censorship are weak. By reinforcing ethics they may prevent it.

Tech Giants or Free Media?

      Giants, by definition, need control. There is – in theory at least – such a thing as a gentle giant, but for the most part, if giants are not subject to regulation they are likely to trample on us normal-size people, grind our bones, and so forth. Many argue that the large tech platforms are dangerous giants and should be dismembered. Others argue that because they are media that they should benefit from regulatory privileges and freedoms. The tech giants themselves try to have it both ways, claiming that they are speakers and also conduits for the speech of others and do not need regulating, because the market guarantees a plurality of voices.

The discussion is usually about the empirical properties of platforms – ‘do they curate, do they select?’: what is the appropriate backwardlooking metaphor for their role? – rather than about what we want them to do. Theory must take a decisive step and treat the question of whether platforms are media as a complex matter of reflexive social construction. In other words, whether platforms are media is not an a priori question based on empirical observation at the present time; it is a question of whether we as a society want to treat them as media, why and on what terms. In my view it is undeniably the case that liberal democracy will continue to require some mediating function of noise reduction in the development of public opinion: democracy needs media. But in an all-internet world, in which ‘everything is mediated’,⁸⁹ only deliberate constitutional design will enable such mediating functions to emerge and to serve the public interest and democracy. Whether and to what extent these are carried out by the large tech platforms in more or less their current form is a secondary question. The role of theory is to lift these dilemmas into the light so that civil society – rather than the fiat of state or private interests and power – can determine their resolution.

Global Standards or American Exceptionalism?

      These paradoxes are not mere theoretical distractions; they lead to uncertainty and conflict in policy and law. They are also, and increasingly, issues that are resolved differently in international standards such as the UN’s International Covenant on Civil and Political Rights (ICCPR) and ECHR on the one hand, and the United States – which chooses to derogate from international standards of free expression – on the other. At precisely the time when liberal democracies need certainty and solidarity around international standards, a chasm is opening up.

      In their magisterial distinction of ‘media systems’ into ideal types, Daniel Hallin and Paolo Mancini group the US and the UK together as liberal countries characterized by developed press and journalism and marketized liberal approaches to media freedom.⁹⁰ It could be argued that such a worldview neglects the fact that the UK is subject to the jurisdiction of the ECtHR and the increasingly developed case law of the ECHR, and that the USA has registered a number of important derogations from the key international treaties, arguing that it has higher standards than the UN on media freedom. On key issues such as whether the government has a positive duty to protect privacy rights, including from media organizations, and on whether paternalist policy such as the ban on TV political and religious advertising is a restriction on free expression, the European approach permits a greater role for the state. These distinctions are echoed as the European countries contemplate the regulation of online media.

Increasingly, the choices and dilemmas are grouped into two opposing worldviews on media freedom. On the one hand you have the US First Amendment approach and on the other the approach outlined by the UN’s Human Rights Committee (UNHRC), for example in its General Comment number 34 on freedom of opinion and expression, and other regional human rights systems such as the case law of the ECtHR. It is the United States that is the outlier. This leads to a tantalizing prospect as the UK charts the complex path of extricating itself from the EU and so no longer being governed by the EU’s Charter of Rights and Freedoms (but remaining in the Council of Europe and so governed by the ECHR): how much of the post-war legacy of a mixed, socially responsible media system will remain, and how much of this can be updated for the new media?

Media Policy Stasis: Why Theoretical Confusion Matters

      Because of rapid technological change in methods of imparting and receiving information, liberal democracies will necessarily have to rebuild their media systems – both public media and the wider governance of private media – in coming years. They will do so at a time of unprecedented upheaval when the undisputed superpowers of the world may no longer be democracies, and when powerful pressures of both globalization and balkanization threaten existing communication freedoms. That they do so in a condition of such disarray, such dispute over the basics, is alarming.

      This book takes to heart the insight from institutionalism in political science: namely that ideas matter, that they can provide the orienting values for new institutional settlements.⁹¹ One such idea is media freedom. The current juncture requires a clear normative theory, to guide institutional and legal renewal, which is lacking. All too often the only guidance the value of media freedom provides is blanket prohibition on new forms of accountability for the media, and even a chill on debate about media regulation, any form of which is dismissed as an attack on the pristine wisdom of media freedom.

      We also require legal and doctrinal consistency: principles and standards that can be applied consistently during a maelstrom of technological changes that are undermining widely held definitions of what ‘media’ and journalism are. A common conceptual understanding of media freedom as an emerging standard in the international rules-based order promises to provide at least some guidance. But current law on media freedom is failing to answer some of the most basic questions.

To address the scale of changes currently faced by media systems will require radical remaking of institutions at every level: from the constitutional law basis of freedom of expression, to the structure for public investment and management of media organizations, to the overall balance between self-regulation and the co-regulatory interface with the law and state regulation. This reform cannot take place in a context where the waving of a loose and woolly flag in the name of undefined, abstract ‘media freedom’ is used to block reform at every turn, resulting in stasis. We need a clear understanding of this concept with which to ground debates about one of the key institutions of democracy.

Dynamics of Change

      The notion of press freedom, and the legal privileges – from public interest defences in defamation to source protection – that give it substance, have accrued over time in multiple struggles across policymaking and law. This process can be read as the development of a decentred and practical theory of the institutional and legal framework necessary for media to serve democracy. The media themselves have been key voices in the development of this theory of media autonomy in a democracy.

      Jan Oster⁹² has brilliantly summarized the law of media freedom as a fundamental right, but he is silent on how and why it