Media Freedom. Damian Tambini

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Название Media Freedom
Автор произведения Damian Tambini
Жанр Кинематограф, театр
Серия
Издательство Кинематограф, театр
Год выпуска 0
isbn 9781509544707



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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.

      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.

      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.

      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.

      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