Media Freedom. Damian Tambini

functions, as encapsulated by the ‘watchdog’ theory of the ECtHR, but such functionalist reasoning is clearly inadequate as an explanatory theory. Commentary on media law and policy is inherently ideologically opposed. On the one hand, the left critique of media freedom claims a coincidence of interests between big capital and big media. On the other, the right critique is that ‘liberal media’ are biased because of the socio-political habitus of journalists.

      In order effectively to adjudicate between these theories, and potentially to develop a more adequate liberal democratic theory of media freedom, it is necessary to ground normative claims in a practical, historical assessment of socio-legal and regulatory structures. This will enable the development of an empirically instantiated, robust theory of media freedom based on an analysis of the emergence of existing legal standards.

The Approach of This Book

It should be evident by now that this book does not take a purely legal approach to media freedom: I will discuss law in social context because law is part of, perhaps the decisive part of, the overall framework that contributes to the autonomy of media institutions. Media freedom is always the product of a combination of factors. If a newspaper, broadcaster or online news service proceeds with an investigation or publication that risks alienating the government or some sector of the population, or may involve some risks of being sued, decisions over whether to proceed will take into account all of the potential consequences; these may involve potential legal liability, but could also involve reputational and commercial consequences, administrative actions, or responses of private actors including self-regulation.⁹³ Whether such risks will be seen as acceptable will depend on the overall financial position of the outlet, which in turn may depend on issues such as tax, competition, subsidies or overall liability and reputation risk.

      This book seeks to advance a democratic theory of media freedom derived from an analysis of the history of the media in liberal democracies, and of the treaties, legislative and constitutional protections and case law that have emerged in response to the democratic desire to protect freedom of expression.⁹⁴ The assumption is that in applying concepts of press and speech freedom, and more recently in developing the concept of media freedom, courts and regulators have developed a working theory of the role and importance of the media in a democracy. The task of the theorist is to isolate, articulate and summarize it and to examine its consistency and validity.

The aim of the book is to move the theory of media freedom beyond the confusions outlined above and set out an ideal normative theory⁹⁵ grounded in the law and history of the development of mass media – particularly press and broadcasting – to inform our current conundrums over social media. A full account of these institutions will include an understanding of the historical background, and of the myriad decisions that were involved in their emergence. As network industries, based on a combination of private and public standards, media are particularly subject to the path dependencies and network effects that lock in previous decisions, leading to a process of change featuring what might be described as punctuated equilibrium,⁹⁶ interrupted by what Paul Starr refers to as ‘constitutive choices’⁹⁷ and Victor Pickard calls ‘critical junctures’.⁹⁸ Understanding the emergence of the myriad settlements and policy battles is crucial. Media freedom is often presented as – and often is – a mirage propagated by hollowed democracies seeking legitimacy. By understanding more about its emergence, drawing on the research of Oster, Pickard, Starr, Seaton, Curran and others, we can resolve some of these dilemmas, and present a simple theory of media freedom to guide the emergence of new, free but responsible media in the internet age.

      By examining the history of existing rules and institutions for the media, it is possible to locate, discover and isolate the democratic theory of the media. Where do the principles of media freedom come from, and how do these theories of the nature and necessity of media autonomy relate to their precursors of press and broadcasting freedom? How do they change over time, and what is their institutional and legal basis? The theory of media freedom is not stable or complete, nor as we have seen is it without contradictions, conflicts and ideological disputes. If the model of liberal democratic self-government is to survive the change in communications structure, and autonomous, choice-making liberal democratic subjectivity is to survive with it, we have to find ways of updating our understanding of media freedom, and the institutional frameworks necessary to implement it in the new environment.

      I recognize that in this book I have attempted something tricky: to begin to outline what I see to be an emergent normative theory, which draws upon one particular reading of the emerging policy debate and case law, while also outlining some of its drawbacks and confusions, and identifying ways in which the historical record shows that real, existing democracies have fallen short of the ideal model to which their laws aspire. The contradictions I have illustrated above are real and they are deep. They will not be fully resolved by this book, which attempts to advance debate by suggesting a framework within which they can be addressed by the next phase of institution building.

Notes

      1 1. Foreign and Commonwealth Office (2019).

      2 2. According to Berka and Tretter (2013: 17): ‘The freedom of the media according to Article 11§2 Charter must not be understood merely as an economic freedom . . . but rather as a comprehensive right to communication that also covers public service media . . . in light of the increasing importance of mass media for the formation of public opinion – freedom of the media could no longer be understood as part of freedom of expression and should be guaranteed separately.’

      3 3. See Council of the European Union (2014).

      4 4. See for example UNESCO (2018: ch. 1), ‘Trends in media freedom’.

      5 5. Council of Europe (n.d.-a).

      6 6. OSCE (2019).

      7 7. ARTICLE 19 (n.d.).

      8 8. Index on Censorship (n.d.).

      9 9. International Press Institute (n.d.).

      10 10. RSF (n.d.).

      11 11. Freedom House (n.d.).

      12 12. The ‘social responsibility’ theory of journalism and the media has become a staple of journalism and media teaching in liberal democracies. It dates to the post-war Hutchins Commission in the United States, and the work of Siebert et al. (1956). See also Nerone (1995).

      13 13. McGonagle and Donders (2015). See especially ch. 1: ‘The development of freedom of expression and information within the UN: leaps and bounds or fits and starts’. The UN General Comment no. 34 on Freedom of Expression from 2011 summarized an approach broadly similar to that of the European Convention on Human Rights.

      14 14. McGonagle and Donders (2015).

      15 15. UK Police and Criminal Evidence Act 1984 (c60).

      16 16. For example, under the UK Data Protection Act 2018 journalism is described as a ‘special purpose’. If you are processing data responsibly and in the public interest, you may be exempt from some of your obligations. These originate in the EU General Data Protection Regulation (GDPR) exemptions. The European Framework was tested in the case of Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland (Application no. 931/13) Judgment Strasbourg, 27 June 2017.

      17 17. See Baker (2007: 997). There are numerous journalism exemptions in US and EU laws that require investment advisors to register for professional regulation and meet transparency requirements. See Tambini (2010) on the Market Abuse Directive and the US exemptions.

      18 18. See Council of Europe (2011). See also Oster (2013; 2015).

      19 19. The UNHRC General Comment 34 and over a hundred standards of the Council of Europe constitute a body of emerging international principles.

      20 20. See Humphreys (1994).

      21 21. Tambini (2015).

      22 22. See in general Tambini et al. (2008).

      23 23. Lyra Mckee (31 March 1990 – 18 April 2019) was fatally shot whilst