Media Freedom. Damian Tambini

Galizia (26 August 1964 – 16 October 2017) was killed whilst investigating corruption in Malta.

      25 25. Ján Kuciak (17 May 1990 – 21 February 2018) was shot dead together with his fiancée whilst investigating tax fraud by politicians.

      26 26. See Tambini (2021).

      27 27. MacKinnon (2012); Morozov (2012); Wagner (2018).

      28 28. Demos (2019); Tambini (2021).

      29 29. Demos (2019); Tambini (2021).

      30 30. The Regional Radiocommunication Conferences of the ITU set out the technical parameters limiting interference between national and regional broadcasts and were therefore a key institution in the structuring of national communication spaces during the broadcast age.

      31 31. Lessig (1999).

      32 32. Oster (2013); Anderson (2002).

      33 33. Starr (2004); Pickard (2015).

      34 34. There have been numerous formulations. Milton (1644), Mill (1861) and Oliver Wendell Holmes’s dissenting opinion in Abrams v. United States, 250 U.S. 616 (1919) are among the most cited. See Barendt (2005: 7–13) for a discussion.

      35 35. Alexander Meiklejohn developed this notion in his Free Speech and its Relation to Self-Government (1948).

      36 36. There are various versions of the argument. See Barendt (2005: 15–18); also Scanlon (1972).

      37 37. Oster (2013; 2015).

      38 38. Lichtenberg (1990).

      39 39. This is one of the key debates in First Amendment theory. See Baker (1989; 2007); Sunstein (2001); Schauer (2005); Anderson (2002); Barendt (2005).

      40 40. O’Neill (2013: 28).

      41 41. Barendt (2005: 424).

      42 42. In the US, this is the debate about the ‘Institutional First Amendment’ (Schauer 2005; Anderson 2002).

      43 43. Meiklejohn (1948).

      44 44. Baker (1989). But see also Baker (2007).

      45 45. O’Neill (2013: 32–3).

      46 46. This tendency could easily be overstated. As Stein (2004), Shiffrin (2016), Baker (2007) and others point out, there is a more positive, institutional strand in US courts’ approaches to the First Amendment which does privilege media, but this has more recently been downplayed by the US Supreme Court.

      47 47. Scanlon (1972); O’Neill (2013).

      48 48. O’Neill (2013: 24).

      49 49. Garton Ash (2016).

      50 50. In defamation cases, the necessity of proving malicious intent gradually raised the bar first in England in the seventeenth and eighteenth centuries. In relation to freedom of expression more widely, it was in the years after World War I that the US Supreme Court established the general standard that those wishing to impose a restriction on speech had to demonstrate that it was justified as an attempt to prevent evils that the US Congress had a right to stop from happening. The test was first suggested in a dissenting opinion in Schenck v. United States, 249 U.S. 47 (1919). This was later replaced with an even more stringent test of ‘imminent lawless action’.

      51 51. This is true in practice if not in theory. In the ECHR, if a right is prima facie infringed, then it is for the state to justify the infringement.

      52 52. UNIRMCT (2003).

      53 53. Barendt (2005) sets out the interests at stake.

      54 54. See in general Council of Europe (2011). The question of whether ‘news’ or ‘journalism’ can be defined in law is a perennial one. Notable efforts have been the Australian Convergence Review (Australian Government 2012) and the New Zealand Law Commission (2013). The Convergence Commission recommended a new definition of content service enterprises and news providers, each of which would be subject to a new self-regulatory code. The New Zealand Law Commission Report 128 (ch. 3) defined news media in terms of provision of news, information and opinion, to a public audience, regularly and accountably to a code of ethics (p. 66). Neither of these was implemented in full. In contrast, the EU has evolved a definition of audiovisual media services that are commercial and have editorial responsibility, with an informational purpose, to the general public (AVMSD Art 1(1)(a)). See for a discussion Koltay (2015).

      55 55. Media pluralism was about limiting the ability of powerful media companies to control individual, social and political outcomes (Craufurd Smith and Tambini 2012). Data-driven new media companies raise questions for the future of such policy frameworks and whether they will be adequate to these new forms of propaganda (Tambini and Labo 2016; Helberger 2018: 171).

      56 56. OSCE (2019). See also Council of Europe (2011); Gillespie (2018).

      57 57. Gallie (1955).

      58 58. Klonick (2018).

      59 59. AVMSD (2010).

      60 60. See Council of Europe (2011).

      61 61. See for example Grimmelmann (2014: 880). In international human rights law, the doctrine of indirect horizontal effect concerns the extent to which states can be held responsible for failing to prevent the breach of human rights by non-state actors.

      62 62. See Valcke et al. (2015), Helberger (2018), and the work of the European University Institute’s Media Pluralism Monitor.

      63 63. Downie and Schudson (2009), for example.

      64 64. Özgür Gündem v. Turkey, no. 23144/93, §§42–3, ECHR 2000-III.

      65 65. See Lane (2018).

      66 66. The Ruggie Principles (OHCHR 2011).

      67 67. In 2019 in Poland, for example, a drug policy NGO brought a case against Facebook for censoring its posts: https://www.euractiv.com/section/digital/news/facebook-hit-by-landmark-censorship-lawsuit-in-poland.

      68 68. Barendt (2005); Schauer (2005).

      69 69. See for a discussion Tambini et al. (2008: ch. 11); also Schulz and Held (2004).

      70 70. See for a discussion Craufurd Smith (2011).

      71 71. This argument is most associated with Stanley Fish (1994).

      72 72. Lessig (2001).

      73 73. This appears to be borne out by the research to an extent, as powerful incumbents are rewarded, but it is not necessary or insurmountable. See Milosavljević and Smokvina (2014).

      74 74. The ubiquitous trend in recent decades towards ‘league tables’ on freedom of expression and press freedom by leading international NGOs and IGOs such as the European Parliament and UNESCO creates the erroneous impression that such values can reasonably be described in terms of commensurate values along a single continuum. See Becker et al. (2007); Burgess (2010); Price et al. (2011).

      75 75. In a now infamous memo from 29 January 1998, Blair and his policy advisors discuss the interests of the Murdoch empire and a request from Murdoch that the Blair government should take up the case of the company with policymakers in Brussels. See the Blair Witness Statement to the Leveson Inquiry (Leveson 2012: para. 18).

      76 76. See Tony Blair’s oral evidence to the Leveson Inquiry at https://discoverleveson.com/hearing/2012-05-28/1002/?bc=16.

      77 77. See Tambini (2021).

      78 78. See for example the NetzDG law (The Network Enforcement Act) in Germany passed in 2018 and the Online Harms Bill (2020) in the UK.

      79 79. The UDHR and the ECHR accept national security as a legitimate interest in justifying restrictions of speech. The Article 19 Johannesburg Principles and Tshwane Principles set out some standards to define when such restrictions may be justified and when they are unjustified because they are based on political self-interest or embarrassment.

      80 80. See the Democracy Action Plan: European Commission (2020).

      81 81.