Media Freedom. Damian Tambini

a deliberate attempt to force democracies to unpack the existing settlement for media freedom and replace it with a more repressive one, because to do so serves the interests of entrenched authoritarian rulers, who are intrinsically threatened by the free flow of ideas.²⁹ The big tech platforms themselves may be tempted to seek a self-serving settlement in this struggle for new rules. Increasingly, they hide behind the flawed idea of ‘internet freedom’ as an excuse for failing to restrain malign actors and surveillance capitalism.

      On the other hand, the institutions and rules that constitute media freedom are in danger of fracturing from within as definitions break down at a time of intense media change. If media freedom is to be conceived of as a loose package of privileges and obligations, rights and duties, which media are granted to enable them to serve democracy, then the rise of new media poses a simple definitional question. Are the new internet companies media? Should social media companies benefit from the legal and administrative privileges and protections that are enjoyed by the press and broadcasting? If there is a journalism privilege, is this also for bloggers and their hosts?

Such questions require us to understand media freedom not as a value or an aspiration, but as a legal and constitutional structure. This book also therefore examines international human rights law. The jurisprudence of the ECtHR and that of the Supreme Court of the United States have taken divergent pathways in the development of the doctrine of media freedom. In a world of separate national markets for newspapers, and regional broadcasting spaces carefully negotiated in the International Telecommunication Union (ITU),³⁰ such US/European divergence was tolerable. We no longer live in such a world. With ubiquitous internet use, and large and growing social and platform media companies bestriding the world with multi-layered services encompassing all parts of our lives, national and regional speech regimes can no longer be kept separate.

      Given the consensus, at least among democracies, on the importance of media freedom, the degree of disagreement on what the term actually means is surprising. As the globe struggles to agree common standards, the US remains an outlier, refusing to sign up to international human rights standards, and a growing array of nondemocratic states seek to protect their right to censor and control media old and new.

      When we hear from commentators – particularly from the legacy media – that Facebook and other new internet gatekeepers are ‘media’ and should be regulated as such, it raises a question of definitions. What are the media, and why do we consider them as such? This book takes the position that the media are socio-legal constructions. Societies shape and constrain media institutions through myriad decisions about rules, technology design, law and funding. The media are profoundly shaped by historical and political context: North Korean radios that are pre-tuned to state radio and cannot be tuned to other frequencies; the internet standards in their entirety that attempt to ‘design in’ openness or accessibility, or to shut down free exchange, defining it as ‘piracy’. The movement of ‘X-by-design’ mainstreams Lessig’s observation that ‘code is law’³¹ and also signals that it is the interplay between law, design and user agency, rather than any one element, that will determine what model of media freedom prevails. Surrounding this is a bigger question: media are a platform of privileged public communication: a socio-legal construction of publicness, supported by a political economy of visibility, and a wide range of privileges and protections. Do the platforms deserve the privileges of media freedom, and how are these allocated?

      In liberal democratic countries, ‘the media’ have inhabited a particular place in the constitution through the accretion of thousands of policy decisions that together amount to an implicit theory of the place of media in democratic society. I am not the first to attempt to reconstruct this theory by recounting and reanalysing those decisions, thereby conducting an archaeology of the missing liberal democratic theory of the media, but I am attempting to make this explicit, and to bring it out of the folds of specialist discussions in media law³² and media history, into the mainstream of social and political theory and media studies.³³ It is my assumption, therefore, that the crisis of media freedom is in part a conceptual and theoretical failure. This chapter and the following seek to identify and then resolve some current tensions and contradictions in the law and theory of media freedom.

Where is the missing liberal democratic theory of the media? This book seeks to locate it in law and public policy. Thus, this is not a law book, but it is a book about law, amongst other things. Parliaments have been engaged in a persistent attempt to institutionalize a place for media in liberal democratic states and the optimal balance of media freedom and accountability, and they have based this on a number of shared assumptions on the appropriate role of the media in a democracy. But difficult questions remain: is it primarily liberty from the state that should be guaranteed, or should states also have the responsibility to protect media, news or journalism from restrictions on their liberty by private actors? Is media freedom absolute, or subject to certain conditions? If it is conditional, is it inevitable that whatever institution is setting these conditions will be captured by the state or some other sectoral interest? If media freedom involves privileges as well as duties, how to decide what should be considered media, and who gets to define the status of ‘media’?

      This book attempts to answer these questions, and to construct a detailed theory of the institutionalized forms of reciprocity and conditionality through which media freedom is constituted. I argue that media freedom is not absolute, but conditional, taking the form of a social compact of privileges and connected duties. As the technological basis of the media is transformed, that conditionality must be reconstituted. The shift to the next stage of communication infrastructure, in an internet-based, data-driven world, will require strong, enduring institutions in order to make democracy function: a new settlement on what the media are, and what their responsibilities are.

In short, the central thesis of this book is that defenders of democracy need to reach a shared understanding of media freedom that goes beyond a negative conception of freedom from state-led censorship. Media governance must be based on positive, institutional rights for the media, subject to strict procedural standards of independence and transparency. Not all technological gatekeepers of communication are deserving of the privileges and protections that accompany the status of media. The legal framework that protects media freedom should protect not only against the state, but against concentrations of private power and their influence on public information. The idea and practice of media freedom is influenced by historical context that varies by country and medium. What I will call a negative rights approach is more prevalent in the US and in press law, and a more positive approach in Europe and broadcasting. The attempt to establish governance for the internet has led to a resurgence of a limited and mistaken negative rights approach, which addresses the threat of state censorship but neglects private censorship. Media freedom today hangs in the balance: it depends on whether civil society succeeds in holding at bay competing interests of the state and market as it redefines that social contract. Drawing on the history of press and broadcasting freedom, I argue that democratic media systems require a renewal of the social contract of rights and responsibilities that constitute media freedom.

      This first chapter demonstrates that our current understanding of media freedom is in crisis, and outlines key contradictions that illustrate this. Chapters 2, 3 and 4 outline the historical development of media freedom in law and policy, with a focus on the press, broadcasting and the internet respectively, in order to show that the theory of media freedom is based not only on normative exhortation, but on the long-term development of liberal democratic theory and law. In chapters 5 and 6, I set out the implications of this framework for the current predicament facing liberal democracies: how to deal with a new set of threats to democracy, through the rise of internet intermediaries as a new form of media, and new forms of propaganda driven by artificial intelligence (AI). The aim is to show how the concept of media freedom can, and must, be developed in order to deal with these challenges, without departing from long-established constitutional