At least since the printing press was introduced into Western Europe in the 15th century, concurrent with the rise of the modern state, each new communication technology has triggered a legal response. With electrification in the 19th and early 20th centuries, such developments appeared in rapid sequence as governments developed new regulatory systems for the telegraph, telephone, radio, and television. After World War II, satellite and cable technologies again required changes in media law and policy. Digital technologies, including the Internet, present so many policy problems that three distinct stages of legal development were already apparent by the mid-1990s (Braman, 1995). During a transformative period that legal historians describe as more fundamental and important than anything that has happened since the modern state appeared (Kirby, 2006), new media law and policy play significant roles. The 2003 Communications Act in the United Kingdom, for instance, was the most far-reaching media legislation in that country’s history (Doyle and Vicki, 2005). Deeply experienced media scholars argue that new paradigms for media policy are necessary today (Martín Barbero, 2003; van Cuilenberg and McQuail, 2003). Just what we mean by ‘new media, of course, keeps changing. The first references to ‘new media in a legal context used the term to describe loudspeakers driven around on trucks. Books
with “new media law” in the title began to show up in the early 1980s before the Internet was available to anyone other than those involved in its creation. Today, the terrain of new media includes some technologies, such as telephones, that were not thought of as mass media in the past (May and Hearn, 2005). Including such technologies is important because their uses as a means of distributing content can profoundly affect relations among industry, government, and citizens (Rudin, 2006). One example of such as a transformed relationship, namely the movement away from public service broadcasting in so many countries around the world, has made us keenly aware that the public itself is also mediated through our communication technologies and their uses (Braman, 2004).
In coming years, holographic virtual reality environments we encounter when moving through physical space, or communications seemingly issued from elements of our material environment such as buildings, may become the focus of discussions about new media. A working definition of new media would be those technologies that have come into use for mass communication purposes but that have not yet been fully incorporated into our legal and economic systems and for which both personal practices and institutional supports are still undergoing experimentation.
There was a period of several decades during the 20th century when administrative regulations dominated legal approaches to the media, and in many countries, legal issues such as freedom of expression and access to information were considered separate matters governed by other elements of the legal infrastructure. Generally, that period began with the establishment of administrative, or regulatory, agencies for broadcasting and telecommunications in the first half of the 20th century, and began to wind down with the deregulatory wave that reached the communication systems of almost the entire world by the late 1990s (Singh, 1999). Today government involvement with new media extends beyond the regulatory arena, stimulating reconsideration of the media in light of basic legal and political principles as well as globalization and digitization. Both theoretically and pragmatically, every source of law – constitutional, statutory, judicial, and executive as well as administrative – affects the media, though the nature of each source and relations among them vary from state to state. Here the term ‘law’ is used as an umbrella term to refer to all of these. The term ‘policy’ is used to refer to broad principles underlying many different laws and regulations, proposed laws or regulations, and/or programmes put in place to implement laws and regulations. The number of new media issues is seemingly countless, and growing, but a few of these issues – the “Big Four” – are of particular importance: access to infrastructure, access to content, intellectual property rights, and privacy. These issues stand out because they surface
over and over again with each new technological innovation, and because laws and policies in these areas create the conditions under which all communication – including legal and political decision-making – takes place. As a consequence, understanding new media law and policy is important for every citizen, not just for media professionals.
Several different types of theories underlie media law and policy, ranging from theories that deal broadly with the nature of politics and power to those that deal with the social processes affected by very specific issues or technologies. Political theories provide the overarching frameworks through which all policy-making takes place. We continue to rely on the classics from the past that influentially shape how policy-makers and citizens think about the nature of democracy. For effective policy-making in the 2 1st century, however, contemporary political theories that also deal with the implications of globalization (Norval, 2007) and economic development (Wolin, 2008) are also important. The Polish media scholar Jakubowicz (2004), noting that the question of whether or not it is possible to successfully introduce public service broadcasting in the post-Communist countries of Eastern and Central Europe can be considered a true test of political transformation itself, points out that treatment of the media is a good indicator of which political theories are driving practice.
Economic theories are often linked to political theories, and on their own are among the most influential sources of ideas for policy-makers. This has certainly always been the case for media law and regulation (Albarran, 2002). Today, however, issues such as media concentration (Baker, 2007) and the impact on media content, uses, and markets resulting from the movement toward the Internet (Anderson, 2006) have brought economic theories to the centre of attention. Examples of the explicit use of economic theories as inputs into media law and policy are various. The Korean government, for example, did so when it deliberately created a market in broadband Internet services with a number of techniques that included stimulating an initial market for broadband and ensuring a supply of the necessary technologies early on (Kim, Jeon and Bae, 2008). In Australia, theories of the economics of creativity are being considered during the formation of media policies (Cunningham, 2004). Spain is taking advantage of features of the information economy to build an economic niche for its media industries globally (Kogen, 2005).
Because communication is at the core of political processes, we also have theories of relations between the media and the state (‘press-state relations’). Idealized models published during the Cold War (Siebert et al, 1956) are still in use but are no longer adequate today (Nerone, 1995). Recent work suggests a variety of types of press-state relations exist and are normatively sought, in the 21st century. Hallin and Mancini (2004) found three different types of relationships between the media and the political systems in their comparative study of media institutions in 18 Western democracies in North America and Europe, Becker (2004) found the fourth model in 21st century Russia, and research on other countries around the world is expected to bring additional contemporary models to light. Of course, there is often a gap between press-state relations as idealized and as practised. However, theories of political and economic processes, and of press-state relations, are not the only types of social theories of importance for new media law and policy. Indeed, when legal issues are addressed from the perspective of their impact on society, it becomes evident that all types of social theories may be pertinent. Braman (2006) provides a framework for thinking about new media law and policy through the lenses of social theories as they apply to identity (of the state and of individual l citizens); the structures of technological, informational, and social systems; what happens at the borders of each of those systems; and how those systems change.
A subset of political theories focuses on how the law is made and the nature of policy analysis. Schön and Rein’s (1994) introduction to policy analysis highlights the multi-dimensional nature of any policy problem, and they argue that, as a result, comprehensive policy analysis needs to include the study of policy debate frames, the nature of policy discourse, and the interests of stakeholders as well as cost-benefit analyses of competing proposed solutions to a problem.
Finally, there are theories specific to each issue. Privacy is an example of a very problematic legal issue in the new media environment that is receiving a great deal of theoretical scrutiny in the 21st century because the conditions under which it might be protected or invaded have so qualitatively changed (see, e.g., Allen and Nelson, 2003; Solove, 2008). Regulations that establish usability requirements for network interfaces are more likely to succeed when they are informed by theories of human-computer interaction (see, for example, Reeves and Nass, 2003), and so on.
The law is always a moving target. It changes in response to technological, demographic, political, and other social developments; what is learned from research; and new ideas. Recognition of the political importance of media law and policy has risen in recent years, but at the same time policy-makers, corporations, and citizens find this area particularly problematic. This section looks at just why that is so.
Not every legal problem involving new media is itself new, but often even issues with very long histories require new thinking. We can distinguish among three types of legal problems from the perspective of their relative ‘newness’: traditional problems in traditional forms, traditional problems in new forms, and new problems. Issues of media law that were already important before the convergence of computing and communication technologies began to create legal problems in the 1950s are here described as ‘traditional’. Traditional problems in traditional forms. Some traditional legal issues can still be treated in traditional ways in the new media environment. Defamation (publishing false statements of fact that harm someone’s reputation), for instance, is the same problem whether it takes
place on the Internet or in print. False advertising is false advertising irrespective of where it takes place.
Traditional problems in new forms. There are other traditional legal problems involving processes that simply work so differently in the Internet environment that we must rethink our positions. Access to some forms of personal information collected by government agencies provides a good example. In many countries, individuals have long had a legal right of access to public record information about others such as street address, criminal records, licence plate number, and marriage and divorce information. Before the Internet, acquiring all of this information about someone – especially if that person had moved around geographically – was extremely expensive, time-consuming, and rarely undertaken. Today, anyone can access this information in minutes and with minimal cost. As a result, so many more people now acquire these types of data about others, and we experience the exercise of this right so differently, that many people believe it is new altogether.
New problems. Some new media problems have developed only because of the specific characteristics of the digital environment. There is no offline equivalent, for example, of a ‘denial of service attack’, which shuts down an Internet server and the websites that depend upon it with a flood of repeated messages or requests. There is only a metaphorical relationship between rape involving physical persons and the manipulation of one’s avatar (an image of oneself in a virtual world) to make it look as if that avatar is raping another avatar. Legal responses to these types of problems may require amending or reinterpreting existing laws and regulations so that they apply to the new conditions. Often, however, new laws or regulations are necessary, as when the UK passed a new law specifically outlawing denial of service attacks and the Chinese government mandated the inclusion of specific types of code in online videogames to prevent individuals from becoming addicted by limiting the amount of time someone can play and making play less rewarding over time.
A key feature of the modern state has been evidence-based policy-making, the development of laws and regulations on the basis of what is known about the people and the social processes being governed. Given that it took about 500 years to get a real grasp of the impact of the introduction of the printing press into Western Europe, however, it should not be surprising that today’s policy-makers must often make decisions about technologies with which they are unfamiliar and about which they know little. Several types of knowledge in addition to knowledge of existing law and regulation must be brought to bear on new media issues. Policy-makers must have enough technical knowledge to understand why a particular technology or technological system generates specific legal problems. Spam – unsolicited and unwelcome e-mail that can overload your mailbox – provides one example of what happens when such knowledge is not present. Several governments have put in place laws they believe will stop the problem of spam but which, technical experts point out, will not be effective because they are irrelevant to how spam operates (Malamud, 2005). Policy-makers also need to know how new media are actually being used. The qualifier ‘actually’ is important here, because often users adapt technologies, creating further
innovations and using media for purposes not intended or conceived of by the corporations that produce and sell the items. Where certain types of technologies are being introduced for the first time, however, as happens with new services and infrastructure in developing countries, this type of information may simply not be available short of turning to comparative data (Jain, 2006). Uses, and the effects of those uses, are two different things, so it is also important for policy-makers to be familiar with the results of social science research on the impact of new media. Hate speech is forbidden in many countries around the world, for example, because research has shown that when hatred of specific groups is freely expressed it leads to violence, often on a mass scale.
Policy-makers must also have a feel for the range of types of laws and regulations that are possible – the policy toolkit. Because our communication networks are global, and because so much experimentation is going on around the world, comparative analyses of the ways in which different governments approach the same legal or policy problems can be particularly valuable (Goldberg, Prosser, and Verhulst, 1998; Verhulst and Price, 2008). Some such studies focus on different governments within the same region, as Yang (2007) does for Internet regulation in the Greater China region, Kwak (2007) does for regulation of the narrower problem of pay television in East Asia, and Moe (2008) does for a variety of European
approaches to the translation of public service media ideals into online practices. Historical knowledge further expands the policy toolkit. Regulators in the past regularly pushed amateur shortwave radio operators, known as ‘ham’ radio operators, to the edge of the usable spectrum. This was motivated in part by the appreciation of the fact that such people often generate innovations that expand our ability to use the spectrum, providing policymakers with new possibilities for, and approaches to, regulation. Recognizing the policy
value of such outsider experimentation in the past, today governments are eager to hire socially marginal hackers who gain invaluable knowledge about computers and networks through learning how to attack them.
The Internet and other new media were made possible by the convergence of computing and communication technologies. We began to use the phrase “convergence of technologies” in the 1960s when technological developments that made it possible for computers to exchange information with each other (initially for military purposes) began to be experienced in many areas of our lives. We are seeing a lot of experimentation with convergence among genres in new media content, including such examples as the presentation of news in entertainment form, novels that one can play interactively like a game, and comic book-like avatars that participate in group decision-making processes in virtual worlds. Even industry sectors have now converged in ways that have legal consequences (Wheeler, 2002), raising questions such as whether or not electronic games that promote a particular candidate in an election should be treated as speech that should be regulated under campaign laws. Similarly, there are several types of convergence-like interactions among previously-distinct categories of law when we deal with new media. We see these when we experience the same issue across different legal frameworks, different issues as they interact within a single legal framework, the convergence of regulatory systems within a single country, and the convergence of legal frameworks across national boundaries.
New media law and policy appear across silos of the law that have been separated from each other in the past. Internet interfaces – what one attaches to the network in order to use the net, also known as customer premises equipment (CPE) – provide one example of why this makes a difference. These interfaces have long been regulated. In the U.S. case, two very different bodies of law apply. The mailbox, which in contemporary terms we can describe as a privately owned interface with the public message distribution system, is subject to the postal provision in constitutional law; this type of law is interpreted by the courts and is oriented around fundamental political and social values. In administrative law, the telephone and other types of CPE are managed by the Federal Communications Commission (FCC), which prioritizes network and economic efficiency. In the past, extensive discussions about these interfaces, often triggered by technological innovation, never referenced each other, but both must be taken into account for decisions involving the Internet.
Typically, in both practice and analysis, legal issues are treated as if each existed in isolation, yet this never occurs in real life. Anonymous use of the Internet, for example, simultaneously involves issues of privacy, authenticity, free speech, surveillance, and access. Analysis of new media law and policy, therefore, must attend to interactions between the effects of two or more laws and regulations – ‘policy precession’ – and treat both within a single legal analysis. Policy precession can become evident from effects; in 2008, German journalists experienced threats to their freedom of expression when it was revealed that Deutsch Telekom, a telecommunications provider in which the German government is the
main shareholder invaded their privacy by analyzing several hundred thousand landlines and mobile communication records to find out who the journalists were contacting. In this case, there is policy precession between privacy law and freedom of expression. The exercise of determining what issues may be raised by new technology such as broadcast digital television (Castañeda, 2007) often yields evidence of policy precession in interactions among various forms of content control, surveillance, intellectual property rights, and the right to receive information.
3.3.3 Convergence of regulatory systems within a country
Technological convergence has made it impossible to keep previously distinct systems for regulating communication separately. In a highly influential work of enduring value, political scientist Ithiel de Sola Pool (1983) pointed out that the separate frameworks for regulating broadcasting, telecommunications, and expression would themselves converge into a single legal system. His prescient warning that the result would most likely use the most restrictive elements of each legal framework is worth heeding today.
3.3.4 Convergence of legal systems across countries
The global nature of the Internet has given it a role in stimulating what political scientists and legal scholars refer to as legal ‘harmonization’, the convergence of laws and regulations across states so that they conform with each other. Harmonization comes about through a variety of processes of policy transfer and coordination that have received very little attention from scholars of new media (Braman, 2009). Other dimensions of globalization also affect new media law and policy. Today, the corporations that produce and distribute media content are often transnational, content regularly flows globally, and individuals and groups often use content from one place to act in another part of the world. Abramson (2001) points out that new media policy itself contributes to the redrawing of jurisdictional boundaries,
including the use of such policy as reinforcement for other tools used to carve out a national identity by societies historically subsumed under other political powers (Andrews, 2006) and the repositioning of subgroups within societies (Barnett, 2004). As was demonstrated in Ghana, where the desire to succeed in the global economy trumped the provision of service to the diverse cultural groups within that society in the regulation of new broadcast media, the convergence of legal systems across countries can undermine efforts to achieve historically important domestic political and social goals (Alhassan, 2005).
We are accustomed to thinking about media policy in terms of a relatively fixed community of readers or viewers as geographically defined (with newspapers and local television and radio) and/or in terms of a technologically and organizationally bounded network (with national broadcast, cable, or satellite television and the telephone network). Portable radios offered some mobility in the past, but today we find that technologies such as mobile phones introduce such different uses and effects that they present new regulatory issues because the use of these technologies so immediately links content mobility to individual and group actions. The phrases “ubiquitous embedded computing” and “ambient computing” refer to the embedding of networked intelligent sensors in the material world. These can be in building
walls, objects such as appliances and furniture, or elements of the natural world like soil, plants, or animals. Increasingly these technologies communicate not only with each other, but also with humans, and often they use the Internet to do so. These types of communication systems also introduce qualitatively new types of legal and policy problems. Intelligent sensors in cameras along highways, for example, are now being used to automatically send speeding tickets to the homes of those for whom photographs of licence plates at multiple points provides evidence that the speed limit had been broken. In future, intelligent sensors already in place to monitor the impact of various activities on the environment could also be used to target those who may be accountable for environmental degradation.
Developments such as these turn traffic and environmental issues into communication policy problems. Were the images and sensors accurate in what they recorded? Were the informational transmissions error-free? Did those accused of illegal activity have an opportunity to communicate information about contextual factors that should be taken into account at the point of judgment? Similarly, the possibility of embedding a variety of sensors into mobile phones to serve purposes such as environmental monitoring brings such questions even closer to home.
In the past, those who made and implemented media law in most countries thought about communication functions for individuals that included entertainment, education, and keeping informed about things they need to know for their personal lives such as when and where to sign up children for school. Social functions of concern included respect for the profits of the corporations in the media industries, creation and maintenance of a public venue for discussion of political issues, socialization of immigrants into mainstream society, encouragement of economic development, and use of the mass media for specific purposes such as a health campaign to reduce smoking or prevent the spread of diseases. Depending on the dominant ideas about press-state relations in a particular society, the news media were also relied upon as a check on government activities by serving as a “watchdog” to keep those in office accountable to citizens. All of these clearly focus on the use of these technologies for communication purposes. Those who are making and implementing laws and policies for new media, however, must also take into account non-communication functions. The marketing and surveillance uses of your communications, for instance, are receiving a great deal of attention today. Data about what you watch on television and your web surfing habits are used for marketing purposes by private corporations (Turow, 2006) as well as by governments (Braman, 2006). Technologies you use for your personal purposes can also now be used for scientific research. You can choose, for example, to contribute your excess computing capacity to help solve difficult scientific problems such as investigating whether or not there is life on other planets. Nike and Sony have collaborated to put iPod technologies into shoes that will collect data about your workouts and transmit it to Nike for analysis. In
Brazil, Amazonian tribes are using GPS (global positioning system) and Google Maps to publicize damage to the forests and try to prevent them from being cut down illegally.
These additional uses of new media technologies mean that non-communication functions are also being taken into account by those who make laws and policies in this area. This development is shifting the relative importance of the values that shape decision-making.
When dealing with traditional media, technologies and technological systems were the subjects of regulation. In the new media environment, they can also be tools of regulation, used to shape behaviour in particular ways or to enforce other laws. Digital rights management (DRM) technologies that enforce copyright law by making it impossible to download or save materials to which copyright owner associations believe you do not have the right of access – sometimes even destroying your equipment along the way1 – is an example of technologies as policy tools that have been receiving a great deal of attention. The struggle is still underway over whether or not DRM will be economically successful if it drives consumers away from those services that employ it. Lessig (1999) popularized the then-decade-old realization that computer programming code structures behavioural options in law-like ways. Software defaults – the initial settings of the software you use for various functions – can also have the structural effects of the law (Shah and Sandvig, 2008). Biegel (2001) and other legal scholars are now studying how to use programming, network architecture and technology design deliberately for use as legal and policy tools.
3.7 Everyone produces content
In the past, media law and regulation largely concerned the activities of either corporations in the media industries (e.g. issues involving antitrust and network interconnection) or media professionals such as journalists and advertisers (e.g. libel and false advertising). In the new media environment, however, everyone who uses the Internet is now a potential content provider directly affected by new media law and policy. Comments about someone on an electronic mailing list can trigger a libel lawsuit of the type that formerly was likely to be levied only against professional journalists. This expansion in the percentage of the population that now needs to be more knowledgeable of the law than in the past creates a very strong argument in favour of including legal and policy matters in education about media, information, or technology literacy that should be required of everyone. It has also led to the appearance of new types of regulations.
1. The Electronic Frontier Foundation has a detailed analysis of the DRM restrictions put in place by a number
Many governments ban the broadcasting of political speeches in periods just before or
during elections, for example, but in 2007 the Cambodian government banned all mobile
phone text messaging during an election weekend out of fear of political unrest because of
their mass media-like effects.
The distinction between speech and action can be hard to draw, but it is extremely important when it comes to protecting the right to engage in critical political speech. In the United States, the ‘clear and present danger’ test has been developed to decide whether such speech should be constitutionally protected as necessary to participatory democracy, or whether it should be treated as a criminal activity because it is so dangerous to the government in an undemocratic way. This test for courts to use in deciding cases involving political speech was first put forward in a case involving pamphletting by those encouraging resistance to the draft during World War I. In its current form, this test requires a court to address four questions:
1. Incitement: Does the expression advocate the use of illegal force or violence?
2. Intention: Does the expression actually intend to incite such conduct?
3. Imminence: Would the conduct being incited occur immediately?
4. Probability: Is the expression actually likely to produce the conduct it advocates?
The answer to all four questions must be ‘yes’ for the court to constitutionally treat political communication as action (and therefore treatable as criminal) rather than speech (and therefore constitutionally protectable). In the 21st century, this test is facing challenges in the growing number of legal jurisdictions, including the US and the European Union, where intention alone, as perceived or defined by the security establishment, is presently considered to be sufficient for treating someone as a terrorist. But since intention, unless it is explicitly expressed, is very difficult to discern – especially when alleged inference may be the only evidence (Strickland, 2005) – this creates an exceptionally ambiguous and open-ended justification for restricting freedom of expression, privacy, and access to information. Anti-terrorism laws are an area in which the laws of diverse states are coming to be more and more like each other, irrespective of the underlying political or legal system, so this development should be of concern to everyone involved with new media anywhere in the world. The Republican Convention of 2008, a meeting held to nominate the Republican Party’s candidate for president of the United States provided an example of how this can work out on the ground. A number of credentialed journalists (with certified identities and official passes to report on the convention) were arrested and jailed as a form of “preventive detention” on the basis of alleged intention to engage in criminal, perhaps terrorist, activity
even though they were actually doing nothing other than carrying out their responsibilities as professional journalists. In the new media environment, the problem gets even more difficult because websites often combine speech and action. It is hypothetically possible that clicking to open information on a page about Islam, for instance, in order simply to deepen your knowledge of that religion and its history, could be considered to have crossed the speech/action line. It is still important not to conflate speech and action, however. A gambling website involves both a contract for the website’s domain name (a form of speech) and, separately, legal permission for the gambling activity (a form of action). Both types of legal arrangements are necessary for a single website, but they result from different processes, each operating under a distinct set of rules, and they can be carried out in different legal jurisdictions. New media policy dealing with gambling websites must treat such a website’s speech and action separately.
Laws and regulations applied to new media do not all define their subject in the same way. Differences in operational definitions, whether implicit or explicit, often underlie disagreements about what the law should be or lead to conflicts among laws and regulations from different decision-making venues that deal with the same new media problem. When the Internet is seen as a marketing and distribution mechanism, for example, differentially pricing access to various websites can seem appropriate. When the Internet is seen as a medium for political and other forms of free speech, however, discriminating among types of speech via the same type of price differentiation could be considered highly inappropriate. Several pre-digital distinctions among ways of conceptualizing communications media for
legal purposes remain important in the digital environment, though often with a twist. Here we look at two types of technologically-driven differences as well as at the distinction between content vs. conduit (message vs. medium) and the variety of issue areas involved.
Though digitization has made transitions between wired and wireless communications relatively easy for service providers and seamless for users, in the analogue environment the difference between the transmission of messages by wire (using the telegraph, and then the telephone, for telecommunications) and through the air, wirelessly (in radio and television broadcasting) was crucial to regulators. In most countries, both types of systems were managed under the same regulatory roof, though usually in different work units and with different sets of regulations.
It is possible that techniques for communicating across the wired/wireless border would have developed more quickly had there not also been antitrust (competition law) concerns about organizations that engaged in both types of activities. In the US, the Kingsbury The commitment of 1913 forced corporations to choose one or the other, leaving AT&T with wired communications (and voice) and Western Electric with wireless (and data). Even so, or at least from the 1920s onwards, broadcasters regularly leased telecommunications circuits to transmit program content from one geographically-based station to another. In the digital environment messages and data regularly flow across the ired/wireless divide, but the distinction retains regulatory importance in areas such as network security.
Within each country, several different legal frameworks usually apply to digital technologies even though the rights and responsibilities of each may conflict. As one example, in the US three quite different approaches to regulating communications developed, each put in place to manage a different technology:
(1) the First Amendment, which protects free speech and press, the right of association, and the right to ask for changes in the government developed in a print environment and is a matter of constitutional law;
(2) telecommunications regulation, managed by the FCC, was created to deal first with telegraphy, and then with
(3) broadcasting regulation, which applied first to radio and then to television, is also handled by the FCC, but under the second set of regulations.
Each of these systems started from a different regulatory assumption. For print, the fundamental principle was maximizing the free flow of information. For broadcast, the original approach treated those relatively few speakers with licences as ‘trustees’, with responsibilities to represent all speakers that justified the constraints not applied to print. For telecommunications, common carriage principles apply: service must be provided to all who desire it, and content should be transmitted untouched. These three approaches yield significant legal differences, as exemplified by the treatment of editorial control. Those who publish in print have extensive editorial control over the content that is produced. In broadcasting, however, there are some editorial constraints because of trustee responsibilities. In telecommunications, there should be no editorial control at all. On the Internet, a single network provider almost inevitably carries all three types of content, yielding regulatory confusion.
Since at least the first decades of the 20th century, the law has distinguished between medium (the technologies that produce and carry communications) and message (the content of the communications) or, in an alternative phrasing, between conduit and content. Two different types of regulatory tools – structural regulation and content regulation – replicated this distinction in the law. Digital new media technologies complicate this distinction. Structural regulation manages the medium through interventions in such areas as network structure, pricing, interconnection, and customer premises equipment. Technical standard-setting, which establishes detailed specifications for each technology, was largely carried out by the private sector with an imprimatur of authority ultimately provided by international organizations. In the world of telephony, each company had its own physical network of
lines and switches and thus controlled its own network architecture. This supported the regulatory assumption that networks and organizations map onto each other and change, if at all, only slowly and in response to the actions of a relatively small set of players. In the digital environment, however, network architecture is also a matter of software that can change frequently and market entry is available to any party, whether an individual or an organization, that chooses to use software to design a set of virtual network relations for any purpose. Many more players – potentially all Internet users – are involved in structural issues. Managing the structural regulation process is, therefore, more difficult, at the same time that the structure itself is now seen as a means of regulation. On the content side, new media make possible such an extreme expansion in the scale of both the quantity of content and the audience that can be reached that they qualitatively change the nature of regulated activities and perceptions of appropriate legal positions.
The change in perceptions of which personal data should be publicly available, discussed above, is an example of one category of such change. As a consequence, governments are reconsidering when offline techniques for regulating content and access to data should be acceptable for the Internet. A final medium/message complexity is that in the digital environment it is often possible to choose whether or not a given set of material should be considered as medium or message. Software, for example, can be treated as a textual message, covered by copyright and replaceable by other programs in a computer or network. It can also, however, be hard-wired into a machine that is a medium, in which case it would be covered by patent instead of copyright, and it would not be replaceable by other programs in a given computer or network. Thus the same software can be textual content or a technological conduit. Competitive factors often influence which form any given program will take. Marshall McLuhan’s (1964/1994) famous saying that “the medium is the message” was a succinct way of summarizing some
of the fundamental elements of his medium theory, but it also nicely summarizes this digital confounding of the legal distinction between medium and message.
Governments have always approached communication policy through the lenses of multiple issue areas. In the US, for example, Congress approved funding for the telegraph in 1838 as a transportation matter, to help the railroads; radio was regulated in the early 20th century for military purposes, and support for rural telephony in the 1930s was understood to be an economic development issue. More recently, while military concerns provided the initial impetus for funding to create the distributed communications network we refer to as the Internet, other issue areas of importance included European concerns about vulnerabilities deriving from over-dependence on US-based computing capacity and networks, Middle Eastern governments’ desires to attract business to the region, global interest in a network to support scientific research, and African countries’ eagerness to bring rural areas into the capital-based economy. Corporations believed there were profits to be had in new forms of content distribution and efficiencies to be gained through Internet-based coordination of activities, and others in civil society recognized possibilities for diversifying public discourse and engaging in participatory democracy. This diversity of issue areas matters because each frames a legal problem in a different way. Problems that are singular in a social sense can be the subject of numerous laws or regulations, generated by many different entities, putting in place mutually exclusive rights and responsibilities. Internet speech involving the sexuality of children, for instance, whether through posting content or engaging in conversation, can be understood as an issue of criminal behaviour of primary concern from a policing perspective; as critical educational content of interest to governmental entities involved with education; as a matter of free speech from a constitutional law perspective; as an economic issue to vendors concerned about their ability to deliver services across jurisdictions, to be viewed through the lenses of commercial regulation;
or as a matter of privacy, also often a constitutional matter. No one of these should stand alone in the analysis of the legal issue, as all of these different concerns are legitimate. Rather, the range of interests needs to be taken into account and evaluations made regarding the value hierarchy that should dominate in the resolution of any given issue.
New media law and policy are made in numerous venues both within and outside of individual states. All of these interact to produce the legal context for any given media activity in a particular place.
New media law and policy are made at every level of the legal structure, from the most local to the global. A legal jurisdiction is the geographic space within which the laws and regulations of a specific government are in force. Since so much new media activity – including all that takes place on the Internet – is global, multiple jurisdictions are always involved (Zittrain, 2005). But the global is experienced only under local conditions. New media law and policy are also, therefore, made at the level of the municipality as well as within organizations and homes where managers or parents put in place rules regarding how long individuals may be online or what types of websites they may access. There are many areas of communication law in which multiple jurisdictions have long been possible or probable. Libel law, for example, is a matter of state (provincial) law in the US, so libel cases involving national publications always have a choice of jurisdiction within which to press a case. “Jurisdiction shopping” takes place when lawyers seek a court in a province with a law particularly favourable to their client’s interests, and “venue shopping” occurs when a further choice is made among judges within that jurisdiction for one with a history suggesting s/he will also view particular evidence and arguments favourably. Previously, satellite broadcasting has caused similar jurisdictional tensions between governments over differences in content regulation and treatment of commercial content. Jurisdiction is thus another area in which the new media policy problem is not new, but our experience of the issue has changed in the Internet environment because jurisdictional issues are now endemic (Zittrain, 2005).
This presents several challenges to new media law and policy. Interactions across levels of the legal structure can yield differences from one place to another in the legal context for a specific type of communication. It is also possible for differences in the stage of the information production chain – the distinction between content creation, processing, flows and use – to affect the legality of any particular content or activity within a jurisdiction. The prohibition on Nazi content in Germany illustrates both of these. For a long while, Nazi content was being produced in the US (where hate speech is considered a protected form of political expression) and made available over the Internet to German receivers. When the German government turned its attention to a large-scale Internet service provider (ISP) through whose services the content was being distributed within German territory, the private corporate ISP elected to ban all such content everywhere it operated rather than be subject to the legal process in Germany. Ultimately, the European Court of Justice determined that German law could not be upheld in the Internet environment.
A recent South African domain name case presented a different example of how jurisdictional differences affect Internet policy. When the South African government felt that it’s intellectual property was being infringed by a corporation, it took the case to a US court for resolution, believing – apparently correctly – that this was the jurisdiction and venue most likely to be favourable to its case.2
The desire for a global communications network has long been an important spur to the development of new forms of regulation that cross state borders. It was the telegraph that inspired the formation of the first international communications organization in the 1860s – what we now know as the International Telecommunications Union (ITU). Similarly, the Internet has led to the formation of the first global communications organization, the Internet Corporation for Assigned Names and Numbers (ICANN), to manage the Internet domain name addressing system and related matters. (An international organization is comprised of representatives of states, but in global organizations, civil society entities such as non-governmental organizations [NGOs] and corporations involved in decision-making also have a voice.) Control over the domain name system of the Internet has allowed ICANN to create a flow-
down contract system that begins when ICANN signs contracts with regional and national-level entities responsible for managing domain names within their jurisdictions. There are five regional registries – for Africa, Asia, Europe (all the way East through Russia), North America, and Latin America. Reporting to the regional registries, at the national level, ‘top-level domains (TLDs) with letters designating the country involved have been assigned to over 250 countries and external territories. For Germany, for example, this is ‘.de’, for France, it is ‘.fr’ and for South Africa ‘.za’. A registry operator, or sponsor, within each country manages this domain; the procedures for identifying which organization will have this responsibility differ from country to country. The national-level entities in turn sign contracts with domain name providers within their territories. Those providers sign contracts with organizations and individuals who want their own domain names. And those organizations and individuals can put in place contractual agreements with Internet users. Everyone who goes onto the Internet to communicate, seek out information, or offer content or products of their own has signed at least one such contract – with an Internet service provider or an ISP-like institution such as a university – in order to get online at all. Restrictions on what one can say or do online, and determinations about who can make money from content and activities, can be included in contracts at any stage of this flow-down chain, affecting the terms of contracts at every stage that follows. Current ICANN rules make possible the constraints on free speech
2. A US-based private company had taken the domain name “Southafrica.com” to sell travel services. The South African government, which had taken the domain name “Southafrica.net”, for its tourism board, sued the US company on grounds that the names of sovereign nations should be considered national assets that are unavailable for non-governmental commercial use. In the case of Virtual Countries, Inc. v. Republic of South Africa, filed in the Southern District of New York, the court held in favour of the South African government. put in place via the end user licensing agreements (EULAs) contractually required in order to access the Internet (see Section 6.5 below; also Braman and Lynch, 2004, for how this affects the implementation of US law); the treatment of domain names (your web address) as a form of intellectual property; and invasions of privacy through public access to domain
name registration information.
In essence, ICANN’s contract system has created a parallel legal system for all communications and activities involving the Internet (Mueller, 2002), and there have been accusations that these contracts are used to get around important elements of media law. Struggles over ICANN’s ‘whois’ registry, for example, focus on clashes between ICANN rules and privacy laws in a number of countries (www.epic.org/privacy/whois). Because ICANN is not representative of either governments or of the citizens of countries around the world, many are concerned about its non-democratic nature. Some argue that the constitutional or constitution-like principles underlying the law in most countries should also apply to ICANN’s decisions, particularly in the area of civil liberties (Froomkin, 2000).
Several international organizations make new media law and policy directly and indirectly. Treaties are the basis of these activities, whether multilateral (obligatory for all participants, or members, of the organization), plurilateral (binding only a subset of the members of an alliance), or bilateral (two-party).
Long-standing responsibilities of the ITU for technical standard-setting remain key. The ITU is also involved in development activities to improve infrastructure capacity and security, e-government, Internet multilingualism, and uses of the Internet for healthcare. Regional meetings within the ITU framework provide support for other national and regional-level Internet policy-making. The World Trade Organization (WTO) was created in 1995 as a managerial home for the international trade system first created after World War II and significantly changed in the 1990s. The formation of the WTO was very much a product of the transition to an information economy, being driven by the need to expand the trade system to cover not only goods but also information processing and related services, in international trade law. There was a related need to treat more systematically the trade dimensions of intellectual property rights. The negotiations that led to the creation of the WTO established general principles for international trade permitted exceptions, including special rules for developing countries.
Each country develops its own package of proposals for consideration by the WTO, allowing for additional country-specific tailoring.
The word “package” is used here, because each country engages with the WTO in a number of different trade-related issue areas. Some of these are defined by industrial sector; and of these, “services” and intellectual property are of particular relevance for new media law and policy. Others are defined by type of economic or social vulnerability; anti-dumping and safety concerns apply to all industrial sectors, including those involving new media. The third category of agreements involves techniques for constraining trade; tariffs, non-tariff barriers, and subsidies also apply to all industrial sectors, again including new media issues such as flows of digital media content. Within each of these areas, there are agreements specific to each service or product; telecommunications agreements, for example, have an impact on rates that in turn affect the cost of network access to the Internet, and agreements that cover trade in computing and networking equipment affect the cost of equipment needed to use the Internet.
When multilateral treaties cover a broad purview they effectively create an additional layer of legal infrastructure between the international and state levels. The most comprehensive of such regional legal entities is, of course, the European Union. Others include the North American Free Trade Agreement (NAFTA) and the Association of South East Asian Nations (ASEAN). Within the ICANN system, regional groups also establish policies that differ from each other in areas such as which elements of the Internet are deemed to be critical infrastructure. Other regional groups focus more broadly on networking issues.
Civil society groups actively contribute to the regionalization of Internet policy efforts. The development of new media laws and policies at the regional level can make very obvious the tensions among various approaches to media functions, the social roles of media use, and the extent to which cultural preferences should shape legal frameworks (Harrison, 2007). Two examples of regional groups that make Internet policy are briefly introduced here. The European Commission (EC) has laws and regulations that affect the Internet in three ways. In the area of i) regulating the market, EC network policies attempt to reduce levels of spam and cybercrime, manage the spectrum, and prevent negative health-related effects of electromagnetic fields. Policies dealing with ii) copyright, web accessibility, and regulation of the audiovisual industry affect Internet content. EC policies that stimulate iii) Internet
development include those dealing with taxation of Internet service and e-commerce, research and development (R&D), and use of the net to pursue social goals such as improving the quality of health care and education. The ‘i2010 Initiative’ brings many of these policies together under a single rubric, and international dimensions of what the EC is doing in this area are a part of its international relations programme. In 2003, ASEAN brought together diverse regulations dealing with Internet-related matters
in the Singapore Declaration, an action agenda devoted to using ICTs to promote digital opportunities within ASEAN countries and enhancing their competitiveness. Issues such as network interoperability and interconnectivity, security, and data integrity are key. Harmonization of Internet-related laws across ASEAN countries, reduction in tariffs on trade in the technologies involved, and collaboration on cyber-security issues are seen as major ways of improving the environment for users. Stated goals include reducing the digital divide within ASEAN countries as well as improving the infrastructure.
5.5 The state level
Within each country there are many different ways in which laws are made, ranging from executive fiat at one extreme to votes of the entire population in plebiscites at the other. Labels for each of these processes, how policy-making is undertaken for each, and relations among the different sources of law vary significantly from country to country. Thus your first step in trying to understand new media law and policy for any specific country must be to gain a basic understanding of the legal system involved. Here we will focus primarily upon US law as an exemplar case to briefly look at the types of new media policy produced by each of the most influential and typical sources of law. Even though all countries face the same types of new media law and policy issues, they can resolve them in very different ways
(Pashaputi, et al., 2003).
Fundamental policy principles are put forward in constitutions, or constitution-like documents. These go under many different names. In Germany, for example, it is the Basic Law, interpreted by the Federal Constitutional Court in response to petitions from federal bodies, government officials, or citizens. In the UK there is no written constitution per se, but an unwritten constitution is comprised of fundamental principles of enduring importance and consensual acknowledgment. In the US, the Constitution can be interpreted by any court in the country. Law at the constitutional level is based on philosophy, social theory, and beliefs about the nature of society and of democracy. While other types of law deal with existing social categories and relations within and between them, it is the job of constitutional law to define the very categories through which we will relate to each other and to establish the constraints and
responsibilities for just how those relationships unfold. Because communication law creates the conditions under which all other types of legal and political decision-making take place, it can be argued that all new media law and policy is of constitutional status. In the traditional media environment, policy analysts in most countries focused on constitutional-level principles focusing on freedom of expression, access to information, and privacy. The particular features of the digital media environment, however, have encouraged us to revisit the question of which constitutional principles apply. Appendix 1 presents a list of principles of importance to new media law and policy that are currently found in constitutional documents.
Choose a country to focus on as a case study for all of the exercises you will do for this unit. This can be your home country, the country in which you currently live, or another country in which you are particularly interested. Make sure to choose a country that has open access to information about the government that you can reach affordably and quickly from where you are living, preferably online. Try to identify the fundamental legal principles that guide new media law and policy in your chosen country (use the list of constitutional principles that apply to new media in Appendix 1 as a checklist). Read through the constitution or other pertinent documents of your chosen country. Which of these principles are found in these documents? For those that you find, are they expressed in the same way, or are they different in emphasis, focus, or position? Are there any additional principles you can identify?
All of the principles on this checklist are found in more than one constitution. There are additional principles that appear only in single constitutions but that are also pertinent; in El Salvador, for example, the constitution specifically states that individuals have a right to a name. There are lots of steps in between the establishment of constitutional principles, putting more specific laws and regulations in place, and the actual implementation of the law. Knowing what the constitutional-level principles are, however, tells you what the highest goals for new media law and policy are and what is possible.
Statutory law translates general constitutional principles into laws, or statutes. Statutory law is created by parliamentary entities such as the German Bundestag, the Thai NationalAssembly, or the Parliament of Ghana. The ‘USA PATRIOT Act’, passed after 9/11, is an example of statutory law that has had enormous impact on how we use the Internet and other new media such as cell phones. There are many other recent examples of statutory new media law, including the 2007 Japanese ‘Conspiracy Law’ and the ‘Central America Free Trade Agreement’ which requires countries to bring their laws into line with US laws requiring ISPs to withdraw Internet access from those accused of infringing copyright by rights holders.
When decision-making in a particular area requires detailed technical knowledge and must be made over and over again, statutory law is used to set up a regulatory, or administrative, agency to put in place regulations that have the force of law. In addition to the government entity that has the communication regulation portfolio, a number of other agencies may be involved in regulating certain kinds of content. In the US, the Food and Drug Administration(FDA) regulates information on products about things we take into or put onto our bodies, the Securities and Exchange Commission (SEC) has rules for what financial information must be published about publicly held corporations (corporations that sell their stock to the public), and the Federal Trade Commission (FTC) governs advertising and marketing practices.
Where interpretations of the law create precedent to be followed by those who make and implement the law in future, court decisions are also a source of law and policy. The courts have been extremely important venues for guiding new media law and policy in many countries, perhaps because court cases can offer opportunities to bring detailed analyses from many diverse perspectives into the decision-making process that was effectively available at the time laws were passed. Public interest non-profit organizations concerned about Internet policy, such as the Electronic Frontier Foundation (www.eff.org) and the Electronic Privacy Information Center (www.epic.org), devote a great deal of their energy to participating in such lawsuits.
In most countries, there are several layers of additional decision-making about new media matters below the level of the national government. In many cases, laws and regulations dealing with a specific subject may exist at different levels of government and governance within a single state. The provincial, municipal, organizational, and domestic environments are of particular importance. It is at the provincial level that Canada, for example, has data protection laws in addition to those of the national government: in Germany, the responsibility for technological research and development lies at the Länder3 level. In some cases, these are laws that are put in place only at the provincial level, while in others laws dealing with the same subject matter can also be found at the national level.
Municipalities (legally defined urban areas) are sources of new media law and policy as well. Municipalities can have regulations regarding the protection of personal data about citizens and their activities, access to information, and other e-government issues. In many countries, it is at the municipal level that there is access to the Internet, whether through public libraries, telecentres, or community-wide free wireless networking.
(Allow at least two hours)
Using the resources below, map all of the different sources of new media law and policy for the country you selected in Activity One. Remember that many different governmental units may have responsibility for the same legal problem or policy issue and that a law or regulation made by one body may be implemented or interpreted by another.
i) Most governments in the world now have at least some information about themselves available online. The websites of the government you are studying should be the first place you look.
ii) GlobaLex is a freely available website that provides country-specific guides for doing legal research on the countries it covers. Created by the law school at New York University, these guides are in English, are written by country experts, and provide links to additional information for each country. If you do not know how to locate the websites of the government you are studying, this can be a good place to start.
iii) Additional resources for studying foreign, comparative, and international law that may also be useful for you are also offered by the New York University School of Law on a website put together by Mirela Roznovschi.
iv) The ‘Keele Guides to Government and Politics’ provide guides to key ministries of governments around the world as well as links to other sources of information about those governments, including media. These guides are compiled by M. Harrison of the School of Politics, International Relations and Philosophy, Keele University, UK.
v) The Global Legal Information Network (GLIN), at www.glin.gov, contains full texts of
legal documents from governments around the world.
vi) www.Europa.EU is the portal to information about the European Union laws and policies.
vii) Nordicom, an organization devoted to communication research from and about the Scandinavian countries has a superb newsletter and website on European Union and
Scandinavian media laws and policies.
viii) Online newspapers originating in the country you are studying can also be excellent
resources for this exercise.
Because various issues may be referred to under different names (as discussed in the sub- the section on issue areas), and because the legal environment around new media issues keeps changing, this is not an easy exercise and what you find one year may be different from what you find the next year. It is an essential exercise, however, to provide you with an overall sense of the complexity of new media law and policy in the country you are studying. If you go on to further study or research in this area, you may find yourself repeating this exercise from time to time.
6. What Tools are Used in New Media Law and Policy?
Some legal tools are considered inappropriate for application to communications because of the intimacy, social functions and political valence of much communications content. It is considered unacceptable to tax people each time they communicate with another person, for example, or to require certification or a licence before using common communication technology. A number of traditional communications policy tools, however, are used with new media, and new types of tools are coming into play in response to political and legal as well as technological developments. I will discuss some of the most important of these here, including content, structural, time, place, and manner regulation; reliance upon community standards; contracts; self-regulation; and the balancing test. The ‘clear and present danger test’ discussed above is also an important policy tool.
Content regulation constrains, forbids, or requires communication on the basis of message content. The kinds of content regulated vary across time, from country to country, and in response to shifts in the political environment. In many countries, there is a bias against content regulation because it impedes the free flow of information, but there is no country that absolutely protects free speech irrespective of content, context, or effects. There is always some content that is not protected, commonly including that which is treasonous, libellous, or involves criminal activity. Cultural differences and historical experience have generated a wide variety of different types of content restrictions. Many governments outlaw hate speech. In Thailand, it is forbidden to criticize the monarchy. In many Islamic countries, criticism or parody of the Koran is illegal. Aside from these exceptions, policy must, in the language of
US law, be “content neutral”. That is, any law or regulation restricting speech must apply in exactly the same way irrespective of the content of the communication being restricted. Because of jurisdictional issues and differences in scale, accessibility, and perhaps impact, some observers question the extension of types of content regulation considered acceptable for traditional media into new media contexts (Valcke and Stevens, 2007). Meanwhile, as discussed above (Section 3.8), anti-terrorism laws are expanding the domains of restricted content in many countries around the world. There have been several efforts in the US to claim that any expression of concern about damage to civil liberties is itself a form of “support for the enemy”, creating a de facto content restriction. Government subsidies for the production of certain forms of content are also content regulations. In the Dutch context, for example, it has been proposed that subsidies should be used to ensure that high-quality journalism appears on the Internet, supporting both traditional news organizations and new entities (Bardoel, 2002). Mandated communication of information, such as the financial details of publicly-held corporations, is another form of content regulation.
Structural regulation involves laws or regulations that are directed at how a market, industry, or organization operates. For networks, infrastructure architecture is a form of structural regulation. Spectrum allocation – licensing specific types of communications to certain bands of the radio-magnetic spectrum – is a current example of a contested issue of this type. Efforts by service providers to use the ‘white space’ between portions of the spectrum given to analogue broadcasting in order to expand wi-fi services show how spectrum allocation can be a form of Internet policy. Antitrust, or competition, the law is structural regulation that tries to prevent a single or a few corporations from inappropriately dominating the market; it is antitrust law that many countries are using to try to reduce Microsoft’s dominance. Limiting media concentration is a type of structural regulation that is currently receiving keen attention in many countries (Albarran and Mierzejewska, 2004). The Chinese government uses structural regulation when it shifts relations between media corporations and the state internally and simultaneously opens up opportunities for those corporations internationally (Huang, 2007). Another example of structural regulation from China involves the use of controlled, or limited, commodification and privatization as a means of keeping media industries in check (Weber and Lu, 2007).
Time, place, and manner regulations restrict communication under specific circumstances in a content-neutral way. Forbidding loud noise in a hospital zone is an example – it doesn’t matter what is being said, the point is to protect those who are ill from the further stress that comes from noise. Laws criminalizing disruption of networks are examples of time, place, and manner regulation applied to the Internet; again, the content of disruptive messages or software is irrelevant to the evaluation of illegality. Regulations restricting access to Internet content to individuals over a certain age, or zoning regulations that confine electronic game parlours to particular areas of a city, are other examples of new media time, place, and manner regulations.
Where there are cultural differences regarding the acceptability of particular types of media content or practices, a ‘community standards test’ is often used. The phrase comes from the test used by courts in the United States to determine whether or not content is obscene, and therefore illegal, rather than legal pornography or other content considered acceptable for willing adults. This test acknowledges that what is considered acceptable sexual messages in, say, New York may not be considered so in a small, religiously conservative, rural village. The same concept, however, applies in many other situations. The European Union’s data protection principles, for example, are also followed by the United States, but clash with cultural and legal frameworks in Islamic societies (Caruana and Cannataci, 2007). In Ghana,
the concept of rights specific to children is culturally alien, making it difficult to operationalize media laws and regulations directed at preventing harm to the young (Windborne, 2006). Some new approaches to using a community standards test are coming into use. Since common practices involving the use of copyrighted materials – and the impact of such practices – vary significantly from one community of users to another (Condry, 2004), community-specific guidelines are now being developed by consensus within diverse communities to provide guidelines for judges in copyright cases. Documentary filmmakers produced the first such guidelines (Association of Independent Video and Filmmakers, et al., 2005), and other user communities around the world are following suit. A very different approach is being modelled by France, which in 2008 passed a law making it legal for Internet service providers (ISPs) to block websites that have content involving pornography, hate speech, or promotion of terrorism and used the community standards test in a new way. Citizens are being encouraged to report websites they find disturbing in any of these ways to the government, which will then decide whether or not any given website thus reported should be blocked.
Contractual agreements among private parties can restrict content. The licensing agreements are all contracts. These contracts are often referred to as end-user licensing agreements (EULAs), or as ‘terms of service’ or ‘acceptable use policies. Restrictive terms in the contracts we agree to in order to download music, for example, are an important form of new media law. Because these agreements tend to use broad and vague language to give the service provider the right to prevent users from using the Internet for ‘unacceptable’ communications or activities, there is a lot of public debate around the world over whether or not these contractual terms should be acceptable, and many practices are in use to get around them. The provisions of these agreements are numerous. Sometimes they allow the service provider to use all content posted online, including personal emails, for its own commercial purposes
without any further user permission (Braman and Lynch, 2003). Sometimes users experience the effects of these contracts as direct censorship; several US-based ISPs, for example, have recently admitted to refusing to transmit messages that take particular political positions. On the other hand, many people would support constraints on content such as hate speech. We are just beginning to see the complexities of where this can lead: service provider claims that content must be “throttled” in order to meet service provision commitments that are also contractually based are one technique being used to undermine network neutrality.
Using the list of features of end-user licensing agreements (EULAs) in Appendix 2 as a checklist, identify all of the restrictions on your new media activity included in the contract you sign with the service provider through whom you most regularly access the Internet. That may be an Internet Service Provider (ISP) such as Yahoo or AOL, or it may be through an organization such as a university or library that fulfils the ISP function for you. You should be able to locate this contract by finding the terms to which you must agree (normally by clicking on a box to indicate that you have read and consented to the terms) before you can go online.
• Are you comfortable with all of the terms of service or ‘acceptable use’ rules?
• Do you believe they align with the laws and regulations that otherwise apply?
• Are these rules stated in specific enough terms that you can fully understand just what types of expression are allowed and which are not?
• Does the service provider have the right to make money from what you say in your own emails and/or the content you post online?
• Are all of the provisions that affect how you communicate available in one document or do you have to go hunting through the website to find all of the rules that apply?
All of the provisions on this checklist (Appendix 2) are drawn from actual agreements. The first thing to note as you begin this activity is that often internet service providers will put their policies into more than one document, to be accessed from more than one location on a site. As you complete this activity, make sure to look around as thoroughly as possible to make sure that you have found all of the pertinent documents. Note also that a key feature of many of these agreements is that the service providers are
allowed to change the rules at any time. Whether or not you go on to further study new media law and policy, as an Internet user you will want to pay attention to these agreements n a regular basis.
Self-regulation takes place when an organization – or, often, an association of organizations – sets up its own rules regarding content that some consider harmful to society. It is often undertaken defensively, to reduce the likelihood of government intervening in the organization’s activities through regulation imposed from outside. Self-regulation can involve informal agreements not to distribute certain types of content, as newspapers in the US did in the 1970s when editors agreed among themselves that publishing news of terrorist activity stimulated additional aggression. It can also involve setting up rating systems to help users or audience members avoid content to which they do not wish to be exposed, as the film industry has done. Codes of ethics for particular media professions, such as journalism, are a form of self-regulation that falls between these two poles.
The videogame industry is engaging in self-regulation in the new media environment with its rating system. Sustaining websites such as Wikileaks (www.wikileaks.org), which makes publicly available a range of leaked information to which governments or corporations do not wish citizens to have access, might be considered a form of ‘reverse self-regulation’, in which massive societal disagreement with government policies or corporate practices significantly shapes how the new media environment is used.
It is rare – perhaps never – that a particular legal issue involves only a single constitutional right or regulatory principle. Balancing competing rights or principles is therefore an important legal practice in the new media policy toolkit. Copyright issues provide an example of the diverse types of balancing questions that can arise. First, a large media organization’s claim of ownership of particular content may come into conflict with an artist’s right to free speech (reflected in the freedom to use that content as material from which to create a new work) if the organization believes that the artist has used the content inappropriately, and the rights of both parties must be balanced against each other. Second, different stakeholders may come into conflict with each other on the basis of the same legal principle; conflicts over which a corporation has the right to a particular patent, for example, can fall into this category, particularly when the resolution of the conflict requires a conceptual rather than an empirical determination. Third, the same stakeholder may find him- or herself on different sides of the same issue at different times; university professors have an interest both in fighting for the right to use the materials of others in teaching and for their own research purposes, and also wish to strengthen their ability to keep others from using their own work without fully complying with intellectual property laws.
A few policy issues deserve special attention because they must be reconsidered every time there is a significant technological innovation, they create the conditions for all new media activity, they shape the context within which all other legal and political decision-making takes place, and they must be addressed by every country. These are complex issues, framed in many ways, and addressed by numerous policy-making entities within and beyond each country. All affect freedom of expression and access to information.
We use the phrase “digital divide” to refer to problems generated by unequal access to the Internet; the divide appears both within and across societies (Mansell, 2002). This metaphor refers to one dimension of what sociologists have for many decades referred to as the “knowledge gap”, the mutual reinforcement among lack of access to knowledge, lack of political efficacy, and low socioeconomic status (Vishwanath and Finnegan, 1996). The dimensions of access are multiple, with each dimension requiring separate legal treatment.
Physical access involves access to the network itself and to the interface through which one reaches the Internet. Access to network infrastructure falls under the purview of governments and/or of large-scale corporate vendors as they operate within the regulatory parameters of governments. The extent to which the network is available across space is described as its ‘reach’, and the extent to which the population in an area in which the network is available actually accesses it, is its ‘penetration’. Where the network is under government control, both can be accomplished with particular effectiveness, as in South Korea. Under the more common competitive conditions, governments intervene to encourage widespread diffusion of geographic access to the network through techniques such as establishing conditions for
a licence, pricing mechanisms, and laws requiring public access at the community level. Governments and vendors are also involved in providing access to network interfaces, but because such interfaces may be available at the community or household level as well as the individual level, other types of groups can also have an impact. In both developed and developing societies, governments support community-level access, whether through libraries, schools, or ‘telecentres’, to ensure that those who do not have personal access can still use the Internet. Many different kinds of technologies can serve as the Internet interface. In Italy, for example, the use of the Internet did not become widespread until it was available through cell phones and that technology itself had become fashionable. In some countries, any access at all under private home conditions has not been legal; Cuba, for instance, only began to permit home computer access to the Internet in 2008. Those with physical disabilities face additional access barriers. Internet policies to address this problem include establishing usability standards for websites and support for R&D to create technologies that serve those with specific disabilities.
Several types of literacy are also key to making effective use of new media. Traditional literacy refers to the ability to make sense out of the messages communicated and to create meaningful messages. Because the concept of literacy arose in the print era, it has historically referred to reading and writing. Today, however, the importance of visual literacy is also acknowledged, leading some to refer to media literacy as a distinct category. Information literacy refers to the ability to locate, evaluate, and use information in diverse forms, and to create and communicate valid and reliable information. And technology literacy refers to the ability to use technologies to achieve one’s goals, including learning how to do new things with those technologies. Historically we have distinguished various levels along a spectrum of traditional literacy. Functional literacy – the basic ability to read and write as necessary to get through the activities of daily life, including reading signs, locating items one needs to buy, and filling out employment and government forms – is one end of the spectrum. The other end of the spectrum is marked by such mastery of language that great creativity is possible, as when avant-garde writers push language and narrative form forward into new realms. The same spectrum characterizes other forms of literacy. The functional end of the media literacy spectrum, for instance, involves being able not only to understand mass media programming but also to discern the motives behind its contents and its potential political or economic implications. At the most sophisticated end of the media literacy spectrum are those who produce content that achieves a mass audience, though increasingly the ability to produce at least simple media content is being defined as necessary for all. At the functional end of the information literacy spectrum is the ability to locate and evaluate information, and to manage information of importance to oneself; at the other end of this spectrum are those who design and manage large-scale information architectures for large populations and multiple uses. In the world of technological literacy, the functional end of the spectrum would include being able to engage in basic functions such as word processing, surfing the web, and managing e-mail, while at the opposite, more creative, end of the spectrum are those who are writing their own code for specific purposes.
All these forms of literacy become the subjects of Internet policy when standards for at least functional levels of mastery are included in education systems, and training is provided at government-supported public access centres. Traditional literacy has long been the focus of primary, secondary and tertiary education, but today media, information and technology literacy are also increasingly taught at all three levels. Technology transfer programmes can serve this Internet policy goal as well when they include knowledge transfer elements. There are of course links between education and access to both infrastructure and content. several efforts to develop low-cost and affordably powered laptops for citizens – particularly youth – in developing countries are underway. The governments of Argentina, Brazil, Libya, Nigeria and Thailand provided global leadership by making the first commitments to purchase millions of these laptops to put in the hands of their primary and secondary school children.
Cultural preferences can generate barriers to Internet use that, in many societies, become the subject of Internet policy. Creating such policy, however, can be complex, for regulations intended to break down one barrier may raise another. In South Africa, for example, the government required two managers for each publicly-supported telecentre, one of whom had to be a woman, but in many tribal areas gender differentiation is so powerful that the presence of a woman prevented men from accessing the Internet. Policies can also be used to support the creation of web content by marginalized communities, and ensure that access is available among groups for whom cultural segregation means geographic isolation. And there are now efforts underway to increase ease of access to the Internet across not only languages but alphabets.
Once access to the Internet itself has been achieved, access to content becomes the issue. Conditions of access, the issue currently popularly labelled ‘network neutrality, and other forms of censorship are key Internet policy issues.
Governments place a variety of types of constraints on conditions of access in pursuit of diverse goals. These begin with constraints on freedom of expression that apply to any medium, as discussed above (Section 6.1) in relation to content regulation, but there are additional conditions that are Internet-specific. In many countries, for example, full identification must be provided before one can use a public Internet cafe. Increasingly Internet service providers are placing limits on the amount of time one can spend online, or the amount of content one can access or send, at a given price level of service. ISPs are also being pressured to block certain types of content or uses. Organizational and public sites for access to the Internet can forbid certain types of activity (e.g. gambling) or access to particular categories of content (e.g. pornography). Parents may insist on the devotion of a certain percentage of time on the Internet to educational activities. While these are all highly variable, the conditions of access established by ‘end-user licensing agreements (EULAs), as discussed above, contain many features that are uniform across countries and access sites. The physical conditions of access are also important. Though the U.S. Telecommunications Act of 1996 mandated access to the Internet in all public schools, some conservative communities that feared the impact of this on their children followed the letter of the law
while undercutting its intent through such practices as only allowing access within a teacher’s the office that was essentially always closed (during the school day, because the teacher is teaching or needs to use the office for other purposes, and after-hours because the teacher is gone).In the deeply contested political environment of Zimbabwe, security agents – or people who look like them – regularly wander the aisles of Internet cafes, glancing at what people are doing online. In Egypt, Internet cafes must provide daily reports to the government of what people have been doing online or being shut down. In Poland, all websites that provide access to or discuss the news must be registered with the government as publications. All of these conditions affect how one uses new media.
Basic common carriage principles, combined with the value to the network of expanding the network itself, have up until this point ensured that all websites could be reached with the same ease and speed whether they were associated with the world’s largest corporation, a retail store, a non-profit organization, or an individual artist or a political activist. The phrase“network neutrality” is used to describe this situation (Wu, 2008). While everyone has experienced delays in reaching certain sites, or at times found them unavailable, these time differentials have resulted only from technical difficulties: there can be too much traffic on the network, or a portion of it, slowing everyone down, or the server hosting a particular the website may be down.
In the US, however, a very tense debate is underway over legislation proposing an end to net neutrality that would permit Internet service providers to deliberately differentiate the speed of service made available when accessing various websites, depending on fees paid to the ISPs. The relationship between the ISP and the content provider could also determine access to other websites, particularly if the ISP is itself owned by or associated with a large media corporation. Some versions of the legislation being discussed would even make it legal for an ISP to make it impossible to reach certain websites, such as those presenting particular political perspectives. If the battle to protect network neutrality is lost, ISPs will have the legal right to censor Internet content, and the extraordinary diversity of voices and information available on the Internet (for many, its most important characteristic) will have been destroyed. Even though it may still be possible to access websites of small, independent and/or politically marginal groups if that access is much slower than for other websites it is likely that traffic to those websites would go down. There are already numerous reports of these types of activities by ISPs in countries around the world, including the US; often these ISPs admit to such activities when they are made public, either explicitly or implicitly by stopping the practices about which complaints have been received. Losing the network neutrality battle on the legal side would make this much more pervasive and enduring.
Access to information is considered a fundamental requirement for freedom of expression because it is impossible to take part in public discourse about shared matters of public concern without knowing what is actually going on. In its first formulations, the concept of access to information referred only to access to information about the government and its activities. Laws and regulations protecting and operationalizing this right remain critically important today. Over time, however, we have also come to appreciate that the concept also usefully refers to access to information and knowledge of all kinds in order to improve one’s socio-economic condition, participate fully in political life, and pursue particular concerns. Because organizations are often reluctant to release information about themselves, laws governing access to information must include provisions for challenging refusals to provide information requested. Each time the technological environment changes, the nature of the laws governing access to information must be reconsidered. For a while, for example, the U.S. government took the position that the Freedom of Information Act (FOIA), which details the rules for getting access to information about the government, applied only to information in paper, not digital, form. It took the passage of a new law in 1996 to extend the FOIA to electronic information.
Select a particular social or political issue about which you are concerned: perhaps you worry about environmental problems, the rights of women, or the provision of healthcare to the poor. With that issue in mind, read Access to Information: An Instrumental Right for Empowerment, a 2007 report from the non-profit organizations ‘Article 19’ and ‘Asociación por Los Derechos Civiles’ on the relationship between access to information
and other elements of freedom of expression. When you are done with the reading, write down all of the kinds of information you believe would be valuable to you in an effort to address the issue on which you have chosen to focus.
• Which types of information come from the government, and which come from other sources?
• Do you know how to access each type of information?
• Is there a cost associated?
• Are there restrictions on how you can use each type of information once you have got it, as part of an agreement you must sign in order to get access to begin with?
• What can you do if you are refused access to information to which you believe you have a right?
The transition to an information economy has affected the nature of the property and of property rights in several ways. First, it has brought about the development of entirely new forms of property. Second, it has transformed the legal treatment of some very old forms of property. And third, it has affected how we perceive and think about property and property rights. Let us look briefly at each of these here.
One of the most fascinating developments with the Internet is the way in which it has resulted in the creation of entirely new forms of property which, in essence, expand the boundaries of the economy itself. This is not the first time in history that new forms of property have appeared, but it is quite a rare event and always accompanies a significant change in the nature of society. Two examples of this with import for new media policy are the domain name system and property in virtual worlds. We don’t buy the street addresses for our homes and businesses, but the domain names that are the addresses for our sites in cyberspace are commodities, pieces of property that can be bought and sold. The creation of the domain name system managed by ICANN has generated billions of dollars of property, and the amount is still growing. Numerous policy issues have arisen in association with domain names. Those resolved by ICANN include identifying which organizations within regions and countries will be allowed to generate funds through domain name-related transactions and, potentially, establishing features that must be included in flow-down contracts. Domain name issues resolved in national courts include struggles over the use of trademarks in domain names and efforts to stop ‘cybersquatting’, the practice of purchasing domain names incorporating the names of others in the hope of then reselling the domains at a profit (Garcia, 2004). Virtual worlds have their own economies, including markets using currencies that exist only within virtual environments as well as interactions between those internal economies and
‘real’, or offline, capital and economic processes (Castranova, 2006). These present difficult legal issues that are as yet unresolved by governments. Should (indeed, can) national laws and regulations regarding financial matters be applied to operations within virtual worlds? ow, should offline income generated through virtual world activity be treated for taxation purposes? Should employment laws be applied to those who engage in virtual-world activity to generate either in-world or offline capital for their employers? Should the law tolerate or regulate the industry of producing and selling techniques for cheating in electronic games? The list goes on.
The transition from an industrial to an information economy has also brought very old forms of intellectual property rights to the centre of the economic system and stimulated transformations in how those rights are managed. This issue is so important that it is worth separately thinking about the expansion of these rights and about current efforts to correspondingly restrict them using what we refer to as ‘fair use’ when doing so serves other social goals. There are four types of intellectual property rights – copyright, patent, trademark, and trade secrets. Copyright establishes a bundle of separable property rights in symbolic expressions such as texts and images; this bundle includes the rights to reproduce the work, to prepare derivative works based upon the original, to distribute the work, to perform the work publicly, and to display the work publicly. In recent years the duration of copyright has greatly lengthened; in the U.S., instead of the original 17 years, owners can now control uses of copyrighted
materials for almost 100 years. Techniques for enforcing copyright have become embedded in digital rights management (DRM) technologies, and it is relatively easy to track who is downloading what content over the Internet. Associations of copyright owners, such as the Recording Industry Association of America (RIAA) have become extremely aggressive about pursuing those whom they believe are infringing on a copyright. All of these are Internet policy issues because they affect what we can access over the Internet, and what we can do with material once we find it. The Berne Convention has gone a long way towards harmonizing copyright law around the world. Patents establish property rights in three types of patents, the first two of which are pertinent to the Internet: utility patents protect processes, machines, articles of manufacture, compositions of matter, and genetic manipulations of animals; design patents protect the ornamental appearance of objects; plant patents protect new plants produced through breeding or grafting. The myriad technologies of the Internet each involve numerous patents,
almost always under the control of a number of different corporations. There are concerns that innovation is slowing because of disputes over whether or not one corporation’s patents have been infringed by another corporation’s new product, and we are increasingly seeing corporations trying to assert that entire classes of activity, such as one-click shopping, have been patented.4 the Software can be either copyrighted or patented, but patenting is the more common approach. Many believe that software underlying ways of conducting business or communicating with each other should not be patentable, but under current law this is possible. The number of patents sought, the lack of pertinent expertise within patent offices, and massive confusion over whether or not there is ‘prior art’ – previously existing patents on aspects of products or services being presented as new – have led to calls for reform of the patent system altogether. Meanwhile, the practices of the global ‘open source software’
4. Amazon received a patent for “A Method and System for Placing an Order Via a Communications Network”, United States Patent Number 5,960,411, in 1999. It is now known as Amazon’s “1-Click” patent.
movement – which collaboratively creates software and shares it without cost – have inspired U.S. experimentation with public opportunities to contribute to the evaluation of whether or not there is prior art for any given new product or service.
Trademarks protect the name or image associated with a product, such as a brand of clothing or item from a fast-food chain, to which they are attached. Service marks do the same for services such as computer support, data processing, or insurance. Legal issues involving trademarks arise in the Internet environment when trademarks are incorporated into domain names or used for avatars or other creations within virtual worlds. Trade secrets are types of information owners try to prevent others from using through nondisclosure practices. Historically, corporations have had the legal right to try to protect trade secrets, but today’s ‘electronic discovery practices’ – which permit those in a legal dispute to request any materials that have passed through a corporation’s network to study for evidence in a court case – make it much more difficult to do so.
A third set of changes to property rights has occurred where intensification and expansion of interest in previously existing non-intellectual forms of property have altered how such property is conceptualized and treated. ‘Fair use’ is the concept that there are limits to the extent to which owners can prevent others from using their intellectual property when, under certain specific conditions, doing so serves social goals of particular importance (in education, for example). Historically, fair use has been central to copyright law, though today there is also discussion of developing fair use principles for patents. In the U.S., to qualify uses of copyrighted material must actively transform the material in a pro-social way by contextualizing it for educational purposes, offering it as news or commentary that furthers public discourse about political affairs, or providing critique. It also must not damage the market for the copyrighted work. Because it is often difficult to determine whether many of the new Internet-based genres and communicative practices meet these criteria, currently there are efforts under way to establish consensual norms among communities of practice to serve as guidelines for courts. The first was developed among documentary filmmakers: When you create your own content, whether it be a research report, music, fiction, news, or other original material, you are also concerned about how your work will be used by others. In the past, authors and other content creators tended to be rather passive in the face of copyright agreements required by publishers in exchange for the right to publish your
work. Today, of course, publishing online means that large media organizations may not be involved, and even when they are, content creators are being encouraged to become much more actively involved in the crafting of the copyright-terms to which they agree. ‘Creative Commons licences’ make it very easy for you to choose your own copyright terms and such licences are coming into wider and wider use.
Imagine that you are writing a report on a new media law development in your home country and you want to make it available to people all over the world on the Internet. What type of copyright protection would you prefer? Go to the Creative Commons website (http:// creativecommons.org/). Note that the home page of the site has an option for you to search for the jurisdiction in which you are interested. See if there is a specific set of Creative Commons licences for your home country. If so, use those licence term options to make your selection. If not, use the general set of terms the site makes available. You will make choices in four areas: attribution, commercial/non-commercial use, derivate works, and how others may share your work. Explain your choices in each of these areas. Comment Note that the form of Creative Commons licences is still under debate in many countries in the world. You may thus have an opportunity to actively participate in decision-making that protects content creators and expands the rights of everyone to access information.
Privacy laws have always been sensitive to technological innovation, with each stage in the development of new information and communication technologies triggering evolution in pertinent regulation. Privacy is considered a fundamental human right because it is essential to many of our most profound human activities as well as to our ability to exercise many other rights, including free speech, association with others, and property ownership. In many countries, legal protections for various forms of privacy are spread across many different laws and regulations. Situations in which people experience invasions of privacy for which there are no explicit laws or regulations in place can also provide grounds for lawsuits; we use the word ‘torts’ to refer to activities that governments acknowledge create harm and for which redress can be pursued in the courts, but which have not formally been made illegal. Both governments and private sector entities (most often corporations) threaten privacy on the Internet.
We distinguish among communications privacy, anonymity, data privacy, spatial privacy (as in your home), and confidentiality in the professional context. The first three of these are of particular importance from a new media law and policy perspective and will be discussed here. \
The concept of communications privacy refers to the right to protect interpersonal communications from being accessed by people who have not intended parties to the conversation. Historically, democratic countries have protected the privacy of face to face conversations in spaces such as the home, in which there is an expectation of privacy, as well as in letters and phone calls. When governments believe they must access such communications to pursue criminal activity or behaviour that threatens national security, evidence of probable cause that the target individual exhibits suspicious behaviour is required in order to gain permission to access such interpersonal communications. Repressive governments, on the other hand, use techniques such as opening mail, listening to telephone conversations, and encouraging citizen reports on the conversations of others as a means of invading communications privacy.
The digitized and networked information flows of the Internet make it much easier than ever before not only to access interpersonal communications efficiently, but also to analyze them for the appearance of particular words, phrases, concepts, and interpersonal relationship networks. While in the past interpersonal communications were targeted for governmental surveillance only after an individual’s behaviour raised suspicion, in the Internet environment the reverse is the case: it is possible to collect all communications and identify individuals of interest through data analysis rather than behaviour. Despite the ease with which such activities can be undertaken, however, the law stood in the way of massive surveillance of interpersonal web-based communications until 2001, when anti-terrorism concerns came to the fore. As is always the case in any country, national security concerns can be used
by governments to reduce the scope of civil liberties as a means of defence. Though civil libertarians continue to push back against this development, at the time of writing in 208/9 anti-terrorism laws in the European Union, the U.S. and a growing number of other legal jurisdictions around the world still support government surveillance of e-mail and other forms of web-based communication. Policy tools used to accomplish this surveillance include such things as requiring ISPs to keep all traffic that flows through them for periods of 6 months to 2 years and dropping any requirement that specific permission should be needed to surveil the communications of any specific individual or group. Corporations are also interested in reducing the scope of communications privacy because information about what people are saying to each other has a high marketing value.
Anonymity is a special form of communications privacy – privacy for the identity of the communicator. In many countries, the right to anonymity receives protection under the law because it is believed necessary for free and open discourse about political issues that may include a strong critique. It is also considered necessary to protect ‘whistle-blowers’, individuals who want to report wrong-doing by either public or private sector entities whose activities are damaging to society.
The Internet has created new pressures against anonymity, including most importantly the need to authenticate identity for e-commerce and e-government purposes and to identify those involved in criminal activity. Internet users actively give up anonymity when they sign in to their ISP accounts, and passively when the network acquires the ‘IP address, an address for the computer being used to access the Internet, in order to complete a connection. Cookies gather user data – including personal data entered into website forms – that can be shared across websites, further reducing anonymity. The political and whistle-blowing arguments for permitting anonymity remain, however, and the ease with which web-surfing habits can be observed has added another – namely, that people should be free to learn about issues such as mental illness and sexually transmitted diseases without suggesting to authorities that they themselves have such problems or are engaged in activities that might lead to them.
There are both legal and technological approaches to protecting anonymity online. Techniques such as encrypting your e-mail and directing your web traffic through anonymizing websites, search engines, or software are available to the average user and can increase anonymity. Legally, debates over whether or not all Internet communication, or at minimum communication of particular types, should be permitted to be anonymous, continue. Legal and technical approaches to anonymity come together in the development of networking technologies that create trust relationships, authenticate identity when necessary, and permit anonymous communication in all other circumstances. Changes in laws and policies can undercut the effectiveness of such approaches, though; in 2007, the UK made it possible for the police to demand decryption codes or the provision of decrypted communications.
The phrase ‘data privacy’ refers to information about individuals, whether that is financial data about finances, health, transactions, or reading and surfing habits. The European Union (EU) has led the way in developing umbrella data privacy laws that cover all types of personal data whilst, at the other extreme, in the United States there are different data privacy regulations for each type of personal information. Invasions of data privacy may merely be embarrassing, but they can also have far-ranging consequences. Access to the personal data of others facilitates identity theft and a variety of types of fraud. Misuse or falsification of personal data may make it impossible for the victim to buy a home, get credit, graduate college, or take a particular job. The ability to identify groups of people with particular
medical problems makes it possible to ‘redline’ them, that is, refuse to offer services of specific types to those perceived to have raised risk levels. Illegal access to personal data can also have free speech implications when surveillance agencies treat as suspect anyone who reads particular texts or looks at particular websites. Corporate access to personal data can target victims as subjects of marketing campaigns that may be unwelcome. Data privacy is an area in which organizational, community and personal practice are particularly important. Sometimes data privacy is invaded deliberately, but often it happens accidentally, through loss of a laptop or memory stick, mistakes in hardware and software system design, and inadequate training on the part of users. Responsibility for implementing practices to protect data privacy is incumbent upon every individual, in addition to the organizations that handle data about many people.
The rich potentials that new media offer us for communicating with each other also present many legal and policy challenges. Just how these are resolved is a matter of importance not only to media professionals, but also to every citizen who wants to communicate with others, access information, participate in political and other group conversations, and share content with others. The ‘Big Four’ issues – access to infrastructure, access to content, intellectual property rights, and privacy – are of overarching importance because they must be reconsidered every time there is a significant technological innovation, they shape the conditions under which all communicative activity takes place, they create the context for all other political and legal decision-making, and they must be addressed by every country in the world. Understanding the laws and regulations that affect how you are able to communicate must begin with studying local laws and regulations but, as with communication itself in today’s environment, soon must expand to include attention to developments all over the world.
The ‘media’ whose regulation I am discussing are the public means of mass communication, especially the press, radio and television, but also including film and recorded music as well as a number of newer means of distribution by way of cable, satellite, discs, tapes, etc. Of increasing importance is the internet, which can now be regarded as a ‘mass medium’ in its own right on the grounds of its gradual diffusion to majorities in many countries and its use for a number of public communication functions in the sphere of both entertainment and information. The boundary between public and private communication is an important one from the point of view of regulation, but it is much less easy to identify than in the past, especially in relation to the internet which serves as means of personal communication as well as a means of dissemination and form of publication. To some extent, the same applies to mobile phones.
Regulation refers to the whole process of control or guidance, by established rules and procedures, applied by governments and other political and administrative authorities to all kinds of media activities. Thus regulation is always a potential intervention in ongoing activities, usually for some stated “public interest” goal, but also to serve the needs of the market (for instance, by supporting competition) or for reasons of technical efficiency (for instance, setting technical standards). Regulation takes many forms, ranging from clauses in national constitutions and laws to administrative procedures and technical specifications. Regulation can be internal as well as external. In the former case, we are usually speaking of ‘self-regulation’, where internal controls are applied, sometimes in response to public pressure or criticism from the outside.
The history of media regulation begins with the application of the printing press to book production from the mid-15th century onwards in Western Europe. Initially, printing was simply a more productive alternative to the copying of manuscript texts by hand, which had not been formally regulated, although in practice it took place mainly under the oversight of authorities of church or state. As the printing trade and industry expanded, especially after 1500, both church and state took an increasing interest in the content of what was being printed and published, especially with a view to combating heresy or dissent. This led very widely to the licensing of all printers by the state and/or the requirement for advance approval by church authorities for texts to be published. The export and import of books were also controlled or forbidden. Authors and printers could also be severely punished for publications
deemed heretical or treasonable. In more autocratic states, such as the Ottoman Empire and
In Russia, printing was simply banned for two hundred or more years. Between the 16th and 19th centuries in Western Europe and North America, the history of media regulation was one of struggle against restrictions on publication waged in the name of political freedom and human rights, but also on behalf of the printing trades and industries, including the rights of authors. The freedom to publish was achieved by gradual change in Britain and by the revolution in France at the end of the eighteenth century and gradually in territories of the Austrian and Prussian Empires during the nineteenth century. Similar freedoms were never really attained in Russia, even after the Revolution of 1917, nor in the British colonies and Japan until much later in the twentieth century. For most of the world during the modern era, repressive and punitive media regulation in the interest of state power has been the norm.
A new dimension to regulation was added by the invention of new media during the nineteenth century, especially the electric telegraph, then the telephone and wireless, which led to public radio broadcasting from 1920 onwards. All these media were closely regulated by national laws that were more or less required by international agreements relating to technical requirements (e.g. radio frequency allocation). They also served other interests of state, including military and economic considerations. Often regulation took the form of control by state bodies or public monopolies. In other cases, such as the United States, supervision was exercised by a powerful governmental body (the Federal Communications Commission).
During the early 20th century, the cinema film was also established, typically regulated locally for reasons of safety (fire) and/or content (moral standards). Broadcast media (radio and television) were the most closely regulated of all media nearly everywhere during the twentieth century and they have never achieved the degree of freedom enjoyed by print media. Since about 1980, new forms of distribution by cable and satellite have led to a great expansion of media output and to more relaxed regulatory regimes, especially in relation to content. Although there has been deregulation of media, it is often remarked that, in response to the advent of new media and changed conditions, we are really
in a period of re-regulation where regulatory frameworks are amended to reflect new economic and/or political priorities rather than simply removed.
There is a contradiction intrinsic to the notion of regulating what are supposed to be the free means of expression and information in modern society. Regulation by its very nature sets limits to freedom, which is the most basic principle of democratic societies. At the very least, this means that there have to be clear and convincing reasons for regulation, and although we can give general justifications for regulation that help to reconcile it with principles of freedom and democracy, we cannot escape from this underlying tension.
There is no single or simple answer to the question ‘why regulate?’ and often the surface reasons given conceal other purposes (especially the interests of the state). Even so, six general reasons for media regulation can be proposed, as follows:
• The management of what is arguably the key economic resource in the emerging ‘information society’, with a very high dependence on all forms of communication.
• The protection of public order and support for instruments of government and justice.
• The protection of individual and sectional rights and interests that might be harmed by unrestricted use of public means of communication.
• The promotion of the efficiency and development of the communication system, by way of technical standardization, innovation, connectivity and universal provision.
• The promotion of access, freedom to communicate, diversity and universal provision as well as securing communicative and cultural ends chosen by the people for themselves.
• Maintaining conditions for effective operation of free markets in media services, especially competition and access, protection of consumers, stimulating innovation and expansion.
Although the precise meaning of the term can be disputed, we can speak of there being a ‘public interest’ when something at issue is widely considered to be essential to the long term welfare of society and its members. Societies differ in how they interpret the specific content of the public interest in respect of communication. Nevertheless, there are many cross-national similarities in the arrangements made to protect, control or encourage communication and in the main reasons for doing so. From early times, physical communications such as roads, bridges, canals and harbours were built and maintained at
the public expense for the general good. Modern mass media have added a new layer to the communication services, raising new and more complex issues about what is in the public interest. These issues can be considered in terms of three main functions: political; social-cultural; and economic.
Types of service:
Public News and Entertainment and Culture Data Access and Exchange
Main distribution media:
Printing Broadcasting, Cable and Telecoms and Internet
The machinery of politics, especially competition between parties for support via democratic elections, simply cannot operate without a large and continual flow of information in the public arena. Active participation in political life by the majority is an essential component of democracy, but it too depends on an adequate flow of communication to and amongst citizens and constituent bodies. Possibilities for expressing and disseminating views critical of the government have to exist, along with proposals for policy and new ideas. Regulation may be needed to secure all these conditions.
The social and cultural functions of communication relate to the whole range of news, entertainment and arts, amusement, sports coverage and public education. The media now play an essential part in the expression and continuity of national and cultural identity; the reflection of regional, ethnic and other forms of diversity; and the ‘binding together, by intercommunication, of society as a whole and of particular communities and constituent elements. Each separate institutional field of social and cultural life (e.g. education, the arts, leisure and sport, religion, science) has extensive internal and external communication requirements.
The economic value of communication to society is unmistakable and is increasing all the time. The mass media and many related communication activities are often industries in themselves, producing informational products. A large and growing sector of industrial production is devoted to electronics and information technology hardware and software of all kinds, from radio sets to mainframe computers or telephone systems. It is thus not surprising that communications businesses are regulated just like other businesses. Special policies are often formulated to stimulate the application of communication technology in the economy and the growth of the information technology sector. They may also be intended to protect national economic interests – see, for instance, complaints about piracy and arguments about cultural protectionism between the USA and Europe in the context of the World Trade
Organisation (WTO). Media market regulation also aims at reducing monopoly and stimulating competition for reasons of efficiency.
Briefly summarise the main reasons for the regulation of mass media. Think of an additional example of a political, economic or social/cultural need fulfilled by the media, and consider in your answer why that need might not be fulfilled by the market left to itself. Do you yourself think there should be more or less regulation?
Regulation of the media normally takes place within a broader framework of principle and policy. We can think in terms of a hierarchy, with three main levels consisting of theory, policy and regulation, in increasing degree of specificity, followed by means of implementation. As shown in Figure 2, an overarching idea such as that of freedom of expression or human rights is expressed in broad policies for communications media. Such ideas provide direction and legitimation for proposals and actions to secure the public interest. These policies have then to be implemented in regulations that are applied either formally as legal or administrative rules or informally as voluntary industry and professional self-regulation. The matters regulated or self-regulated are media structure, conduct and content, plus various technical and organizational matters.
LAW AND ADMINISTRATION SELF-REGULATION
Relating to: Relating to Structure, conduct or content Technical and organizational matters plus conduct and content
Media theory refers to the complex of social-political-philosophical principles which organize ideas about the relationship between media and society. Within this is a type of theory called ‘normative theory, which is concerned with what the media ought to be doing in society rather than what they actually do. In general, the dominant ideas about the obligations of mass media will be consistent with other values and arrangements in a given society. According to Siebert et al (1956) in their book Four Theories of the Press, “the press takes on the form and colouration of the social and political structures within which it operates” (pp.1-2). The press and other media, in their view, will reflect the “basic beliefs and assumptions that the society holds”. In the western liberal tradition, this refers to matters such as freedom, equality before the law, social solidarity and cohesion, cultural diversity, active participation, and social responsibility. Different cultures may have different principles and priorities. Although the normative theory of the press is now in a considerable state of uncertainty (see Nerone, 1995), not least because of changes in the media and the rise of new media forms, we can still identify certain broad traditions of thought about the rights and responsibilities of media in society and the degree to which ‘society’ may legitimately intervene to protect the public interest. The main relevant variants can be described as follows: Authoritarian theory (which applies to early pre-democratic forms of society and also to present-day undemocratic or autocratic social systems). In this view, all media and public communication are subject to the supervision of the ruling authority and expression of opinion which might undermine the established social and political order can be forbidden. Although this ‘theory’ contravenes rights of freedom of expression, it can be invoked under extreme conditions. Free press theory (most fully developed in the United States of America, but applying elsewhere) proclaims complete freedom of public expression and of economic operation of the media and rejects any interference by government in any aspect of the press. A well-functioning market should resolve all issues of media obligation and social need.
Social responsibility theory (found more in Europe and countries under European influence) is a modified version of free press theory placing greater emphasis upon the accountability of the media (especially broadcasting) to society. Media are free but they should accept obligations to serve the public good. The means of ensuring compliance with these obligations can either be through professional self-regulation or public intervention (or both). Development media theory (applying in countries at lower levels of economic development and with limited resources) takes various forms but essentially proposes that media freedom, while desirable, should be subordinated (of necessity) to the requirements of economic, social and political development. Alternative media theory. From a socially critical perspective, the dominant media of the established society are likely to be inadequate by definition in respect of many groups in society and too much under the control of the state and other authorities or elites. This type of theory favours media that are close to the grassroots of society, small-scale, participative, active and non-commercial. Their role is to speak for and to the social out-groups and also to keep radical criticism alive. Often, the media system of a given country will have a mixture of theoretical elements and media types, displaying neither absolute freedom nor absolute subordination to the state or ruling power. Hallin and Mancini (2004) have argued that we should forget about normative
theories and look more closely at actual arrangements connecting media with society. They propose a typology of relations between the media system and the political system, based on a comparative examination of contemporary national societies. In this view, there are three types or variants, each with different implications for the role and obligations of the media in society:
• a Liberal model in which the media operate according to the principles of the free market; without formal connections between media and politics and with minimal state intervention;
• a Democratic Corporatist model in which commercial media coexist with media tied to organized social and political groups and the state has a small but active role;
• a Polarized Pluralist model, with media integrated into party politics, weaker commercial media and a strong role for the state.
As with the theories outlined previously, these models are also ‘ideal types’ and in practice, societies have a mixture of the elements outlined. Public service broadcasting is found in two forms in the second and third models as, respectively, either a neutralized and politically impartial organization or as politicized in some way, usually with division in terms of the political spectrum. In the fully Liberal model, there may be little or no place for public service broadcasting.
Before going any further, you should now read chapters 7 and 8 of your Course Book McQuail’s Mass Communication Theory (McQuail, 2010).
2.2 General principles of media theory in the western model
Leaving aside such differences, we can still find a good deal of agreement about the principles that should be advanced or respected by mainstream media in countries that seek to follow the liberal/democratic model of a media system. Disagreement is found mainly over the means by which the principles can be achieved (e.g. by regulation, self-regulation, or market forces). The main principles can be stated as follows:
Independence: The media should be free to follow their chosen cultural and informational objectives, without undue pressure or limitation from interests other than those of their chosen audiences (especially not pressure from government, business, pressure groups and propagandists). Independence is a necessary condition for playing a critical and creative role in society. Diversity or pluralism: There should be a wide variety of media in terms of culture, information and ideas. People should be able to choose from a wide range of alternatives according to their different needs, points of view, beliefs and tastes. For this to be achieved there needs to be diversity of ownership and also real opportunities for access to all main voices and interests in society.
Information quality: The news and information made available to the public by the media should be of a high standard of quality, in the sense that it aims at the truth and is extensive, trustworthy, professional, accurate, relevant and balanced (diversity again).
Social and cultural order: There are expectations that the media will not deliberately offend the basic norms of their society (by encouraging crime, for instance, or subverting a legitimate political system) and that they will make a positive contribution to the maintenance of national and minority languages and cultures.
some of these principles are potentially in conflict with each other (for instance, freedom versus order, majority cultural values versus those of minorities). One of the aims of media regulation is to manage such tensions and mediate conflicts.
Between such general statements of principles and actual regulation, we expect to find policies, which are projects of government formulated in particular countries for application to their own media systems. Communication policies are usually formulated as a result of pressures from public opinion or from self-interested groups (e.g. a branch of the media industry). Media policies organize goals and means of action in relation to the media in general, to one media sector or some problematic issue (e.g. media concentration or transnational media flow) and the policy-making process normally involves the expression of conflicting interests. The main struggles over communication policy involve the following oppositions:
• public versus private interests;
• economic versus social or cultural interests;
• international versus national or local interests.
The main different levels at which communication policies are formed are the transnational, the national, and the local or regional. Examples of policy actors at the first level would be:
UNESCO, the International Telecommunications Union (ITU), and the European Commission (EC). At the national level, there is probably the widest range of actors and interests, including many political bodies, labour unions and media industry interests. At the local or regional level, decisions about access may be in the hands of the local government. Political and cultural bodies may also sponsor media provisions for special needs. The level at which an issue is formulated largely determines the particular decision forum in which related discussions and decisions take place. Communication policy-making can follow or appeal to a variety of different logics according to which an actor engages in the policy process. Logic in this sense refers to the “perception of the situation and the structure of goals and means…in a given situation” (McQuail and Siune, 1986, p.16). A logic (of policy) can also be considered as a consistent rationale of thinking and action related to particular goals. The most relevant kinds of logic for media policy and regulation are as follows:
• political (based mainly on partisanship);
• administrative (reflecting organisational efficiency);
• commercial (refers to profitability);
• industrial (related to broader national economic strategies);
• cultural (depending on a choice of values, for instance relating to language, nation, ethnicity, community, gender); and
• technical (operating efficiency and technology innovation). These terms reflect the different roles and perspectives which are brought to bear on a particular issue.
Regulations are formal and compulsory instructions about the structure, conduct or content of the media. Examples include limits on monopoly ownership or media cross-ownership; limits on the amount of advertising on television (found in many European media systems); or requirements to have an operating or receiving license for television or radio. The legal system provides an important category of formal regulation for media, even if not specifically part of any communication policy (as with laws that govern wireless, broadcasting, telephony and other electronic communication). Legal requirements that de facto help to regulate the media include prohibitions against libel and defamation, laws protecting privacy, laws concerning intellectual property rights, and prohibitions against incitement to violence or racial hatred, pornography or obscenity. Generally, the justice system protects itself by law against media activities that might pervert the course of justice. In some countries, political communication is regulated, especially at election times in order to maintain fairness. The typical framework of mechanisms for media regulation can be described in terms of a dimension of greater to lesser formality in respect of the main areas of application described above. Formality refers to three main aspects of the relevant regulation: whether or not it is established in law; whether provisions carry enforceable penalties (financial or otherwise); and whether it is permanent or temporary. Most informal mechanisms of regulation rely on a customary agreement and voluntary compliance, but there are pressures toward compliance aside from the law.
The degree of formality is related to power. Most powerful is the state and government, although the ultimate power to intervene in the media directly is usually avoided, even in authoritarian regimes (because it may be counterproductive). After the state, in descending order of power are: specific laws to regulate the media (Media or Broadcasting Laws); general laws of the country to which the media are also subject; To administrative, technical and economic regulations which also affect the media; supervisory and advisory bodies for the media – e.g. the CSA (Conseil Superieur de l’Audiovisuel) in France, Ofcom (Office of Communications) in the UK or the FCC (Federal Communications Commission) in the USA; industry or public bodies to monitor standards of performance in specific areas (e.g. advertising, privacy); press subsidy systems; voluntary codes of practice and ethics for media organizations (self-regulation); outside pressure groups.
Figure 3 arranges the influences on media policy in a hierarchy, ranging from the most powerful
and formal at the top to the least powerful and formal at the bottom.
Figure 3: Hierarchy of mechanisms of regulation and accountability at the national level in contrast to many of the above examples, self-regulation refers to responsibilities assigned to media operators to implement by themselves or that are voluntarily chosen by them. Such rules often have the character of desirable goals, guidelines or principles, rather than fixed or compulsory standards to be achieved. They are ‘policed’ either within and by the media organization itself or by some intermediate body representing public and industry interests. The means of accountability are typically voluntaristic and non-punitive. Self-regulation in the press mainly takes the form of journalistic codes of practice for accuracy and fairness plus some procedures for implementation. In broadcasting, it abounds in various forms such as guidelines for reporting on controversial issues such as terrorism or violence. Self-regulation also tends to deal with privacy issues, the protection of journalistic sources and standards in advertising. There is a large and growing category of communication regulation that is neither clearly formal and binding nor informal which relates to technical, legal and administrative points which may
have been agreed nationally and internationally to facilitate better interconnection and smooth operation of markets. Examples of this category include technical standards and copyright rules.
Accountability can be defined as “all the voluntary or involuntary processes by which the media answer directly or indirectly to their society for the quality and/or consequences of publication” (McQuail, 2010, p.206). Accountability covers a much wider range of matters than is likely to be dealt with by regulation. It is based on the existence of standards and responsibilities which the media either accept or may be imposed on them. Where the media are voluntarily accountable to their audience or society, there is less need for regulation. However, regulation, especially in relation to issues of content and effect, is often
necessary because the media do not choose to be accountable. The two concepts are brought together here because there is considerable overlap between the means of regulation and the mechanisms that exist for accountability. In general, there are four main types of accountability mechanisms. One is provided by the media market, which balances the demands and evaluations of the audience (and advertisers) with what the media provides. In an open and competitive media market, the media should be rewarded for good conduct and content, and be punished (commercially) for their sins. A second type is also of an informal character and derives from the pressures from public opinion and pressure groups that may eventually be felt by way of the political system and by new media policy. Thirdly, there is the sphere of law and regulation where the media are formally required to meet certain (limited) standards and may be punished for failing to do so, after due process of inquiry and defence. Fourthly, there is the sphere of industry or professional self-regulation, which has already been explained. In this context, accountability is usually voluntary but carried out according to set procedures. It does not usually lead to any material penalty.
With the help of specific examples, explain in your own words the relationship between theory, policy and regulation. Consider also the different roles of formal versus informal rules and regulations and the
different types of accountability that are possible. Why could it be that informal regulation may sometimes be better or more feasible than formal procedures?
Media regulations, even with respect to a single medium, seldom if ever apply in an undifferentiated manner across all aspects of media activity. An important question to ask therefore is “Which aspect of the media/medium is being regulated?” Basically, we can distinguish six different aspects of the media for this purpose: structure; infrastructure; distribution; access; conduct and content. Structure: This refers primarily to matters of ownership, finance, size, form and overall organisation. Questions of concentration, monopoly, ownership, conditions of licensing and the public or private control of media arise under this heading.
Infrastructure and technology: Regulation of infrastructure is primarily concerned with the development, upgrading and efficient operation of basic networks, transmission systems and other physical provisions for carriage, service provision and reception. The main focus of regulation is on technical standards, allocation of frequencies and satellite positions, interconnections between different elements of a communication system, and conforming to international agreements.
Distribution: This covers questions of the kind and range of services that are offered and the obligations placed on suppliers of communication services (for instance, universal coverage of a given area and ‘must carry’ rules). Regulation may also apply to receivers (for instance television license charges, permissions to install satellite antennae, etc.). Policies for protecting the national communication sovereignty belong under this heading (e.g. limits on satellite dish ownership).
Access: The question of access applies to ownership and operating rights, as well as claims to access to channels owned and operated by others. Typically, there are no rules of access to print media although some press laws provide support for competing views, cable and broadcasting are often required by license to offer some specific kinds of access, e.g. to political parties or certain minorities. Sometimes there are rules denying access (for instance to voices that are thought to threaten security or good order). Telecommunication and postal services are obliged to provide access to all who want to send messages.
Conduct: The reference is to a wide range of matters about how media organizations behave, ranging from questions of journalistic ethics to matters of copyright, the respect for privacy and rights to information. Issues of conduct can arise in relation to state security, crime or terrorism, where freedom of the media is often limited. Matters of conduct are often dealt with by the general law or by more informal self-regulatory procedures.
Content: Despite the principle of media freedom, we can find an extensive range of measures that affect media content, especially in broadcasting. Telecommunications (telephony) has been traditionally free from content regulation, but the rapid extension of new telecoms-based services bring it also within the scope of regulation. Broadcast laws often set both positive and negative requirements for content. Film, video and music are exclusively affected by negative regulation – limits on what they can do.
Explain in your own words the difference between media structure, conduct and content. Why is the distinction relevant for media regulation?
The term issue refers to a particular matter of dispute or conflict that is located in the ‘public sphere’ and which gives rise to a call for regulatory action. There are two main keys to the (changing) issue agenda. One is the economic-industrial impetus behind the extension of new technologies. The other derives from the claims made against the media by the public or other critics on grounds of failing to meet expectations or of actually causing various kinds of harm. These claims are usually resisted by the media because they interfere with their own claims to free expression and interfere with their commercial objectives. We can differentiate the main issues for policy and regulation according to two dimensions.
Firstly, do they relate to public or private concerns? Secondly, do they have a positive or negative direction, framed in terms of possible benefits or harm? A brief indication of the
grounds on which the media are problematised can be given, as follows: Issues of primarily public concern (either relating to benefits or harms)
• The protection of public order and the security of the state.
• Maintaining respect for public mores in matters of taste and decency.
• Achieving benefits for the public sphere in terms of information flow, access, diversity and public participation.
• Maintaining cultural standards and supporting the national or regional culture and language.
• Respecting human rights of expression and protection from insult and prejudice.
• Preventing harm to society, especially by way of harm to children and young people from undesirable content.
• Meeting international obligations.
• Protecting and advancing the national economic interest in the media and communication industries.
Issues of a more private or individual character
• Protecting individual rights to reputation, etc.
• Preventing offence to individuals.
• Avoiding harm to individuals from violent or perverted content.
• Protecting property rights in communication and information.
Media regulations have tended to reflect quite readily the historical and cultural contexts of the societies in which they are implemented.
Within a maximum of about 200-300 words, describe an actual case or event which illustrates one or more of these types of issues. Show how the case chosen has implications for either public or private interests (or both). For instance, rights of ownership may stand in the way of broad public access.
A distinctive feature of media regulation is the fact that each successive medium has tended to attract its own distinctive model of regulation, appropriate to the technology and form of organisation and the particular functions and applications involved. Three main regulatory models have been identified, applicable to the press, telecommunications (especially telegraphy and telephony) and broadcasting, respectively (Pool, 1983). Although the distinctions involved are becoming increasingly hazy because of deregulation and convergence, it is still useful to base our discussion on this pattern. In this context, a ‘model’ means a framework of inter-related regulation that is based on some legitimating principles and can be referred to for settling disputes, implementing policy and responding to change. It is worth noting that the first ‘mass medium’ – the printed book – is not covered by any model of regulation, since it is the only medium fully protected by historic rights to press freedom (although also subject to the general law on certain matters).
The three “models” still co-exist and they are still useful for describing and making sense of the different patterns of media regulation that are found side by side. However, as noted already, the logic, legitimacy and practicality of maintaining the different regimes is increasingly open to question. The main challenge comes from the technological “convergence” between modes of communication which makes the regulatory separation between print, broadcasting and telecommunication more and more artificial and arbitrary. The same means of distribution, especially cable, satellites and telecommunications, can be used to deliver all three kinds of services (print, broadcasting, voice and data exchange). The single most potent cause of convergence is the rapid spread of digitization of all forms of content – the translation of everything into computer-readable digital code. The monopolistic arrangements which used, especially, to keep radio television and telecommunications apart are being demolished or undermined. It is also more difficult to justify restricting one medium (e.g. broadcasting) when another medium (e.g. the internet via cable telephone network) can do the same thing quite freely (for instance, deliver forms of information and entertainment that are restricted in broadcasting). Cable systems have already led to a new ‘hybrid’ model of regulation, combining common carrier with watered-down broadcasting regulation, but without the full freedom of the press. There has long been a tension in the arrangement which allows newspapers to publish what they want within the normal law, while broadcast journalists are under much greater restraint, especially the obligation to be impartial. In many countries, the cable is also much less restricted than broadcasting, partly because it is much less indiscriminate in its destination (like print media). At the moment the other main driving force for convergence, after technology, is that of market forces. Despite these combined pressures, however, the convergence of regulation has not yet occurred in any striking form. One reason for the delay is that the different media are still largely perceived and (predominantly) used differently by their audiences. Secondly, authorities are reluctant to give away the power of regulation, especially when many of the issues for regulation outlined earlier (section 3) are still very salient in public opinion.
Find one or more examples of the “convergence” of media distribution technology that would illustrate the difficulty of maintaining the three different regulatory ‘regimes’ identified above.
The basic model for the press in western democracies is one of freedom from any government regulation and control that would involve advance licensing, censorship, limits to freedom of publication or punishment after the event. Press freedom is very close, but not identical, to freedom of speech and expression. It applies specifically to expression that is made public and intended for unlimited dissemination. It is often enshrined as a principle in national constitutions and in international charters, such as the UN Treaty (Article 19) and the European Convention on Human Rights (ECHR, article 10). Press freedom in these documents is often made conditional on respect for the rights of others and other laws.
The idea of press freedom as expressed earlier is so important and central that freedom itself may be viewed as the main goal (or desirable end state) of any public policy for the press in a free and democratic society. There are, however, other goals of press policy such as: maintaining diversity; protecting the public from abuses of press power; ensuring high standards of news and promoting the essential contribution that the press makes to the democratic process. Regulations towards these aims are difficult to apply because of the risk of undermining press independence. Almost any measure designed to secure freedom of the press or to improve its performance can also be viewed as an intervention that reduces press freedom. This is the central paradox of regulation of the newspaper press. One solution is to think in terms of alternative concepts of freedom.
First of all, we can make a key distinction between negative (laissez-faire) and positive (pro-active) concepts of press freedom. In brief, the negative concept rules out any government actions in relation to the press, leaving it to the free market and maintaining the pure principle of freedom to the maximum extent, whatever the consequences. The archetype of the negative version is represented by the First Amendment to the US Constitution (1791) which states that “Congress shall make no law…abridging freedom of speech, or press…”. The positive concept of press freedom is more concerned with the practical realisation of the goals noted above and with limiting the harm done by unrestrained market forces. According to Picard (1985, p.49) “Positive press freedom is intended to promote the free flow of diverse ideas and public debate by removing and guarding against barriers to that flow”. The essence is to ensure (through regulation if required) the necessary conditions for freedom of expression. On the basis of this analysis, we can say that there are two main types of regulation of the newspaper press, one is essentially negative and reactive, designed to counter threats to press independence and diversity, the other is positive and enabling. In the former case, threats, when they do not come from the government itself are likely to stem from natural processes of market concentration or from the efforts of powerful economic or political forces to stop the press from speaking out. Where these efforts take a criminal form (such as threats of violence), the general law can be applied for protection. Most regulatory responses, as described below, are aimed at restricting concentration. The second (more positive) type of regulation involves giving some kind of economic support to some or all newspapers (see section 5.2).
Explain what is meant by both the negative and positive concepts of press freedom. What are the potential advantages and disadvantages of either concept? Do you yourself strongly favour one or the other concept, and if so why (which, for example, would you say is more suited to dealing with the problem of press concentration)?
Press concentration occurs where ownership and control of many newspapers fall into the same or a few hands. This condition reduces the independence of editorial staff, gives great power of publicity and control over the news agenda to a few and may deny or limit access to opposition or dissident voices. It has been considered a problem since the early days of mass commercial newspapers in the early twentieth century. In fact, in most countries, there is a relatively high degree of concentration of the national press, with a small number of large publishing groups owning most of the large circulation newspapers. In Europe, in many countries, the main national and regional newspapers are typically divided between less than a half dozen owners. In the United States, there are more groups, but a small number have a very dominant position in the large city and regional press. Ownership rules have mainly been formulated in such a way as to prevent a very high concentration of circulation in a given market. Typically a market share above 30% is considered excessive. The main tool available is legal restrictions on mergers. This can also be legitimated on economic grounds without raising the issue of limiting press freedom. Relatively few (developed) press systems have specific or effective regulations concerning monopolistic press ownership. In western Europe, the main regulating countries are Ireland, Italy, Germany, France and Britain. France has the most clearly specified laws concerning press mergers, set out in the 1984 Media Law and there is a legal ceiling to the proportion of the newspaper market which may rest in the hands of anyone proprietor. In Germany, press mergers are judged by a specially adapted version of general anti-trust law, designed to prevent any firm from obtaining a dominant position in a given market. In Britain newspapers, mergers are normally referred to as Competition Commission1, with the power to forbid such a move. In In Italy, the law forbids mergers that lead to excessive market dominance, interpreted as more than 20% of national circulation or more than 50% of titles in a given region.
Positive support has come mainly in the form of direct or economic assistance. Subsidies to help the press can be classified according to whether they are:
• General (applying to all papers) or specific (intended to help weak papers or certain types of paper with a social, political or cultural role).
• Indirect (e.g. tax concessions) or direct (e.g. grants and loans).
• Intended for existing (perhaps ailing) papers or designed to help new entrants into the market.
• Aimed at local or national press markets.
Other types of economic support (direct or indirect subsidy) which have been implemented
are as follows:
• Tax concessions, especially reduced or remitted VAT2 on subscriptions or sales.
• Postal, telephone and transport concessions.
• Government advertising (which can also be a means of control).
• Grants and loans for specific purposes, especially: education and training; new technology; start-up costs.
• Aid to specific publications in a weak position.
• Financial support given to political parties for their own publicity purposes.
All these measures have different advantages and disadvantages. General measures of support that do not discriminate between publications (but help the whole industry) are the most common and least controversial because they do not threaten the independence of publications nor distort the market: there is no inducement for a newspaper to take a pro-government line, for instance. On the other hand, the main beneficiaries of such measures are necessarily the largest and most successful papers, thus often the (potential) monopolists. Press subsidies are usually introduced under pressure of some perceived crisis and often have a little practical effect in the longer term, or not the intended effects. They are also difficult to take away. Most observers are inclined to the view that government economic support to the press around the world has not made a great deal of difference nor has it done any harm.
2 Value Added Tax: a form of sales tax on goods and services in the UK.
In France, ownership of the press is forbidden to foreigners (subject to international obligations). In addition to the ‘mono media’ regulation of press ownership, there are additional (and increasing) controls placed on multiple ownership across the boundary of different media (for reasons given above). A typical form of regulation in Europe is one that forbids or limits ownership of television (or radio) by a press firm that exceeds a certain circulation limit (e.g. more than a third of total circulation). These rulings are often found in broadcasting or general media laws, rather than in any specific press regulation, but the effect is the same. In Britain, for instance, there are limits on terrestrial broadcasters having any newspaper interests, although not on satellite broadcasters. In Italy, press concerns with more than 8% of relevant circulation (market share) are denied television ownership, and under that limit, only one channel may be owned. France has no restrictions on cross-media ownership of this
type, despite its strict rules on press mergers. In Germany, there are limitations operating at the level of the lander (regional government). An aspect of newspaper regulation that goes together with the control of concentration tendencies and also the administration of various economic supports, where these exist, is the requirement of transparency of ownership – the need to have clear and full information about who actually owns which parts of the media system. In Europe, transparency rules are present and most stringent in countries with the strictest ownership rules – especially France, Greece, Spain, Italy. Rules usually require the publication to be registered, the legal owner to be identified and full information provided about the publishing firm. The European Union has actively considered the issue of regulation to protect press pluralism but is likely to come up against the same obstacles (both practical and on principle) to any regulation or economic intervention that arise in individual countries.
While, in general, the newspaper press in democracies lies outside the scope of all direct content regulation, immunity is never unlimited. The limits on freedom and on forms of expression differ from country to country, according to local customs and concerns. An example of a constitutional statement of press freedom that recognises limits is that of Norway (where the press is very free) and reads as follows:
There shall be liberty of the press. No person must be punished for any writing, whatever its contents may be which he has caused to be printed or published unless he willfully and manifestly has either himself shown or incited others to disobedience to the laws, contempt of religion or morality or the constitutional powers, or resistance to their orders, or has advanced false and defamatory accusations against any other person.
There are three main areas of public concern, where an approach to regulation of newspaper content can be discerned. One relates to the security and integrity of the state and maintenance of the law (also national defence). Another relates to matters of morals, decency or public offence. A third has to do with matters around privacy, which range from the issue of confidentiality of information to intrusion by reporters on private space. There are quite a few other issues of conduct and ethics of the press which
become matters of public concern, but which, under conditions of freedom, do not raise the possibility of regulation. Most such issues can only be dealt with by the courts and normal law, or by way of voluntary
codes of press conduct and ethics. In some countries, there are Press Councils, which are typically composed of press and independent representatives and try to reach some adjudication on specific complaints (see Bertrand, 2003). Their only real means of redress is to order publication of retractions or apologies, although in some cases they may, by agreement, apply financial penalties (publication costs of apologies are also a financial penalty).
By contrast to the press, radio and television broadcasting were subject from the beginning to high levels of restriction, sometimes involving public control approaching a condition of censorship. The general concept of social responsibility and public interest lies at the core of the broadcasting model, although there are several variants as well as weaker (as in the USA) or stronger forms (as in Europe). The main difference is between systems that are within public ownership and control and those that operate commercially but are subject to licensing conditions and public scrutiny. The main reasons for the high regulation of broadcasting can be expressed in terms of the following main aims (see Hoffmann-Riem, 1996; and Feintuck, 1999):
• To ensure universal availability to the general population of the country of broadcast services.
• To allocate frequencies and broadcasting concessions in an equitable and orderly manner and supervise conformity to the rules laid down.
• To ensure a wide range of services and access opportunities according to the needs of society – meaning diversity in social, political, cultural and local/regional terms.
• To promote a high quality of content provided as far as possible according to locally decided values and standards, with particular reference to information, education, advertising, culture, taste and decency.
• To look after the basic interests of the state in matters of security and good order, as locally interpreted.
The broadcasting model covers two main types of systems. One is the public service variant, the other consists of privately owned and financed systems. The distinction is not always absolute, since some commercial broadcasters may also have public service duties as a licensing condition. Public service broadcasting is expected to serve the needs of significant social institutions (for instance, in relation to politics, education, the justice system). It is also directly or indirectly expected to serve or to respect the main party political groups. In some countries, the political interest is served by imposing political neutrality (as in Britain) or ‘fairness’ (as in the United States), while in others political party influence is more or less openly and proportionately allowed (as in Italy, France and Germany). In a fully developed form, public service broadcasting generally refers to five main features, which are supported by policy and regulation. One is the provision of universal service (a full service to all). A second is that the system should be financed by payments from all citizens or, as in the UK, all receiving households (not just the consumers of the service). Thirdly, there is public control of access to broadcasting channels, in greater or less detail, to ensure “fairness”, political neutrality, independence from vested interests and from the state.
Fourthly, a public broadcasting service is democratically accountable to the society (or nation). This is usually achieved by way of parliamentary control of financial allocations and periodic renewal of licenses to operate. Fifthly, a public broadcasting service seeks to achieve various goals of quality of service. Some of these features can also apply to broadcasting systems that are privately owned and financed by advertising. Detailed regulation inevitably limits the freedom of public broadcasters and it is inconsistent with running services in a fully commercial manner. In fact, one of the values of public broadcasting is its non-commercialism and ‘non-profit’ character. The regulation of public broadcasting makes it accountable to the public and to society rather than to owners, or the market. Commercial broadcasting systems, in contrast, are free to choose their own objectives, in the sense of whichever consumer audience or advertising market they want to serve. They are primarily accountable to owners, investors and clients. Regulation, in this case, is essentially restrictive and proscriptive and is designed to establish the ground rules and set limits within which the systems operate. These ground rules mainly concern the following matters: permitted amount and content of advertising; control of other means of finance content potentially harmful to the young or causing offence to some value or group procedures for complaints and rights of reply. Commercial broadcasting systems often have to meet certain minimum standards as a condition of receiving a license or operating concession. These conditions vary a good deal from one system to another but often relate to such matters as provided for education, news and information, local language or culture, political or other access opportunities, minority needs. The forms of regulation are diverse, but there is a certain standard pattern. Generally, we find a media or broadcasting law governing the structure of the system as a whole. Such laws state broadly the goals of the system who or what bodies are eligible to operate as broadcasters and under what conditions. For instance, some countries forbid or limit foreign ownership and, as indicated earlier, many have rules forbidding cross-ownership between press and broadcasting (especially where they operate in the same marketplace). In some European countries, political or religious organizations are not allowed to own and operate broadcasting stations. Finance, control and accountability to government and society are also covered by such regulation. More detailed terms and conditions may also be set down in license and franchise agreements, which have to be periodically renewed and can be revoked. Broadcasting and
cable laws often contain content-related regulations, for instance requiring a balance between different kinds of content (especially information and entertainment) or requiring a certain amount of home production or transmission in the national language.
Laws of this kind are the province of parliaments and governments and there will often be a Ministry or other Department of government which has the responsibility for their formulation – for example, the Ministry of Culture (in Sweden), the Department for Culture, Media and Sport (in Britain), or the Ministry of Communications (in France). However, there is usually another layer of administrative machinery between government and the actual broadcasting organizations which can serve as a two-way link and, in certain cases, help to preserve the independence of broadcasting from direct government interference. This link is increasingly formed by powerful regulatory agencies which have oversight over different media. In Britain, for instance, we find (again) the Office of Communications (Ofcom), in France the Conseil Superieur de l’Audiovisuel (CSA), in Sweden the Broadcasting Commission, in
Holland the Commissariat for the Media, in the USA the Federal Communication Commission (FCC), and so on (see d’Haenens and Saeys, 2001, and Kelly et al, 2004, for a fuller exposition of broadcasting regulation in different countries). Quite often there are additional advisory or supervisory bodies that play a part in the regulatory framework with varying aims and degrees of competence. Most public broadcasting organisations will have their own Boards of control which are separate from day to day
management and are the equivalent of the Boards of commercial companies which run private broadcasting systems. These bodies decide on overall policy and have final responsibility. In general, we can observe a chain of control from the political to the legal, to the administrative, to the managerial. There may also be a few additional bodies (both statutory and voluntary) that represent the interests of viewers and listeners, whether as consumers or citizens and keep up the pressure for enforcement of rules and for expressing complaints. In Europe, transnational television has been institutionalised within a loose framework provided by the Television Directive of the European Union. This sets out the general conditions and rules for cross-border television transmissions between countries of the Union.
In practice, this is mainly the lowest common denominator of rules that does not have much practical effect, apart from enabling cross-border transmission. However, it does support basic standards of fairness and objectivity and there are rules limiting advertising time and types as well as for protecting children and young people from extremes of undesirable content. Some preference is also given to “European” content and independent production. Using the same framework as Figure 5, Figure 6 provides examples of the main types of formal and informal regulation of broadcasting.
The third main model of regulation actually predates broadcasting and is usually called the ‘common carrier’ model because it originates in communication services, such as the mail, telephone, and telegraph, which are purely for distribution and intended to be open to all as universal message transport services. They are ‘point to point’ media, not for open distribution. This model has been gradually extended to encompass a range of new electronic services available via telephone and cable networks (especially the internet). These new services (such as information supplies or chat lines, for example) are called ‘value-added’ services because they offer the network user content benefits, for which extra has to be paid, and they are not universally provided. As we have seen, the regulation of telecommunications is very uneven, with elaborate control of structure and infrastructure but almost no rules for content. Current developments are, however, extending the scope of regulation, as the nature of the services provided by telecommunication systems expands and as the systems are ‘liberalized’. Cable systems are also more regulated than old ‘common carriers’. Traditionally, telecommunications in many
countries was operated as a state monopoly, usually by the national postal service (e.g. Deutsche Bundespost in Germany, or the Royal Mail in Britain), but the privatization of telecommunications has now largely replaced state monopolies with companies operating in the market, although often with some state participation (see Hills, 2002). In the United States, telecommunications was effectively a private monopoly (the Bell system) until the break-up (divestiture) of the system in the early 1980s, creating six regional companies. Policy for telecommunication was traditionally in the hands of government and detailed regulation was largely carried out by the industry itself according to an ‘administrative’ or technical logic. It was originally not considered a matter for political debate in the public arena, but only for experts and administrators. Much the same still applies under conditions
of private ownership, although the privatization of telecommunications has meant effectively a privatization of much relevant policy with the WTO (see section 9) as a major instrument of this (Winseck, 2002). Even so, the availability of telephones and the quality and cost of service has become a much more important and salient matter of public welfare than in the past. The telephone is a tool for private communication as well as for business and government and has become almost a necessity of everyday life, especially with the rapid diffusion of mobile phones. The range of services available to consumers from the telephone has also widened greatly, encompassing the so-called ‘value-added’ services mentioned above. Telephony is now much more than a simple message carrier and current developments of internet protocols are rapidly blurring the line between telephony and many other online services as well as between the two ‘media’ (telephone and internet) themselves.
The main contemporary issues for the regulation of telecommunications and cable areas
• The supervision of monopoly operators and securing competition between operators, in the interests of efficiency, development, and consumer protection (in pricing and other matters).
• The question of what services telecommunications and cable should be permitted to operate, and on what terms, especially in competition with press, broadcasting and film/video industries.
• For cable systems, the question of ‘must-carry’ rules for channels such as national television.
• The possible limitations on the content carried (such as child pornography) and how to apply them (for instance, relating to sex chat lines and similar services).
• Maintaining universal service obligations and cross-subsidization from more profitable to less profitable operations in the interests of equity.
• Questions of the privacy of transmitted data and the protection of users from undesired uses of telephones.
• Access for providers and consumers to services such as e-mail and the internet.
• With respect to the internet, there are increasing provisions being made to support e-commerce by dealing with issues of confidentiality, security and the ‘electronic signature’
• There are also issues about general confidentiality in the wake of government and law- enforcement efforts to combat cyber-crime and terrorism.
• Securing the interconnectedness of the various networks under conditions of competition, including equitable access to basic networks. Non-interference of services has also to be secured.
• Achieving international agreements on protocols for many of these issues. The main forms of regulation of telecommunications are likely to consist of the following main elements:
• A basic telecommunications law relating to the structure of ownership and control.
• A supervisory role for some arm of government, with particular reference to technical aspects (for instance, the FCC in the United States, or Ofcom in the UK).
• A set of conditions attached to operating licenses and concessions, with some form of the official public regulator to look after the public interest.
• A body (or more than one) that integrates national telecommunication systems into supranational administrative-technical patterns.
The internet is the main new medium of our time and it has a very anomalous position in respect of the three regulatory models outlined. In fact, it illustrates very well the causes and consequences of media convergence as discussed above (section 4.1). Aside from its being distinctive as an electronic, computer-based, medium, with a powerful interactive capacity, it is also multi-functional. It is much used as a means of private communication by e-mail, as a means of transferring documents, as an interactive service facility for banking, shopping, etc., as a source of information for consultation by individuals and also as the equivalent of a means of mass distribution of news, advertising and entertainment. In short, it does everything that the press, broadcasting, telephone and library system already does. Despite this, however, for regulatory purposes, it is treated primarily under the common carrier model and is subject
to no particular regulatory regime of its own. It does not have guarantees of freedom like the press nor content regulations like broadcasting. There are several explanations for this situation. One stems from its lack of central organization. It is not owned by anyone but is a coming together of many users of the same basic technology and infrastructure. As such it is difficult to make it accountable or even to encourage self-regulation. It is also an international medium and its operation does not fall under any single jurisdiction or sovereignty, except in respect of its users and the various service providers. It has a voluntary and loose form of international management for certain matters essential to its operation. In practical terms, it would be very difficult to regulate without diminishing its character. The very novelty of the internet accounts for some part of the lack of regulation. Despite these points, it is not impossible to regulate (Lessig, 1999) and many of the uses made of the medium are subject to existing general laws relating to communication and publication. The more the medium is commercialized and formally
organized, the more likelihood there is of regulation appearing, although much will have to be of an international character.
Explain why telecommunications has usually been a monopoly industry and why the content has been relatively free from control. Considering the main issues for telecommunications regulation, what is your view are the most likely or significant effects of deregulation? Do you think the internet needs its own form of regulation?
The media are still essentially national institutions that do not yield competence to external bodies. In the absence of a global government, international communication is not subject to any central or consistent system of control. The forces of the free market and of national sovereignty combine to keep it this way. Nevertheless, there is quite an extensive set of international controls and regulations that do constrain nationally-based media, typically as a result of voluntary cooperation for necessity or mutual advantage. For the most part, such regulation is designed to facilitate global media in technical and trade matters, but some elements are concerned with normative matters, however non-binding. The origins of global governance are to be found in agreements designed to facilitate the international postal service, by way of the Universal Postal Union in the mid 19th century. At about the same time (1865) the International Telegraph Union (ITU) was founded to help coordinate interconnections and establish agreement on tariffs, with a subsequent extension to responsibility for the radio spectrum. In both cases, for the moment, governments and state monopolies played a key role. After World War II, the United Nations provided an arena for debate on mass media matters, with particular reference to freedom of expression (guaranteed by its Charter), the free flow of communication between countries, and issues of sovereignty. n 1978 an attempt was made in UNESCO, at the behest of a number of developing countries,
to introduce a Media Declaration stating a number of principles for the conduct of international media, especially in relation to propaganda for war and hostile reporting. Opposition by western countries and free-market media led to its failure, but it did place a number of new and contentious issues on the agenda of concern and debate and contributed to the recognition of certain communication rights and obligations. There are still international treaties, including the UN Declaration and both the European and the American Conventions on Human Rights, that offer some redress to those injured by misuse of communication. The paradigm shift that has occurred towards deregulation and privatization, coupled with the new ‘communications revolution’ based on computers and telecommunications, closed off the path towards greater international normative regulation. But the same shift increased the need for technical, administrative and economic cooperation on a range of issues. Most recently, the development of the internet has stimulated calls for international regulation, but this time with some reference to content as well as structure. The main bodies that now play a variety of key roles in the emerging system of media governance at the international level are as follows (see O Siochru and Girard, 2002):
• The International Telegraph Union (ITU): governed by a council of delegates nominated by national governments, the ITU deals with telecommunication technical standards, spectrum allocation, satellite orbits and much besides.
• The World Trade Organisation: the WTO has immense power on economic matters and impinges more and more on the media, as they become bigger business and more commercialized. Central issues for the WTO are free to trade and protection, with implications for limits to national sovereignty in relation to media policy. The policy of the EU for protecting broadcasting is especially vulnerable as is public broadcasting generally. Apart from the EU, other regional trade organizations, or agreements (such as NAFTA3 ), can impinge on media issues.
• The United Nations Educational Social and Cultural Organisation (UNESCO): a branch of the UN established in 1945, UNESCO has wide competence on cultural and educational matters, but little power and no very specific media functions. It is, however, active on questions of freedom of expression and the internet.
• The World Intellectual Property Organization (WIPO): established in 1893, WIPO has the main aim of harmonizing relevant legislation and procedure and resolving disputes between owners of rights, authors and users.
• The International Corporation of Assigned Names and Numbers (ICANN): this is the latest addition to an array of governance bodies. It is a voluntary private body that aims to represent the community of internet users. It started in 1994 after the privatization of the World Wide Web and its main function was to allocate addresses and domain names, plus some server management functions. It has little power to deal directly with the emerging social and other problems relating to the internet.
• The European Commission (EC): the EC can influence certain aspects of broadcasting and telecommunications relating to the 25 member states of the European Union. There are many other bodies with varying remits for issues relating to international media. Many represent various industry interests, including those of publishers, journalists, and producers. There are also many non-governmental organizations (NGOs) speaking for interests in ‘civil society. For the reasons given, effective regulation is still largely confined o technical and economic matters, rather than social and cultural issues, with the possible exception of freedom of communication. Nevertheless, there are many scattered signs of growing internationalism and, arguably, a need for a more suitable frame of analysis than is offered simply by an array of national states. The growth in international media raises new issues for control of media. While media messages are no longer easy to halt at the national frontier, there are still many practical obstacles to transborder flow.
Since the main models of media regulation are closely linked to differences between communication technologies, continual changes taking place in technology have consequences for regulation. Technological change can remove the rationale for certain regulations and create a need for new forms of regulation. There are other causes of change, including political transitions from more state-controlled to liberal free-market regimes (as happened in the former Soviet Union and East/Central Europe), and also ideological and cultural changes within countries. For the most part, the last-mentioned impulses to change have led to greater commercialization of the media and the decline of public support for a cultural policy regulating media content. A third main source of change (although it may be considered in some respects as the primary driving force for developing new technology) is economic. Entrepreneurs and investors have perceived many new potential markets that can only be opened up by relaxing old forms of regulation and state control and providing new, more welcoming regulatory frameworks. A fourth general factor is the ongoing march of globalization that continues to have a large impact, especially by weakening national state control on the flow of media. For all these reasons, the theoretical and normative frameworks employed to guide and interpret such changes also adapt to the new circumstances.
The continued multiplication of distribution channels of all kinds makes effective regulation (at national or international level) more and more difficult, as well as less necessary, insofar as regulation is designed to increase the universality of provision, safeguard diversity and access and limit the growth of monopoly. Advocates of the free market claim that the market can achieve many objectives of the ‘public interest’ without a need for regulation. This view is contested by critics who see the results of the market in terms of excessive commercialization, homogenization, the decline in cultural standards, limitations on access and a concentration of power over information and news in a few corporate hands, with links to the political elite. The several forces at work are having a number of consequences for traditional forms of regulation. The regulated sector of public broadcasting, mainly (but not only) in Europe has
been much affected. It lost its monopoly status some time ago and has faced greatly increased competition from commercial rivals and relative or absolute reductions in funding. Although its status is protected within the European Union, the general effect of the current change is towards the increasing marginalisation of public broadcasting and its focus on social and cultural functions that the market might not provide. Another consequence is the increased disinclination to regulate on behalf of the newspaper press for purposes of public policy. In today’s complex media market system, such support is seen as both less necessary and less feasible, leaving a political will to one side. Rightly or wrongly, it is widely thought that there are so many alternative media, including those on the internet, that there is no longer a danger of loss of informational diversity, as long as market freedom and innovation are supported. In general, we see regulations that restrict the media (on grounds of public interest) being dismantled or weakened. In the international economic forum of the WTO, it has become increasingly difficult to argue for any exceptions or limits on free trade because of national or cultural policy reasons. Normative issues and questions of human rights take second place to economic and technical considerations. Within countries, many traditional limitations on content (e.g. in matters of sex and violence) are being relaxed, partly also on grounds of impracticality in a multi-channel environment. The issues for regulation, as summarized in section 3, have not, however, gone away and calls for regulation of the media from the public and from particular interests are still forcefully made as new issues arise. In general, the policy has aimed to encourage media self-regulation and voluntary accountability. Where issues of crime and terrorism are concerned there has been a greater willingness to cooperate and regulate where feasible. The internet, as a new, growing and very influential mass medium is a special case that has received contradictory and ambivalent treatment. It grew up as a marginal addition to the
range of media possibilities in the 1990s (see Castells, 2001) and from the beginning was virtually free of any specific national or international ownership or control. It benefited from the laissez-faire spirit of the times as well as from its status as a point-to-point telecommunication based medium. It is also difficult to regulate effectively, although not impossible (Lessig, 1999). However, its functions have greatly expanded to extend into the public communication arena and many of the issues for media regulation are now raised with reference to the internet (Hamelink, 2000). The current situation is that it remains formally unregulated, but it is subject to some forms of self-regulation, especially by service
providers, and it is subject to the same general laws that apply to public communication in the countries where it operates. Motives of commercial and state security are driving forces towards more formal control and supervision. The internet does not have firm protections for its basic freedoms. In view of the rapid pace of technological change, we can make a few predictions about the shape of future media regulation. It is unlikely that the recent deregulatory wave will be turned back, but it would be unwise to predict the ‘withering away of regulation. It is also unlikely that we will see a complete convergence of rules and regulations for the media across media types and countries, but the trend is still in that direction.
Guidance on writing your assignments
Essays should be clearly written in good English and typed. Where your tutor judges that your writing is ungrammatical or inaccessible to the extent that this significantly impairs the possibility of understanding what has been written, marks will be deducted and, in severe cases, the essay will not be marked.
You must answer one of the questions listed on the following pages for each Option Module you have chosen by the deadline given on your course timetable. Please note, for these Option Module assignments, your essays should be approximately 3000 – 4000 words. You may wish to attach appendices (e.g. supporting data) but tutors will not necessarily read appended material in detail. Please refer to the Course Handbook for general guidance on assignments.
Please remember that this is a course at the MA level. In addition to showing a good understanding of the course materials, it is expected that you will also be able to engage critically with the arguments examined in them. It is generally advisable to avoid expressions of personal opinion or anecdotes unsupported by course-related evidence. Arguments should draw substantially on theories and research, themes and issues which are addressed in the course materials, quoting references where appropriate.
The use of citations is common practice in western scholarship – they protect the author from charges of plagiarism when the author is drawing on the research of others in order to develop an argument, they indicate sources of further or relevant reading for the benefit of readers and they help tutors to judge how skilfully students have used their study materials. Please refer to the Course Handbook for guidance on the method you should use for reference. You should avoid extensive quotations from the course materials or slavish repetition of the structure of evidence and arguments presented in them.
While it is expected that you will build on the research of sources and authorities drawn from the course materials, the assignments are also an opportunity for you to develop original arguments and insights. You should show strong sensitivity to the nature and controversies of media research and to issues of theory and methodology in research. Students who work in the communications industries should feel encouraged to reflect on aspects of everyday professional practice from a variety of different theoretical perspectives and, without necessarily criticizing their effectiveness within particular work contexts, look at professional practices as social phenomena or data which can help to illustrate theories about communications, media and society.
You must answer one question relating to each option module you have chosen to study.
How far does the political economy of the internet enhance, restrict or otherwise influence the activities of internet users? Advice to Students this question is inviting you to consider the extent to which we can establish links between the political economy of the internet and the uses that people are making of it. The question relates most immediately to Units 73, 76, 77, and their associated readings, but your response to it could draw on a range of issues reflected in any or all of the units contained in the module. You may also find it useful to review Hardy’s discussion of critical political economy in chapter 10 of Media and Society (5th Edition) and/or Murdock and Golding’s discussion of political economy in the Mass Media and Society Reader in the Course Readers section of the DMC website. You should consider what the key features of the political economy of the internet are, and whether particular legal, regulatory, economic, technological or other factors are shaping, directly or indirectly, the use that people (are able to) make of the medium. Do some features or areas within that political economy exert
greater degrees of influence than others: is the internet’s development being shaped primarily by commercial pressures, for instance, or simply by the combined activities of millions of autonomous and independent users? Do different features of its political-economic landscape push internet use in different directions? Is it feasible to talk of internet ‘users’ as a singular phenomenon, as has long been done with ‘the audience’, and exactly how much autonomy do users have?
What, in your view, are the main problems involved in attempting to produce policies and regulations for the internet and other new media? Advice to Students This question draws primarily on Units 73 and 74 but can encompass elements from the module’s other units also. In responding to this question it may also be helpful to review the broad regulatory models used in respect of the more established, ‘traditional’ media (as discussed by McQuail in Unit 11) and to reflect on exactly why the application of any of these frameworks to new media is problematic. Among the key defining features of new media,
which ones produce the most significant regulatory problems? Do such problems tend to be concentrated in certain areas of regulatory concern, (e.g. media content, structure, conduct, distribution etc.) or are they more evenly spread across all such areas? Indeed, do new media create their own entirely new areas of concern? Exactly why should new media be subject to regulatory efforts, and how far are the historical reasons behind much-established media regulation still relevant for new media?