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Notes
Оглавление1 1. Foreign and Commonwealth Office (2019).
2 2. According to Berka and Tretter (2013: 17): ‘The freedom of the media according to Article 11§2 Charter must not be understood merely as an economic freedom . . . but rather as a comprehensive right to communication that also covers public service media . . . in light of the increasing importance of mass media for the formation of public opinion – freedom of the media could no longer be understood as part of freedom of expression and should be guaranteed separately.’
3 3. See Council of the European Union (2014).
4 4. See for example UNESCO (2018: ch. 1), ‘Trends in media freedom’.
5 5. Council of Europe (n.d.-a).
6 6. OSCE (2019).
7 7. ARTICLE 19 (n.d.).
8 8. Index on Censorship (n.d.).
9 9. International Press Institute (n.d.).
10 10. RSF (n.d.).
11 11. Freedom House (n.d.).
12 12. The ‘social responsibility’ theory of journalism and the media has become a staple of journalism and media teaching in liberal democracies. It dates to the post-war Hutchins Commission in the United States, and the work of Siebert et al. (1956). See also Nerone (1995).
13 13. McGonagle and Donders (2015). See especially ch. 1: ‘The development of freedom of expression and information within the UN: leaps and bounds or fits and starts’. The UN General Comment no. 34 on Freedom of Expression from 2011 summarized an approach broadly similar to that of the European Convention on Human Rights.
14 14. McGonagle and Donders (2015).
15 15. UK Police and Criminal Evidence Act 1984 (c60).
16 16. For example, under the UK Data Protection Act 2018 journalism is described as a ‘special purpose’. If you are processing data responsibly and in the public interest, you may be exempt from some of your obligations. These originate in the EU General Data Protection Regulation (GDPR) exemptions. The European Framework was tested in the case of Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland (Application no. 931/13) Judgment Strasbourg, 27 June 2017.
17 17. See Baker (2007: 997). There are numerous journalism exemptions in US and EU laws that require investment advisors to register for professional regulation and meet transparency requirements. See Tambini (2010) on the Market Abuse Directive and the US exemptions.
18 18. See Council of Europe (2011). See also Oster (2013; 2015).
19 19. The UNHRC General Comment 34 and over a hundred standards of the Council of Europe constitute a body of emerging international principles.
20 20. See Humphreys (1994).
21 21. Tambini (2015).
22 22. See in general Tambini et al. (2008).
23 23. Lyra Mckee (31 March 1990 – 18 April 2019) was fatally shot whilst monitoring a disturbance in Derry, Northern Ireland.
24 24. Daphne Caruana Galizia (26 August 1964 – 16 October 2017) was killed whilst investigating corruption in Malta.
25 25. Ján Kuciak (17 May 1990 – 21 February 2018) was shot dead together with his fiancée whilst investigating tax fraud by politicians.
26 26. See Tambini (2021).
27 27. MacKinnon (2012); Morozov (2012); Wagner (2018).
28 28. Demos (2019); Tambini (2021).
29 29. Demos (2019); Tambini (2021).
30 30. The Regional Radiocommunication Conferences of the ITU set out the technical parameters limiting interference between national and regional broadcasts and were therefore a key institution in the structuring of national communication spaces during the broadcast age.
31 31. Lessig (1999).
32 32. Oster (2013); Anderson (2002).
33 33. Starr (2004); Pickard (2015).
34 34. There have been numerous formulations. Milton (1644), Mill (1861) and Oliver Wendell Holmes’s dissenting opinion in Abrams v. United States, 250 U.S. 616 (1919) are among the most cited. See Barendt (2005: 7–13) for a discussion.
35 35. Alexander Meiklejohn developed this notion in his Free Speech and its Relation to Self-Government (1948).
36 36. There are various versions of the argument. See Barendt (2005: 15–18); also Scanlon (1972).
37 37. Oster (2013; 2015).
38 38. Lichtenberg (1990).
39 39. This is one of the key debates in First Amendment theory. See Baker (1989; 2007); Sunstein (2001); Schauer (2005); Anderson (2002); Barendt (2005).
40 40. O’Neill (2013: 28).
41 41. Barendt (2005: 424).
42 42. In the US, this is the debate about the ‘Institutional First Amendment’ (Schauer 2005; Anderson 2002).
43 43. Meiklejohn (1948).
44 44. Baker (1989). But see also Baker (2007).
45 45. O’Neill (2013: 32–3).
46 46. This tendency could easily be overstated. As Stein (2004), Shiffrin (2016), Baker (2007) and others point out, there is a more positive, institutional strand in US courts’ approaches to the First Amendment which does privilege media, but this has more recently been downplayed by the US Supreme Court.
47 47. Scanlon (1972); O’Neill (2013).
48 48. O’Neill (2013: 24).
49 49. Garton Ash (2016).
50 50. In defamation cases, the necessity of proving malicious intent gradually raised the bar first in England in the seventeenth and eighteenth centuries. In relation to freedom of expression more widely, it was in the years after World War I that the US Supreme Court established the general standard that those wishing to impose a restriction on speech had to demonstrate that it was justified as an attempt to prevent evils that the US Congress had a right to stop from happening. The test was first suggested in a dissenting opinion in Schenck v. United States, 249 U.S. 47 (1919). This was later replaced with an even more stringent test of ‘imminent lawless action’.
51 51. This is true in practice if not in theory. In the ECHR, if a right is prima facie infringed, then it is for the state to justify the infringement.
52 52. UNIRMCT (2003).
53 53. Barendt (2005) sets out the interests at stake.
54 54. See in general Council of Europe (2011). The question of whether ‘news’ or ‘journalism’ can be defined in law is a perennial one. Notable efforts have been the Australian Convergence Review (Australian Government 2012) and the New Zealand Law Commission (2013). The Convergence Commission recommended a new definition of content service enterprises and news providers, each of which would be subject to a new self-regulatory code. The New Zealand Law Commission Report 128 (ch. 3) defined news media in terms of provision of news, information and opinion, to a public audience, regularly and accountably to a code of ethics (p. 66). Neither of these was implemented in full. In contrast, the EU has evolved a definition of audiovisual media services that are commercial and have editorial responsibility, with an informational purpose, to the general public (AVMSD Art 1(1)(a)). See for a discussion Koltay (2015).
55 55. Media pluralism was about limiting the ability of powerful media companies to control individual, social and political outcomes (Craufurd Smith and Tambini 2012). Data-driven new media companies raise questions for the future of such policy frameworks and whether they will be adequate to these new forms of propaganda (Tambini and Labo 2016; Helberger 2018: 171).
56 56. OSCE (2019). See also Council of Europe (2011); Gillespie (2018).
57 57. Gallie (1955).
58 58. Klonick (2018).
59 59. AVMSD (2010).
60 60. See Council of Europe (2011).
61 61. See for example Grimmelmann (2014: 880). In international human rights law, the doctrine of indirect horizontal effect concerns the extent to which states can be held responsible for failing to prevent the breach of human rights by non-state actors.
62 62. See Valcke et al. (2015), Helberger (2018), and the work of the European University Institute’s Media Pluralism Monitor.
63 63. Downie and Schudson (2009), for example.
64 64. Özgür Gündem v. Turkey, no. 23144/93, §§42–3, ECHR 2000-III.
65 65. See Lane (2018).
66 66. The Ruggie Principles (OHCHR 2011).
67 67. In 2019 in Poland, for example, a drug policy NGO brought a case against Facebook for censoring its posts: https://www.euractiv.com/section/digital/news/facebook-hit-by-landmark-censorship-lawsuit-in-poland.
68 68. Barendt (2005); Schauer (2005).
69 69. See for a discussion Tambini et al. (2008: ch. 11); also Schulz and Held (2004).
70 70. See for a discussion Craufurd Smith (2011).
71 71. This argument is most associated with Stanley Fish (1994).
72 72. Lessig (2001).
73 73. This appears to be borne out by the research to an extent, as powerful incumbents are rewarded, but it is not necessary or insurmountable. See Milosavljević and Smokvina (2014).
74 74. The ubiquitous trend in recent decades towards ‘league tables’ on freedom of expression and press freedom by leading international NGOs and IGOs such as the European Parliament and UNESCO creates the erroneous impression that such values can reasonably be described in terms of commensurate values along a single continuum. See Becker et al. (2007); Burgess (2010); Price et al. (2011).
75 75. In a now infamous memo from 29 January 1998, Blair and his policy advisors discuss the interests of the Murdoch empire and a request from Murdoch that the Blair government should take up the case of the company with policymakers in Brussels. See the Blair Witness Statement to the Leveson Inquiry (Leveson 2012: para. 18).
76 76. See Tony Blair’s oral evidence to the Leveson Inquiry at https://discoverleveson.com/hearing/2012-05-28/1002/?bc=16.
77 77. See Tambini (2021).
78 78. See for example the NetzDG law (The Network Enforcement Act) in Germany passed in 2018 and the Online Harms Bill (2020) in the UK.
79 79. The UDHR and the ECHR accept national security as a legitimate interest in justifying restrictions of speech. The Article 19 Johannesburg Principles and Tshwane Principles set out some standards to define when such restrictions may be justified and when they are unjustified because they are based on political self-interest or embarrassment.
80 80. See the Democracy Action Plan: European Commission (2020).
81 81. There is an immense literature on the notion of social responsibility in US journalism, dating back to the nineteenth century, and particularly the Hutchins Commission, which recast the notion for post-war America. See Christians et al. (2009: 52); also Pickard (2015).
82 82. See Gillespie (2018) for a discussion.
83 83. Joint Declaration of the Rapporteurs (OSCE 2011).
84 84. Bollinger (2010: 105).
85 85. See Council of Europe (2018).
86 86. Humphreys (1994).
87 87. The Council of Europe has sought to ensure that traditional press and broadcasting are constrained by an effective media pluralism framework and encouraged member states to update the standards to take account of technological change. Zuboff (2019) sets out a critique of the data-driven business model of internet platforms. By controlling the ‘inputs’ of news and information, she argues, these can control the outputs – human choices and decision-making.
88 88. Schulz and Held (2004).
89 89. Livingstone (2009); De Zengotita (2005).
90 90. Hallin and Mancini (2004).
91 91. Hall and Taylor (1996).
92 92. Oster (2015).
93 93. See Anderson (2002).
94 94. John Durham Peters (2005) adopted a similar approach.
95 95. I use the term ‘ideal theory’ after John Rawls to describe an approach to theory that sets out a proposed normative framework given the assumption of relatively benign conditions. The aim is to resolve some of the apparent tensions in media freedom theory (definitions of media, institutional rights, positive rights vs negative and so on) by setting out workable compromises and standards to guide future policy.
96 96. The punctuated equilibrium theory of policy change draws on institutional theory. See Baumgartner and Jones (1993).
97 97. Starr (2004: 1–2, 71–7).
98 98. Pickard (2015: 2, 229).
