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Media freedom is an integral element of global security and prosperity. People need free media to provide them with accurate information and informed analysis . . . Where journalists and media organisations are free to do their work safely, societies are more prosperous and more resilient. The free exchange of views and information that results allows communities to identify and pursue emerging opportunities and to recognise problems that must be addressed. Attacks on media freedom are attacks on human rights.¹

This declaration, from the Canadian and UK governments in 2019, expresses the consensus among the governments of advanced democracies that media should be free. Spurred on by US leadership in the early post-war years, inter-governmental organizations (IGOs) and non-governmental organizations (NGOs) have sought to limit the ability of governments to interfere with newspapers and broadcasters. In doing so, they have developed an international structure of law that creates a protected space for a network of media institutions. When the European Union (EU) adopted a new Charter on Fundamental Rights in 2011 it demanded that ‘the freedom and pluralism of the media shall be respected’.² EU governments made an agreement in 2014 that they would protect and promote media freedom and the EU funds a project to monitor and map threats to media freedom.³ Since 2012, the United Nations Educational, Scientific and Cultural Organization (UNESCO) has reported annually on trends in media freedom.⁴ The Council of Europe operates a platform for real-time reporting of threats to media freedom,⁵ the United Nations (UN) now employs a Rapporteur on Freedom of Expression, and another international organization, the Organization for Security and Co-operation in Europe (OSCE), appointed its Fifth Representative on Freedom of the Media, a post established in 1997, in 2020. In its report of November 2019, the Representative called for all countries to include a commitment to media freedom in their constitutions.⁶ The world now has a highly developed legal and institutional structure devoted to protecting media organizations.

Intensive, global, governmental and inter-governmental activity is matched in the world of NGOs. ARTICLE 19, with an annual budget of more than £7m, ‘works for a world where all people everywhere can freely express themselves and actively engage in public life without fear of discrimination’.⁷ Index on Censorship, with an annual spend of around £1m, ‘documents threats to media freedom through a monitoring project and campaigns against laws that stifle journalists’ work’.⁸ The International Press Institute, with an annual budget of over £1m, described its ‘mission to defend media freedom and the free flow of news wherever they are threatened’.⁹ Reporters Without Borders, publisher of the annual Press Freedom Index (annual budget around €6m), claimed to be ‘the world’s biggest NGO specializing in the defense of media freedom, which we regard as the basic human right to be informed and to inform others’.¹⁰ Another, US-based, international research and advocacy organization, Freedom on the Net, extends to the new medium of the internet: by 2020, its annual budget was $30m.¹¹

Democratic countries attempted to export what was seen as a model framework for the operation of media systems in a democracy to other countries and regions within their spheres of influence: because media organizations have the ability to shape public opinion, they should be separate from the state. Their freedom is not absolute but subject to checks and balances to ensure they meet their ‘social responsibilities’.¹² Those checks and balances, because of the potential for collusion and capture between states and media, must be transparent, rooted in civil society and professional ethics.

This liberal democratic framework was constructed in response to an awareness of the potential authoritarian consequences of media freedom, at key historical junctures, such as the American Revolution, the French Revolution and the institutionalization of the post-war international human rights institutions. The post-war movement to shield media organizations from control by the state has been institutionalized in laws to protect journalists and the media through the UN system. New concepts of protection for the media have evolved from the right to freedom of expression, building on the Universal Declaration of Human Rights (UDHR) and the emerging legal standards under the UN human rights regime,¹³ through the case law of the European Court of Human Rights (ECtHR) concerning Article 10 of the European Convention on Human Rights (ECHR),¹⁴ and national laws such as the First Amendment to the US Constitution. These set out increasingly codified restrictions on state censorship of media. Police investigations should not compel journalists or publishers to reveal information if in so doing they may unjustifiably reveal news sources.¹⁵ Journalists, reflecting dangers of harassment and even murder, are able in many regions to claim the right to enhanced police protection, and qualified privilege in defamation cases. And across data protection,¹⁶ market abuse,¹⁷ privacy, defamation and administrative law, news organizations have achieved an array of carve-outs and privileges.¹⁸ These can be seen as the fruit of the long-term development of an applied theory of the role of media in a democracy: in order to fulfil the ‘watchdog’ or ‘fourth estate’ function of the media, journalism and the media need legal privileges and protections, in order to be autonomous from the state.

The democratic theory of media freedom has thus been institutionalized in law. In international human rights law, restrictions on freedom of expression must be proportionate, prescribed by law, for a legitimate aim and necessary in a democratic society. Governments should not be able to chill or shape expression simply in order to maintain their own position of power, or shut down legitimate areas of public debate.¹⁹

International human rights law acknowledges that, like censorship, absolute media freedom can be the enemy of democracy. Because large media corporations can have a huge impact on popular opinion – and thereby on elections and the course of history – media power has to be subject to checks and balances. The paradigm case of the media cheerleading for fascism, and the role of the Hugenberg news empire in Weimar Germany,²⁰ led to an explicit acknowledgement by all the post-war Allied governments that careful media law construction is necessary not only to protect media from the state, but also to limit the power of particular media organs. The principles which were established to govern the rise of broadcasting institutions especially were based on principles of pluralism that were established for the press, but these needed to be adapted and new ones invented because of the novel technical and economic features of the internet. Broadcasting and media freedom, like press freedom, could be double-edged: an independent press was the lifeblood of democracy, but if the press was too powerful, and too united, it could quickly overwhelm civic life, resulting in a crisis of state legitimacy. At the core of media freedom therefore was its corollary: media pluralism, essentially an admission that media power must be limited.

Developments in the post-war period flowed directly from the application of this paradigm of media freedom: the breaking of state monopolies in broadcasting and the development of a ‘mixed system’ of independently licensed private and public broadcasters.²¹ Media ownership, plurality and diversity rules were developed to prevent large media owners corralling public opinion. The rules did not always work, and were often resisted by those power brokers. And it was not only Parliaments and law that led the way. Journalists and media professionals also developed their own institutions. Independent self-regulation, grounded in professional ethics in journalism, offered an intermediate space of rule-making insulated from state interference with a degree of transparency and due process.²² These rules were similarly based on an ethic of responsibility and on values of truth and democratic self-government.

So far, so straightforward. ‘Media freedom’ is fundamental to democracy, but it is not absolute and it requires an ethic of responsibility on the part of the media themselves. It must be subject to checks and balances, and the global struggle for media freedom is about standards to separate necessary checks and balances from selfserving censorship by governments seeking to avoid media scrutiny. But the Global Pledge on Media Freedom (quoted at the start of this chapter) was signed at a conference shot through with gloomy talk, not of the steady march of these liberal values and global standards, but of a crisis of media freedom. An award-winning young journalist had recently been shot on the street in the UK.²³ Journalists had been ‘disappeared’ in Malta²⁴ and Slovakia.²⁵ Increasingly authoritarian governments in Poland and Hungary had passed laws to increase government control of broadcasters, Turkey had surpassed China in the numbers of journalists it locked up and even bloggers and social media ‘influencers’ were being harassed and pressurized. There was talk of an ‘information war’²⁶ and demands that democracies around the world pass new laws to censor ‘fake news’ coming from abroad. Emergencies – of health and climate – appeared to justify new limitations on media freedom. Just as it had seemed to be consolidating, consensus on media freedom in liberal democracies appeared to be shattering.

And there is the rub. At precisely the moment when a clear and unambiguous concept of media freedom is needed to guide policy, the concept enters a spiral of self-doubt. And if you are wondering whether concepts can doubt, I should explain that it is us, the expert analysts and scholars of media freedom, that are struggling with the concept. The assumption of this book is that the established rules and institutions of media freedom face a multi-layered and fundamental challenge:

On the one hand, there is a deliberate and coordinated assault on the openness of communication systems, by authoritarian governments, and also by powerful private actors. Authoritarian clampdowns²⁷ on opposition are part of this but the global internet enables many other possibilities. Information warfare²⁸ poisons the well of democratic deliberation with hate and disinformation, which in turn invites censorship. Infowar, by authoritarian states and others, is a deliberate attack on liberal democracy itself: a deliberate attempt to force democracies to unpack the existing settlement for media freedom and replace it with a more repressive one, because to do so serves the interests of entrenched authoritarian rulers, who are intrinsically threatened by the free flow of ideas.²⁹ The big tech platforms themselves may be tempted to seek a self-serving settlement in this struggle for new rules. Increasingly, they hide behind the flawed idea of ‘internet freedom’ as an excuse for failing to restrain malign actors and surveillance capitalism.

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

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

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

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

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

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

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

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

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