Media Freedom and Regulation
in the New Media World

Edited by

András Koltay

Published by

Wolters Kluwer Ltd.

Hungary, 2014

Prielle Kornélia u. 21–35., 1117 Budapest, Hungary

Phone: +36 (1) 464-5656

Fax: +36 (1) 464-5657

e-mail: info@wolterskluwer.hu

www.wolterskluwer.hu

Published with assistance from

the Institute for Media Studies of the Media Council of the National Media

and Infocommunications Authority

and

the Media Studies Research Group, Hungarian Academy of Sciences

ISBN 978 963 295 401 1

Product code: YEB1519

All rights reserved. No part of this book may be reproduced by any means, or transmitted

or translated into machine language without the written permission of the publisher.

Media Freedom and Regulation in the New Media World

Edited by

András Koltay

Authors:

Balázs Bartóki-Gönczy

John Campbell

Ursula Cheer

Anne SY Cheung

Val Corbett

Balázs Fekete

Thomas Gibbons

Ulrike I Heinrich

Robert A Kahn

Irini Katsirea

András Koltay

Petra Lea Láncos

Tom Lewis

Peter Leyland

Katrin Nyman-Metcalf

Ashley Packard

Jeroen Temperman

Bernát Török

Clive Walker

Russell L Weaver

Rolf H Weber

Lorna Woods

Vincenzo Zeno-Zencovich

Editor:

András Koltay

The following, now revised papers were originally published (with different titles): Tom Lewis, ‘Animal Defenders International v United Kingdom: Sensible Dialogue or a Bad Case of Strasbourg Jitters?’ (2014) 77 Modern Law Review 3, 460 Clive Walker, ‘Militant Speech about Terrorism in a Smart Militant Democracy’ (2011) 80 Mississippi Law Journal, 1395

The following paper was originally published:

Thomas Gibbons and Irini Katsirea, ‘Commercial Influences on Programme Content: The German and UK Approaches to Transposing EU Rules on Product Placement’ (2012) 4 Journal of Media Law 2, 159, of Hart Publishing, by permission of Bloomsbury Publishing Plc.

© Balázs Bartóki-Gönczy, John Campbell, Ursula Cheer, Anne SY Cheung, Val Corbett, Balázs Fekete, Thomas Gibbons, Ulrike I Heinrich, Robert A Kahn, Irini Katsirea, András Koltay, Petra Lea Láncos, Tom Lewis, Peter Leyland, Katrin Nyman-Metcalf, Ashley Packard, Jeroen Temperman, Bernát Török, Clive Walker, Russell L Weaver, Rolf H Weber, Lorna Woods, Vincenzo Zeno-Zencovich, 2014

© Wolters Kluwer Ltd., Budapest, 2014

Introduction

In spring 2012, the Hungarian Academy of Sciences decided to establish the Media Studies Research Group for the management of various social scientific research activities related to the media. Activities related to media law are of paramount importance among these, not least because of the rapid and major changes taking place in the field of media regulations, the many open questions that arise both on the national and the European level and the disputes related to the media regulations. The Academy hopes that this initiative will enable the research team to conduct studies that are significant on a European scale, as well as to participate in international exchanges related to the subject.

In 2013 the research group launched a research programme entitled ‘The fundamentals of European thought on media law, with special respect to certain issues related to the freedom of speech’, which is scheduled to run until the end of 2015. The programme includes the publication of several independent papers and volumes of studies, as well as the organisation of conferences. It consists of several research projects covering several distinct legal fields. We hope that this diverse approach will allow both the researchers and their readers to define the fundamentals of European thought on media law, to identify the possible models for the resolution of the various questions that arise, to understand the ‘common minimum’ of European regulations that is present in all countries and to establish whether ‘best practices’ exist in these areas and, if so, what they are. Besides identifying the various European approaches, it is at least as important to examine the legal system of the United States and, possibly, some other legal systems that are relevant from the European viewpoint (eg Canada, Australia, New Zealand, etc), and to study the interactions between them.

The Academy invited distinguished scholars from many countries working in the field of media and free speech law to take part in the research programme and send manuscripts for the planned publication of a collection of essays. The participation of diverse authors from various countries and backgrounds greatly contributed to the value of the research. The compiled papers are published in this book as a first step to promote the research on an international level.

The book is made up of seven structural units, which encompass a significant part of the current issues of the freedom of speech and media law. The first unit (Fundamental issues of media regulation) deals with the basic theoretical issues of media regulation. The theoretical / philosophical grounds of the freedom of speech and the freedom of the press in Europe mainly originated from the legal system of the United States and the jurisprudence of the US Supreme Court; therefore, the summary papers of an American (Russell L Weaver) and a European (Balázs Fekete) author are interesting contributions to the discussion of this topic, analysing their subject from different perspectives on the two sides of the Atlantic Ocean.

The second unit (Regulation of the new media) discusses the issues that arise from new media services, including the questions related to the digitalisation of traditional services (Katrin Nyman-Metcalf’s paper) and the internet (the joint paper by Rolf H Weber and Ulrike I Heinrich on the regulatory structure of the new services). The article by Vincenzo Zeno-Zencovich discusses anonymity rights on the internet, a topic that goes beyond the enforcement of the rules ensuring the rights of ‘traditional’ journalists, and raises the difficult question of just who qualifies as a journalist or, rather, just who is entitled to special protection in the field of the media and on what grounds. Balázs Bartóki-Gönczy’s paper examines the current challenges of net neutrality in the US and within the EU law.

The third unit (Special issues in media regulation) consists of papers examining issues of media regulation that have been with us for a long time but are especially acute today. Among these is Professor Peter Leyland’s article about the aftermath of the British News of the World scandal and, in relation to that, the evolution of British press regulation. In the summer of 2011 the affair had suddenly highlighted the desirable limitations of the operation of the press as well as the general issues of regulation. Lorna Woods wrote an article on the relationship between the regulation of public service media and the law of the European Union, a problematic relationship, full of uncertainties, that is far from settled yet. The paper by Petra Láncos examines the scope of the jurisdiction of the European Union in issues of media freedom, not independently from the international echoes of Hungarian media regulations. A question that must be examined and answered in detail prior to dwelling on jurisdictional issues is what the common European values are that can orient decision makers, are there any such and, if so, whether they can serve as the basis of the further expansion and strengthening of EU law.

The book’s fourth unit (Defamation issues) deals with the evergreen topic of the law of libel. John Campbell’s paper provides an interesting and detailed overview of almost all common law legal systems, with special emphasis on the analysis of the last fifteen years’ British developments in this area. As is well known, the law of libel is undergoing an exciting transformation in common law countries, which may have important lessons for the whole of Europe as well as the United States. Ursula Cheer’s article reviews these developments in the light of the New Zealand legal system. Anne Cheung discuses an interesting aspect of the relationship between the new media and the traditional law of libel, namely the problem of the liability of internet hosting providers with regard to the anonymously published comments of others. After providing a comprehensive European overview, my paper aims to analyse Hungarian regulations and jurisprudence that have taken a direction that may be interesting for the legal systems of other countries, too, and the libel cases decided by ECtHR of Hungarian concern that are relevant at the European level, too.

The papers in the fifth unit of the book (The protection of privacy) analyse the issues of the protection of privacy that are closely related to certain aspects of the law of libel. Val Corbett’s article presents the current problem of publicity rights, while Ashley Packard examines the uncertainties of the protection of personal data from both a European and a US perspective.

The issue of hate speech is one that cannot be omitted from a volume depicting the various areas of the freedom of speech. Four papers provide a treatment of this topic in the sixth structural unit of the book (Hate speech and terrorism). The article of Robert A Kahn discusses the relationship between and possible restriction of symbols and hate speech on the basis of the analysis of the jurisprudence of both the United States and ECtHR. Jeroen Temperman describes the international regulations on the restriction of incitement to hatred, with special respect to hate speech related to religious convictions. Professor Clive Walker presents a particular and relatively new area of hate speech (or, at least, one that has unfortunately gained new impetus in the twenty-first century), namely the rather complex relationship between speech supporting terrorism and the democratic freedom of speech. Bernát Török provides a critical analysis of the vast Strasbourg practice and attempts to identify, from the layers of the various decisions, the often not easily perceptible theoretical foundations and considerations upon which future decisions are based.

The seventh and last unit of the book (Commercial communications and political advertising) discusses commercial communications from two entirely different aspects: Irini Katsirea and Thomas Gibbons analyse the adoption and practical application in the United Kingdom and Germany of the rules on a special instance of commercial communication, product placement as introduced to all of Europe by the AVMS Directive, while Tom Lewis presents the practice of ECtHR on political advertisements, one that is not entirely free from contradictions.

The book is thus not only thick in size, but it presents a wide variety of issues as well. The objective of the editor was to ensure that this collection of papers contributes to the debates conducted in Europe, America, and other continents too, that are common to us. The papers provide snapshots of various problems that may, due to the continuous formation of the regulations and practice, fade somewhat in a couple of years; however, in my opinion their important theoretical foundations and in-depth analyses will ensure that they remain important sources for a long time. The arguments over freedom of speech and media regulation will probably not be settled for a long time yet. Some of them, in fact, cannot even be settled, while there are others where closure once and for all would cause us significant loss. It is with respect to all of this that I wish readers traversing the pages of the book a good journey, as well as a lot of exciting and interesting debates about the issues raised—it was just such debates to which the authors wished to contribute.

Budapest

6 April 2014

András Koltay

editor

1.

Fundamental issues of media regulation

Russell L Weaver

The press and freedom of expression

Johannes Gutenberg’s invention of the printing press in the fifteenth century revolutionized communication.1 Prior to that time, most books were handwritten, a process that was extremely slow and time consuming,2 and only a small number of people (usually monks) could devote the time needed to create books.3 As a result, it could take years to create a single book, and many decades to create a relatively modest number of books,4 most of which were religious rather than political in nature.5 Although universities started producing written works in the thirteenth century, the writers of these university-created books were generally scribes rather than creators of original content.6

Although Gutenberg’s movable type printing system was relatively straight-forward,7 it was revolutionary because it allowed printers to mass produce written works.8 The printer would arrange the movable type in boxes to compose a page of text. Once the page was prepared, the printer would apply ink to the printing press and slowly crank the press down onto the paper in order to make an impression on a piece of paper. By repeating this process, the printer could create multiple copies of a single page. To create a book, the printer would repeat this process for each subsequent page, and then assemble the completed pages and bind them into books.

The Gutenberg press had a profound effect on society because it expanded communications possibilities beyond the monks, governmental officials and universities that had previously created written works.9 As a result, the printing press quickly spread from Germany to other cities and countries,10 and printed works assumed an increasingly important role in the communications process.11 By 1499, the quantity of books rose dramatically to some 15 million books representing approximately thirty thousand book titles, and some 2,500 European cities had printing presses.12

Gutenberg’s invention revolutionized society, leading to the development of a new type of intellectual, and a shift from entirely religious books to texts addressing a variety of subjects, including texts on the ‘new science and philosophy’.13 Over time, the printing press altered the ‘entire fabric of society’, and had the effect of ‘encourag[ing] literacy’ and ‘broaden[ing] knowledge’,14 and had a direct impact on the ‘world of ideas by making knowledge widely available and creating a space in which new forms of expression could flourish.’15 The printing press impacted society by contributing to the Renaissance, the Scientific Revolution, and the Protestant Reformation.16 The Roman Catholic Church, which had dominated medieval society,17 was directly challenged by ideas disseminated through the medium of the press,18 as Martin Luther’s handwritten theses were translated into German, reproduced, and widely circulated.19

The press as an institution

Over time, the printing press led to the creation of ‘the press’ as an institution in its own right,20 and one that had a significant impact on political thought and the broader social fabric. For example, the printing press played a role in helping to bring about the American Revolution by enabling the reproduction (and, ultimately, the dissemination) of the writings of Europeans, including Cato’s Letters,21 as well as the thoughts of political philosophers such as Locke,22 Paine23 and Baron de Montesqieu,24 all of which helped shape eighteenth century political thought.25 In addition, the printing press provided revolutionaries with a way to communicate with each other, and was used during the American Revolution to create and mass distribute copies of the Declaration of Independence, and ultimately the Federalist Papers.26 The printing press also played a role in the French Revolution.

One might have guessed that Gutenberg’s invention would have had a limited impact on eighteenth century society because literacy rates were so low. Indeed, until the Industrial Revolution, many ordinary people lacked the ability to read and write,27 and therefore were unable to prepare or read letters, circulars and petitions.28 However, the evidence suggests that the printing press had a significant impact on society and politics even among the illiterate. During the American Revolution, although print runs for newspapers were often quite low by modern standards—a single newspaper might produce only 400 copies per day—newspapers had greater impact than the extent of their press runs might indicate. Many newspapers were read by more than one person, and were also read to groups of people in communal settings like taverns.29 During the French Revolution, when many ordinary Frenchmen could not read or write, posters were placed in public squares, and a literate person might read the contents to an interested group of listeners.30

Is the press entitled to special privileges?

The modern press is viewed as an essential component of a modern democracy, serving as a so-called ‘watchdog’ against governmental corruption and abuse by investigating and reporting on governmental officials and prominent individuals. For example, in US history, the press has informed the nation about ‘governmental corruption, the greed of industrialists, and the need for pure food laws and child labor laws.’31 Perhaps the most famous example of this watchdog function is provided by Woodward and Bernstein’s Watergate investigation for The Washington Post; an investigation that ultimately led to President Richard Nixon’s resignation from the presidency.32 But numerous other examples abound in the sense that media investigations are a proud tradition among newspapers. For example, investigations by the Hartford Courant led to corruption charges against a former Connecticut governor.33 The paper’s ‘tenacious coverage compelled authorities to investigate’ the governor, and ‘exposed polluters and the deployment of mentally ill soldiers to Iraq.’34

In addition, the press serves as a critic of government and society. Even as early as the eighteenth century, there were numerous examples of the press serving this critical function. For example, in the British colonies, John Peter Zenger of New York35 published ‘anti-British song-sheets and mock advertisements describing an associate of the royal governor as “a large Spaniel, of about 5 feet 5 inches high … lately strayed from his kennel with his mouth full of fulsome panegyricks,” and also described the associate as a “monkey … lately broke from his chain and run into the country.”’36 Similarly, James Franklin of Boston, Massachusetts,37 Benjamin Franklin’s brother, published an article suggesting that colonial authorities were not pursuing pirates with sufficient vigor.38 Even Benjamin Franklin joined the fray as a teenager when he ran his brother’s newspaper during the latter’s imprisonment for criticizing governmental officials.39 Later, when Franklin owned his own press, he used it to comment freely on society, and to critique and challenge government.40

However, in order to perform this watchdog function, the press must function free of governmental interference. Because of the potential of the printing press, speech repression was a recurring theme following Gutenberg’s invention of the device. Indeed, throughout history, as new forms of speech technology were developed, they were usually accompanied by governmental efforts to restrict or control the use of those technologies.41 Following Gutenberg’s invention of the printing press, European governments did not willingly or readily embrace the potential of the printing press in the hands of private citizens.42 Indeed, because of the potential for ‘subversion’ of the established order, many European governments sought to restrain what they regarded as the ‘evils’ of the printing press.43

Restrictions on the printing press took various forms. In England, the Crown imposed significant restraints on press freedom. In addition to limiting the total number of presses that could exist,44 the English government controlled the content of printing through licensing schemes.45 Under the Printing Act of 1662, Parliament ‘prescribed what could be printed, who could print, and who could sell.’46 The British licensing scheme also prohibited the publication of any book or pamphlet without a license, and required those who wished to obtain a license to submit their work for review.47 Of course, if a proposed publication contained material that the censor deemed objectionable, the license could be denied.48 Under the Stamp Act of 1712, taxes were levied on each page as well as on each advertisement that a newspaper contained.49

Previously, in 1606, England had created the crime of seditious libel in the Star Chamber’s decision in de Libellis Famosis.50 That decision replaced, in part, the criminal offense of constructive treason,51 and made it a crime to criticize the government or governmental officials (and, at one point, the clergy as well).52 The crime was enforced by ‘threats of punishment, litigation costs, and stigma’,53 and was justified by the notion that criticism of the government ‘inculcated a disrespect for public authority.’54 ‘Since maintaining a proper regard for government was the goal of this new offense, it followed that truth was just as reprehensible as falsehood’ and therefore was not a defense.55 Indeed, truthful criticisms were punished more severely than false criticisms because truthful criticisms were regarded as potentially more damaging to the government.56

Although licensing expired in the late eighteenth century,57 there was significant evidence of speech repression in the American colonies.58 Perhaps the most famous seditious libel prosecution in the American colonies involved the case of John Peter Zenger.59 Zenger, a New York publisher, who had published stories mocking the royal Governor and his administration, was prosecuted for seditious libel.60 Zenger languished in jail for ten months awaiting trial, and the Governor arranged for the disbarment of his lawyers for stating exceptions on Zenger’s behalf.61 When the case was finally tried, Zenger’s lawyer admitted that Zenger had published the allegedly libelous statements, and offered to concede the libel if the prosecution could prove that the allegations were false. When the prosecution declined, the lawyer offered to prove that the statements were true. Although the court disallowed both types of evidence, on the then valid legal basis that truth was immaterial to libel, Zenger was acquitted in what was an early and significant exercise of jury nullification.62

In the American colonies, there were other significant examples of British attempts to control content through licensing, or through seditious libel prosecutions. For example, James Franklin (Benjamin’s brother), who ran the Courant, was jailed at one point for showing ‘disrespect’.63 In addition, because James had a tendency ‘to mock religion and bring it into disrespect’, a court ordered that ‘“James Franklyn, the printer and publisher [of the Courant], be strictly forbidden by this court to print or publish the New England Courant” unless he submitted each issue of the paper to the censor for prior approval.’64 James Franklin was also prosecuted for printing a fake letter to the editor (fake in the sense that James was the real author of the letter, but he sought to attribute the letter to someone else) that implied that the authorities were not pursuing pirates (operating off the New England coast) with sufficient vigor.65 In the article, James reported (sarcastically suggesting that the authorities were not moving in haste to catch the pirates) that the captain heading up the expedition against the pirates ‘will sail sometime this month, if wind and weather permit.’66 James was jailed, and Ben was questioned, but ultimately released. Many believed that the arrest was politically motivated, and was designed simply to silence James for his stinging political commentaries. Benjamin Franklin continued publishing the newspaper during the month that James was confined.67 When Benjamin Franklin decided to leave Boston for New York and (ultimately) Philadelphia, one of the motivating factors was the possibility of prosecution by Boston’s elite.68 Well aware of what had happened to his brother, Benjamin Franklin was more careful about using his newspaper to provoke the authorities.69

In some nations, the institutional press is accorded special treatment because of its watchdog, investigative and criticism functions. For example, in Branzburg v Hayes,70 Powell J asserted that ‘the press has a preferred position in our constitutional scheme, not to enable it to make money, not to set newsmen apart as a favored class, but to bring fulfillment to the public’s right to know. The right to know is crucial to the governing powers of the people. … Knowledge is essential to informed decisions.’71 Potter Stewart J of the US Supreme Court made a similar argument: ‘The Free Press Clause extends protection to an institution. The publishing business is, in short, the only organized private business that is given explicit constitutional protection. [If] the Free Press guarantee meant no more than freedom of expression, it would be a constitutional redundancy.’72

However, there is hardly agreement on the question of whether the press should be accorded a special status. In First National Bank of Boston v Bellotti,73 then Burger CJ of the United States Supreme Court, after noting that the court had not yet squarely resolved whether the Press Clause conferred upon the ‘institutional press’ any freedom from government restraint, not enjoyed by everyone else, concluded that there was no indication that the drafters of the First Amendment to the US Constitution contemplated a ‘special’ or ‘institutional’ privilege for the press. Andrew Bradford, a colonial American newspaperman, argued that freedom of expression is hardly limited to the media: ‘[By] Freedom of the Press, I mean a Liberty, within the Bounds of Law, for any Man to communicate to the Public, his Sentiments on the Important Points of Religion and Government; of proposing any Laws, which he apprehends may be for the Good of his Countrey, and of applying for the Repeal of such, as he Judges pernicious. This is the Liberty of the Press, the great Palladium of all our other Liberties.’74

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