REGULATION IN THE NEW MEDIA ENVIRONMENT - PROBLEMS, RISKS AND CHALLENGES FROM THE PERSPECTIVE OT THE EXPERIENCE IN FIVE EUROPEAN DEMOCRATIC STATES1
The world nowadays is complex and interdependent. Democracy is also complex, it is richer in opportunities for involvement and mobilization, it is horizontal and networked and its actors can stay constantly connected. Charles Edwin Baker argues that complex democracy means that "participatory democracy should encompass arenas where both individuals and groups… advance their group values and interests." (Baker 2002: 252). In a complex democracy the quality and success of the democratic process is still highly contingent on the performance of the media (old and new). Without the means of mass communications civic participation will be much narrower, various ideas and principles will remain unknown to the public and communities will stay isolated from one another. Today the media is the central factor for an active multilayered dialogue between persons, groups, societies and cultures.
At the same time democratic systems can demonstrate flaws and deficiencies and may not operate smoothly and to the public benefit. Freedom of speech as a fundamental core human right can be threatened both in young and old democratic countries. In this respect one could remember the situation in Hungary which illustrates that the authoritarian tendencies are still alive and can impede democratic processes. In parallel to this the media systems in developed democratic states also suffer from dishonesty, corruption and rule of law violations due to the replacement of ethical and responsible journalism with sensationalism, gossip, arrogance and harassment (Murdoch’s News of the World hacking scandal).
Against such a background some theorists suggest that democratic participation needs on-going meaningful discussion and genuine motivation. Though there are no absolute guarantees that this will happen the novel means of communication have the potential to create a more dynamic public sphere that can avoid the deficits of traditional public sphere(s). This is true on an optimistic note but new developments can be controversial from different sides.
Daniel Hallin claims that a dramatic change has taken place precisely in the social role of the media. It has shifted the balance between political institutions and the market making the media market in particular dominant but stronger than before (Hallin 2008: 55-56). The consequence of such development is the overwhelming commercialization of the media realm but this is not the only visible modification there. Modern media culture has also been transformed. It has become contradictory due to the shift on the one hand, towards greater journalistic professionalization and to more populist political culture where social movements and ordinary citizens demand and often get public hearing (citizen journalism, social networks), on the other. All these implications of modern media are complex as practices and as an impact upon democracy.
The media has always been a complex system closely related to the individual right to freedom of expression2. As an institution the media possesses social, cultural and economic dimensions. The media is not only a crucial factor for democracy, culture and education but it is also a lucrative enterprise representing one of the most successful and profitable modern industries. The public function of the media, however, manifests the unalienable bond between freedom of expression and freedom of the media which is essential in order for democracy to flourish.
Digital technologies and the Internet in particular facilitate to a great extent the public role of the media in the multidimensional communications environment resulting in greater openness and transparency. However, the new environment poses also problems for policy-makers and regulators due to a number of factors. These pertain mainly to its complexity from any perspective including use, access, anonymity and availability of skills for participation and engagement (new digital participatory culture); constant diversification and enlargement of the system which in turn may result in complications and even unmanageability; necessity to cope with different risks (technical, communicational, political etc.) on the net; fragmentation of audiences and communities and formation of closed interest groups without links among themselves; losing or establishing only sporadic connections with leaders and policy-makers. All aspects mentioned above may lay their bearing on the approaches to efficient regulation.
The novel multifaceted media system requires the notion of media to be revisited and formulated more broadly. The elaboration of a new definition of media is not an easy task but any attempt should be based on the fundamental and unalienable link existing between freedom of expression and the media (Barendt 2005: 422-425). Embarking on such a method the contribution of the new media services could be considered as the provision of a variety of opportunities for the realization of much wider in scope and democratically oriented freedom of expression3.
The new dynamic media environment has not changed radically the functions of the media system. However, the Internet has brought forth faster ways of distribution and storage of information and content. Often changes in public space in this respect are associated with the birth of civic journalism initiated by bloggers (Skolkay 2006). In his blog in the post "Bloggers vs. Journalists is Over" the famous media specialist and popular blogger Jay Rosen explains the juxtaposition between professional journalists and bloggers: "The great strength is clearly the vividness of first person accounts… The great weakness, though, is the lack of shape, structure and ultimately meaning that all this amounts to. It is one thing to read hundreds of people’s stories. It is another to try and work out what the story actually is." (Rosen 2005).
What is striking about the new media situation is that not only technical convergence has come to the fore but also convergence (elements of convergence) in the journalistic profession, i.e. the establishment of close relationships between bloggers and journalists and between journalists and the audience at large for the provision of content. The interaction between professionals and non-professionals in the media field results in the so called "open journalism". This phenomenon raises several issues.
The first one pertains to the status of the contributors to the news and information gathering which is necessary to be clarified and possibly recognized if some of the bloggers and other content providers wish to benefit from qualifying as professional journalist (Skolkay, Sanchez). Second, comments from forums and social-networks serve as indication about the positions and sentiments of the public on topical themes and support the formation of public opinion which by itself represents a new process of opinion shaping in society. Third, by and large journalistic profession has to meet a number of new requirements. Nowadays not only digital skills are needed for its effective exercise but also additional proficiencies.
The impact of the new media services on routine journalistic work has been positive on the whole urging journalists to be more creative and socially responsive. However, authors think that there are also negative consequences which decrease the quality of the media output such as heavy workload, competition pressure, commercialization, etc.
In contrast to the traditional mechanisms for rectification the accountability online offers possibilities for fast reaction and greater inclusion of the users and the public at large in the process of the evaluation of media performance. However, as analysts report these new forms of reply and feedback are still unevenly developed through various countries and are volatile and uncertain. That is why they are rightly called "practices" and are not considered genuine procedures or formalized channels for taking the media to account (Heikkila, Domingo, Pies, Glowacki, Kus, Basnee 2012). Currently the impact of these patterns is not strong enough to provide conclusive evidence about their innovative potential for making media activities more transparent. On the other hand, they give clues that the Internet can offer opportunities for the reformation of the traditional media accountability mechanisms in force.
The emergence of the public service media (PSM) signified by the discharge of the public service remit via diverse platforms and services has already been accepted as a theoretical notion and genuine practice throughout Europe (Jakubowicz 2010: 195). For the first time the guidelines of Recommendation CM/Rec (2007)3 of the Committee of Ministers to member states on the remit of public service media in the information society outline the definition of this new phenomenon in the convergent environment and its major characteristics. The act also mandates member states "to ensure that the specific legal, technical, financial and organisational conditions for the fulfilling of the public service remit continue to apply in, and are adapted to, the new digital environment." (CM/Rec (2007)3) Nowadays the position of the public service media which serve all segments and groups of society by providing distinctive output and pursuing highly relevant social goals should be strengthened (CM/Rec 2012).
With regard to the transformations in the media system and the existence of many new ways of creation and delivery of content the problem of the so called "diffused public service" or public service function that is carried out by various platforms and services merits special attention. The diffused public service hypothetically can be discharged by media different from the entrenched public service institutions. Therefore there is a growing need to adopt adequate policies and regulatory schemes to promote and develop suitable levels of public service delivery across new platforms and services so as to guarantee a satisfactory level of pluralism, diversity of content and wider consumer choice.
A major issue in the new media environment is to encourage the proliferation of the new media actors so that to enhance the opportunities they provide for larger engagement and participation of citizens in democratic processes. From a regulatory point of view this means that the advent of the new services and platforms should not be deterred and content creation and provision - chilled. Competition in the media field should be promoted for the accomplishment of greater pluralism and diversity. The potential of the new media system should be harnessed to support a more effective and direct exercise of freedom of expression.
The outlined changes in the media sector raise the issue of the new approaches to regulation that should be taken on board by policymakers. Always regulation with regard to freedom of expression and freedom of the media which comprise the foundation of liberty in a democracy has been treated with suspicion. As the Declaration of the Committee of Ministers on measures to promote the respect of Article 10 of the European Convention on Human Rights (Adopted by the Committee of ministers on 13 January 2010 at the 1074th meeting of the Ministers' Deputies) states: "Freedom of expression and information, including freedom of the media, are indispensable for genuine democracy and democratic processes. When those freedoms are not upheld, accountability is likely to be undermined and the rule of law can also be compromised." In conformity with this principle that has been reiterated many times through various instruments any regulatory impact should be appropriately justified and triggered with considerable circumspection. As stated repeatedly by the European Court of Human Rights (ECtHR) any regulatory measure in the media field should be based on art. 10 ECHR and the relevant case law of the Court4.
Regulation can be analyzed from two perspectives - as interfering in an activity or a sphere on the part of the state to attain particular positive results and as taking positive actions to create the necessary prerequisites so that human rights in general and freedom of expression in particular can serve their purpose in society (positive obligation).
The Court in Strasbourg formulates the principle of positive obligation as follows: "Genuine, effective exercise of certain freedoms does not depend merely on the State’s duty not to interfere, but may require positive measures of protection even in the sphere of relations between individuals."
When discussing whether a positive obligation under art. 10 ECHR exists decision making bodies should take into consideration the kind of expression rights at stake, their capability to contribute to public debate, the nature and scope of restrictions on expression rights, the ability of alternative venues for expression and the weight of countervailing rights of others or the public (see for instance Appleby and Others v. the United Kingdom, §§ 42-43 and 47-49). In the recent case of Dink v. Turkey (2010) the Court has particularly stressed that "States are required to create a favourable environment for participation in public debate by all the persons concerned, enabling them to express their opinions and ideas without fear" which reiterates the importance of encouraging free exchange in society without any interference (ECtHR Research report).
From such an angle regulation in the media field can be understood as the process of creating adequate conditions for the exercise of freedom of expression and freedom of the media, i.e. creating sufficient political, legal and social guarantees for the proper implementation of these freedoms. Transposed to the new convergent environment it means support for the operation and expansion of the new services and platforms so that freedom of expression and information and freedom of the media as factors for dialogue and diversity in contemporary democracy may be fostered.
Within this context the Audiovisual Media Services Directive (AVMSD) of EU (2007) which was passed after long years of discussion and compromises eventually endorses the principles of regulation of the traditional and on-demand audiovisual services but it does not provide for adequate regulation in the new media environment. Its scope is narrower than the newly emerging media system as it does not settle the issue how to regulate its complex design. The directive takes on a graduated regulatory approach and by the adoption of a two-tier set of rules acknowledges a number of core societal values applicable to all audiovisual media services (technological neutrality, graduated regulation, prohibition of incitement to hatred, accessibility for people with disabilities, protection of minors, etc.) but provides lighter regulation for on-demand services where the users have a more active, "lean-forward" approach and can decide on the content and the time of viewing. Print media, online editions, connected TV, platforms and services online and many more options and experiences that are about to appear remain out of the scope of the document.
As Skolkay and Sanchez argue there is no unified method of regulation of old and new media accepted in various countries so far. The conclusion of the authors is that still the situation with regard to the definition and regulation of the new media services is uncertain and there is no specific new media regulation in force. In most states what is relevant offline is relevant also online.
At the same time different actors in the online world are neither ensured, nor fully protected if they contribute to freedom of expression and information. These are the new platforms and services which are not intermediaries but may qualify as media; bloggers whose status is not evenly recognized in the European countries and they are treated differently from journalists; the journalistic profession which is not clearly regulated according to the new conditions.
If the states cannot defend convincingly the regulation of the new media services it can be implemented through self- and co-regulation. Self- and recently co-regulation are generally considered the most effective tools to influence media performance. The Council of Europe Recommendation on a new notion of media also advises member states to support self- and co-regulatory attempts of the media complementing in one or another case the general regulatory frameworks. The effects of these forms of regulatory impact, however, have not always been successful. The overall critical remark that can be made is that co- and self-regulation lack the universality, stability and foreseeability of legal norms. Often co-regulation masks state interference while self-regulation factually supports parochial interests in the sector. As there can be multiplicity of self-regulatory rules operating in one sphere clashes, conflicts and gaps between ethical, professional, self-made and other norms are not uncommon (Oliver 2010). In such field as the media field which due to the public function of the media is expected to produce outcomes to the common benefit such approaches cannot always efficiently guarantee the independence of the system.
The following part of the article dwells on the regulatory responses to the challenges of the new media environment in five Central and Eastern European states. The section is constructed primarily on the basis of the Mediadem reports from 2010 and 20115 as well as the OSCE report about Hungarian media laws and "Article 19" evaluation of these laws. Additional information and independent contributions have also been taken into consideration.
As media theorists report "Slovakia has attempted to adopt an idealized western European democracy media policy by creating a playing field for privately held media and the de-monopolization and de-etatisation of public service media. This process has never been straightforward and has taken a few sharp ideological turns depending on the political majorities. The media policy developments of the past twenty years in Slovakia could be characterized as lacking strategy, inconsistent, motivated by political conflicts and charged with politicians’ personal animosities. Ironically, although Slovakia (as part of former Czechoslovakia) was the first country in CEE to introduce ‘public service media’, in general, the media policy decision makers lacked broader expertise as well as perspective." (Školkay, Ondruchová, Hong 2010).
The technological development, the emergence of the Internet, and the possibilities they open for freedom of expression and information have had an impact on the approach towards the national media policy. In line with the EU rules laid down by AVMSD appropriate changes were introduced in the Slovak media regulatory framework.
By and large technical convergence did not result in the transformation of the institutional structure, nor did it effectuate in the creation of unified communications regulators monitoring different types of media as in other countries (the so called mega bodies like AgCom in Italy and Offcom in UK). Though such discussions were not uncommon in the early 2000s they did not lead to some tangible outcomes. Today the picture is quite varied. Under the current broadcasting legislation, providers of television broadcasting exclusively through the Internet and providers of on-demand services are under the (softer) sanctioning powers of the broadcasting regulator RVR. Moreover, they do not need a license for their operation. For the purposes of the effective monitoring of these services, a mere notification is required. A radio service broadcast entirely via the Internet is not ‘broadcasting’ according to the broadcasting act and therefore is not under the powers of the broadcasting regulatory authority.
The broadcasting regulator has been heavily politicized starting from the time of the Mecjar’s government in 1993. Though the liberal Dzurinda’s government (2002-2006) has made attempts to correct the situation still the body is politically dependent.
Until 2002 in Slovakia there was no authority dealing with complaints against the print media. In spite of all critical comments expressed in the report it states expressly that the Slovak press with all its weaknesses and drawbacks has been one of the strongest players in the democratization process in Slovakia since 1989. Today the Press Council entertains complaints of the public and deals with critical materials concerning journalists and journalistic profession but also related to the print media and more broadly to press freedom and access to information. The body plans to include electronic and online media within its scope in the future.
There is no statutory regulation of the print and the online media in Bulgaria. Currently the Bulgarian legislation does not treat the internet-generated content (sites, blogs, social networks, etc.) as media. Such content remains unregulated.
The Radio and Television Act (RTA) regulates TV and radio broadcasting and the broadcasting regulatory body CEM enjoys many prerogatives including those concerning the content of the programmes. The purpose of the content requirements and the relevant regulatory measures is to guarantee the right of citizens to receive sufficient and diverse information and to ensure political and cultural pluralism. However, convergent environment has not led to the establishment of a convergent regulator with broader competence over broadcasting and telecommunications. Recent changes in the regulatory framework have been introduced with respect to the transposition of the AVMSD into the domestic legal system.
The Ethics Code of the Bulgarian Media was signed in 2004, which applied both to the electronic media and the press. In accepting the Code, the signatories declared to abide by well-known and widely accepted journalistic standards such as to provide truthful information to the society, to use open, fair and lawful means in their work, to respect the persons and their private life and to show special responsibility for the rights of the children, to not discriminate on grounds of race, gender, religion or ethnicity, to maintain decency of language and style, etc. Special sections in the code were devoted to guaranteeing the independence of the media from political and economic pressure and to regulating the relations within and between the media outlets. In 2005 a "National Council for Journalistic Ethics" (NCJE) was set up with the main objective to create and support two national media ethics commissions respectively for the electronic and for the print media. These bodies monitored the compliance of the television and radio operators with the above ethics code and adjudicated disputes within the media. However, during the years the implementation of the code and its real force has been invisible to the users. The logical consequence is the general poor quality of journalistic writings. The impact of the Code on the degree of excellence of the media activities in the net is non-existent.
The decisions of the ethics commissions are mandatory for the traditional media under the law and in case they were not complied with CEM could impose monetary sanctions7. The rationale is the improvement of the performance of the electronic media channels. However, the activities of CEM more precisely its regulatory impact and transparency have been severely criticized in the National Audit Office report for 2007-2008 and its performance assessed as "inadequate and inefficient". Still it is unclear how the scope of the body will develop influenced by the dynamic expansion of the media services and platforms.
On the other hand, the amendment in the RTA already mentioned (endnote N 6) is a dead letter for the time being due to controversies in the Union of Publishers Bulgaria which is one of the founders of the National Council for Journalistic Ethics and the establishment of an alternative union of publishers. The newly created union announced that it was ambitious to enlarge its membership covering not only print and broadcasting media but also advertising agencies. One of its goals would be the drafting of a new ethical code for its members. Pending this development the existing self-regulatory mechanism has become dysfunctional and the operation of the ethical commissions the mandates of which have expired in the meanwhile has been suspended.
The Hungarian media reform starting in 2010 has become notorious across Europe. With rough controversial amendments in a number of pieces of national legislation practically the competences of the broadcasting regulatory authority were enlarged and centralized.
The laws were viewed as serious restrictions of media freedom, giving rise to mounting EU and Council of Europe concern. In February 2012, Nelly Kroes, the European Commissioner for Digital Agenda, urged Hungary to seek advice from the Council of Europe on media reform, which Hungary according to EU experts and international freedom of expression organizations did not reflect in the new versions of the laws. The Council of Europe prepared an analysis highlighting a range of problems that should be addressed in order for Hungary to comply with the European Convention on Human Rights standards. Ignoring the Council of Europe’s consultation, in May 2012 the Hungarian government submitted to parliament for vote amendments to its newly adopted media laws that not only failed to cope with the worries expressed so far but also introduced additional restrictions on freedom of the media.
As sources report a package of new laws and amendments in a number of laws including the Constitution (the Law on Electronic Telecommunication, the Law on Digital Transition, the Law on National News Agency, and the Law on Radio and Television) which comprise a major media reform was launched by the Hungarian government following the sweeping electoral victory of the Fidesz-KDNP conservative party alliance in April 2010. The legislation that comprises a matter of grave concern particularly consists of two laws:
The package in question represents an attempt to modernize Hungarian media legislation by responding to the challenges posed by technological advent leading to the emergence of new communication services and platforms. This, however, is done mainly by extending the traditional regulatory framework to the new media in a mechanistic way which is most inappropriate from the perspective of freedom of expression in a democracy.
Which are the major shortcomings of the reform summarized by media experts and activists?
By and large the laws establish a hierarchical media regulatory system under the control of a non-independent administrative mega-body - the National Media and Telecommunication Authority and the Media Council - the members of which are appointed either by the government or elected by the parliament where the governing party has a 2/3 majority. According to analysts not surprisingly, these institutions appointed former Fidesz activists or persons loyal to the ruling party and not consensual experts in the field as members of the media governing bodies. Besides all members were political nominations appointed without consultations with other parties or after a wide public debate. Such complete political configuration raises serious doubts about the unbiased non-political decision-making the body is going to pursue with regard to all media outlets including the Internet. Further on all types of media - print, broadcasting, on-demand and online - are placed under the umbrella of a single regulatory authority. More particularly the problematic issues are the broad scope of the regulatory control and the lack of sufficient safeguards for the independence of the regulator exercising it. In the first version of the laws content requirements were unclear as the freedom of printed and online press, television, radio and on-demand services was limited by numerous vague bans: more precisely they should respect "the constitutional order", refrain from offending "human dignity", "private life", and forbear from discriminating against "any majority" or "any church or religious group". Furthermore, the broadcasting media outlets had to offer, no matter whether they are commercial or public, "objective and balanced coverage". In addition the media had to abstain from inciting to hatred against "nations", "any majority" or "churches" without defining these notions.
As "Article 19" critique underlines the laws fail to comply with internationally acknowledged legal standards. Apart from being unclear, not all of the above mentioned prohibitions are recognized by the international law as legitimate restrictions on freedom of expression. Article 10 ECHR providing for the right and enumerating exhaustively the appropriate restrictions on it is the fundamental focal point for any legislative reform in this respect8. Moreover, the limitations included in the Hungarian laws are not evaluated as necessary in a democratic society and their scope is not proportional but overbroad9.
The amendments to the media laws do not release the government’s grip on public service broadcasters insofar as the head of the Media Council continues to have the responsibility to name candidates to head public service broadcasters. The problem is even bigger in view of the lack of proper procedure or criteria for the selection of the candidates.
The Media Council has powers to oblige the Internet service providers to block any Internet-based news outlets. This regulation is rather problematic in view of the government control over the Media Council and the lack of adequate safeguards against arbitrary use of these powers to gag critical speech. Blocking of Internet sites is a very serious restriction on freedom of expression and under international norms should be imposed only in the most extreme cases, such as child pornography in a court procedure. Having in mind the danger of arbitrary and politically-motivated interference, the courts are obliged to consider imposing less restrictive measures before ordering blocking and to entertain the case following the principles of due process and transparency10.
A serious flaw of the new pieces of legislation is the lack of protection of journalistic sources as the right as such is not effectively guaranteed. It is obvious that without a right to retain the identity of their confidential sources journalists will be unable to conduct investigations which may seriously imperil investigative journalism and whistle blowing which frequently supports it. According to the Press and Media Act, a source who has supplied information illegally (which is often the case in investigatory articles) is not entitled to protection. In addition, a court or other "authorities" - unidentified by the law - should decide whether the disclosed information was of public interest.
According to the Council of Europe Recommendation No. R (2000) 7 of the Committee of Ministers to member states on the right of journalists not to disclose their sources of information:
Another drawback which is identified is the absence of real safeguards against arbitrariness in the licensing procedures. The current legislation bans companies from participating in tenders for licenses if in the last five years they have been sanctioned for a "gross breach of obligations stemming from broadcasting or a public contract undertaken on the basis of a previous tender procedure". In view of the fact that the determination of what amounts to a "gross" breach is under the discretion of the Media Council, broadcasters should always be careful not to upset the latter if they wish to remain on the market. This will obviously have a chilling effect on independent and bold publications and could lead to self-censorship.
The amounts of fines that the Media Council can levy are so high that a daily or a weekly publication could go bust if they are imposed11.
The new legal package was challenged before the Constitutional Court and the latter passed its long-awaited decision in December 2011. An important part of the so-called "Media Constitution" and some controversial sections of the Media Law were annulled - those pertaining to the vague content restrictions on printed and online written press and related to journalistic sources which deserve protection only if they were used in the public interest. Further, the figure of the Media Commissioner envisaged by the new laws which was designated to have the right to investigate without any reason in any media outlet and to report to the Media Authority was declared unconstitutional.
However, several other provisions which were considered in non-compliance with the international norms were examined and found to be in conformity with the constitution: such as the obligation to register media outlets even for printed and online press and the theoretical possibility of restricting the protection of journalistic sources (only more details were required the measure to be imposed). The competence of the Media Authority over printed and online press editions were left untouched as well. In absence of the content requirements, the latter is narrowed to registration and supervision of market dominance12.
According to an earlier report commissioned by OSCE and prepared by K Jakubowicz in 2010 the laws are assessed as "(i) on the one had instituting a system for media content regulation (including Internet- and ICT-delivered media content) going in its sweep and reach beyond almost anything attempted in democratic countries and beyond the limits of what is accepted in the international debate as an appropriate and justified approach to regulating new communication services, and (ii) on the other, as introducing - often in disregard or violation of the needs of a democratic system of social communication and of the letter and spirit of international standards - stricter regulation, more pervasive controls and limitations on freedom of expression"13.
The position of the Council of Europe espoused in an expert analysis which has been only announced without being publicized is that the "processes for appointments to the media regulatory bodies (the Media Council, the Board of Trustees of the Public Service Foundation, and the Public Service Board) do not ensure political neutrality or independence". Existing guarantees in the media law are "greatly undermined by the fact that the current government of Hungary has a two-thirds parliamentary majority," it adds. In order to comply with the Council of Europe principles the expert analysis recommends introducing a new voting mechanism to ensure that any significant change to the media law carries "true cross-party support".Another major criticism of the media law pertains to the inclusion of all media (including online) services within its purview."There is no democratic European precedent regulating print and comparable online media content (i.e. excluding on-demand audiovisual media services) beyond the scope of general legislation," the paper reads.According to the expert opinion, the law should be amended "so that Hungarian media regulation only applies to media content providers established in Hungary, without prejudice to the introduction of specific, proportionate and clear rules and exceptions in this area."
The Hungarian example of a regulatory approach in the new complex media environment is instructive that a highly centralized governance system in the media field comprising various bodies of oversight and supervision and with different decision-making competences is a risky step that may generate conflicts at all levels. The final result is inefficient and politicized regulation "multiplying opportunities for political control." (see endnote 12) As far as the media channels and the new services are concerned such a system may have a serious chilling effect on their freedom and independence and generally on the exercise of freedom of expression by all citizens. In the area of the new media the effect will be highly detrimental and will rather deter their proliferation instead of fostering their potential to serve free speech in a more democratic manner.
Greek media regulation provides an interesting example how blogs and bloggers may be treated in the new media landscape (Psychogiopoulou, Anagnostou, Kandyla 2011). In Greece existing legislation against libel and defamation in the legacy media was extended to the online versions of newspapers and magazines and to TV and radio content. The same approach was considered inappropriate with regard to blogs as the perception was that blogs allow interactive communication with the participation of several actors - the owner, the editor or the journalist and all Internet users. As being reported a recent court decision supported the distinctiveness of blogs as a medium of communication (rendering it incomparable with traditional channels of information like the press and broadcasting). Judges motivated their conclusions by claiming that the responsibility of the blogger, who is often an ordinary citizen, in cases of offence or insult, is not comparable to that of a powerful media entrepreneur. In a nutshell the rationale is that it is not appropriate and runs contrary to the principles of free democratic debate to extend to blogs the large sums of indemnification that are granted in cases of insult or libel against the press. Such thoughts remind of the ruling in the Tolstoy-Milosvasky case of ECtHR from 199514 and particularly of the seminal principle that the award of disproportionate damages for libel stifles free expression. Apparently in the Greek case the courts wish to protect free opinion and liberty of on-line discussion and to encourage people to be involved in blogging without any fear of penalties for the criticism expressed.
Another problem concerning blogs which has attracted the attention of the policy makers in Greece is the anonymity of bloggers. While on the one hand anonymity makes it possible for the blogger to keep his/her privacy and to criticize, investigate and disclose information more freely avoiding negative consequences, it is not only difficult but impossible to identify who is responsible for content that violates other peoples’ rights. As specialists claim "anonymity renders it difficult or impossible to identify who is responsible for content that violates other rights and it is protected by existing legislation on private data (Art. 9A of the Constitution) and on the confidentiality of communications (Art. 19 of the Constitution)." (Psychogiopoulou, Anagnostou, Kandyla 2011).
In Greece as in the other European countries it is now generally accepted that responsible for the content in blogs is not and cannot be the Internet service provider, but the owner of the blog and/or the author of the text (if he/she is different from the owner). However, there has been a debate as to whether bloggers should be allowed to retain their anonymity and to what extent and the problem has been unresolved so far. A proposal which merits consideration is that by and large there are different types of blogs and a distinction should be drawn between information and news blogs (those that publish political, economic or other news and current affairs and contribute to public opinion formation) and other blogs offering entertainment, leisure, personal experiences, etc. If such a distinction is approved, the former would be obliged to identify the name of a person who would be responsible for the content. Recently, the Greek government has created a working group with the task to formulate some proposals concerning regulation on the Internet including bloggers.
Romania experiences fast growing publications on the Internet. As the report informs some of the publications sprang as a result of the political or editorial pressures put on journalists in the newsrooms while others were the result of public’s frustration to the highly tabloidised content provided by the traditional media (Ghinea, Avadani 2011). Online communication also brought increased interactivity and an easy access to online information. The decrease in the quality and relevance of the content offered by the traditional media and the expansion of the user generated content undermined the stature of journalistic profession and consequently diluted professional standards. As Avadani and Ghinea argue "the internet is currently perceived as "the medium" to be, a no-man’s-land in terms of legislation and editorial responsibility and a free source of information and media materials, where copyrights do not apply".
Regulating the online environment has proved to be a challenge for the Romanian authorities. Any attempt at putting it into practice has met the resistance of organized civil society (mostly press freedom NGOs). In this context it is important to refer to a still pending debate about a proposed set of amendments to the Audiovisual Law which if adopted will require all publications - print or online - to get a licence for functioning and thus it would empower the broadcasting regulator CNA to monitor all media content. As a conception the proposal does not differ too much from the respective provisions in the Hungarian media laws. But while the Hungarian laws provoked national and international protests, the Romanian version quietly faded out due to the poor quality of the draft.
In Romaina as in the other countries discussed the regulatory authority in broadcasting - CNA is a traditional one and does not have a convergent structure. It mostly reacts when it is notified or when receives complaints. In the last couple of years it has been active in enforcing the Broadcast Code.
Alongside the traditional media a new generation of opinion leaders is on the rise in Romania: the bloggers. Some of them became influential enough so that advertisers offered them lucrative contracts. The conclusion is that "hidden advertising and product placement, prohibited by law or strictly regulated for the traditional media, are flourishing in the online environment, via blogs and social media accounts" (Ghinea, Avadani 2011).
Self-regulation has never been completely recognized as an effective tool for regulating media behaviour. However, popular bloggers have agreed on standards rooted in widely shared journalistic norms and values.
The adoption of a new professional standard for online journalists in Romania - "multimedia editor" - reflecting the demands to the journalistic profession in the digital age can be interpreted as eventually bringing two different types of consequences. On the one hand, the standard apparently could serve as a basis for better and wider professional training of on-line journalists, equipped with special skills and understanding of the role of the new technologies in the media environment. On the other - as national experts emphasize it can be perceived as a signal for the introduction of a system similar to the accreditation system within the frameworks of which traditional journalists and freelancers can be hampered in exercising their profession on the Internet. It is too early to conclude whether the one or the other group is right in their predictions. However, from the perspective of the new demands towards the journalistic profession such regulatory move can be construed as one pursuing a long-term objective namely to shape higher and more specific qualification requirements for those publishing on the Internet. In the long run if consistently applied these conditions can be a sound basis for the dissemination of better quality content online.
It is evident that the advent of the new technologies has triggered reformist ideas to a greater or to a lesser degree in countries from Central and Eastern Europe. However, there are no clear-cut tendencies or one-fit-all solution so far. In the new democratic states under investigation various approaches towards the new media environment can be encountered. On the one hand, it is obvious that policy makers are cautious about how to regulate or whether to regulate at all the new media services. This is the reason why they have not made visible steps towards the transformation of the existing media regulatory regimes and regulators into new patterns and structures. Taking these facts into account it can be concluded that we can discern not radical reforms but elements of reforms and regulatory solutions that do not forestall events but rather follow technological development.
Similar to the press some of these countries have left the Internet outside the scope of any form of statutory regulation - Bulgaria, in others the new media actors - the bloggers - have taken the responsibility to shape their own rules through self-regulation - Romania, in the third group is Slovakia where the inclusion of the regulation of the new media services within the ambit of the current self-regulatory body - the Press Council is under discussion. In Greece the court as a regulator has been very active in clarifying the status of bloggers and the possible regulation of their behaviour.
On the opposite pole the countries the governments of which make drastic attempts to implement overarching regulation for all media - traditional and new - through hierarchical and centralized multiple structures are situated. Here the example of Hungary can be cited which sweeping design of media regulation has raised grave criticism and discontent.
Comparing these different models four policy approaches can be distinguished - passive on the side of all stakeholders - no interest in Internet regulation, self-regulation initiated by traditional self-regulatory organizations such as the press councils (by journalists or journalistic associations), self-regulation launched by novel Internet communities (bloggers or other non-professional users), top-down impact undertaken by influential players - politicians or media owners.
The policy scenarios and their possible outcomes show that any regulatory approaches in the new complex media environment have to be carefully considered. The Hungarian case is illustrative of the fact that purely top-down impacts initiated by the ruling majorities cannot prove successful. The same observation is valid if media owners alone take steps to accomplish stricter regulation of the net. Both regulatory models will reflect narrow political and economic interests and will be at odds to the open nature of the Internet and its dynamic democratic potential. Moreover such steps will compromise self-regulation which has to be formulated and implemented by the media themselves. At the moment we cannot be sure whether journalistic associations feel strong enough to take the lead in regulating the new media services (as is the case in Slovakia) and whether their actions will be effective having in mind analysts’ claim that professional organizations and civil society at large in the countries discussed are disunited and under various pressures - political, economic and professional.
Public and civil society intervention can take more lenient forms for instance, by boosting the new accountability practices online which challenge traditional regulatory mechanisms but these novel ways of involvement are not very popular for the time being.
Against the backdrop of the dynamic media landscape regulation is changing rapidly searching for new configurations and solutions. Norms, rules and procedures governing this complex space are influenced by a variety of factors and forces. What is striking about them is that they shape something similar to a spontaneous order in which self-regulatory rules and non-institutional practices tend to prevail. However, taking into account that civil society is not very strong and media professional associations are not well prepared to steer the process in the countries in Central and Eastern Europe the most salient approach to regulation of the new media services is the one in which policy reforms are launched by policy-makers and media owners or other influential actors, though such a scenario runs contrary to the very nature of self-regulation and the new Internet order. If such steps are undertaken they should rely on broader support from all stakeholders including academic and technical communities.
Regulators in the media field will also undergo transformations. Though resembling the independent agencies in other areas the functions of the regulatory bodies in the media field are indispensable to the implementation of the right to freedom of expression so they should operate as guardians of this fundamental right. Under such conditions the regulatory bodies we know today should also pursue adequate structural designs reflecting the multi-dimensional character of the environment. Apparently markets and administrative type of governance will yield to networks and partnerships transcending national borders as the latter can react in a more flexible manner to the shifts in the media system and its enlargement. Subordination will be supplanted by coordination and expertise, not political or economic affiliations will become the main asset for the future. An advantage of the novel organizational pattern will be that it will allow for the shaping of norms, codes, practices and guidance beyond the legal rules. As experts point out it will mainly promote innovation and learning.
Within such context another issue worth taking into account is that networks can coordinate the efforts of different institutions and organizations at various levels and such regulatory design can respond appropriately to the multiple challenges and risks in the new media environment without prejudice to freedom of expression and other human rights. This mechanism could benefit of the social activity and the individual contribution of all members of society. The states in particular will be able to fulfill their positive obligations more efficiently in cooperation with other stakeholders.
1. The power point version of this article was presented at the conference "Transformations in broadcasting" (12th-13th July 2012) organized by the Institute of Communications Studies at the University of Leeds., United Kingdom. [back]
2. See in this respect the classical explanation of Lichtenberg, J. (1990). It reveals the difference between freedom of speech and freedom of the press and the different value attached to each of them. While the fist represents the principle the second is valuable insofar as it supports the implementation of this principle. Freedom of expression and freedom of the media represent the interplay between the two concepts. See also the comprehensive analysis of Barendt,E. (2005) Freedom of Speech, Second Edition, Oxford University Press. [back]
3. The only act so far which focuses on the new notion of media from the perspective of the implementation of human rights in the new media environment is the Council of Europe RecommendationCM/Rec(2011)7 of the Committee of Ministers to member states on a new notion of media Recommendation CM/Rec(2011)7of the Committee of Ministers to member states on a new notion of media (Adopted by the Committee of Ministers on 21 September 2011 at the 1121st meeting of the Ministers’ Deputies) (Recommendation 2011). It provides the following definition of media – a notion “which encompasses all actors involved in the production and dissemination, to potentially large numbers of people, of content (for example information, analysis, comment, opinion, education, culture, art and entertainment in text, audio, visual, audiovisual or other form) and applications which are designed to facilitate interactive mass communication (for example social networks) or other content-based large-scale interactive experiences (for example online games), while retaining (in all these cases) editorial control or oversight of the contents." (Ibid.). [back]
4. "As a form of interference, any regulation should itself comply with the requirements set out in Article 10 of the European Convention on Human Rights and the standards that stem from the relevant case law of the European Court of Human Rights." (CM/Rec 2011)7). [back]
5. MEDIADEM is a European research project focused on media policy-making processes in EU member states and candidate countries. It aims at identifying which policy frameworks can best support the development of free and independent media. The project started on April 1st, 2010 and will last for three years. The reports are available at Mediadem (2010-2013). [back]
6. For this part of the case study the MEDIADEM report about Bulgaria has been illuminative (Smilova, Smilov, Ganev 2011) Background information report, Media policies and regulatory practices in a selected set of European countries, the EU and<the Council of Europe: The case of Bulgaria, 2011. [back]
7. Article 126g of the RTA, Amendments to RTA, State Gazette № 12/2010. [back]
9. See more arguments in Hungarian media laws Q&A country report, Art. 19, 2011. [back]
10. In the same vein are the conclusions of the OSCE Report Freedom of Expression on the Internet. A Study of Legal Provisions and Practices Related to Freedom of Expression, the Free Flow of Information and Media Pluralism on the Internet in the OSCE Participating States. [back]
11. In its report “Article 19" gives examples of some fines that the Media Council can impose – for instance, the fines for "the violation of the dignity" of a public figure by radio and TV broadcasters can be as much as 200 mln forints (around €700,000). Other maximum fines can be up to 25 mln forints (€90,000) for daily national newspapers and news websites and 10 mln forints (€36,000) for weeklies. Private persons can be fined up to 1.5 mlnn forints (€5,500) in cases of non-compliance during the administrative investigation. All these run contrary to the practice of the ECtHR and the internationally recognized standards regarding freedom of expression and the media. [back]
12. The position on the new legal provisions expressed by Dunja Mijatović, the OSCE Representative on Freedom of the Media was that “the new Hungarian media legislation can still curb media pluralism and put the media at the risk of political control."OSCE Press release Revised Hungarian media legislation continues to severely limit media pluralism, says OSCE media freedom representative (Revised 2010). [back]
13. Detailed arguments can be found in Analysis and assessment of a package of Hungarian legislation and draft legislation on media and telecommunication, prepared by Dr Karol Jakubowicz,commissioned by the Office of the OSCE Representative on Freedom of the MediaWarsaw, Poland (Jakubowicz 1995-2013). [back]
14. Tolstoy Miloslavsky v. the United Kingdom (ECtHR) at In the case (Miloslavsky without year). [back]
Baker 2002: Baker, C. E. Media, Markets and Democracy. Cambridge: Cambridge University Press, 2002.
Barendt 2005: Barendt, E. Freedom of Speech. Second Edition. Oxford: Oxford University Press, 2005.
Boev 2011: Boev, Boyko. Hungarian media laws Q&A. Country report. // Article 19, 01.09.2011 <http://www.article19.org/resources.php/resource/2714/en/hungarian-media-laws-q&a> (06.01.2013).
Declaration 2010: Declaration of the Committee of Ministers on measures to promote the respect of Article 10 of the European Convention on Human Rights (Adopted by the Committee of Ministers on 13 January 2010 at the 1074th meeting of the Ministers' Deputies). // Council of Europe. Committee of Ministers, 13.01.2010 <https://wcd.coe.int/ViewDoc.jsp?id=1571879&Site=CM> (06.01.2013).
Declaration 2011: Declaration of the Committee of Ministers on the protection of freedom of expression and freedom of assembly and association with regard to privately operated Internet platforms and online service providers (Adopted by the Committee of Ministers on 7 December 2011 at the 1129th meeting of the Ministers' Deputies). // Council of Europe. Committee of Ministers, 7.12.2011 <https://wcd.coe.int/ViewDoc.jsp?Ref=Decl> (14.01.2013).
Declaration 2012: Declaration of the Committee of Ministers on Public Service Media Governance (Adopted by the Committee of Ministers on 15 February 2012 at the 1134th meeting of the Ministers’ Deputies). // Council of Europe. Committee of Ministers, 15.02.2012 <https://wcd.coe.int/ViewDoc.jsp?id=1908241> (14.01.2013).
Freedom 2010: Freedom of Expression on the Internet. A Study of Legal Provisions and Practices Related to Freedom of Expression, the Free Flow of Information and Media Pluralism on the Internet in the OSCE Participating States. // OSCE Report, 2010 <http://www.osce.org/fom/80723> (06.01.2013).
Ghinea, Avadani 2011: Ghinea, C., Avadani, I. Does Media Policy Promote Media Freedom and Independence: the Case of Romania. MEDIADEM, 2011.
Hallin 2008: Hallin, D. Neoliberalism, Social Movements and Change in Media Systems in the Late Twentieth Century. // The Media and Social Theory. Ed. Hesmondhalgh, D., Toynbee, J. London: Routledge, 2008.
Heikkila, Domingo, Pies, Glowacki, Kus, Basnee 2012: Heikkila, H., Domingo, D., Pies, J., Glowacki, M., Kus, M., Basnee, O. Media Accountability goes online. A transnational study on emerging practices and innovations. // MediaACT, Jan. 2012, No 14 <http://www.mediaact.eu/fileadmin/user_upload/WP4_Outcomes/WP4_Report.pdf> (06.01.2013).
Jakubowicz 2010: Jakubowicz, K. From PSB to PSM: A new promise for public service provision in the information society. // Media reform and pluralism, media policy challenges in the enlarged Europe. Ed. B. Kilimkiewicz. CEU Press, 2010.
Jakubowicz 1995-2013: Jakubowicz, Karol. Analysis Analysis and assessment of a package of Hungarian legislation and draft legislation on media and telecommunication, prepared by Dr. Karol Jakubowicz, commissioned by the Office of the OSCE Representative on Freedom of the Media Warsaw, Poland. // Organization for Security and Co-operation in Europe, 1995-2013 <http://www.osce.org/fom/71218> (06.01.2013).
Lichtenberg 1990: Lichtenberg, J. Foundation and limits of freedom of the press. // Democracy and the mass media. Ed. J. Lichtenberg. Cambridge: Cambridge University Press, 1990.
Mediadem 2010-2013: Mediadem, 2010-2013 <http://www.mediadem.eliamep.gr> (06.01.2013).
Miloslavsky without year: In the case of Tolstoy Miloslavsky v. the United Kingdom. // European Court of Human Rights, without year <http://www.iidh.ed.cr/comunidades/libertadexpresion/docs/le_europeo/tolstoy miloslavsky v. united kingdom.htm> (14.01.2013).
Oliver 2010: Oliver, D. Regulation, democracy and democratic oversight in the UK. // The regulatory state, constitutional implications. Ed. D. Oliver, T. Prosser, R. Rawlings. Oxford: Oxford University Press, 2010.
Psychogiopoulou, Anagnostou, Kandyla 2011: Psychogiopoulou, E., Anagnostou, D., Kandyla, A. Hellenic Foundation for European and Foreign Policy (ELIAMEP). Case study report, Does media policy promote media freedom and independence? The case of Greece. MEDIADEM, 2011.
Recommendation 2000: Recommendation No. R (2000)7 of the Committee of Ministers of the Council of Europe to member states on the right of journalists not to disclose their sources of information (Adopted by the Committee of Ministers on 8 March 2000 at the 701st meeting of the Ministers' Deputies). // Council of Europe Conferences of Specialised Ministers, 2000 <https://wcd.coe.int/ViewDoc.jsp?id=342907&Site=CM> (14.01.2013).
Recommendation 2007: Recommendation CM/Rec(2007)3 of the Committee of Ministers to member states on the remit of public service media in the information society (Adopted by the Committee of Ministers on 31 January 2007 at the 985th meeting of the Ministers’ Deputies). // Council of Europe Conferences of Specialised Ministers, 2007 <https://wcd.coe.int/ViewDoc.jsp?id=1089759> (14.01.2013).
Recommendation 2008: Recommendation CM/Rec(2008)6 of the Committee of Ministers to member states on measures to promote the respect for freedom of expression and information with regard to Internet filters (Adopted by the Committee of Ministers on 26 March 2008 at the 1022nd meeting of the Ministers’ Deputies). // Council of Europe Conferences of Specialised Ministers, 2008 <https://wcd.coe.int/ViewDoc.jsp?Ref=CM/Rec> (14.01.2013).
Recommendation 2011: Recommendation CM/Rec (2011)7of the Committee of Ministers to member states on a new notion of media (Adopted by the Committee of Ministers on 21 September 2011 at the 1121st meeting of the Ministers’ Deputies). // Council of Europe Conferences of Specialised Ministers, 2011<https://wcd.coe.int/ViewDoc.jsp?id=1835645&Site=CM> (06.01.2013).
Recommendation 2012: Recommendation CM/Rec (2012)1 of the Committee of Ministers of the Council of Europe on Public Service Media Governance Adopted by the Committee of Ministers on 15 February 2012 at the 1134th meeting of the Ministers' Deputies). // Council of Europe Conferences of Specialised Ministers, 2012 <https://wcd.coe.int/ViewDoc.jsp?id=1908265> (14.01.2013).
Research 2011: Research report Positive obligations on member states under article 10 to protect journalists and prevent impunity. // Council of Europe/European Court of Human Rights, December 2011 <http://www.echr.coe.int/NR/rdonlyres/16237F92-BCB9-4F12-9B1C-0EF6E3B2CB27/0/RAPPORT_RECHERCHE_Positive_obligations_under_Article_10_EN.pdf> (06.01.2013).
Revised 2010: Revised Hungarian media legislation continues to severely limit media pluralism, says OSCE media freedom representative. // Organization for Security and Co-operation in Europe, 7 October 2010 <http://www.osce.org/fom/90823> (06.01.2013).
Rosen 2005: Rosen, J. Bloggers vs. Journalists is Over. // Pressthink, January 2005 <http://archive.pressthink.org/2005/01/21/berk_essy.html> (06.01.2013)
Skolkay 2006: Skolkay, A. Blogosphere - a new ideal Habermasian public sphere? // Democracy, Technology and Freedom of Expression. Sofia, 2006.
Školkay, Ondruchová Hong 2010: Školkay, A., Ondruchová Hong, M. with contributions by Ivan Brada and ĽubicaGállová (SKAMBA), Background information report, Media policies and regulatory practices in a selected set of European countries, the EU and the Council of Europe: The case of Slovakia, Mediadem, 2010.
Skolkay, Sanchez 2012: Skolkay, A., Sanchez, J. L. New media services: Current trends and policy approaches in a comparative perspective (manuscript). 2012.
Smilova, Smilov, Ganev 2011: Smilova, R., Smilov, D., Ganev, G. (CLS), Background information report, Media policies and regulatory practices in a selected set of European countries, the EU and the Council of Europe: The case of Bulgaria. MEDIADEM. 2011.
© Bisera Zankova