Is media regulation another form of censorship? The great European media debate

Originally published on Feb 28th, 2012

Cen­sor­ship; it’s a rather ugly word and a dif­fi­cult concept but is it a neces­sary evil? The recent phone hack­ing con­tro­versy in the United King­dom has demon­strated the dangers, both moral and phys­ical, of an unreg­u­lated media which is allowed to act illeg­ally with com­plete impun­ity and print whatever they wish, without any need to verify facts. But where does reg­u­la­tion end and cen­sor­ship begin? Do we trust states to fairly reg­u­late media? Judging by the recent furore through­out Europe at Hungary’s repress­ive media law, the answer would appear to be no. And when across Europe journ­al­ists are being threatened, beaten, imprisoned and even murdered in cases of extreme cen­sor­ship, how do we ensure the safety and free­dom of those who tire­lessly work to bring us inform­a­tion and truth?

Silen­cing the Truth

Viol­ence against journ­al­ists is not some­thing we like to think of as a European prob­lem. We, as Europeans, are quite super­ior when it comes to mat­ters of tol­er­ance, free speech and free­dom of the media. But does our ideal­ised vis­ion of ourselves cor­rel­ate with the real­ity? It would seem not; in 2011, a France 24 reporter was bru­tally beaten whilst report­ing on a right-wing National Front Party Con­gress; in Spain, the Pres­id­ent of the Press Asso­ci­ation of Cadiz was attacked in response to an art­icle he had writ­ten; an Italian journ­al­ist was beaten uncon­scious whilst report­ing on a story and incid­ents of viol­ence against journ­al­ists in Ser­bia, Belarus and Tur­key are too numer­ous to recount (OSCE 2011). The offices of a French magazine were torched fol­low­ing the pub­lic­a­tion of art­icles which sat­ir­ised aspects of Islam (Tele­graph 2011). An aston­ish­ing fifty three journ­al­ists have been murdered in Rus­sia in the last dec­ade (CPJ).

Phys­ical viol­ence is the most des­per­ate and bru­tal form of cen­sor­ship; the murder of a journ­al­ist is the ulti­mate silen­cing of the truth. Although not unheard of in Europe, as the cases lis­ted above attest, these incid­ences are for­tu­nately rel­at­ively rare, with the not­able excep­tion of Rus­sia. But cen­sor­ship mas­quer­ad­ing as media reg­u­la­tion is a huge issue in many European coun­tries, includ­ing Ire­land, Bri­tain and Hun­gary. Although free­dom of expres­sion and the press are con­sidered to be fun­da­mental rights and are codi­fied in both domestic and European legal frame­works, there is no uni­form integ­rated European model of media reg­u­la­tion aimed at safe­guard­ing these rights (Centre for Media and Com­mu­nic­a­tion Stud­ies 2012). Con­trast­ing the examples of Bri­tain and Hun­gary in par­tic­u­lar will demon­strate the wild vari­ances that exist with European media reg­u­la­tion and the pit­falls asso­ci­ated with either extreme.

When free­dom of the press goes too far

The Brit­ish phone hack­ing scan­dal is an ongo­ing con­tro­versy primar­ily con­cern­ing the actions of the now defunct News of the World and other tabloid papers pub­lished by News Inter­na­tional, a sub­si­di­ary of Rupert Murdoch’s News Cor­por­a­tion. The scan­dal has led to a wider pub­lic and policy debate in Bri­tain about the media cul­ture, its eth­ics and the func­tions and lim­it­a­tions of media regulation.

A hint of the scan­dal first sur­faced in 2005, when alleg­a­tions of phone hack­ing made by the Brit­ish Royal fam­ily led to a police invest­ig­a­tion which res­ul­ted in the con­vic­tion and impris­on­ment of one News of the World journ­al­ist and one private detect­ive, employed by the same paper. Dur­ing the trial, it came to light that cer­tain celebrit­ies had also been vic­tims of phone hack­ing but the scan­dal quickly dis­ap­peared from the pub­lic consciousness.

Until the sum­mer of 2011 that is, when shock­ing rev­el­a­tions about the extent of phone hack­ing by news­pa­pers came to light. It emerged that the phones of vic­tims of the 7/7 bomb­ings and fam­il­ies of deceased Brit­ish sol­diers had been accessed; as pub­lic out­rage and polit­ical con­dem­na­tion rose, the rev­el­a­tion that the News of the World had accessed the voice­mail of murdered school­girl, Milly Dowl­ing, in an effort to gain a scoop, shocked the whole of Bri­tain. Their actions had given the miss­ing girl’s fam­ily and the police false hope that she was alive. An advert­iser boy­cott and pub­lic fury led to the forced clos­ure of the 168 year old newspaper.

The res­ult­ing pub­lic inquiry, chaired by Lord Leveson, has revealed just how endemic mor­ally ques­tion­able and often illegal prac­tices were in the Brit­ish press, with respec­ted broad­sheets such as the Guard­ian, the Times and the Tel­graph all admit­ting to using phone/email hack­ing, albeit not to the same extent as the News of the World. Debate con­tin­ues across the Brit­ish polit­ical spec­trum, in the media and amongst the pub­lic, as to how media reg­u­la­tion could be enforced whilst avoid­ing the pit­falls of state censorship.

At an expert sem­inar con­vened by the Leveson Inquiry on the sub­ject of approaches to media reg­u­la­tion, Eve Salo­men, Chair of the Inter­net Watch Found­a­tion, argued that effect­ive self reg­u­la­tion is prefer­able to the stat­utory altern­at­ive. Paul Dacre, editor of the Daily Mail con­curred; fur­ther­ing that self-regulation was the only way to ensure a truly free and inde­pend­ent media (Leveson Inquiry, 2011)

Hungary- cen­sor­ship in action

The case for media self-regulation is strengthened if we exam­ine the recent case of Hun­gary, where the rul­ing Fidesz party has recently enacted a con­tro­ver­sial media reg­u­la­tion law. The new law, which came into force on Janu­ary 1st 2011, estab­lished the Media Coun­cil, a new reg­u­lat­ory body con­sist­ing of five mem­bers dir­ectly appoin­ted by the rul­ing polit­ical party, with a term of nine years. The Coun­cil has the power to dir­ectly appoint dir­ect­ors for state media out­lets and to award media licences at their dis­cre­tion (EU Observer Jan 2012) They may also impose fines on media out­lets, based on “con­sumer com­plaints of bias”; these com­plaints may be made anonym­ously and there are no clear guidelines on what report­ing with bias actu­ally entails. The dis­cre­tion­ary powers given to this Media Coun­cil, every mem­ber of which is affil­i­ated with Pres­id­ent Orban’s Fidesz party, are so remark­able it led to the unpre­ced­en­ted step of the EU invest­ig­at­ing pos­sible legal action against Hungary.

The Hun­garian gov­ern­ment claims it based its new media law on the media reg­u­la­tions of other EU mem­ber states; a com­pre­hens­ive com­par­at­ive study under­taken by the Bud­apest based Centre for Com­mu­nic­a­tion and Media Stud­ies found this claim to be utterly false how­ever; the most import­ant fea­tures of the new legis­la­tion are unique in Europe to Hun­gary and are gen­er­ally at odds with EU law. Although Hungary’s Con­sti­tu­tional Court found aspects of the media legis­la­tion to be con­trary to Hungary’s con­sti­tu­tional law, its rul­ings must be endorsed by the Par­lia­ment before it may be enacted. The com­plete lack of sep­ar­a­tion of power in Hun­gary means mean­ing­ful action by the EU is the only hope of achiev­ing a free media plat­form in the country.

Although look­ing at legal courses of action is a genu­inely earn­est move on the EU’s part, its slow and bur­eau­cratic nature means any pro­cesses taken are likely to be a num­ber of year’s away, if at all. In the mean­time, thou­sands of Hun­garian cit­izens have taken to the streets in protest and a num­ber of journ­al­ists resigned from Hun­garian media out­lets in protest at the new lim­it­a­tions, with some even going on hun­ger strike (De Spiegel, Decem­ber 2011).  If the European Union had pro­act­ively tackled this situ­ation before the legis­la­tion was enacted, by util­ising polit­ical pres­sure and the European court sys­tem, this des­per­ate situ­ation would most likely have been avoided.

Libel laws endanger journ­al­ists’ lives- Ireland

Media is not only cen­sored by out­side forces such as gov­ern­ments how­ever; imposed self-censorship due to repress­ive legis­la­tion can be just as dam­aging to the insti­tu­tion of free media. Ireland’s strict libel laws for instance, came under scru­tiny as far back as 1996, fol­low­ing the bru­tal murder of journ­al­ist Veron­ica Guerin, known for her pion­eer­ing art­icles which exposed the actions of Dublin’s most ruth­less crim­in­als. Guerin was known for con­sist­ently con­front­ing gang­sters face to face, pro­vok­ing them in the hopes of gar­ner­ing an admis­sion of guilt; this was not shame­less risk tak­ing how­ever, but the only legal way Guerin could print alleg­a­tions of drug run­ning and rack­et­eer­ing without expos­ing her paper to fin­an­cially crip­pling legal liab­il­ity. In 1995, when Guerin received the Inter­na­tional Press Free­dom Award from the Com­mit­tee to Pro­tect Journ­al­ists, she spoke of the need to reform Ireland’s archaic libel legis­la­tion in order to pro­tect journ­al­ists’ phys­ical safety and their abil­ity to inform the pub­lic of mat­ters of pub­lic interest. Guerin was bru­tally murdered six months later; the legis­la­tion in ques­tion was not adequately reformed until a dec­ade later and even then, crit­ics claim it still did not go far enough as regards the pro­tec­tion of journalists.

EU laws or media self-regulation?

The inter­ac­tion between the polit­ical and media land­scapes in Cent­ral and East­ern Europe are par­tic­u­lar areas for con­cern. A recent report on this issue, jointly fun­ded by the Organ­isa­tion for Secur­ity and Co-operation in Europe (OSCE) and the Open Soci­ety Found­a­tion, com­men­ted “Twenty years after the regime changes, the cur­rent trend in media polit­ics can be best described as a “counter-reformation” rather than a pro­gress­ive trans­ition,” (Media Policy 2011). Aside from Hun­gary, the Asso­ci­ation of European Journ­al­ists has singled out Poland, Slov­e­nia and Slov­akia for exploit­ing pub­lic media out­lets for polit­ical pur­poses (Euractiv 2008). In a recent speech, the OSCE Rep­res­ent­at­ive on Free­dom of the Media Dunja Mijatovic called upon the European Union to lead by example and ensure its mem­ber states con­tinue the high demo­cratic stand­ards they must enact to join (2012); demo­cratic norms and prac­tices should not slip as a pri­or­ity once mem­ber­ship has been gained or assured.

In recent years, the dis­course on media reg­u­la­tion has ten­ded to focus on the chal­lenges pro­duced by the explo­sion in online and new media, with a lack of focus on the res­ult­ing pres­sure these innov­a­tions placed on more tra­di­tional media out­lets. This pres­sure cer­tainly con­trib­uted to the cul­ture of mor­ally ques­tion­able prac­tices within the UK media. Recent devel­op­ments, how­ever, have demon­strated the need for cla­ri­fic­a­tion across Europe on the issue of media reg­u­la­tion and the need to enact con­tin­ent wide legis­la­tion that is coher­ent, real­istic and aimed at both pro­tect­ing journ­al­ists safety and the public’s right to inform­a­tion, whilst also bal­an­cing legal con­sid­er­a­tions such as indi­vidu­als’ right to pri­vacy. Press free­dom and the safety of journ­al­ists must also be viewed as inter­re­lated, inter­con­nec­ted ele­ments and any legis­la­tion deal­ing with media reg­u­la­tion must deal with both of these issues. The case of Veron­ica Guerin and Ireland’s half- hearted libel legis­la­tion demon­strates the dangers of deal­ing with only one of these legal con­cerns at a time. A free media is not a lux­ury but rather it is the only way to ensure a fully demo­cratic soci­ety with insti­tu­tions answer­able to the pub­lic. There is no need for reg­u­la­tion to trans­form into cen­sor­ship, a les­son which Europe needs to learn quickly in order to pro­tect the inde­pend­ence of its media.