Freedom of Expression: A critical and comparative analysis (UT Austin Studies in Foreign and Transnational Law)

FREEDOM OF EXPRESSION

This book takes a multidisciplinary approach to the issues surrounding freedom of expression, looking at the current legal position in a number of European countries and in the EU, as well as engaging with the wider debates on the topic amongst sociologists, political scientists and economists. In the book, Vincenzo Zeno-Zencovich addresses recent developments which have had a bearing on the debate including the changes in communication brought about by the Internet, and the growing role of the European Union and of the Council of Europe. Rather than analysing freedom of expression on an abstract basis, the approach taken is legal-realistic and discusses the contemporary situation. ZenoZencovich argues that freedom of expression is an individual right and it is a mistake to identify it with the instrumental freedom of the printing and broadcasting industry. He also argues that it is a mistake to burden the multimedia industry with regulations, as the industry should be allowed to operate just like any other. Drawing on legal systems from many different countries, the book will interest lawyers, political scientists, sociologists, economists and policymakers on an international scale. Vincenzo Zeno-Zencovich is Professor of Comparative Law in the University of Roma Tre, Italy.

The University of Texas at Austin Studies in Foreign and Transnational Law General Editors: Sir Basil Maxkesinis and Dr Jörg Fedtke The UT Studies in Foreign and Transnational Law series aims to publish books covering various aspects of foreign, private, criminal and public law, as well as transnational law. This broad ambition of the series underlines the editors’ belief that in a shrinking world there is a growing need to expand our knowledge of other legal orders – national or supernational – and to publish books discussing comparative methodology and not merely describing foreign systems.

Titles in the Series: The French Civil Code J.-L. Halpérin, transl. T. Weir (2006) Judicial Recourse to Foreign Law B. Markesinis and J. Fedtke (2006) International Negotiation in the Twenty-First Century A. Plantey, transl. F. Meadows Civil Disobedience and the German Courts P. Quint (2007) Human Rights in the Private Sphere D. Oliver & J. Fedtke (2007) Italian Private Law G. Alpa & V. Zeno-Zencovich (2007) Forthcoming titles: The Protection of Human Rights in German and English Law J. Fedtke & M. O’Cinneide (2008) Pure Economic Loss: New Horizons in Comparative Law Vernon Valentine Plamer and Mauro Bussani (2008) The Protection of Privacy in Tort Law: A Comparison between English and German Law Cremer (2009) Introduction to Spanish Private Law Teresa Rodriguez de las Heras Bellal and Jorge Feliu Rey (2009)

FREEDOM OF EXPRESSION A critical and comparative analysis Vincenzo Zeno-Zencovich

First published 2008 by Routledge-Cavendish 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge-Cavendish 270 Madison Avenue, New York, NY 10016 This edition published in the Taylor & Francis e-Library, 2008. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.”

Routledge-Cavendish is an imprint of the Taylor & Francis Group, an informa business © 2008 Vincenzo Zeno-Zencovich All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Zeno-Zencovich, Vincenzo. Freedom of expression : a critical and comparative analysis / Vincenzo Zeno-Zencovich. p. cm. ISBN 978-0-415-46670-7 1. Freedom of expression–Europe. 2. Freedom of speech–Europe. 3. Freedom of the press–Europe. 4. Freedom of expression. 5. Freedom of speech. 6. Freedom of the press. I. Title. KJC5154.Z46 2008 342.408
5–dc22 2008004062 ISBN 0-203-89308-5 Master e-book ISBN

ISBN 10: 0-415-46670-9 (hbk) ISBN 13: 978-0-415-46670-7 (hbk) ISBN 10: 0-203-89308-5 (ebk) ISBN 13: 978-0-203-89308-1 (ebk)

To the memory of my father Livio Zeno-Zencovich, on the Italian desk of the BBC European Service during World War II

The author is grateful to David T. Wild for his careful editing of the manuscript

Contents

Introduction

1

Chapter 1: Freedom to Print or Freedom of the Press? 1.1. The printing industry 1.2. Freedom to print 1.3. Limits to freedom to print and freedom of the press 1.3.1. The distinction between individual and corporate exercise 1.3.2. Distinctions based on the content of what is expressed 1.3.3. Information as a product 1.4. Facts vs. opinions 1.5. A framework for informational activity 1.6. The press as power 1.7. The myth of public opinion

6 7 8 11

13 13 14 15 17 20

Chapter 2: Broadcasting 2.1. Control over broadcasting media 2.2. Pluralism 2.3. Broadcasting as an entertainment industry 2.4. Broadcasting and public service 2.5. Television as a ‘bad teacher’ 2.6. Television and televisions 2.7. TV broadcasting and political communication

23 23 26 30 32 34 38 40

Chapter 3: Journalistic Activity 3.1. Journalism as an occupation 3.2. Access to the profession 3.3. Informational privileges 3.4. Journalists and professional diligence

42 42 44 45 47

Chapter 4: Freedom of Expression as an Alienable Right 4.1. The issue of so-called ‘inalienable rights’ 4.2. The obligation to express a certain opinion 4.3. The obligation not to express one’s own opinions

51 51 54 56

12

viii

Contents

Chapter 5: Advertising 5.1. Advertising as part of the product 5.2. Commercial advertising as part of the market 5.3. ‘Harmful’ ideas 5.4. Advertising as a means of financing freedom of expression

58 58 59 61

Chapter 6: Freedom of Expression and Economic Regulation 6.1. Ideas as products 6.2. Business information 6.3. Information and competition 6.4. Market failures and public regulation

65 66 68 70 75

Chapter 7: The Main Areas of Conflict: Pornography, Peaceful Coexistence, National Security 7.1. Freedom of expression and public morality 7.2. Incitement and ‘fighting words’ 7.3. National security and wartime

80 80 83 85

Chapter 8: Towards a European Framework? 8.1. A civil law/common law divide 8.2. The making of a European ius commune 8.3. The role of the Council of Europe 8.4. The ‘TV without frontiers’ Directive 8.5. ‘Freedom of the media’ in the European Charter of Fundamental Rights 8.6. Pluralism and media diversity 8.7. The fruits – and contradictions – of convergence Chapter 9: Freedom of Expression in the Internet Age 9.1. Freedom of expression as an individual freedom 9.2. The media and the loss of their intermediary role 9.3. A world of information 9.4. Rules for communicating on the web 9.5. How the communications networks influence freedom of expression 9.6. Limitations to freedom on the Internet 9.7. Business activity on the Internet 9.8. The trans-national dimension Chapter 10: From Information, to Communication, to Knowledge 10.1. Freedom to disseminate data 10.2. The right to access information

62

89 89 90 92 93 94 96 97 99 100 101 102 103 105 107 109 110

113 113 115

Contents

10.3. The right to be informed 10.4. Legal information as a right 10.5. The juridification of information and knowledge 10.5.1. Patents law 10.5.2. Software protection 10.5.3. Database protection 10.5.4. Protection of know-how 10.5.5. Copyright 10.5.6. Industrial secrets 10.5.7. Protection of personal data 10.6. The knowledge society

ix

116 118 119 120 120 120 120 121 121 121 123

Chapter 11: Conclusive Remarks 11.1. Freedom of expression as a variable freedom 11.2. A relational freedom 11.3. A functional freedom 11.4. An individual freedom 11.5. A freedom at a cost

125 125 126 127 129 130

References Index

132 146

Introduction

Freedom of expression arises as a claim against the authorities that prohibit it and obstruct its exercise. Its political dimension is immediately apparent as freedom of expression is essential to participation in the political life of the community, and inevitably provokes critical ideas and arguments concerning the community’s political, religious and military authorities.1 It reflects a demand for the right freely to disseminate one’s opinion about ideas, institutions, rules, political, social and economic conditions and, especially, about other people and their activities. Although freedom of expression may concern an unlimited variety of subjects, it is most crucially relevant to controversial ideas, which require its protection. Other ideas, which are common and shared, are already free because they are accepted in the community. This brings about a series of consequences, the first of which is that there is a constant pressure to widen the ambit of freedom of expression, annexing new fields, new forms, new means. In the short term, the changes may not appear significant, but if one considers the last five centuries it is easy to note that freedom of expression, initially restricted to very limited areas, now extends to practically all human activities and experiences. But even if one takes into consideration a more restricted period – for example the last 50 years – the differences are noticeable and are nearly all in the direction of a widening of freedom. One could say that freedom of expression cannot avoid trying to expand, overcoming the existing limits as if it were propelled by a perpetuum mobile.

1 For a useful summary of the three main types of freedom involved here– pursuit of truth, self-fulfilment and democratic participation – see E. Barendt (1987, pp. 8ff.). The ‘political’ nature of the freedom is forthrightly set out in T.R.S. Allan (2000, pp.17 ff.). This view is shared in other European legal systems: for example in Italy, see S. Fois (1957, pp. 15ff.), and C. Esposito (1958) and V. Crisafulli (1964, p. 292), who both tend towards a humanistic view.

2

Introduction

At the same time, its natural antagonistic vocation exposes it (or, rather, over-exposes it) to the reactions of those whose interests are imperilled by the exercise of freedom of expression. This has some important side-effects: the attention on freedom of expression is concentrated on the moments of conflict distorting the perspective of many observers who end up by putting at the centre what, in reality, are the external boundaries of the freedom. Also, in periods of political crisis, the scope of freedom of expression is immediately challenged in order to limit controversy or suppress it completely. It is inevitable, therefore, that there should be a relation between the evolution of political systems and the development of freedom of expression. It therefore appears correct to associate democracy and freedom of expression, but this association is subject to a variety of conditions. Not all democratic systems enjoy the same degree of freedom of expression, but it is not particularly rewarding, nor correct, to establish a direct relationship between the amount of freedom of expression and the degree of democracy in a certain country (even supposing one could measure such a degree).2 One should also consider that there are periods in which democratic systems, in order to defend themselves (or purporting to do so), impose significant restrictions on freedom of expression. This is normally what happens in wartime or when a democracy feels itself imperilled by totalitarian ideologies and governments (e.g., Nazism and Fascism in post-World War II Germany and Italy; Communism in the US during the cold war). If one accepts the idea that freedom of expression is a dynamic freedom,3 one must accept that not only may it expand, it may also be reduced. And its nature qua freedom entails – as for any other freedom – the question as to what the limits to freedom of expression are, who should fix them and what the consequences are if these limits are not respected. The idea that freedoms – and freedom of expression among them – are not, and cannot be, without limits is widely discussed, above all by political thinkers and philosophers.4 Herein lies one of the main sources

2 The

point is illustrated in exemplary manner by C. Esposito (1958): ‘the recognition of this freedom (sc. to express one’s opinion) is not a consequence of the democratic nature of the state – this would imply that the state can set limits to the freedom and determine its function – but rather the existence of a democratic state is affirmed by the very fact that this freedom (and hence the value of the individual) has been recognised’ (p. 12). 3 Cf. J. Keane (1991, pp. 42f). 4 Cf. F. Schauer (1982, p. 129; ‘A liberty is not a total or absolute liberty. It is […] only the creation of a higher burden of justification for interference or regulation’); O. O’Neill (1990, pp. 155ff., especially pp. 165ff.).

Introduction

of conflict in as much as each author will advocate fixing or removing such limits based on his or her scale of values. One can therefore understand the reasons for sharply contrasting opinions. Each approach presents numerous pitfalls and difficulties in argumentation: to set limits implies justifying the reasons underlying them and inevitably brings about a casuistic approach which distinguishes among who expresses the opinion, the subject of the expression, the time and the place. This results in losing a common rule. If one chooses the opposite view, this means opening a war (not only metaphorically) between freedom of expression and all the other freedoms and civil liberties (political propaganda against the right not to be disturbed; religious advocacy against respect for one own’s beliefs; depiction of sexual acts against protection of children etc). At one extreme, freedom of expression has many, and mobile, boundaries which are never clearcut. At the other, freedom of expression is exalted above – and at the expense of – all other freedoms.5 The latter option does not appear to be acceptable, on both practical grounds and grounds of the principles on which freedom of expression is based. Freedom of expression – this is the assumption – is a political freedom which is granted to men and women who live together and want to communicate with one another.6 It has no sense for the hermit or a person shipwrecked on a desert island. Just as any other freedom, it must be limited in order to enable others to exercise it (there cannot be two speeches in the same hall at the same time; one cannot cover other people’s electoral posters with one’s own) and to enable the exercise of other freedoms (to circulate, to meet, to work, to live one’s own private life). And if freedom of expression is built to serve man and woman (and not vice versa), mankind cannot confine its freedoms to this one alone, as the human personality comprises many more aspects that deserve to be enhanced and protected. A humanistic approach will therefore lead to the search for various points of equilibrium, which are difficult to find owing to the variability of the circumstances. At the same time, one has to consider the implications of the relationship between freedom and responsibility that, since the dawn of western culture, has troubled philosophers, writers, moralists and theologians. This relationship is generally referable to every human activity. Can one, realistically, imagine that only when expressing one’s opinions is one free from responsibility to others? The question is surely rhetorical,

5 This 6 S.

viewpoint is not without its supporters: see F. Balle (2001, p. 595). Fois (1957, pp. 112f).

3

4

Introduction

but the answer is much less obvious when it comes to establishing the effective content of such responsibility. The various issues that have been illustrated are well known and have been widely debated throughout the past decades. If one feels the need for a re-appraisal, it is because the commonly accepted theories of freedom of expression, which are still invoked as the basis for important contemporary decisions, no longer appear satisfactory in as much as they seem oblivious of the ancient and original roots of the freedom, and at the same time do not seem able to cope with the new dimensions of freedom of expression.7 More specifically, throughout Europe – mostly continental Europe – the dominant freedom of expression doctrine, found in both case-law of the highest Courts and in legal literature, is questionable for a series of reasons that will, at length, be presented in this essay, and that can be briefly summarised. (a) An axiomatic approach; the premises from which the discourse starts are generally presented as self-evident and repeated over the years without much attempt to re-examine them. (b) The principles of freedom of expression are mostly self-referential in the sense that they move within a circular (and closed) system whose points of reference are essentially and exclusively statute law, legal literature and case law, ignoring the extremely important, if not essential, contributions of political science, economics and sociology.8 This results in a formalistic approach – not uncommon in continental Europe – by which the facts are made to fit legal theory, and not vice versa. (c) A mainly nationalistic approach, often ignoring the vast debate on the issue in common law jurisdictions, as if freedom of expression in

7 In

the words of C. Esposito (1958, p. 54): ‘many theorists of freedom of expression manifest, in the very act of exalting its theoretical and practical importance, a paradoxical fear of that very freedom which no amount of specious argument can conceal’. 8 One should note, however, that the lack of interdisciplinary approach is not a characteristic only of most legal works on the communications world. In a recent, and important, collection of essays on The Economic Regulation of Broadcasting Markets: Evolving Technology and Challenges for Policy (Seabright and von Hagen, 2007), 9 out 10 authors refer only to other economic articles and books, ignoring completely the vast quantity of extremely detailed sociological data and research on the role of broadcasting and on the consumption of audiovisual services in contemporary societies. This results, often, in elaborating over models that have very little to do with reality.

Introduction

the twenty-first century could remain confined within the frontiers of a single nation. The attempt that will be made in this essay is to take a much more legalrealistic approach to the problems related to freedom of expression and look at things as they are – and not as one might wish them to be. This means that this is not an essay on constitutional law, referring to one or another European country. It is not a study of the norms that, directly or indirectly, govern freedom of expression and the way they are interpreted, but of the ideas – shared, debatable or despised – that lie behind those norms and their implementation.

5

Chapter 1: Freedom to Print or Freedom of the Press?

For over two centuries the freedom of expression has been closely linked with the freedom of the press. The First Amendment to the US Constitution (1791) couples them: ‘Freedom of speech and of the press’. The Declaration of the Rights of Man and of the Citizen (1789), after affirming that ‘La libre communication des pensées et des opinions est un des droits les plus précieux de l’homme’ (The free communication of ideas and opinions is one of the most precious of the rights of man), adds that ‘Tout citoyen peut donc parler, écrire, imprimer librement’ (Every citizen may, accordingly, speak, write and print with freedom). This ‘donc’ (‘accordingly’) embodies a conception that the international charters of human rights and the European constitutions, created after the Second World War, developed by distinguishing between the expression of opinion and the various means by which this could be accomplished. More recently, however, the European Charter of Fundamental Rights (ECFR) has affirmed: ‘The freedom and pluralism of the media shall be respected’ (Article 11(2)). The conceptual difference between the freedom of expression and freedom of the press are clear enough. The former refers to the substance of a freedom; the latter is, in the terms of the analogy below, its container. Nevertheless, the fact that freedom of expression normally manifests itself by means of the latter has led to the kind of confusion on which the positions criticised below9 are based, and which can be expressed in the following syllogism: free expression is guaranteed; free expression uses certain media; ergo, those media are to be protected. 9 The

criticism is not new, but neither evidently has it been accepted by all. See S. Fois (1957, p. 5): ‘The problem of free expression is almost always identified with that of the free use of the means of disseminating opinions, in particular with the problem of press freedom. (…) Such an identification is not without its disadvantages, both from the viewpoint of scientific categorisation and from a practical point of view. (…) the two problems of free expression and of the free use of the means of disseminating opinions are best kept separate at least for some purposes and, most importantly, ranked’ (italics in the original).

Freedom to Print or Freedom of the Press?

We are thus confronted with a transfer of safeguard from free expression to one of its means, and thence to the position where the means are to be protected in their own right; in other words, whatever these media produce are held to be free expression and thus require protection. To deconstruct and exemplify, this rationale can be logically articulated thus: X (wine) is protected; in order to be distributed X (wine) requires Y (a bottle); Y (the bottle) is protected because it is used to contain X (the wine); hence anything – even water – that Y contains is protected because the safeguard has been transferred from the substance to the container.10 In other words, the sense of freedom of expression, as a political freedom enjoyed by individuals and the groups in which they associate, has been progressively lost and has become attached to persons who can at most be considered instrumental in the diffusion of the thought of others. The mutual identification of the two aspects has come about largely through an interest served in attributing to an activity (namely, the press) prerogatives that properly belong to an innate human quality (thought). There arise from this certain consequences and issues that will repay closer investigation.

1.1. The printing industry The reason why the freedom to print has been so solemnly asserted ever since the eighteenth century is clearly that the press is the only means by which thought can be transformed from mere oral enunciation into a form that can be duplicated and circulated without limits of time and space.11 Thought is reified in a printed document and can then be transmitted from one mind to countless others. It is thus easy to identify thought with print. However, as soon as, from the end of the nineteenth century, other means of diffusion of ideas – cinema, radio and television – appeared alongside the printing press, this identity began to unravel, and it became easy enough for anyone to distinguish between expression of ideas and the means by which they were disseminated. On the other hand, a moment’s consideration of the multifarious product of the printing press is enough for us to realise it is subject to protection not of itself, but because it reproduces ‘thought’.12 No one

10 The

bottle metaphor has been widely employed: see S.H. Shiffrin (1999, p. 48). some of the historical bases of the theory of freedom to print, see L. Levy (1960), J. Keane (1991, pp. 3ff. (but in fact passim)). 12 On economic incentives to the diffusion of the printing press, see J.B. Thompson (1995, pp. 75ff.). 11 On

7

8

Freedom to Print or Freedom of the Press?

would suppose that the freedom to print is concerned with calling cards, wedding invitations or gift tags, although these are produced solely by printing: they lack either the requisite content or ideas. So, asserting a freedom to print is a synthetic formula for asserting the freedom of expression by means of print. It does not indicate a separate freedom, distinct from and independent of the former.13 Such a line of development is consistent with the origins of freedom of expression (of thoughts), which arose after and consequent upon the freedom of thought tout court. It thus dates from the demand for free exercise of the intellect, raised against various totalitarian (principally religious) ideologies that denied the court of the conscience – indeed, to the present day, one can ‘sin’ through one’s ‘thoughts’. Yet the intellect is precisely that which separates humanity from other animals and is the precondition of any freedom to communicate one’s ideas to others.14 Hence the indissoluble nexus between a humanistic perspective, putting mankind at the centre of a system of legal rules, and a freedom – of thought and expression – which is necessary to its achievement.15

1.2. Freedom to print This consideration is immediately critically undermined by what we might call a grammatical analysis. The First Amendment to the US Constitution does not refer to ‘freedom to print’, but to ‘freedom of the press’. And this is not just a legal quibble. The founding fathers saw the press, in the sense of a continuing activity of disseminating ideas rather then the narrow sense of typographic production, as an essential element in the new democracy they were creating. Their interest was thus in the Press with a capital P. From the precursors of the revolution onwards, US political life has marched in step with the role of the press, as Alexis de Tocqueville grasped perfectly more than a century and a half ago. This activity, which began as debate, propaganda and proselytism, was soon transformed, by a dynamic in the social history of the United States, into a business which demanded and obtained a special status – such was the political power it wielded.16 13 ‘The

arguments for freedom of the press are arguments for a more general freedom of expression. But it does not follow that whatever supports freedom of speech also supports freedom of the press’ (J. Lichtenberg, 1990, p. 105). 14 In this regard, see O.M. Fiss (1990, pp. 143f) and C.D. de Jong (2000). 15 On the importance of freedom of expression for self-fulfillment, see W. Sadurski (1999, pp. 16ff.). 16 ‘The First Amendment is not so much about truth as about power’ – so says F. Schauer (1990, p. 202). Similarly, T.E. Patterson (2000, p. 241 (especially pp. 243ff.)).

Freedom to Print or Freedom of the Press?

The difference a small change in terminology can make is readily apparent: freedom to print as opposed to freedom of the press. The former applies to an individual and the protection of his utterances, the latter to a powerful, organised sector of business.17 This is not the place for sterile critiques and historical surveys of what has become established fact. Nevertheless, one cannot avoid drawing attention to two aspects. Firstly, the US model is not the same as the continental European model, and confusing the two, or mapping one on the other, can lead not just to an unreflecting identification of the two, but to a substantial turning away from one’s own politico-philosophical traditions.18 Secondly, the US model of the primacy of the press is bounded by the complex mechanism of checks and balances characteristic of that country, moderating its power and subjecting it to disciplines of reasonableness and balance.19 Affirming the freedom of the press, as a constitutionally privileged regime for businesses engaged in mass communications, thus entails a consideration of what the quid pro quo of that freedom might be, in terms not only of the law, but of society too. Certain observations need to be added to the assertion that the press is considered in the European – mainly, but not exclusively, continental – legal tradition as a means for the dissemination of ideas. This undoubtedly results from a persistent and incontinent desire to control the Press (with a capital P). ‘Press laws’, registration requirements, rolls, managers, responsible directors, penalties for the ‘underground’ press and for so-called press offences in general, all these for centuries attested to an unallayed suspicion on the part of legitimately constituted powers towards the exercise by private institutions and individuals of power that rivalled and in some cases surpassed their own.20

17 See

the US Supreme Court Justice Potter Stewart’s statement: ‘The publishing business is, in short, the only organized business that is given constitutional protection’ (Stewart, 1975, p. 631). 18 For a comparison of the two, see E. Barendt (1987, pp. 67ff.). On account of the differences, this essay will adopt a predominantly European perspective. For the difficulties in transplanting in Europe the New York Times v. Sullivan landmark case, see C. Forsith (2000, p. 97), and I. Loveland (1998), in particular the introductory chapter by the editor. 19 For a thorough account of the positions taken by the US Supreme Court (which has substantially laid down the rules on press freedom), see E. Blanks Hindman (1997), especially pp. 149ff. 20 Among the many historical accounts of press freedom see F.S. Seaton (1965), F.K. Hunt (1850), I. Collins (1959), L. Compagna (1979), and G. Lazzaro (1969).

9

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Freedom to Print or Freedom of the Press?

It is evident21 that these measures – found in all European states – taken as a whole are directed against the press, when a comparison is made with the US model where attempts at measures of a similar nature have been progressively abandoned or struck down as unconstitutional precisely because they targeted the press.22 Therefore in interpreting the principles governing the current application of the rights in question we must remember that they are intended to affirm the freedom to express oneself in any medium, and not the freedom of (those who run) the media per se.23 This conclusion may not accord with what one feels should be the case, but it seems to correspond to reality. There is, however, a further aspect which must not be neglected in evaluating the European model, and that is the pervasive influence of tendencies which, to simplify, we may describe as individualist or as invoking notions of natural law. The human being, as a physical, psychological or moral entity, is at the centre of the European ways of thinking, both in a philosophical and a juridical context. Whereas US pragmatism shies away from creating abstract categories, in Europe concepts such as personality rights and general principles such as human dignity are not only much debated and thought about, but have also produced cogent concrete rules. The point here is not, of course, to set up one model against the other and find it preferable, but rather to seize once again a hard fact that explains – or helps to explain – why in Europe expression of opinion has an individualistic rather than a commercial connotation. It cannot be argued that the two models are totally distinct, because there are large areas of overlap and their mutual boundaries are shrouded in fog. The object is rather to set out a different interpretive approach, to view the system with a different trajectory.

21 There

is moreover – as J. Curran and J. Seaton observe (1997, pp. 2ff.) – constant manoeuvring for economic advantage between editorial businesses and politicians. 22 This, however, is not without significant drawbacks: for all the intellectual detours taken see D.A.J. Richards (1999, especially in chapter 4 when trying to justify what would appear, in Europe, to be perfectly reasonable and justified restrictions to freedom of speech). It would be ungenerous not to aknowledge the widespread dissatisfaction, in the United States, towards the dominant vision: ex multis, and from a strong ideological background, see R.W. McChesney (1999) or B.H. Bagdikian (2000). 23 For an opposing view, see P. Costanzo (1998), who explicitly entitles his para. 11, ‘Freedom of the press merely as a means of individual freedom of expression (a model that is – and has always been – obsolete)’. The argument is appropriately challenged by H. Thorgeirsdottir (2005, pp. 212ff.).

Freedom to Print or Freedom of the Press?

1.3. Limits to freedom to print and freedom of the press Historically, and despite being so called, the ‘freedoms’, political, public and civil, both ‘to print’ and ‘of the press’, have been subject to firm regulation as to when, where, how and to what extent they could be exercised. The first problem is how such restrictions have been justified in the face of the general principle of freedom of expression. In other words, given that expression is free, how are limits to the use of certain media to be justified? Why are some media less ‘free’ than others?24 The answer to this has a significant impact on the very concept of freedom of expression. Since if the media most widely used to diffuse ideas are the most closely controlled, the scope of that freedom is visibly reduced to the socially most marginal contexts. There is thus a logical problem with the coherence of the very notion of a freedom that has to mould itself to more general restrictions. It is evident that in modern societies, rendered complex by the sheer numbers of people interacting and of competing interests, other traditional freedoms are also subject to important limits: the right to circulate is compromised by environmental considerations, the right to strike by consumer interests, freedom of choice in education by public policy, not to mention freedom of economic activity, which has always been hedged in by restrictions. Yet it is none the less clear that while other freedoms – those of conscience, association and political organisation – have extended their range, the freedoms under discussion here have been subject to an ever-increasing burden of regulation. Questions therefore arise as to whether this is necessary and whether the pursuit and reconciliation of interests calls for it. Out of this emerges a second problem: what are the justifications that can be offered for the various limitations? Currently, these are diverse. The first, earliest and most entrenched is that they are necessary to prevent abuses of the freedom and to prevent harm to individual interests. It must be noted, though, that this implies a massive level of preventive intervention in order, as a rule, to select who may or may not exercise a particular freedom or activity. Another is that the complex articulation of potentially conflicting interests requires the adoption of similarly articulated disciplines (morality, minors, personality, competition etc.). This is a tenable position but it renders attempts at a unified regime almost impossible. Yet another, fairly widely cited, justification is that the ubiquity and influence of certain media (above all television) makes

24 The

usual reply is that one is dealing with just a few ‘exceptions’ or ‘contradictions’. See (among many others) E. Derieux (1999, p. 25).

11

12

Freedom to Print or Freedom of the Press?

it essential to keep them under control. This is an argument that, even while it parallels those put forward in relation to the press when that was the only widely diffused medium, relies on a premise (special influence) that remains to be amply demonstrated. Therefore, if it is accepted that freedom of expression like any other freedom is subject to limits, it appears necessary to provide a coherent and adequate framework for justifying such limits. A useful point of reference in this quest may be supplied by a principle – that of proportionality – set out in the European Charter of Fundamental Rights (article 52): ‘Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’. Bearing in mind that such constructs are open to debate and susceptible to shifts in political, economic and social circumstances, we shall attempt to canvass various arguments, perhaps on more solid grounds than some of those currently heard, relevant to the existing limits.

1.3.1. The distinction between individual and corporate exercise If the freedom of expression is essentially a fundamental human right, it is fair that it should exist in its fullest form when exercised by individuals. This is first and foremost an expression of an individual’s personality. There may of course be selfish motives involved, financial gain, ambition, self-exhibition, but these appear to be irrelevant except in marginal cases (e.g., incitement to commit an offence). Where, on the other hand, the expression of ideas arises from a business activity, the personal element tends to be attenuated or almost absent.25 Despite common and overlapping areas, the difference between expressing ideas and organising a business in order to ‘sell’ them appears fairly clear-cut.26 This is not to say that a business does not have its own viewpoint, just that when

25 This

point is forcefully made by V. Crisafulli (1964, pp. 296f.), but contested by A. Pace (1992, p. 418). L. Hitchens (2006, pp. 34ss.) suggests a similar analysis when describing media freedom ‘as an instrumental freedom’. The conclusion does not however appear convincing inasmuch as it is used as a justification for promoting so-called media pluralism. 26 The difficulty of reconciling business freedom with freedom of expression is evidenced by P. Caretti (2001, p. 70), but the solutions proposed appear to be heavily weighed down with traditional prejudices. Moreover, arguments from ownership – ‘I own the business, so I decide what gets published’ – are evidently prayed in aid, particularly in US news journalism, to deny a right of reply or correction: see Miami Herald v. Tornillo 418 US 241 (1968). See also J. Barron (1973), and A. Sajo and M. Price (1996).

Freedom to Print or Freedom of the Press?

dealing with a legal person it is doubtful whether all the legal situations applying to a physical person can simply be applied automatically.27 Neither should we overlook the situation where a group of people, such as a political party, organises an imprint to promulgate its views, but here too one is dealing with marginal phenomena on which it does not appear methodologically appropriate to construct a system.

1.3.2. Distinctions based on the content of what is expressed It is not easy to establish lines of demarcation between sets of rules that use what is expressed as a criterion. The reason is obvious: they end up by making value judgements about views expressed and creating a kind of scale of worth against which degrees of permitted freedom are measured. As this is undesirable in itself as well as being open to excessive discretion and abuse, this approach is generally rejected. It does not, however, seem completely irrational or worthless to attempt to define at least the parameters of a possible classification. At one extreme there are those subjects for the sake of which the freedom was first posited: religion, politics and philosophy.28 At the other, commercial communications and representations of sexual activity. Such a synthesised division is undoubtedly informed by certain values, which nevertheless appear to be historically widely shared. What is more, the fact that distinctions are based on the contents of what is expressed does not of itself permit the associated ‘quantum’ of freedom to be determined.29

1.3.3. Information as a product The functioning of modern society is based largely on an abundance of information. Regulations cover the forms in which information is appropriated, its legal circulation, and the damage or loss that results from its dissemination. There is a tendency to describe a curve leading from expressions of belief (a fundamental freedom) to informational activity (often mandatory and always with attendant obligations).

27 For

a clear presentation of the various arguments on this aspect see , H. Fenwick and G. Phillipson (2006, p. 15ff.). 28 I. Hare (2000, pp. 120f.), challenges the wisdom of a ‘prior classification’ of the content of expression. For a similar approach see D. Feldman (1998, pp. 139ff.). However, a legal-realistic approach points out that once scholarly writings have put the political speech argument to the door it re-enters the scene through the window of case law. For an account of the so-called ‘privileged matters’ in Italian law, see S. Fois (1957, pp. 48ff., 55ff.) (setting out expressions of religious, artistic, scientific and political ideas). Decisively opposed to A. Pace (1992, pp. 391ff.). 29 For a similar approach see H. Fenwick and G. Phillipson (2006, p. 15ff.).

13

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Freedom to Print or Freedom of the Press?

Chapter 9 will deal further with questions of informational ‘goods’. It will suffice to point out here the effect the ‘commodification’ of information30 has in subjecting it to a legal regime whose points of reference are those applying to products, adapted as applicable to the non-material nature of the ‘goods’ in question. The phenomenon is particularly evident in the case of ‘consumer information’ and ‘market information’, where the content of the communication, its placement, size and even its graphics are rigorously and minutely regulated. Although some would argue that this amounts to a limitation of the business’s freedom of expression, such objections can always be rebutted on the grounds that an obligation exists to provide true, accurate and comprehensible information to recipients en masse and that this serves not only to protect health and property rights but also the functioning of a competitive market. The growth of regulation of this kind makes it extremely difficult to maintain a stance of denying that daily newspapers, periodicals and television news programmes are products first and foremost.31 The extensive and long-lived regulatory discipline limiting the activities of the press can be seen today as a form – albeit prototypical – of control over the quality of informational content.

1.4. Facts vs. opinions The question just broached, the reification of information, brings us to a consideration of aspects of the difference between ‘fact’ and ‘opinion’. A time-honoured sophism that has acquired the status of commonplace has it that the narration and selection of facts implies a critical evaluation that contains a manifestation of opinion. The consequence drawn from this is the impossibility of distinguishing ‘fact’ from ‘opinion’, and hence, given that the latter offers no objective grounds for challenge, neither does the former, and so it should not be open to challenge.32 But it is in the nature of sophisms to give the illusion of reality to something that does not or cannot exist, or if it does, to distort it, usually in an attempt to finesse an argument to arrive at a desired conclusion.33 The fragility of the argument is revealed by considering that we can turn it on its head and say with equal validity that, since all opinions are based on and incorporate facts, they cannot thus escape being subject to the same discipline as facts.

30 Cf.

N. Elkin Koren and N.W. Netanel (2002). the most coherent account of the periodical press as a commercial product, see C. Chiola (1973, pp. 56ff.). 32 There is critical support for this thesis. See S. Fois (1957, pp. 200ff.), but see also A. Pace (1992, p. 390) and cf. V. Crisafulli (1964, pp. 288f.). 33 For a thorough critique see C. Chiola (1973, pp. 15ff.). 31 For

Freedom to Print or Freedom of the Press?

Leaving aside extreme points of view, we shall first consider whether the distinction between ‘fact’ and ‘opinion’ is at all convenient or useful. An affirmative answer can be inferred from the progressive subjecting to law and regulation of the diffusion of ‘facts’.34 Thus the distinction serves first of all to protect freedom of opinion. But above all it serves to identify the reasons behind the activities that produce information and those that give expression to ideas. The latter connote the individual, the personal, while the former are more economic in character. This diversity implies different legal regimes, which, very simply, can be based on the difference between individual and professional exercise of a given activity, attaching a higher level of responsibility to the latter. The distinction between ‘fact’ and ‘opinion’ is moreover possible and is the direct consequence of the ‘scientific’ turn that western culture took from the seventeenth century onwards: facts are perceptible events and can be measured with ever-greater precision. Even without emphasising how much the abandonment of metaphysical theories contributed to the evolution of modern society,35 the attention paid to facts does not in the least imply a crude materialism, since they are capable of giving form to phenomena that are otherwise impalpable but socially important. The distinction is thus already accomplished and, to appreciate the importance and applicability of this, it is sufficient to step outside the context of mass communications media and carefully distinguish between: events and reconstructions of events; opinions and forecasts; and simulations and random choices. Obviously there are grey areas where more minute examination is required, but this does not undermine the basis of the distinction, especially if the first selective criterion used is the status of the actor. By this is meant that where individuals are concerned, the objective ought to be the maximum freedom and dissemination of ideas, whereas in the case of information businesses the need is for maximum dissemination of facts once they have been verified in a professional manner.

1.5. A framework for informational activity The considerations thus far set out tend towards establishing a systematic order for informational activity of a commercial nature, with specific

34 This

is very clear from even a cursory glance at the extremely rich EU legislation on financial markets and the circulation of information within it. For further references, see V. Zeno-Zencovich (2006, pp. 157ff.). 35 Although the metaphysical theories are still widespread, especially when the issue of ‘truth’ is debated: see W. Sadurski (1999, pp. 11ff.).

15

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Freedom to Print or Freedom of the Press?

rules to be provided. These already exist, but the objective is to provide a coherent frame of reference that will subsequently allow the equivalence of particular situations to be assessed and appropriate distinctions to be made. From this point of view, professional informational activity can be seen as one among many sectors, each of which has a separate legal discipline adapted to its particular characteristics. First of all, the cardinal feature of this sector is the expression of ideas. Just as airline, bus and railway companies are not exercising a fundamental right of free circulation, press, radio and television editors are first and foremost conducting a business, the importance of which as far as rights are concerned would indicate the imposition of duties rather than according rights, of responsibilities rather than granting privileges. In other words, while the individual is and should remain free to express opinions with no restriction based on his or her motives, the scope and content of the opinion, nor as far as possible the form in which they are expressed, for the mass communications media expression of ideas is a function: something they solicit, disseminate, promote and transmit. All forms of individual expression are protected, including that of ideas. The mass communications media, to the extent that they perform this function, enjoy a particular legal regime.36 If they do not fulfil the function, there is no reason to apply the regime. The situation is especially clear in the television sector, where the distinction is made among the various formats between information and entertainment programmes. It is part of the freedom of the press to be able to choose between them, but there is no logical justification in arguing that variety shows or game shows offering prizes should benefit from a regime that owes its privileges to considerations of freedom of expression. This does not exclude the eventuality that within these formats there might be issues of protection of individual expression. Thus it is the aim of the activity that is important, a consideration that does not apply in the case of individual expression, which requires no teleological justification for protection. Freedom of the press thus appears to be predicated on its contribution to the expression of ideas and its role in informational activity. From this various demands arise: that barriers to access be removed, both for businesses and for individuals; right of access to the sources of information; provisions for professional secrecy; immunity for informational activity carried out with due diligence; facilitation of, rather than obstacles to, distribution.

36 More

fully on this point, see C. Chiola (1973, pp. 59ff.).

Freedom to Print or Freedom of the Press?

At the same time, and just as with any other business, freedoms are accompanied by responsibilities, expressed as the common norms of professional diligence, a counterweight to the unrestrained pursuit of profit.37 Moreover, it should not be overlooked that a fault-based system of liability (that is to say, one based on a failure of professional diligence) represents preferential treatment vis-à-vis the rest of the commercial world, which is subject to a strict liability regime.

1.6. The press as power Since the first decades of the nineteenth century the press, understood as the communications media generally, has been viewed as a ‘power’.38 This observation is clearly accurate, insofar as one socio-economic group is in a position to influence not only decisions but indeed who is to take them. There is nothing intrinsically odd about this, especially in a democratic system where various groups, political parties, trade unions, business associations, religious groups, consumers, voluntary associations and popular pressure groups, all compete in the process of choosing representatives to sit in parliament and form a government and directing their choices. What is anomalous, however, is that the exercise by the press of this power is – either in theory or according to claims to such effect – based on freedom of expression.39 Thereby the evidently and eminently political nature of this freedom in criticising institutions purportedly gives those who exercise it on a continuous basis a controlling role and an entitlement to autonomous power (‘the fourth estate’). 37 For

a representative comparison of the prospects and consequences of traditional planning, see Costanzo (1998, paragraph 16), where in dealing with press responsibility the author constructs a tailor-made system in which the various forms of responsibility are constantly held up against the spectre of censorship. However, as soon as the press is seen in terms of a commercial activity, the issues of responsibility follow naturally in a tradition going back to the times of the Roman law actio in factum contra nautas, caupones et stabularios (action on the case against sailors, innkeepers and stable-keepers). 38 The observations made in this and the next paragraph appear more fully in Curran and Seaton’s classic (but for all that unfamiliar to many of those, lawyers included, involved in news journalism) Power without Responsibility (1997). For a more recent examination of the issue, see also J. Schultz (1998), especially chapter 5. 39 This argument is clearly stated by M. Pedrazza Gorlero (2000). One should also take in account the ECHR decision in Bowman v. UK (1998), in which limitations to individual right to campaign were considered disproportionate in the light of the absence of any restrictions placed upon the press.

17

18

Freedom to Print or Freedom of the Press?

Once this view has crossed over from the field of sociology, where it is an observation aimed at explaining and not at justifying, it is wholly unsatisfactory from the theoretical point of view. One cannot understand why the exercise of a freedom as essential as the freedom of expression should, when accumulated by certain players as if it were a form of wealth, be transformed into a legitimate power and institution.40 Such a view should, on the contrary, be severely doubted and one should ask whether it does not go against the grain of a theory of individual freedom. But what appears the most contradictory is the way in which a power is formed and legitimised. The democratic system has evolved in a long process of increased accountability of public authorities – initially in the balance between the three organs of state, but progressively involving also the decision-making processes – alongside judicial review of the actions of public authorities, the creation of institutions that guarantee improved impartiality and the creation of constitutional courts. This is mostly absent with regard to the press, which, while other institutions become ever more closely held to account, assumes ever greater and uncontrolled power.41 Neither should it be forgotten that the mass communications media are business enterprises and thus run according to commercial dictates, above all the pursuit of profit.42 They invoke their private status – reasonably enough – when resisting public interference. But the other side of the coin is that they cannot then claim to be exercising a public function (the ‘power of scrutiny’). The only theoretically coherent way of doing this would be to construct a

40 ‘On

balance, the arguments do not show why the media shoud be given preferential treatment in the law relating to free speech’, T. Gibbons (1998, p. 29). But cf. Pedrazza Gorlero (2000, p. 60). 41 For an in-depth study on this crucial, but often neglected, aspect of mass communications, see D. McQuail (2003). Cf. Patterson (2000, p. 249) for evidence that the theory of the ‘fourth estate’ ‘had no clear basis in the original [sc. US] constitutional intent’. But see C.J. Bertrand (2001). It is worth pointing out that, in the first days of broadcasting, radio was seen as one of the remedies against the strength of the ‘co-ordinated industrial undertakings’ which already in those times controlled the press: H.W. Steed (1938, p. 104). The view is widely shared by liberal thinkers concerned with upsurge of twentieth century dictatorship: see one of the most prominent Italian anti-fascist exiles Gaetano Salvemini in the 1935 conference on ‘What is freedom?’ held in Philadelphia, and now re-published (Salvemini, 2007, p. 82) with a selection of other essays Sulla democrazia. 42 See the data provided by B.M. Compaine and D. Gomery (2000, pp. 489ff.) on the fact that in the United States the majority of mass communications enterprises are quoted on the stock exchange and thus represent private interests. On the other hand, one must keep in mind that the history of broadcasting in the United States is that of a brilliant victory of business over public interest: see R.W. McChesney (1994).

Freedom to Print or Freedom of the Press?

system whereby businesses and not individuals were sovereign and thus it was businesses that, in accordance with fixed rules, competed in the market as well as the government of a country.43 This, however, can hardly be said to accord with the political theories that inspire western democracies.44 We may aptly draw a parallel between organs of information and political parties, as a large measure of organisational freedom, a low level of external control and a decisive role in political choices are features common to both. Although this parallel has applied with particular intensity throughout the nineteenth and twentieth centuries,45 there remains a crucial difference between them: in a political system with universal suffrage a political party – any party – is held to account electorally. If it fails this test and fails it repeatedly, it is doomed to oblivion or at best marginalisation. There are, admittedly, political/electoral systems that reward minority parties with political power disproportionate to their share of the vote, but nonetheless, these parties too must periodically submit to the judgement of the electorate. One may legitimately doubt whether offering a product (a newspaper) for sale in kiosks and newsagents’ amounts to an equivalent in terms of public accountability. The possible reasons for buying a newspaper (or tuning in to a radio or TV news programme) are many and various and not necessarily tied to its political ‘line’, but rather to local factors, the level of interest in its features, or family tradition. Paradoxically, one could say that in a democracy the effective power of the mass communications media might be all the more anti-democratic for being controlled by a small group of players not chosen by the people, nor subject to any substantial public control over their operations.46 A superficial examination of the historical roots of the theory of powers, their legitimation and how they are balanced, makes it clear that through the centuries there has been a confrontation with defacto or selfproclaimed power and a struggle to bring it within the ambit of rules and counterweights.47

43 I.

Cram (2006, p. 212) correctly points out that nowadays freedom of expression is ‘more frequently claimed by multinational corporations’, but fails to draw the consequences with regards to media corporations. 44 This point has been well illustrated, in particular connection with the globalisation process in the media industries, by G. Murdoch (2003, pp. 326, 338). 45 Cf. J. Seaton (1998, pp. 117ff.). 46 ‘The media then may become a seat of extra-constitutional power instead of enhancing democratic government’ (Gibbons, 1998, p. 38). This applies with all the more force to multinational companies: see Keane (1991, pp. 135ff.). 47 For the press, the history is quite different: see J. Curran (2000, p. 35).

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Freedom to Print or Freedom of the Press?

Moreover, it is also clear that the demand for freedom of expression has been instrumental, in the proper sense of that term, in these struggles, that is, that it has been used to augment power.48

1.7. The myth of public opinion Without stressing constitutional principles (no country institutionalises press power to this extent), one of the most common arguments is that its defacto power lies in its role of expressing ‘public opinion’. Precisely because this thesis has been advanced for so long and with such conviction,49 it can appear axiomatic, but in fact hardly stands up to rational scrutiny, as the following points illustrate. (a) If by ‘public opinion’ is meant the judgement of a significant number of citizens interested in public matters, it needs to be explained why the press should be required to express and represent this ‘opinion’. Assertions to this effect are not in general backed up by any scientific or in any event procedural assessment.50 On the one hand, the media are not noted for carrying out surveys of public opinion (at any rate not properly conducted ones) before pronouncing on behalf of ‘public opinion’; on the other, it is at the very least debatable whether the mass communications media express public opinion. It is rather the case that the so-called public opinion is a reflection of what the media depict as the opinion of the public.51

48 To

borrow a felicitous dictum, ‘Freedom of the press is guaranteed only to those who own one’ (A.J. Liebling, 1964, p. 30). To find out who the ‘owners’ are, refer to the compendious data (for the United States) in Compaine and Gomery (2000). 49 The venerable origins of the link between the press and public opinion can be traced to B. Constant who, in his Cours de politique constitutionelle (1837, p. 163), writes, ‘Il est donc essentiel pour le gouvernement qu’on puisse créer dans toutes les parties de la France une opinion juste, forte mais les journaux seuls la créent’ (‘It is thus essential for the government that one is able to create in every part of France a fair and robust public opinion, but only the newspapers can achieve this’). For a twentieth century restatement of the theme, see W. Lippman (1922). Curran and Seaton (1997), in Power without Responsibility, pp. 8ff., demonstrate the strongly ideological reading of the history of the press which seeks to justify its power. 50 For the various theories of relations between the media and public opinion, see D.K. Perry (2002, pp. 191ff.), as well as G. Tedeschi (1996, pp. 359). 51 The point was already sketched by Walter Lippmann and is a starting point of contemporary social studies: see M. McCombs (2004, p. 3). According to G. Mazzoleni: ‘The public made up of citizens is in fact consigned to a very minor role, to the point where some have spoken of the citizen as a spectator rather than a participant in political communication’ (1998, p. 49).

Freedom to Print or Freedom of the Press?

(b) Historically – above all in Europe, because for so long there were no private TV and radio broadcasters – the ‘public opinion’ theory was propounded by those who published or worked on daily newspapers.52 These are read by only a modest percentage of citizens and those that do read them do so for very different reasons: some are interested in news items, others only read the lifestyle or sports pages. We beg leave to doubt that this minority of (regular, occasional, analytical, superficial?) readers of daily newspapers can be co-opted to represent the whole community; this is even without taking into account the fact that in general not all newspapers are included in this formulation, but a minority with a large nationwide circulation, alleged for this reason to be the most representative. (c) The ‘public opinion’ theory often amounts to a distortion, or worse, a sub-version of the normal mechanisms of representation and decision-making in a democratic society.53 It is not, of course, supposed that miraculous powers are exercised at election time; nevertheless, elections are an instrument – a very rich and nuanced one, given the variety of levels, national, regional, local and, in Europe, supranational, at which elections and referenda are held – that periodically allows an accounting for positions taken between electors and those they elect. In the absence of any substantive or procedural regulation whatever, it is beyond comprehension that an editorial – expressing a respectable but nonetheless individual opinion – should carry greater weight than the will of thousands of citizens expressed in a rigorously controlled and verified exercise.54 (d) The ‘public opinion’ theory, in privileging opinions not attributable to a concrete source and disseminated to an extent unrelated to how widely held they might be, amounts also to a glaring and irremediable contradiction of the process of increasing the accountability of those who take public decisions. According to this theory, the mass communications media voice the demands, requests and opinions of the community and thereby play a valuable role.55 But such

52 ‘The theory was produced to justify those who created the press and whose interest it

legally served’ (Curran and Seaton, 1997, p. 1.) Prior to this, J.S. Mill: ‘Public opinion means, at the best, some people’s opinion of what is good or bad for other people, while very often, it does not even mean that’. (1991, p. 93.) 53 G. Mazzoleni (1998), in La communicazione politica, speaks of ‘the dangerous implications for orthodoxy of the democratic theory’ (p. 325). 54 This point is developed by Curran and Seaton (1997, pp. 287ff.), where they survey the various ideological approaches to this theme including the concept that ‘the liberal theory of the press is based on a myth’. See also G. Boyce (1976, p. 27). 55 This thesis is propounded not only in liberal political thought but also by K. Marx (1974).

21

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an assertion, like Peter the Hermit’s ‘God wills it’ with which the crusades were launched, serves clearly to undermine accountability, morally more than legally. Public opinion wants the death penalty, public opinion wants to ban some sexual practices, public opinion cries ‘Scandal!’ – it is not fortuitous that no one considered taking legal action against those organs of the press whose rhetoric helped push Europe first into the Great War and then into the political suicide of appeasing Nazi Germany.56 (e) Behind the ‘public opinion’ theory is a game of mirrors57 which feeds and is magnified by a narcissistic process: because public opinion is substantially a media creation,58 the media nurture it, flatter it, stir it up, treat it as their bodyguard, their shock troops, keeper of the sacred flame. Raising an altar to public opinion – which does not exist – is an act of self-deification, in speaking of it the press refers to itself59 in a process that anthropologists would know how to explain.60 (f) This does not mean, of course, that the mass communications media exercise no power, but it shows how they exaggerate the extent of it and that its theoretical, and legal, basis is flimsy in the extreme.61 It is founded essentially on a belief which appears to be in direct contrast with the other principles underpinning western systems and in particular with a correct interpretation of freedom of expression.

56 On

this point see the illuminating work by R. Cockett (1989). a typical example, see D.A. Yalof and K. Dautrich (2002). 58 Cf. V. Price (1992, p. 116), according to whom fundamentally, public opinion remains a concept linked to communication; and J. Bourdon (2000, p. 125). 59 And finds scholars who substantiate the claim: H. Thorgeirsdottir (2005, p. 151: ‘Public opinion,as such, is inconceivable without the media’s input’). Setting aside the role of the Internet which will be discussed in Chapters 9 and 10, the statement is, as such, fallacious: it is sufficient to consider the ways ‘public opinion’ is formed in small communities, not only townships but also social and business communities. The scientific fallaciousness of the statement is well expressed by B. Hennessy (1985, pp. 249ff.: ‘ Their [the media’s] influence is, in most cases, less than overwhelming, never monolithic, and often inconsequential’). 60 Regarding the demands of operators not to be subject to controls, R.H. Coase points out (1974, p. 384), that it is a matter of protection of special interests and self-esteem. 61 Cf. Lichtenberg (1990b, p. 128): ‘The press appears to be claiming special rights not possessed by the rest of us, and these require special justification’. 57 For

Chapter 2: Broadcasting

Expression of ideas is, or ought to be, free whatever means are used, and the means are infinite: burning or waving a flag, placing flowers at a certain spot, whistling a tune, dressing in a particular way, different ways of using one’s face, head or body, moving or reaching out, gestures or sounds of approval or disapproval. It has been shown, however, that, where expression through the media is concerned, the means are anything but irrelevant, and require a body of specific rules. When it comes to commercial forms of editorial activity, the welter of regulation is all the more pervasive. The illusory nature of any purportedly general applicability of freedom of expression is nowhere better illustrated than by radio and television, which are subject to a regime almost wholly constrained by protection of interests, actual and asserted.62

2.1. Control over broadcasting media The history of television is marked by the fact that, since its early years, public powers have not failed to appreciate the medium’s extraordinary potential. One can discern a process analogous to that which followed the invention of the printing press.63 Although the slowness with which 62 Significantly,

the scholar whose work informs the dominant current views in Italy on the subject, P. Barile, having declared the application of Article 21 of the Italian Constitution on the broadcasting media to be a ‘firm’ principle (1975, p. 44), was unable to furnish a single justification for the state monopoly over TV and radio then in force (ibid., pp. 67ff.) This is clearly not through any lack of ingenuity, but rather intellectual honesty, given the irreconcilability of the ‘firm’ principle and its concrete application. Neither is this contradiction overlooked in the more markedly ‘liberal’ work of S. Fois (1957, pp. 244f.), which sets out as criteria for regulation of the media, ‘the power of suggestion’, ‘whether the medium will be used by people in general, or else by a necessarily restricted number of individuals’, ‘the different levels of ‘danger’ inherent in each medium’ and ‘the different political ‘functionalities’ of each medium’. See also the tangle of contradictions exposed by V. Angiolini (2000, pp. 25ff.). 63 Cf. E. Noam (1991, pp. 67ff.). For a historical reconstruction of the ideas behind and practices of press censorship, see M. Dury (1995, especially pp. 233ff.).

24

Broadcasting

printing came under rigid control – who could operate a press, and what could be printed – was due to the still embryonic organisation of modern states, their early twentieth-century successors lost no time in regulating another economic activity in the public sphere. This is more easily done in the still primitive state of broadcasting which requires large, highly visible transmitting and reception apparatus installed in small numbers and hence more readily identifiable. The striking aspect of this rapid process of regulation is that even in countries where freedom of expression is, in a broad sense, a constitutional right, there has not been an overwhelming preoccupation with the limitations such regulation entails. On the one hand, this is justified because the development of the new technologies and what they imply has not been fully understood. On the other, in the many liberal countries where the press has been subject to controls, it does not appear abnormal that radio should also be.64 It might also be emphasised that, ab initio, regulation of radio, and hence later of television, was not confined to the activity of broadcasting tout court, but above all to the content of what was broadcast. And here we encounter a significant distinction between technologies that share a great deal in terms of means of diffusion: the controls exercised over telecommunications concern service and to that extent the content of the message is largely neglected. In broadcasting the message attracts more attention than the medium. Yet both use Hertzian waves to send and receive. Such control serves not only to justify the state monopoly of the medium which obtains in nearly every liberal democratic regime (with the exception of the USA65 ), but also to distinguish this particular medium from all others. What reasons might justify such blatant restriction on a medium of free expression?66 The first is purportedly technical: the limited availability of transmission frequencies. Since there are not enough of these to satisfy an unrestricted demand, it is reasonable for the state exclusively to allocate them on everyone’s behalf. One is immediately struck by how ‘scientific’ – supposedly objective and irrefutable – arguments are used to limit what

64 This

phenomenon is examined in depth by R. Craufurd Smith (1997, pp. 28ff.). See also L. Hitchens (2006, pp. 46ss.). 65 But on this point see the extensive critique – which is widely followed in various points of the present volume – of one of the fathers of information science, I. De Sola Pool (1983), especially chapters III and VI. See also Lichtenberg’s introduction in Lichtenberg (1990a, pp. 4f.), and D. Kelley and R. Donway (1990, p. 66). Although the legal framework is different it has been quite clear, from the outstart, that broadcasting could be limited in a way the press never has been: H.L. Zuckman et al. (1999 pp. 1ff.); L.A. Powe (1987). 66 For a thorough and comparative examination of these arguments, see E. Barendt (1993, pp. 4ff.).

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ought to be a fundamental right. The consequences drawn from such arguments are similarly held to be solidly based and unavoidable. The stratagem behind this argument is, of course, one widely resorted to in other contexts and has been extensively written about. It has not often been used in connection with political freedoms, however. The ‘lack of frequencies’ argument is conspicuous by its ubiquity: originating in the USA,67 it quickly took hold in Europe and other parts of the world. It was several decades before it was questioned to the point of making clear that the notion of scarcity was based in economics and was not scientific in the usual sense of the word. It depends on topography (specifically, orography), population density, consumption of radio-electric services and the presence or absence of other, alternative means of transmission. What is scarce from one perspective may be abundant from another. The amount of available frequency ‘space’ is only one of the factors on which an evaluation of ‘scarcity’ should be based. Moreover, once this has been ascertained, case by case, the solution adopted might be a regime of rules designed to ensure a rational and efficient allocation of resources, and not, as has been affirmed in Europe for over half a century, a state monopoly.68 The artifice behind the argument – reiterated in unison by legislatures, constitutional courts, judges and legal theorists – becomes obvious when one considers that there are many other ‘scarce’ goods, not least land, but that no one in a liberal democratic society concludes that these should be reserved to the state.69 The ‘technical’ argument has always been associated with that of the pervasiveness of the medium: it can be accessed by anyone. The cost of receiving equipment is modest in relation to its utility and durability. From the outset, words and later images have made a profound impression on the public. An irresolvable contradiction in this argument becomes immediately apparent, at least within the terms of the currently accepted status of freedom of expression as a fundamental and inalienable right. A medium is to be controlled, constrained and monopolised precisely because it is potentially so powerful.70 These are the very reasons for which absolutist states from the sixteenth to the nineteenth centuries – and totalitarian states in all periods – have sought to control the press. The facts that radio and television 67 Reference

can be made to the numerous citations in V. Zeno-Zencovich (2002). E. Noam (1991, p. 43). 69 Moreover, in those countries where multiple use has been permitted, control has been justified on the grounds that transmitters are using a public good (the ‘ether’, or airwaves) for free. Where licences are charged for, the argument clearly no longer applies. See S. Holmes (1990, p. 44). 70 Cf. Lichtenberg (1990a, pp. 8ff.). 68 Cf.

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‘reach into every home’, that it is a major form of entertainment and that transmission speeds are so fast ought to be seen as positives rather than as a dangerous, if not actually harmful, state of affairs.71 Arguments that justify the regulation of radio and television obviously do exist. But these must be incorporated into a different framework of principle, as will be explained below. Modern states, for which the well-being of all citizens is a primary objective, are strongly paternalist, if not all to the same degree. Health, security, environment, property and education are just some of the prominent values that underpin the intense involvement of public authorities. In the case of radio and television, concerns centre on psychological and mental health and personal intellectual development, deemed in need of protection from what is broadcast. This is in stark contrast with the historical foundations of freedom of expression, which demanded the maximum dissemination of competing ideas. The conclusion to be drawn from the experience of radio and television over nearly a century is that expression of ideas depends on the medium being used, on who is using it and on who is being addressed. In other words, there is no single freedom, but various gradated forms of it, in a broadly speaking political dispensation with plenty of scope for discretionary and questionable application.

2.2. Pluralism A new justification for strict control of radio and television has been increasingly affirmed of late, to the point that it now ranks as a fundamental principle in the regulatory regime. This justification is ‘pluralism’.72 Before we begin, it is worth noting that this concept, as applied to freedom of expression, has been borrowed from the fields of political science and philosophy, where it originated and has been extensively developed. ‘Pluralism’, in its various guises – political, religious, juridical – arose out of the two World Wars with the declared intention of reversing the

71 Cf.

D. McQuail (2000, p. 417): ‘The underlying premise was that the mass media were some kind of ‘problem’ for the rest of society’. 72 This thesis seems to have been accepted throughout Europe and beyond. See the illustration by M. Di Filippo (2000, pp. 37ff.); A. Lamberti (1997, pp. 99ff.). For France, see G. Drouot (1998, pp. 95ff.). For Spain, see L. Escobar De La Serna (2001, pp. 475ff.). For the UK and Australia, see L. Hitchens (2006, p. 49: ‘ One has to accept the historical legacy and the asymmetrical approach to regulation [between press and tv] and clarify instead a normative perspective for the media centred on pluralism and diversity’).

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statist tendency even in the liberal democracies whereby the institutions mediating between the individual and the state were weakened with the concomitant concentration of decision-making power in the hands of the latter. Pluralism as a political theory displays the fundamental role played in a functioning democracy by associations and interest groups representing cultural tendencies and different collective viewpoints in a society. These diverse components, and their organisations, are indispensable and constructive in that they combat the individual’s sense of isolation and impotence, demonstrate the flexibility and dynamism of the body politic and counteract the creeping expansionism of the state. It is implicit that pluralism theory is founded on – and does not merely envisage – the existence of a diversity of competing opinions and that the idea of any state-authorised truth is incompatible with this. It does not automatically follow, however, that regulation of the media is necessary to enable these opinions to be expressed, or more precisely, that this is an inevitable outcome, taking one inevitable form. This is primarily for reasons of internal consistency: if pluralism is going to set up mediating institutions in an exemplary role of counterweight to state power it is contradictory to then insist that the same state should intervene to determine the amount of weight the former should have.73 But there is a further issue that the current version of mass-media pluralism neglects. On the one hand, it is important that the diverse points of view in society need to be voiced in such a way that no shade of opinion is denied an outlet and all have a reasonable chance of being widely heard. It is a different matter to state that such an outcome can and should be achieved through the existence of a choice of mass communications enterprises.74 While these businesses – or representative groupings of them – are collectively one of the mediating institutions that play such an important role in society, it is a questionable proposition that each one of them is, per se, a mediating institution and hence the more of them there are, the more pluralism is assured. This view does not stand up to cursory critical examination: a business is, and rightly so, an entity devoted to creating benefits for its owners, shareholders, employees and users of its products. There may well be exterior gains to be had from a multiplicity of such enterprises, but this can in no way be seen as a raison d’être of any one business. Rules on competition are drawn so as to avoid the abuses of restrictive agreements and other cartel-like behaviour that can

73 On

the resulting political interference with programming, see T. Gibbons (1998, pp. 52f.). 74 This opinion is, however, widely held: see V. Porter and S. Hasselbach (1991, pp. 4ff.).

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arise from concentrations of market power in the mass communications sector just as in any other. To attribute other, non-economic functions (namely pluralism) to these rules is an undesirable side effect of the view of mass communications media as ‘powers’.75 To state the situation paradoxically, the view that pluralism of ideas is assured by a plurality of media enterprises appears to be about as well founded as the view that the environment is best safeguarded by a plurality of companies producing cars and detergents.76 The rationale for this plurality is and must remain economic (a sphere already sufficiently laden with ideological choices) if only to avoid providing arguments for ever-stricter regulation in other sectors. So the equation of plurality of enterprises with political pluralism is intrinsically fragile from a theoretical viewpoint. Experience of history shows that political pluralism can be assured, even guaranteed, in bipolar political systems with mechanisms for election through a majority vote. And since the highest levels of freedom can be ensured even in contests where the number of contenders is reduced to an absolute minimum, how can it be maintained that the imposition on the mass media of mechanisms that can broadly be described as proportional follows directly from pluralism theory?77 Thus the discussion should be turned inside out. An equal opportunity for intermediate bodies to make their voices heard can be accomplished in various ways (facilitations in dissemination, access to communications slots, or indeed economic subsidies).78 If and when somebody considers 75 This

point is clearly made by Gibbons (1998, p. 48), who shows that if the media’s role is to supply a product, the public is best served by allowing market rules to operate; if, however, the media are expected to promote other values as well, a different kind of regime is required to ensure this function is fulfilled. This view is shared by L. Hitchens (2006, p. 60f.) who appears, however, to approve the idea that the media should have ‘regulatory powers’. 76 D. McQuail (1992, p. 124), points out that it is very difficult to demonstrate a link between the effects of the concentration of providers in the media and the quality of service on offer. This is even more baldly stated by D. McQuail and K. Siune (1998, p. 56): ‘Competition does not automatically mean content diversity. There is even evidence that the contrary is true as regards quality. So-called competitive newspapers and television stations are often re-writes and re-broadcasts of the same material’. And further: ‘Competition law does not necessarily correspond directly with quality and content diversity’ (ibid., p. 205). See also D. Gomery (2000, pp. 529f.) on regulations to promote a second daily newspaper in many cities, and the surrounding debate. See also K. Jakubowicz (1999, pp. 169 and 178f.). 77 For a full treatment of the ‘how few is too few’? theme regarding the media, see B.M. Compaine (2000, pp. 547ff.), where he states on the problem of ‘amount of pluralism’: ‘There are no known indexes, curves or standards for the measurement of competition. It tends to be on an ‘I’ll know it when I see it’ basis. 78 These have been proposed and effected even in the non-interventionist American system. See O.M. Fiss (1990, p. 146).

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that the ideas expressed by such bodies represent a business opportunity, he will take the commercial risk involved.79 It is hard to understand why anyone should be obliged to utter views he does not hold and which few are interested in, or why anyone should be made to desist from diffusing more interesting or lucrative points of view to satisfy others’ demands for access and visibility.80 So if we look at the ‘market place of ideas’, the rules governing it should not be dissimilar to those applying to other markets. But it is thanks to an intrusive paternalism that the consumer of ideas is treated as different from the consumer of any material product, who is regarded as capable of exercising an informed choice while the former would be inexorably prey to a single idea if the visible hand of the interventionist state were not there to look out for his intellectual well-being.81 So turning from the field of economics to the real terrain of pluralism theory, namely intermediate institutions, one may legitimately ask if all ideas really deserve to be put on an equal footing, to be promoted equally, or whether it would not be better to let citizens decide which they prefer, through meetings, associations and voting, with the minimum of outside interference.82 In conclusion, the current application of the pluralism doctrine in the mass communications sector confuses categories and indulges the narcissism of those who run it. An effective competition regime would be much more consistent with the system as a whole and would better reflect the marginal role that expression of views plays in the activities of media businesses. The above considerations are firmly based on a preference for certain political theories, but this is unavoidable if we are to show how the ‘media pluralism’ theory is the result of an ideological distortion (the powerful media moulding the weak individual consciousness83 ) which 79 Cf.

E. Noam (2002, p. 48): ‘A gradual differentiation rather than homogeneity is the rational strategy’. 80 Cf. Gibbons (1998, p. 33); Kelley and Donway (1990, p. 81); T. Congdon (1995, pp. 11ff., especially p. 15). The European Commission expressed itself in this vein – pluralism with a limiting of the freedom of expression for others – in its Green Paper on pluralism and media concentration (COM (92) 480 def), which naturally provoked criticism from mainstream Italian opinion (see Il Diritto dell’Informazione e dell’Informatica, 1995, p. 157; R. Mazza, 2002, p. 48.) 81 Opinions diverge on this point: for a critical view see E. Barendt (1998, pp. 43 ff.). For the contrary view see J. Seaton (1998, p. 124). 82 Cf. Kelley and Donway (1990, p. 88), who above all observe that ‘Diversity is an instrumental good, not an end in itself’. 83 This is the ideological background of statements requiring state intervention ‘against distorting opinion-formation’ because ‘minds of receivers are of crucial importance in the democratic process’ (Thorgeirsdottir, 2005, p. 157).

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it is legitimate to call into question on the grounds of coherence and plausibility.84

2.3. Broadcasting as an entertainment industry We have outlined above the reasons why it appears inappropriate to invoke freedom of expression in connection with the communications enterprises.85 It should properly be attributed to individuals so that they can express their personalities to the full, not to intermediate institutions whose primary aim is the legitimate and almost onerous one of pursuing economic utility. Mass communications enterprises are no more the proprietors of freedom of expression than transport companies are of freedom of movement.86 This conclusion is reinforced when we look at the broadcast product: with rare exceptions, normally channels that specialise in news programmes, it offers entertainment to the public in the form of music, films, comedy, documentaries, sport and all the genres that radio and television have created and developed over time.87 There may well be an element of expression of thoughts within these spectacles, such as political ideas, artistic tendencies, preferences towards some sports rather than others, but it is a dubious proposition to ascribe these to the broadcaster, who has merely bought the entertainment product on the market. And just as 84 This

idea is well expressed in the introduction to Di Filippo (2000, p. 19). On the flimsiness of the definition of the concept of ‘pluralism’ in judgements of the European Court of Human Rights regarding article 10 of the European Charter of Human Rights, see M. Oetheimer (2001, p. 81). 85 The opposing view is dominant. For Italy, see Barile (1975, p. 44): ‘We hold firmly to the view that the rules governing the means of diffusing ideas is always constitutionally important and the rules are therefore to be applied in the light of article 21 of the Constitution’, and the school of thought this author represents. See also R. Zaccaria (1996, p. 15): ‘The principal constitutional foundation for radio and television broadcasting activity is certainly to be found in Article 21’, an affirmation that appears symptomatic of the prevailing view that it is the activity of enterprises that is to be protected, and not the expression of ideas through that particular medium. 86 F. Jongen (1994, p. 31) shows how enterprises invoke freedom of expression to serve their purposes. But the opposite view has strong roots. See Lamberti (1997, p. 185): ‘Freedom of televised expression as a fundamental right’. 87 Cf. S. Moores (1993, pp. 203ff.). Lawyers tend to downplay such aspect: although L. Hitchens (2006, pp. 31ss.) points out the lack of coherence in broadcasting regulation, she opens the chapter on the ‘policy rationales’ with the following disclaimer: ‘Notwithstanding their entertainment role, particularly obvious in the case of television and radio, the media have an important function providing information’, and so on. One would think that the fact that the daily press has mainly an informational role, while television has mainly an entertainment role, should bring a more relaxed policy towards the latter.

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it would be difficult to maintain that a cinema manager is exercising freedom of expression in relation to the film that is being projected, so the involvement of the broadcasting business merely contributes in a technical, instrumental way by the re-diffusion of programmes which owe their intellectual origins to others. In pointing out the role of entertainment in radio and TV broadcasting, there is no intention to belittle or disdain.88 Human beings have always needed games and spectacles, which often reflect our true nature as revealed in ‘serious’ pursuits, such as work and family.89 But the difference between freedom to enjoy spectacles in whatever expressive form they take and the freedom of expression tout court can be readily understood. The same kinds of limit are repeatedly set: violence, obscenity, offensive references to sex, race or religious belief. They are more stringent than those imposed on other media because anyone, including minors, with access to a receiver could be exposed. Can such intrusive intervention be justified? On one hand, if the enterprise is primarily a profit-making concern, the balance of interests, individual and proprietary versus collective and non-proprietorial, does not come down in its favour. On the other, as has been shown, it is not a question of the enterprise’s ‘own’ thought, but of products acquired on the market, the ideas behind which also originated elsewhere. This does not imply, however, that a broadcasting business has no position it can defend, or that such position can be lightly dismissed. Precisely because it is a broadcasting medium it plays a primary role in the exercise of others’ freedom. This role is indirect and supportive, analogous to although more extensive than that of a newsagent, theatre manager or publisher of books, since any control over public access to their wares results in the free circulation of ideas being restricted. The point is therefore to make explicit – albeit in a roundabout way – that which the prevailing theory passes over in silence, namely that the current broadcasting regime effectively imposes severe limits on the freedom of expression of (others’) ideas. But the proper justification for this is not (as the rationale for the current regime would have us suppose90 ) because the media are powerful, too powerful;91 rather it is because the communications media are not the instigators of such 88 Cf.

Congdon (1995, p. 18). R. Silverstone (1999, pp. 101ff.). 90 According to D. McQuail (1997, p. 148), the available data discredit the notion of the public as a ‘sitting target’ for media influence and manipulation. 91 ‘From the point of view of constitutional principle, it is not easy to justify the imposition of greater limits on the medium on the ground that it is more influential than the written word’ (E. Barendt, 1993, p. 7). 89 Cf.

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expression, merely a conduit to be subject to controls as a function of the exercise of individual freedom of expression.92

2.4. Broadcasting and public service Relinquishing the state broadcasting monopoly has led to only a partial liberalisation (and hence liberation) of the sector. Alongside the persistent thesis of scarce frequencies and the dominant theory of pluralism there is a concept, peculiar to broadcasting and not encountered in respect of other media: that of public service. By this is meant that the activity in question constitutes a public service which must then be entrusted to a single body, usually state-controlled, and sometimes also that when it is rendered by private bodies it must be considered a public service.93 This conception, albeit well established, is singular in the sense that there is no precedent for it in the many episodes of control historically imposed on the press. In these, either freedom of expression was suppressed, or else, once preliminary formalities were authorised or carried out, public duties were, and are, objectively modest. In any case, it does not appear to be arguable, in the current state of the law, that the daily and periodical press amount to a public service.94 The reason is that such a concept only emerges much later. In any case, on the one hand, advocates of the broad theory of freedom of expression maintained – and still do – that this shields the press from any imposition of such a function,95 while the proponents of a more economics-based vision do not recognise in publishing activity any of the characteristics of public service. Why then is there such a glaring disparity in the treatment and conception of TV and radio broadcasting? How can it be that the same news, when published in printed media, is merely an information service, whereas when broadcast on television or radio it suddenly becomes a public service? The most plausible reply is that the notion of public service, far from being solidly based and strongly influenced as it is by pre-legal

92 In

this regard see J. Cremades (1995, pp. 309ff.). the – English – origins of the concept of public service broadcasting, see P. Scannell (2003, p. 212). See also, for an updated summary of the arguments, C. Shaw (1999, pp. 154ff.). 94 For a theorisation of this, see U. De Siervo (1990, p. 627), referring to the ‘nature of the objective public service which the press fulfils, precisely because it aims to satisfy a public demand that cannot be ignored for a constant flow of news and cultural information’. And in not dissimilar terms, H. Thorgeirsdottir (2005, pp. 135ff.). 95 ‘There is no convincing explanation for the regulation of the broadcasting media in contrast with the liberal regime enjoyed by the press’ (E. Barendt, 1993, p. 9). 93 For

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concepts,96 has been bent and adapted to the need to justify the control of broadcasting media.97 This amounts in many instances to an expedient designed to shore up indefensible media monopolies, sustained by the ideas, on which the latter were based, that the public in general should have access, wherever they might be, to broadcast information and entertainment at reasonable cost. However, the logic of public service is justified if one adds another element: that is, if the service is not already available on the market. One example will suffice to make the point clear. No one will deny that bread is an essential product for every citizen, but bakeries do not carry out a public service. What typical examples of public services – it is no coincidence that nearly fall into the category of so-called network services – have in common is an expensive infrastructure that is difficult to duplicate (water, electric and rail networks) and with quite high operating costs leading either to high tariffs (and hence the exclusion of many from the service) or to discriminatory pricing, based on where the user is situated, or else an absence of provision – perhaps of postal, telephone or transport services – in unremunerative areas. This does not appear to be the case with radio and TV broadcasting services, for which network coverage does not seem to entail excessive cost, and is in fact easy to duplicate. If private concerns can provide information and entertainment services, and actually do so, at no cost other than exposure to advertising to the user (who is thus relieved of paying the licence fee levied by a state-controlled provider), there is no good reason why the concept of public service should be extended to radio and TV broadcasting. We are not dealing with a ‘market failure’ situation justifying public intervention;98 indeed many entrepreneurs would be ready to break into the market were it not for the ‘public service’ occupying the frequencies and the audience and advertising revenues. And even if the notion of public service broadcasting were restricted to a single state undertaking, such a substantial intervention would still distort the sector. In conclusion, experience, common throughout

96 To put it in a different way, commercial broadcasting regulation is tailored according

to the obligations set upon public broadcasters (for a never-ending list, see M.E. Price and M. Raboy (2003). For the development of the various theories in Italy and Europe, see, among many others, N. Rangone (1999), V. De Falco (2003). 97 For a critique of the applicability of ideas of ‘public service’ to television, see V. Crisafulli (1964, p. 295), S. Fois (1980, pp. 59ff.), L. Vespignani (1998, pp. 228f.), and S. Sanchez Gonzales (1996, pp. 33ff.). For a further examination in a EU law context see F. Cardarelli (2006, p. 157). 98 see D. Sawers (1996, p. 83: ‘Public service broadcasting is an idea that has had its day’, at p. 105), A. Bavasso (2003, pp. 23ff.).

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Europe,99 has shown what a dichotomy exists between the declaration of freedom of expression, which should embrace everyone and all kinds of utterance, and regulation as it exists in practice, bending in the interests of political expediency that which ought to be a fundamental right and the cornerstone of any regulatory regime.

2.5. Television as a ‘bad teacher’100 The current regulation of television is based on an attitude (dominant in Europe, but widespread also in the USA) of profound suspicion if not prejudice concerning what is broadcast. Television programmes are held to have tangible negative effects on the development of minors, and to spread socially dangerous models of behaviour followed even by adults. The least damning suggestion is that they influence electors’ choices. Before dealing with the merits of this question, it is convenient here to show how such widely accepted views irreconcilably conflict with everyday interpretations of the freedom of expression.101 Banning the publication of Lady Chatterley’s Lover on the grounds that it encourages the lower orders to take advantage of well-bred ladies’ weaknesses of the flesh; or of the Communist Party Manifesto on account of its evident subversive outcomes; or the posting of Martin Luther’s 95 theses as harbingers of schism and religious wars: all exemplify attitudes towards the utterance of views judged to have extremely negative consequences, attitudes which call into question the very existence of freedom of expression. As already stated, we are dealing with a freedom that is intrinsically adversarial, which is not invoked to propound or propagate any ‘official’ line of argument. We thus face an obvious and irreconcilable contradiction: either regulation of television damages freedom of expression by introducing

99 Significantly,

the second paragraph of article 10 of the European Convention on Human Rights specifically authorises states to impose licensing requirements on TV and cinema enterprises. The result – see the European Court of Human Rights decision in for example X and the Association of Z v. United Kingdom (1971) 38 Collected Decisions 86 (decision of 12 July 1971) – is formally incontestable, but this leads in practice to the recognition of public authority’s absolute discretion in the use of the medium. On this point see R. Pinto (1984, pp. 211ff.). 100 The reference is to a long interview to K.R. Popper (2002), which immediately invites the question, ‘And why is television supposed to be a ‘teacher’?’. It should be noted that the interview has not been translated into English, nor have I found other works by the prominent philosopher which express the same view. 101 For a similar approach see F. Schauer (1982, pp. 156ff.).

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unacceptable discrimination between the forms the latter can take102 (so that some words and images may be used in books but not on film, in comics on the printed page but not in animated form, in illustrated magazines but not in soap operas, and so on and so forth), or else it is the freedom of expression that is a mere rootless formulation of the practical consequences of regulation. An attempt must be made to bridge this hiatus. In doing so, we should bear in mind that we are dealing with subject matter susceptible – more so than others – to value judgements of non-legal scope, and moreover that legal constructions in this field, precisely because they are theoretical, are incomplete and to claim otherwise leads to confusion instead of any beneficial outcome where they are to be assessed on practical rather than logical grounds. Turning to a consideration of how things ought to be, the current TV regime is damaging to freedom of expression and should be modified by progressively eliminating the constraints that bind the medium. In particular, limits on programme content, such as obligations to broadcast news, restrictions on what can be broadcast at certain times of day and quotas for programmes of national and EU origin, should be removed and replaced by schemes of self-regulation. Essentially what is required is the convergence of the TV regime with that for print media, so that the former acquires freedoms and opportunities that are accorded without demur to the latter. Such a course of action is less unrealistic than might be supposed if we take as our starting point the often overlooked fact (to which we shall return in the next section) that there are now so many forms of television – national, local, satellite, cable, pay TV – and for many of these it is far from clear why, aside from the technical differences relating to means of transmission, they should be subject to a regime substantially different from that applying to more traditional media.103 This last approach, moreover, does not eliminate the dissonance of regulation, but merely tones it down, recognising implicitly that it is the medium, with its particularities of dissemination and use, that should determine which limits are to be applied to it and which are not. A different point of view, outlined in earlier pages, is that radio and TV enterprises are not entitled to freedom of expression in their own right, but only indirectly, as this freedom is intended for flesh and blood persons and not artificial ones created for profit.

102 Cf.

Sanchez Gonzales (1996, p. 59). for example, D.I. Fisher (1998).

103 See,

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Thus there is no contradiction in arguing that these enterprises should not be allowed to transmit whatever they want, whenever they want, since such a right should yield to others considered to have priority. This surely helps finally to resolve the logical predicament set out above, but it also raises further questions: is it reasonable that economic freedom – for this is the territory into which we are moving – should be so tightly constrained, at least in comparison to other sectors of mass communications? So in putting broadcasting on a par with the publishing industry by ‘removing’ its alleged entitlement to freedom of expression we have not, however, resolved the problem of the basis of discrimination between the two. And it is here that we have to return to where we started: does television ‘do harm’? The affirmative reply that one may expect to hear from all sides raises a series of doubts which it is convenient to summarise here. (a) Does television ‘do harm’ tout court, or is this the effect of too much television? And how much television is too much? And if indeed it is a question of quantity consumed why should it be up to the State or the broadcasters to decide the maximum daily dose? In other words, if television is harmful in an absolute sense (although no one advances this view), then it would have to be banned without more ado. If, however, the problem is one of abuse, should it not be left to individuals to decide on limits, as they do with alcohol, sweet and fatty foods and cosmetics? And then, supposing an ideal form of television were achieved, would it not be just as harmful to watch too many hours of nature, theatre, wildlife and news programmes? Unless one wishes to argue by implication that the only ‘healthy’ television is the one that broadcasts boring programmes simply because one switches off the TV set.104 Again, too many comics or romantic novels may certainly have an alienating effect, but no one is suggesting that their contents should be controlled or a person’s intake of them should be rationed.105 (b) Television does harm. But can it do good? In other words, as with any social phenomenon, there are not only negative but also positive elements and these need to be compared and evaluated. Who is to say which is the ‘good’ part of television and which the ‘bad’? Does the adoption of restrictive measures have concrete results,

104 One could easily quote Marx (Groucho): ‘I find television very educating. Every time somebody turns on the set, I go into the other room and read a book’. 105 See McQuail (2000, p. 308: ‘ultimate impossibility of proving the intrinsic superiority of any particular taste preferences or demonstrating the harm caused by mass culture’).

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or are they merely striking postures? Is it possible to measure the consequences of intervention or can they only be inferred? Even if we allow the premise that ‘television does harm’, the answers to these questions are far from nugatory and call for serious thought. The most perplexing aspect, in short, is the tradition of legal rules fashioned out of conclusions derived from those most debatable of disciplines, psychology and sociology.106 (c) The main charge levelled against television is that it presents, repeatedly and obsessively even, models of socially dangerous behaviour, interfering with the development of minors and the decision-making processes of adults. But, without going into analytical detail, it is open to doubt whether television holds up a distorting mirror to society and to consciousness,107 or whether it is really a significant part of that society. It occupies, in other words, the place held in earlier centuries by literature and theatre, and later by cinema.108 There is certainly a progressive movement from the imaginary (what is read or heard repeated) towards the image (that which is seen). But in the end, this brings us to debate on freedom of expression and the choice of ideas one wishes to be exposed to: ‘licentious’ novels, ‘accursed’ poets, blasphemous and sacrilegious singers, films prohibited to the under-aged; and with our parents’ or authorities’ instructions or invitations not to read, watch or listen to such ‘filth’.109 We are confronted here with a peculiar aspect of western civilisation, which not only embraces all the horrors of humanity, but wishes also to represent them in real or imagined form, from the savage battle scenes of the Iliad through the Greek tragedies to science fiction and horror films. In questioning whether there is any sense in – or even if it is possible to – excise or constrain something so indissolubly part of our history, we are seeking refuge neither in nihilism (‘nothing can be done’) nor in relativism (‘everything done by man deserves equal attention and respect’), but are rather asking that, when freedoms regarded as fundamental are in issue,

106 For a useful summary of the myriad theories on the influence of television – often conflicting and none predominant – refer to the full account given in chapter VI of R. Silverstone (1994, pp. 225ff.), to M.L. De Fleur and S.J. Ball-Rokeach (1989, pp. 297ff.), and to chapter XVII of McQuail (2000, pp. 415ff.). See also C.R. Wright (1975, pp. 107ff.), and E.M. Perse (2001, passim, but especially the introductory chapter). 107 For a version as extreme and apocalyptic as its title suggests, see I. Ramonet (2001). 108 Cf. Silverstone (1999, pp. 61ff.). 109 Noam (1991, p. 58), shows in a timely manner how the negative attitude towards television so prevalent today was paralleled by similar attitudes towards motion pictures and radio in the periods when those media came to prominence.

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we take care not to allow certain theoretical positions to be passed off as axiomatic. So if a negative judgement on television leads to the proposal that its activities be subject to certain publicly sanctioned requirements, we are immediately faced with questions as to who should ensure they are met and issue ‘licences’ to TV operators, and as to why these requirements should apply to television and not to other comparable activities, such as cinema. But the prior question is how they can be compatible with an individual’s freedom to create works with a certain content and to have them disseminated through the medium of television.

2.6. Television and televisions In describing the ‘television is a bad teacher’ thesis as debatable, in the sense that it rests on very questionable foundations, we depend to a large extent on the fact that it is based on a model of television that is increasingly being superseded. In this model a single set of programmes is broadcast nationally at times of day designed to maximise viewing figures and hence advertising revenue.110 Although television of this kind continues to play a significant role, other models and other media, particularly the Internet, are making inroads. Special interest broadcasting, such as news, sport, cinema and music channels, closely identified with sectors where the user has growing freedom of choice (pay per view, video on demand) appear to be of particular importance in this regard. All of this has immediate consequences for the legal debate. Short of imagining an all-powerful legislature, with a will before which technology and economics bows in homage, it makes more sense in view of the inadequacy of a ‘one size fits all’ regime to envisage a patchwork of rules appropriate to the various kinds of broadcaster. From a theoretical point of view, one can conceive of a model in which the degree of regulation is inversely proportional to the amount of choice available to the user. As this choice increases, because of a greater number of channels, or because the user has technology at his disposal which provides more options within a broadcaster’s schedules, it seems to make less and less sense to make television obey different rules from traditional publishing.111 So if freedom (of the user) implies freedom of means employed, it is evident that the history of broadcasting in Europe has been one of a denial of freedom. This does not mean proposing a

110 There was already evidence of this tendency two decades ago: see R. Kuhn (1985, p. 13). 111 Cf. Gibbons (1998, p. 302).

Broadcasting

complete absence of regulation, but merely a regime that refrains from tainting television and the activity behind it with ideologically charged and mainly negative connotations and moreover from the irredeemably contradictory behaviour that eulogises freedom of expression (and of the ‘media’) at every turn while at the same time flagrantly denying it in practice.112 Technological progress thus deals a critical blow to the very notion of traditional television, of a single programme, transmitted through the airwaves and available to all at the same time. As soon as different means of transmission start to be used (typically cable, but also digital compression of signals sent through the airwaves) and reception equipment moves beyond the traditional TV set (typically computer screens, but also mobile telephones), what remains of ‘television’ and all the conceptual and legal apparatus that has grown up around it over the last half a century? Viewing is coming more and more to resemble access to a data bank of sounds and images whose content, duration and time and place of access are increasingly decided by the user in a manner not unlike choosing a book or magazine, renting a video or buying or downloading a piece of music.113 Once account is taken of these new forms of use, even where the ‘product’ in the abstract remains the same (although this is increasingly not the case either), the whole regulatory edifice built up around television shows itself to be without foundation, logically even more so than legally. Television’s true vocation emerges for what it is: the provision by enterprises of information, entertainment, cultural and other kinds of services. Describing TV viewers as consumers does not, however, prevent them from having a particular status within this category, distinct from consumers of other types of product.114 This has nothing (or very little) to do with expression of ideas except to the extent that it is categorically prohibited: child pornography, incitement to commit offences, intrinsically dangerous content. It has a lot to do with the business activity to which it is indissolubly linked, for better or worse, with neither special privileges nor additional burdens to bear.

112 The expression ‘surveilled freedom’ is used by A. Chimenti (2000), but the theme does not seem to be developed to the point of showing the contradictions produced by regulation. 113 In this regard see Noam (2002, p. 48). 114 See K. Fauro (2001), where (see especially the conclusions to the first part, p. 223) the consumer relationship is entirely bound up with the problems of political participation and representation and of subordinating regulation to public objectives such as ‘cohesion’ and ‘social identity’ (p. 455).

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2.7. TV broadcasting and political communication The main point of contradiction between declaring the freedom of expression to exist and its practical application is to be found in the wide ranging and intrusive regulatory regimes imposed throughout most of Europe on political communication via television.115 Their premises are consistent with the main lines of conventional argument outlined above: television is a particularly effective instrument of persuasion; it therefore has a major impact on voters’ choices; to preserve the freedom of the latter it is necessary to compromise that of television.116 This is usually done by controlling the manner and means whereby political positions can be transmitted and establishing the various political players’ access to the medium. It is striking how at the very point where TV and radio enterprises could express their own points of view, by stating a preference for one or other political opinion, they are prevented from doing so. ‘Everyone’ has the right to express an opinion, except broadcasters.117 The reply to such an objection is fairly straightforward: those who run the medium are in a privileged position that could easily be abused. In extreme cases either the owner of the broadcast media brokers political power, or else the would-be winner in politics first appropriates television.118 This spectre is far from unrealistic: in all democracies there have been complaints about the partiality that government political forces have imposed on the medium of television where and whenever they had the monopoly of provision. It is not easy to find a balance between two such thoroughly opposed positions.119 On the one hand merely diminishing the political influence of television is not sufficient to then give it an entirely free hand: in bipolar democracies even a small net effect on voting intentions can swing the result from one political grouping to the other.120 On the other hand, it

115 For a full comparison of different countries, see R. Gunther and A. Mughan (2000). Their results are synthesised at pp. 4ff. 116 The debatability of the premise and the ways in which it has been restated and modified is well illustrated by G. Mazzoleni (1998, pp. 255ff.); see also M.L. De Fleur and S.J. Ball-Rokeach (1989, p. 297): ‘It is not at all clear which of the competeing theories best explains the relationship between the mass media and the people who make up the societies in which they disseminate message. No single explanation predicts that relationsip fully’. And see the problematic conclusions of the full comparative study by Gunther and Mughan (2000, pp. 403f.). 117 Cf. Kelley and Donway (1990, pp. 76f.). 118 On some of the issues arising, see Holmes (1990, pp. 38ff.). 119 See the discussion on the thesis of ‘Money is speech’ developed by E. Barendt (1987, pp. 48ff.). 120 For a panorama of different positions on TV regulation during election campaigns see G. Druot (1995).

Broadcasting

is a glaring fact that among all the media that could influence a citizen’s vote only television is subjected to such rigid regulation. It might also be pointed out that there are many other ways that individuals – a successful businessperson, a famous athlete – could influence the way votes are cast, or that political forces can create their own electoral ‘clienteles’ – among public-sector employees and workers in state-controlled industries – but the answer elicited is not the same as is given in the case of television’s influence. Doubts also arise concerning the means of control usually employed, namely the law, which quite apart from any formal considerations is bound to reflect political positions. In other words, it is precisely those political representatives who sit in parliament who decide if and to what extent television can be permitted to influence their own electoral fates, giving rise to an obvious conflict of interests and stirring up the very intermeshing of television and politics that one would wish to avoid. All of this would suggest a preference for forms of self-regulation, bearing in mind that in Europe there is always a state broadcaster and at the same time few private players. The parameter should be one of responsible use of the medium, proceeding from the fact that the public corporation has, by its nature, the aim of pursuing the public interest, while the objective of private participants, the maximisation of profits, does not appear easy to reconcile with too much political exposure.

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Chapter 3: Journalistic Activity

3.1. Journalism as an occupation If the mass communications industry does not, in and of itself, have a right to freedom of expression, but benefits from it insofar as its activities promote such freedom, it follows that those who spend their professional lives in the employ of the communications media find themselves in an analogous situation. To state this is to go against a widely held view that in carrying out their work, journalists are exercising this basic right directly, so that they should be immune from intervention by public judicial authorities and others.121 We must therefore explain and justify the position taken. Our starting point is normality: the mass communications media are businesses organised according to the profit motive and corporate rules. They make use of various factors of production – employed labour obviously being one – to create a product for sale to readers (in the case of print media) or advertisers (in the case of radio and television). The journalist is an employee with a specific place in a hierarchical corporate structure. An employed journalist does not decide what to write or report. Such decisions are made by his or her superiors who organise work according to criteria of efficiency and utility: what work to do, and where and when to do it.122 Journalists, like many other professionals, do the work required of them by their employers or commissioning clients.123 They are thus not free to

121 ‘Journalism

is not just a profession. It is the exercise by occupation of the right to free expression available to every citizen’, according to G. Robinson and A. Nicol (2002, p. xiii). Or again, U. De Siervo (1990, p. 629), who invokes, in a clearly set out manner based on a reading of constitutional principles, important limits to the powers of publishers, which should yield to ‘the freedom of the press for editors-in-chief and journalists’. Cf. also A. Pace (1992, pp. 422ff.). 122 A. Pace (1992) recognises (p. 396) that ‘ “private” control within a newspaper business is not considered censorship’. 123 Cf. J. Lichtenberg (1990b, p. 120), where it is shown how ‘freedom of the press’ as invoked by publishers is in reality a ‘property right in disguise’ (and also at p. 126 on the ‘interconnections and confusions between speech and property interests’).

Journalistic Activity

operate according to their personal inclinations, choosing what subject to report or when or in what ‘tone of voice’. Neither are they free to depart from their instructions, on pain of disciplinary action or dismissal.124 It is thus a straightforward observation that a journalist does not, in normal circumstances, exercise a freedom, but instead fulfils an obligation imposed by his or her employer.125 This conclusion is backed up by what can happen to the fruits of the journalist’s efforts: the employer may decide for the most varied of reasons to publish them or not (lack of space, disagreement with content, piece overtaken by events) or may modify them by adding headings, captions and photographs. The piece is sensitive to what is published alongside it, and it can appear with substantial changes made to it. Above all, the journalist’s employer owns the rights to his or her work, which may be republished or broadcast elsewhere or included on the latter’s own website. It is no accident that, with the exception of ‘big names’, journalists in all legal systems are usually denied copyright over work produced in the course of their employment. Copyright remains with the publisher or broadcaster. From this, a further conclusion can be drawn. If the journalist is not exercising a freedom, then neither is his or her publisher, who is simply making use of employees in carrying out a business activity.126 Freedom of expression seems to be essentially individual: one is free to express one’s own thought. Engaging other people to collect and edit news does not appear to be expressing one’s own thought.127 This confirms the functional importance that freedom of expression has in relation to communications businesses.

124 ‘There is no constitutional right to exercise free speech rights in a particular private employment, so that subject to the jurisdiction’s rules of labour law, the editor may properly be dismissed’ (according to E. Barendt, 1987, p. 71). 125 The concept is addressed in even more drastic terms (referring to journalists as self-proclaimed ‘guardians of information, paid lavishly by people claimed to have no editorial nor censoring power over them’) by L. Paladin (1979, p. 56). For an opposite view see H. Thorgeirsdottir (2005, pp. 304 ff.). 126 Barendt notes in Freedom of Speech (1987, p. 71), that according a right to the press in se immediately raises the question of whether the right is enjoyed by the publisher, the editor-in-chief or the journalist, and whether or not dismissal of an editor-in-chief for expressing opinions contrary to the proprietor’s constitutes a breach of such right. Similarly, U. De Siervo (1990, p. 578). 127 Once more the point was clearly made decades ago by C. Esposito (1958, p. 37), who excluded from constitutional guarantee ‘the dissemination of thoughts and information that are, in form or substance, legally considered to be those of other people, so that dissemination is reserved to or subject to the consent of another’.

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This does not mean that a journalist never, in the course of his or her work, exercises the freedom in question. The clearest example to the contrary is the editorial column, in which expression of opinion is central. We return here to the distinction between facts and opinion and the need for rules to take account of the different interests involved. As to facts, the goal should be to ensure accuracy, while for opinions emphasis should be on their being expressed and circulated. This distinction is very important here also because it serves to underline another distinction, that between paid employment and the direct expression of the author’s thought and personality. The fact that the two are sometimes difficult to separate in practice is no argument for subjecting them to a uniform legal regime.

3.2. Access to the profession One of the principal arguments against restrictions on access to the profession of journalist is the damage they are claimed to do to the freedom of expression. Hence in denying that the profession, in the majority of cases, constitutes an exercise of that freedom, we may be seen as legitimising such restrictions on access to the profession and public control over its practitioners. This conclusion is not admitted, for various reasons including some already advanced above. Firstly, it seems unjustified to impose restrictions on the exercise of any professional activity unless there are good public interest reasons for so doing. The most obvious examples of where the latter exist are medicine, law and building construction projects.128 This is said not to belittle the importance of the fourth estate; but rather, on the contrary, to emphasise the fact that its pervasive influence can only be the effect of a very large number of participants. One of the characteristics of contemporary society – one that demands a re-examination of traditional canons of thought – is the ubiquity of information and its myriad sources of production and dissemination. To restrict the ambit of informational activity to the kind practised by the traditional mass media would appear reductive and a denial of today’s realities. Public and economic institutions, businesses, organisations and individuals create, edit and circulate information. Are they all journalists? Obviously not, in the sense that such a description appears to connote a category of individuals having in common the nature of their employers (mass communications enterprises), more so than the activity itself. This consideration appears all the more apt if we look at particularly profitable

128 On the parallels with ‘liberal’ professions and restrictions on access to journalism, see M. Gurevich and P. Elliott (1980, pp. 46ff.).

Journalistic Activity

sectors of the communications world: sport, fashion and leisure. How does one distinguish a ‘journalist’ from someone who is releasing ‘news’ for businesses, or indeed from someone who draws attention to such events through mere personal interest or inclination? Certainly not by the content of what is written or broadcast, but only by the existence or otherwise of a given employment relationship.129 This leads to a second reason, beyond the desirability of freedom to work, to criticise restrictions on entry to a profession. The workings of the system for disseminating information – made up of thousands of entities each one of which employs many more individuals – are of such a diffuse nature that no form of prior selection can ever meet the case. One thinks of the news columns of a daily newspaper and the pages of a fashion magazine, of the economic analyst and the cinema critic. Why the selection of people to perform such tasks should not be left to the market is hard to understand. Equally it should be left to the market to provide the necessary training, and to reward ability and penalise errors. This is not because of any miracle-working powers inherent in markets, but simply because in other sectors of similar importance (whose managers collectively shoulder a large part of the responsibility for a functioning economy) there are no such barriers to entry. If information constitutes one of the most valuable assets in modern society, conferring exclusive rights on certain individuals must be subject to close scrutiny and its positive and negative aspects evaluated. The latter have long been evident in the light of the internationalisation of circulation, sourcing and basing of informational activity. If barriers are erected in one country, there will be (and is) an immediate flight of business to other countries with more favourable operating conditions. And the mere existence of regimes that differ according to type of medium (press, radio and television, Internet), creates distortions that appear to have no justification.

3.3. Informational privileges Removing obstacles to entry to a profession does not imply that it should not be subject to a specific legal regime, nor, where necessary, enjoy specific privileges. One question which deserves special attention is that of access to the sources of information which, as has already been discussed in Chapter 1, is one of the elements characterising freedom of the press (as distinct from freedom to print). This right to access traditionally takes two forms: physical access to certain places (public buildings, sites

129 On

the changing role of the profession see H. Hardt (2000, p. 209).

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of disasters, war zones,130 etc.) and intellectual access to documents. This gives rise to problems which show themselves daily in different ways. There are arguments, for example, about the practice of journalists following police as they go about their duties, in the hope of catching on camera suspects arrested or taken for questioning; and similar arguments are concerned with the behaviour of journalists who follow armed forces into theatres of war.131 The reasons behind a right of access are obvious: to ensure that sources of information can be inspected, and thus contribute to the circulation of more reliable news, as well as to ensure greater transparency in the actions of public figures. What is less clear is the extent to which such access should be limited and why. The distinction between public and private places seems important here, in that without the consent of the owner or tenant or some explicit legal justification a journalist should not be permitted to enter onto domestic or professional premises. The prevailing interest is the individual’s right to privacy and there is no visible reason to bestow intrusive rights upon private persons equal to or greater than those already at the disposal of public authorities, and without the concomitant duties attendant upon the latter. Equally important is the distinction between public and private documents. The problem is that the former often contain the latter, and this raises the question whether depositing deeds, applications and other private documents with public institutions renders them subject to access rights. The answer usually involves reference to the type of document, with an added distinction between those originating from physical, as opposed to artificial, persons. There is, however, another point to be made in the attempt to find the difficult balance between ensuring transparency in public affairs and the protection of the interests of those who have dealings with public bodies. The ‘house of glass’ erected by the right of access may, at the same time as it produces better standards of administrative decision-making, risk producing the negative side effect of making individual citizens more reluctant to look to public authorities for their rights. To sum up, although it is essential – if only to ensure that information comes to light reasonably expeditiously – for journalists to have certain special rights of access to sources of information, there does not appear to be a simple formula for defining the extent of those rights, the precise

130 See

S. Boiton-Malherbe (1989). the copious contributions concerning US rules, see D.A. Schulz (2000, pp. 138ff.). 131 On

Journalistic Activity

content – the when, the where, the how – of which needs rather to be specified on a case-by-case, sector-by-sector basis.

3.4. Journalists and professional diligence Awarding a certain ‘status’ to journalists entails also a consideration of the special responsibilities that should accompany their activities. Although it might appear obvious that each profession has its own rules of professional responsibility, those covering the work of journalists seem to be heavily coloured by the placing of informational activity squarely within a context of freedom of expression.132 Conflict thus potentially arises between the exercise of a freedom and that of certain rights (usually to protection of reputation and of privacy). But if one accepts the thesis set out above that freedom of expression is irrelevant to most informational activity (and covers only exceptional cases such as editorialising) we must then alight on the more appropriate terrain of professional diligence.133 Here too, discussion is distorted by another fallacious assumption arising from an unjustified and illogical concession to claims to exceptionalism on behalf of journalism. This consists in the affirmation that journalism lacks a true and settled methodology of information-gathering, and hence ways and means must be left to the discretion, if not caprice, of individual operators.134 We must, however, turn the telescope back the right way round by insisting on two basic premises. Information is, in the broad sense, a product with the characteristics of any other product: its quality depends on essentially technical factors.135 So information, qua product, can and should be evaluated according to its constituent elements and how it is created. This point appears essential if we are to attribute responsibility, since demonstrating that such technical rules on creation and diffusion have been respected will serve – providing the journalist has shown due

132 Typically, on this point, A. Guedj (2003), according to whom the rules limiting journalists’ activities are ‘paradoxical’ and ‘contradictory’ (pp. 26f.). 133 Speaking of ‘professional diligence’ does not mean affirming (see H. Thorgeirsdottir, 2005, p. 303) that journalist have ‘duties’ ‘towards the community’. If we are speaking in legal terms, journalists are bound to their employer by a contract, and must abide by the law, which may also take the shape of codes of self-conduct. It is clear that the law takes into account public interest. But, as such, ‘the community’ holds no legal rights and no legal duty is owed to it. 134 For a synthesis of these attitudes see H. Pigeat and J. Huteau (2000, p. 39.). 135 Cf. P. Manning (2001, pp. 50ff.). See also the many contributions by G. Bechelloni, among which Il mestiere di giornalista (1982, pp. 23ff.), as well as the many essays in Il giornalismo come professione (cited earlier at note 128).

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diligence and in the absence of any other indications of illicit conduct – to excuse any resulting inaccuracy. Three aspects need to be emphasised. 1. Sources of information Information – that is, reporting of occurrences – necessarily has sources, be they witness accounts, film or sound records, documents, reports or declarations. Such sources can be classified according to their reliability, from not at all (e.g., anonymous tip-offs) through the objectively distorted (hearsay) to institutional communiqués (by the police, political parties, businesses, etc.) and those not classifiable because the sources have no standing. In the light of experience we may advance the rule that in very few cases will a single source be sufficient foundation on which to base a piece of news. The duty surrounding information is essentially that of verifying and selecting among different sources. Moreover, experience will show which sources are ‘corrective’ of those distorted by inaccuracy and selfinterest. Thus it is possible for each category of news to identify sources on which assembling and checking facts can and should be based, beginning with the subject of any news story. With sources of verification too, it should be possible to grade them according to reliability and as a rule place on the bottom rung information gleaned from news archives, since the fact that a story has been published once before is no guarantee of its origins and must not be used to give added credence to its contents. However, and aside from checking sources, there is an additional technical device essential for evaluating diligence in use of information, and that is the identification of the source, to precisely the same extent required in listing the ingredients of any everyday product. In other words, the consumer of the information must be able to tell how much and what part of the information can be attributed to each source. In this way, when circumstances have genuinely not allowed the facts to be thoroughly checked, the reader, listener or viewer can be put on his or her guard concerning their reliability. 2. Categories of information Selecting and verifying sources depends not only on the content of the news story, but also on the category it falls into. This will vary according to size, type and placement. A first distinction is between news and commentary thereon. In the latter the author, rather than dealing directly in ascertained and verified facts, uses them in forming propositions that serve to express views of his or her own. For this category of information any exemption from the duty of personally

Journalistic Activity

verifying facts should require as a quid pro quo a scrupulous selection of data on which to base the commentary. Diligence would thus inhere in choice of factual material, assessment of its reliability, and giving due warning of any which may fall short in this respect (si vera sunt exposita). But there are also perceptible differences between one form of news and another; for example, between a report of incidents in a far-off country and an account of a local event, or between routine and self-generated items, such as a road accident, and a special item or a ‘story’ created by the news organisation itself, as when it runs an investigation. In such cases it is the premeditated type of story, not usually so limited by constraints of time or immediate topicality, that points to where the benchmark of diligence ought to be set, in that it seems reasonable to expect a higher standard of checking and reliability. And again, at the risk of over-emphasis, depending on the material and the purpose it serves, the applicable methodology may be more or less demanding. For example, some specialised sectors, such as reporting of financial matters and judicial proceedings,136 impose an attention to factual detail that does not (or at least should not) admit of generalisation or over-simplification. This calls for an author with a high level of technical knowledge of the subject area, since without it he or she would be unlikely to be able to select, assess and present the information to the required standard. 3. News presentation The manner in which the news is presented assumes an ever more crucial significance.137 This point is important, as it also bears on the attribution of responsibility. It has in fact been established that the person who produces the news item is only very rarely responsible for the way in which it is presented, a task generally organised as a specialism and confided in others. There also has to be a decision on which page to put the item and where on the page, and above all how to headline it, usually according to the classic three-part formula, ‘strap-line, headline and subhead’. This division of labour brings with it the danger – often realised and even intended by publishers – of dissociation between news and its presentation, such that a diligently researched and assembled item can be presented in an inappropriate way.

136 For an ample study of the subject (in the Canadian legal system) see R. Morisette (2004). 137 Cf. C. Frost (2000, pp. 168ff.).

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Some harmful practices tend to be excused on the grounds of the need to condense. But comparative studies have shown that in a given amount of limited space with graphics it is possible to make a diligent job of headlining. The problem is that what might be called the ‘advertising’ function of headlines is prevailing more and more over their informative function. The headline is increasingly designed along ‘sloganising’ lines whose purpose – to attract a readership – pushes aside any considerations of accurate representation. The standards according to which diligence in headline selection should be based are fairly obvious, since they are referable to the news content. But precisely because of their semi-advertising aspects, it would appear that headlines should also be subject to some of the criteria of fairness in advertising, such as those applying to misleading adverts, treatment of testimonials and taking advantage of superstition, credulity and fear. Focusing attention on professional diligence has several far-fromnegligible general advantages. Firstly, we can guide professional discipline along channels well-charted from the experience of other professions. Secondly, it favours and encourages professional initial and continuing training on information techniques and methodology, which can only be for the public benefit.138 Thirdly, it repositions the debate on journalistic responsibility from the metaphysical realms of ‘truth’ of reported facts139 onto the firmer ground of obedience to rules of conduct.140 A journalist is not the repository of any ‘truth’, it is not his or her duty to uncover or proclaim it. That duty much more simply is to diligently represent events from one of the infinite number of possible points of view. Other people, putting together fragmentary data at a distance in time, will try to identify a truth, but that is the work of a historian.

138 This

is the thesis developed at length by C.J. Bertrand (1997). an example see P. Barroso and M. Del Mar Lopez Talavera (1998, p. 181), where many quotations from Thomas Aquinas may be found. 140 On the widespread tendency to conflate journalism with the quest for ‘truth’, see, among many others, J. Bourquin (1950, pp. 171ff.). 139 For

Chapter 4: Freedom of Expression as an Alienable Right

One aspect usually neglected in the endless discussions on freedom of expression is the question of its availability, or alienability. Can it be renounced? Can one agree only to express one’s views in certain places, at certain times or in certain forms? Can one be obliged to express an opinion, or one that differs from one’s own? The answers to all these questions appear to be significant because they contribute to the locating and delineating of this freedom, to fixing some of its content and limits. As already shown in the previous chapter, it is this principle of availability that leads to the conclusion that the exercise of this freedom does not, in the generality of cases, encompass the activities of journalists.

4.1. The issue of so-called ‘inalienable rights’ There has been repeated debate, especially in recent decades, about the validity of forms of undertaking whereby a person purports to renounce or alienate fundamental rights: to physical integrity, legal personality, sexual activity or the right to procreate.141 The questions have arisen in a long series of cases of considerable practical and theoretical importance: organ transplants from live donors, transfer of genetic material, acceptance of and submission to medical experiments or to continuous video surveillance, the regulation of sexual relationships between married and engaged couples and surrogate motherhood. The crux of the majority of these cases is a conflict between progressive and traditional values, between the right to selfdetermination and ordre public concerns, and the point at issue as regards legitimacy is the contract which sanctions such renunciations or transfers. Regarding freedom of expression, we may immediately note a difference between freedoms and inalienable rights. The latter impose an obligation on the State and on associated entities not to interfere or set limits

141 Cf.

G. Resta (2002, p. 801).

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Freedom of Expression as an Alienable Right

in inviolable private matters. The former is, however, attributed to individuals to be exercised ad libitum in such manner, such places and at such times as one sees fit. Yet the distinction between ‘rights’ and ‘freedoms’ here seems merely terminological, and valid only insofar as they all exhibit certain defining features. But this is not the case here, and it is evident that the terms are so often used interchangeably (typically, freedom of expression/right to criticise) that the distinction is probably not useful in practice. It is rather more useful to point out that whereas ‘inalienable’ rights apply to ever more closely defined situations, the freedom in question refers to a phenomenon – thought – that is effectively a universal of human existence and indeed a defining attribute of the human/animal dichotomy. The ramifications of Descartes’ axiom (‘I think therefore I am’) are such as to make it virtually impossible to identify any limits. We are always thinking, even – according to some interpretations – when unconscious, and express those thoughts not only orally and in writing, but also by gesture, facial expression and actions. This universality thus turns freedom of expression into a manifestation of a basic freedom of the person, to say and do whatever one wishes.142 This is not a useful position to adopt as it empties all other freedoms – of association, movement, assembly, communication – of their content and creates a situation where boundaries are blurred. It is thus opportune to return to the roots of freedom of expression, why it was established only after so many struggles, why it was recognised, and hence how it connotes a broadly political freedom, enabling individuals to participate in the decisions that affect their communities, and to hold policies, opinions, ideas and the conventional wisdom up to scrutiny. The equivalent demand has been progressively conceded in other fields such as literature, science and art, but the common factor has always been the social dimension of the individual and the right to communicate his or her ideas to others. Not all or any ideas, therefore, but only those that he or she wishes to ‘express’, that is, make publicly manifest. This is the reason why there does not appear to be a great deal of attention paid to or interest in professional employees, in the context of freedom of expression.143 The implication is invariably that such workers

142 Interesting starting points to the problem of inalienability of natural rights are to be found in I.G. Fichte’s celebrated discourse of 1793 on the freedom of thought, ‘Reclamation of the Freedom of Thought from the Princes of Europe, who have hitherto Suppressed it’ (translated by T.E. Wartenberg 1992). 143 Recently the phenomenon of so-called ‘whistleblowing’ on the working place has become a topic of legal examination: see L. Vickers (2002).

Freedom of Expression as an Alienable Right

will use and express their own ideas, but that these will remain internal to the business or at least depersonalised. People are more exercised by the concern that they should not be required to express their views: for example, their religious and political persuasions or affiliations. We may therefore confidently affirm that in expressing oneself for the purposes of one’s employment freedom of expression does not come into play, because the thought is not placed in the public arena, and thus the question of renunciation does not arise either.144 However, such conclusions appear to be limited in scope. There are indeed many other situations where the thought or idea is uttered publicly. In such cases we must seek to identify the principles by which a renunciation of a freedom could be pronounced impermissible. The range of possible situations is so wide that we cannot a priori delineate what these criteria might be, and so we must confine ourselves to outlining some general considerations. (a) The acceptability of the opinions expressed does not seem to be a pertinent factor. In other words, if opinions are unassailably free, then any instrument by which a person undertakes to express certain views must similarly be immune to challenge, no matter how repugnant many may find those views. (b) Neither does any inconsistency between the private views of the person and those he or she actually expresses seem to be a pertinent factor. Since dissembling, hypocrisy and the utterance of mutually contradictory viewpoints are not of themselves legally actionable, there seem no grounds for imposing any obligation on a person to always express his ‘real’ views and refrain from expressing any at variance with them. (c) Nor should the economic nexus of the renunciation form any part of the criteria. There does not seem any reason to extend to freedom of expression the widely affirmed principle that rules out the sale of human body parts and would permit only donation. Apart from there being no actual transfer or permanent detriment in the case of ideas, if an individual can freely and spontaneously change his mind on a question, there is surely no legal reason why he should not be allowed to do so for consideration.

144 As F. Schauer (1982, p. 123) notes, ‘the notion of private censorship [is] almost self-contradictory’.

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(d) The general legitimacy of such acts of renunciation should be subject to two conditions: – From a temporal point of view, there is reason to doubt the validity of any agreement that would restrict the freedom of expression outright. The difficulty is in identifying whether the limitation is to be temporary or permanent and in establishing what should occur if it is part of a freely made bargain with consideration, especially as regards a party who has relied on the agreement. – From the point of view of proportionality, one might doubt the validity of any renunciatory clauses inserted into a more general agreement, unless they serve to further overriding material interests. The most sensitive areas are freedom of expression within associations, an employee’s duty of loyalty to an employer and membership of a religious sect. (e) To sum up, the alienability of freedom of expression appears to run into a limit that is almost intrinsic: if the freedom is conceded to secure a person’s self-expression, it vanishes when there is a significant reduction in the person’s value. The difficult issue is to determine where the break-point is. However, to clear up some of the many obscure aspects, it may be useful to reflect at length on situations where other freedoms, especially those of movement and to enter into social and affective relations, are renounced. Particular importance may thus attach to the ways of determining the will of the person concerned, as well as what opportunities he or she may have of changing his or her mind.

4.2. The obligation to express a certain opinion Once we have excluded the numerous cases in which a person is contractually bound to utter an opinion not his own, in circumstances where the utterance is not actually made manifest, we must then turn to situations where, by contrast, a principal or secondary obligation consists in manifesting an opinion not one’s own. Examples include product endorsement by a well-known or an ordinary person, a sportsman wearing clothing that bears the sponsor’s logo or an actor performing a role. We may attach a certain importance to the fact that the person has knowingly agreed to express that particular idea, as when appearing in an advertisement or a performance. But different considerations apply where an idea or ideology is promoted unknowingly; for example, by members of sports teams who have no say in the choice of sponsor. In the former case, the expression of the opinion is generally the result of an economic evaluation that takes account of various factors, not just

Freedom of Expression as an Alienable Right

the money to be earned, but also the use of one’s image and the effect this may have, the possible consequences of being identified with a certain product or role. This does not appear to amount to any kind of threat to a fundamental freedom, provided the strictures against unlimited duration of the undertaking are observed. In the latter cases we encounter a problem that arises also in other contexts: the so-called conscience clause. This subject has been examined in detail in various contexts, especially bio-medical. The relevance to the discussion thus far is evident. Imagine a Muslim or Jewish athlete being required to wear clothing bearing the logo of a manufacturer of alcoholic or pork products, or a member of a company of artists being obliged to appear in a production with an unequivocally political slant. We may seek a resolution of these conflicts by identifying which individual values appear to be of an overriding importance such as to merit immunity from being suppressed in this way. These can be found in adherence to a particular religious creed, or consistent profession of a given ideology or philosophy. In doing this, however, we are not promoting freedom of expression so much as the freedom of an individual not to profess a belief he does not hold. This is freedom of conscience, the right to be oneself.145 At the same time we are opening the floodgates to a multitude of much wider-reaching issues such as the limits on membership of associations, the right to dissent and the relationship between a majority and minorities. In all of these cases what emerges clearly is how the expression of ideas not on the part of a physical person but of an organisation may result in the identities of all its members being implicated and purportedly represented, with the inevitable conflicts of differing positions.146 Freedom of expression here exercises a centrifugal and often disintegrative force. The discussion thus far has attempted to elucidate the essential purpose of the freedom in question: to permit an individual to express his or her own personality. As soon as this characteristic is seen to be lacking, the legal order tends to develop other rules that supersede it in the protection of the personality. In looking for an internal limit to the freedom of expression (its inalienability), we arrive at an external limit commensurate with the human personality. One may thus choose to

145 S. Fois (1957, pp. 22ff.) tends to describe the rights in religious, scientific and artistic contexts as ‘instrumental’ to the expression of ideas. But such a position does not appear justified if it is intended to imply some inferior level of right: it is preferable to embrace a complementary view, where the various freedoms are distinct but indivisible. 146 The issue is examined by F. Schauer (1982, p. 123). On the relationship between freedom of expression and freedom of assembly, see E. Barendt (1987, pp. 280ff.).

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express an opinion that one does not hold, but one cannot, on the basis of recognised demands of the protection of personality, impose it on someone who does not share it.

4.3. The obligation not to express one’s own opinions The mirror image of the issue just discussed is that of an obligation not to express one’s own opinion.147 There are two recurrent situations where this question arises. One concerns obligations placed on employees of a company or organisation, the other where there is a duty based on an existing sole rights obligation towards another specified person. The latter situation is the more common and also the less problematic. In the mass communications media sector above all it is common for commentators and editorialists to be tied to exclusive contracts, reflecting a general characteristic of employee relationships. In such cases the prohibition is not absolute, but is intended rather to identify those who are to benefit from a remunerated service. Thus it is freely entered into for consideration. The opinion of the person affected is not being suppressed, but is destined to be disseminated. The limit is thus placed on the economic benefit that can be derived from expressing ideas, and as such does not seem to pose any questions of acceptability. This scenario does, however, illustrate how silence can be, and indeed is, ‘bought’ (at least in part) without causing debate about fundamental freedoms. It seems to be a separate situation when people, as often happens, have silence imposed on them by the organisation – public administration, private company, political body, sports club – they work for. Here too, the obligation not to express one’s opinion is not absolute, but rather limited to questions related to the employing organisation. The difficulty arises in trying to distinguish between the various instantiations of a general obligation of correct employee conduct, which lie on a continuum of increasing levels of required loyalty. Within what limits is it legitimate to impose such a duty and beyond what point do such impositions become disproportionate? We must take it as a generally accepted position that the employer will insist not only on non-disclosure of confidential information – here freedom of expression is not at issue – but also not to make negative comments about the activities or products of the enterprise. Even these general limits are subject to important exceptions, however, especially in relation to the right of trade union

147 The question has been considered in two decisions of the US Supreme Court, Snepp v. United States (444 US 507) (1980) and Cohen v. Cowles Media Co. (111 S. CT. 2513) (1991).

Freedom of Expression as an Alienable Right

activity where it is of the essence that the practices of the employer can be criticised. Similarly, there are enterprises whose activities, by their nature or extent, are likely to provoke expression of opinions which is completely legitimate if it comes from outsiders, but not from employees. Again, where public bodies are concerned, as they are charged with looking after the public interest it is doubtful that any such imposed silence can be seen as consistent with that interest.148 The solution to the many recurring conflicts may lie in identifying the overriding values that might justify the curtailment of freedom of expression. This is not easily done in respect of private enterprise, but where public administration is concerned public or national security might fit the criteria.149 With associations, the situation is more acute, as the only way of dissenting from positions or decisions taken by the majority is by means of expressing an opinion, and so the critical factor is the extent to which democratic procedures are incorporated into the association’s constitution. In analysing obligations not to express one’s opinion we may thus uncover a means of extending freedom of expression, above all in the workplace and in protection of the individual personality – a significant normative example is article 2 of the Italian Constitution, which protects basic rights exercised through social groups expressing the individual’s personality – admitting only a few, restrictively interpreted, exceptions.

148 Cf. Barendt (1987, p. 71), I. Hare (2000, pp. 118f.). For an overview – which ends up by assuming transnational dimensions – of the compatibility of limits placed on EU employees with the principles set out in article 10 of the European convention on human rights, see M. Panebianco (2001, para. 11, pp. 176ff.), and D. Wyatt (2000, pp. 212ff.). 149 On this point see the views expressed in the case of Snepp v. United States (cited above at note 144) and the comments thereon by R. Dworkin (1985b, pp. 381–97).

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Chapter 5: Advertising

The phenomenon of advertising comprises a number of critical aspects and contradictions that the conventional discourse on freedom of expression finds it difficult to account for. Many think that advertising communication is excluded from the guarantees covering expression of ideas in general. When, however, it comes to justifying such a distinction, the replies do not always appear coherent or convincing,150 and so fail to refute the objections of those who maintain that advertising is the form by which a business expresses a view about its own products, and thus to limit it constitutes unacceptable discrimination. The basic misunderstanding stems from an over-determined concept of freedom of expression cut off from the reasons behind it and its links with other freedoms. If we start, as we have attempted to above, from the position that not all utterances are ‘thought’, that not all thought is ‘manifested’, and that not all ‘thoughts’ receive the same protection in different sets of rules, by virtue of content and authorship, then the particular legal position of advertising will be readily explicable.

5.1. Advertising as part of the product Advertising is just one phase of a productive activity.151 This is selfevident from an economic point of view. Publicising the product or service is an essential factor in the calculation of costs and income. But this

150 Even in a text as balanced and insightful as that of E. Barendt (1987, pp. 55ff.), difficulties are encountered in reconciling advertising with freedom of expression, sidelining what appears to be the correct solution (see para. 5.1.). One finds an analogous position in R.A. Shiner (2003, passim), where despite expressly opposing the theory of constitutional protection of advertising the author prefers to follow the more precipitous path of content of communication and the identity of who utters it. For a similar approach see I. Cram (2006, pp. 170ff.). The specific role of advertising is ignored in the lengthy chapter devoted to commercial speech in C.E. Baker (1989, pp. 194ff.). 151 According to E. Barendt (1987, p. 63), ‘Advertising can more naturally be characterised as an aspect of business conduct which government is perfectly free to control’.

Advertising

obvious point is sometimes obscured by the fact that the people who deal with the advertising are not part of the producer enterprise and its distribution networks, and have a strong and separate professional image of their own. This can lead to the attitude that advertising is something essentially ‘apart’ from the product (or service), and results from an essentially creative activity, protected also by copyright (not for nothing are the principle contributors to the message known as ‘copywriters’). However, from an economic and hence legal point of view, the idea that the advertising is somehow separate from the product has about as much validity as claiming the same for the label or packaging of a product. These are extremely important components, otherwise how is one to explain the enormous sums of money expended on them? The consequence is that if the product or service is going to be regulated by virtue of its intrinsic content, this cannot but embrace the manner in which it is presented and publicised. To argue that advertising should not be regulated while the product and its labelling are – and in minute detail – has no coherent basis in the current system of public control over private economic activity. The reification of advertising has important consequences for the regime – the law applying to products and services – to which it should be subject, because of the gravitational pull between the rules and the advertising component of the product. Advertising tends increasingly to inform the legal relations between businesses and clients. This phenomenon is for the moment confined to so-called consumer contracts, by which in various instances (such as package holidays and sale of goods) the obligations owed to the buyer are affected by the content of the advertising that promotes the sale. It can be seen that this is a terrain on which the general theory of freedom of expression has no purchase and whose fundamental principles are to be found elsewhere.

5.2. Commercial advertising as part of the market Not only is advertising considered an integral part of the productive process, but due to the importance of the role it plays, it is subject to a particularly detailed and comprehensive regulatory discipline. This aims on the one hand to protect competition, and on the other to ensure that reliable information is given to potential users and purchasers of goods and services. In other words, a totally realistic, and hence economic, view of misleading advertising prevails whereby it is suppressed for reasons of competition law and the general indifference (on the part of judges but also by most theorists) towards considerations of freedom of expression is usually because they are seen as a pretext used to justify denigration

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of competitors’ products or attempts to increase market share through unfair practices. Note that this does not merely apply to false data – to which expression of opinions does not apply – but also to purely suggestive communications. Of significance in this regard is the recent European ruling permitting comparative advertising within certain limits. Meanwhile, issuing rules covering advertising content is justified in the interests of correct market information. Such communication is not considered as the exercise of a freedom, but from the viewpoint of its functions and its effects. The high level of public exposure to the message is not a relevant factor, bearing only on the business’s ability to shoulder the expense; what matters is whether its form and content have an adverse effect on the free play of the market. Regulation of advertising is generally seen as a fact of life, but what is usually overlooked is the confrontation between the classic model of free speech and forms of control over commercial communications. The latter indeed present significant practical and theoretical conflicts. In the first place the notions of ‘unfair’ and ‘misleading’ as applied to advertising come down in the end to a subjective appraisal by those invited to accept it in concrete instances, evidence if any were needed of the difficulty of determining a priori what would constitute legitimate representations. In other words, what appears to be an acceptable judicial benchmark when purely economic issues are at stake does not apply in other contexts (e.g., to political communications). In the second place the rules governing advertising, being eminently and avowedly based in economics, should be but rarely are examined to see whether they are in fact consistent with their declared aims. They seem to be more inspired by moral principles and thus with efforts to import morality into commercial practice, which – while we may well largely sympathise with them – do not seem an apt basis for regulation.152 We are not here of course advocating an unattainable divorce between business and ethics, merely seeking to avoid impositions that are equivocal if not downright hypocritical. From this point of view, expression of ideas (in the classic sense) and commercial advertising appear to be brought together by a widespread misunderstanding.153

152 For a typical example, S.A. Anderson (2007, p. 189), especially at p. 218 where the indication to ‘policymakers’ is that in broadcasting regulation one should evaluate ‘nuisance costs to viewers and social desirability of ads’. The Author does not consider that exposure to ads is the price viewers of free-to-air TV pay in order to see a programme. No reasonable economist would suggest that prices represent a ‘nuisance’ for consumers and therefore should be reduced by policymakers. 153 Which leads to the paradox evident in the European Court of Justice decision in Society for the Protection of Unborn Children Ireland v. Grogan (Case C-159/90,

Advertising

5.3. ‘Harmful’ ideas The main point of difference between freedom of expression and advertising is to be found in the many instances where advertising is banned, especially in connection with tobacco, alcohol and medicines. Here again, we are not concerned with a straightforward transmission of news or data, but with expression of opinions. So a group may openly advocate euthanasia, use of narcotic drugs, unorthodox sexual practices and totalitarian political theories, or posit the existence of extraterrestrial life forms (to mention but a few of the issues at the boundaries of arguments over freedom of speech), while an enterprise is forbidden to advertise not only its own product, but also the idea which might be behind it. Why are we ready to allow the dissemination of ideas that are not widely shared and may even be repugnant to many, but not the advertisement of a product which will merely be consumed by certain people? The answer lies in the conception of commercial advertising as a ‘harmful’ product. This is not just because products that harm human health are usually involved, but because it is considered harmful in itself: advertising influences individual choice and forms personal preferences. In short, all the reasons for which expression of ideas is esteemed and its freedom defended – the diffusion, circulation, opposition, interaction and confrontation of ideas is to be desired – are held to be drawbacks when it comes to advertising. It is not easy to justify such an anomalous position.154 In reality we find that wherever advertising is restricted, especially where these restrictions are most severe, it is as a result of half measures and so is intrinsically incoherent. We are aware that certain products are harmful to human health and so their production and consumption are to be reduced as much as possible. Having observed that outright bans are impossible and that the evils of prohibition outweigh its benefits, we settle for a policy of maximum containment of distribution of the product. The incoherence arises from another viewpoint: there are other consumer goods that cause serious individual and social damage (to name but one: cars, with their toll of accidental injury and atmospheric pollution), but advertising them is not subject to any limits as a consequence. Thus discrimination exists

judgment dated 4 October 1991), which legitimised rules to suppress publicity on the part of student associations for abortion clinics outside Ireland. Such publicity could not however have been limited in the EU if it had emanated directly from the clinics. The opposite decision was taken by the ECHR in Open Door v. Ireland (1992). 154 In this regard see the difficult line of argument (in the classic American ‘freedom of speech’ tradition) in T.M. Scanlon (1990, pp. 331ff.); and see S.H. Shiffrin (1999, pp. 32ff.).

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to the detriment of certain interests that cannot be exercised to the same extent as others, and so some are less free than others. If the basis of this arrangement can be – and in specific cases is – justified by oftenconvincing arguments, what is noteworthy is the extent to which broadly speaking political (in this case public health) choices are brought to bear on the regime of freedom of expression. One can of course raise cogent objections to such choices, but one cannot posit a comprehensive, allembracing freedom of expression, indifferent to who, what and how, when the manifest reality is once more that strict limits are placed on such freedom, limits justified by principles that are held to prevail. To arrive at such a position by affirming that advertising is not the expression of an idea (and hence operating within the ambit of such a categorisation), or else to introduce regimes that vary according to the different competing interests involved, is in practice to argue for a technical choice with only one outcome: the control of certain forms of communication.

5.4. Advertising as a means of financing freedom of expression The complexity of the issues just canvassed is intensified by a related aspect. However one wishes to classify advertising – as an expression of ideas, as the communication of a legal person, as incidental to a product – there is no denying that it provides the most common source of revenue for the mass communications media, which in turn are generally accorded an important role in the dissemination of ideas. The interactions are manifold. (a) Ideas have a market. This market is used to ‘sell’ purchasers to advertisers (example: a TV programme that attracts many viewers sells time during breaks in the programme to businesses to advertise their products). Thus whoever wishes to receive the expression of another’s ideas has to pay ‘dues’.155 (b) The more successful ideas are in the market, the more they attract investment by advertisers. Expression of ideas thus acquires an entirely economic dimension: ideas that find an audience attract investment while the rest are marginalised.156 This does not, of

155 R. Abel, Speech and Respect (1994), refers to the ‘ambiguous value of the commodified word’ (p. 50). 156 ‘Advertising poses a considerable threat to the maintenance of diversity in programming’, according to T. Gibbons (1998, p. 186). But this observation risks going too far: without advertising there would not even be a means of communicating

Advertising

course, apply to all forms of expression of ideas, but it does to a significant proportion of them. So it is quite natural that ideas should become adapted in order to attract a mass audience. (c) Advertising privileges some means of communication above others. Freedom of expression values (or ought to) all means of communication equally, but some of these are more lucrative than others. (d) Advertising is generally clearly distinguished from other communicative forms, but there is also a tendency to mimicry (such as advertising features, product placement, indirect advertising, etc.) In some sectors, such as fashion, motoring, sport and leisure, it is virtually indistinguishable from communication tout court. Does this dignify advertising or demean the expression of ideas? Or does it merely confirm that the status accorded to expression of ideas varies with its content?157 (e) Regulating advertising – as to its content, the means at its disposal, and the amount of it – means by implication regulating the sources of finance of businesses which disseminate the ideas of others. This once again reveals the economic context in which freedom of expression must operate. In conclusion, the phenomenon of advertising sheds light on certain aspects of freedom of expression. Firstly, it is a freedom that cannot be viewed in isolation from other rights and freedoms. The concept of indivisibility of fundamental rights here serves not to defend them, but to establish a balance and hierarchy among them. Without this play of counterweights, affirming freedom of expression would be reduced to a mere rhetorical posture, to be contradicted every day by reality. Just as there are many instances in which other important and keenly valued rights and freedoms must yield to a freedom of expression which can damage them both concretely and in the abstract, there will be cases

the ideas that might attract an audience (and there is certainly more than one of these). 157 Obviously one should also take into account widespread views that see in advertising a plague of modern communications: ex multis see S. Jhally (2000, p. 27: ‘twentiethcentury advertising is the most powerful and sustained system of propaganda in human history, and its cumulative cultural effects, unless quickly checked, will be responsible for the destroying of the world as we know it. As it achieves this it will be responsible for the deaths of hundreds of thousands of non-western peoples and will prevent the peoples of the world from achieving true happiness’). A cynical lawyer would comment that, if that statement were to be confirmed, there would be lots of work for mass-torts practitioners and that its author surely would make a living being called as an expert witness …

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in which the converse applies. Whence the difficulty in constructing a coherent and above all comprehensive theory: the differences and sheer variety of interests that can be involved give rise metaphorically to a plurality of equations, each one yielding a different solution. Secondly, advertising illustrates the utilitarian (and even opportunistic) side of freedoms. Expression of ideas is not expression of one’s essential self, but much more prosaically one way among others of making honest money. To point this out is not to denigrate the freedom, but rather to show that it should be conceived of as belonging not to some shining city of free spirits, but to the society we have. This takes us back to the historical roots of the freedom and why it arose as part of the western tradition and not elsewhere, originating at a historical conjuncture of political theory and (relative) economic well-being. Thirdly, to take these thoughts one stage further, fundamental freedoms such as the freedom of expression are features of a complex society, one with many people, diffuse centres of decision-making, a variety of interests and tendencies, and in which account must always be taken of other phenomena, particularly economic. Freedom of expression cannot be viewed in isolation from these other factors: rather than shape them it adapts to them. There is no environment in which freedom of expression exists in a ‘pure’ unfettered form. Intersecting with other social factors, it must also interact on a legal level.

Chapter 6: Freedom of Expression and Economic Regulation

An expression that has successfully established itself in the literature on freedom of expression is ‘the marketplace of ideas’, first coined in connection with the wide-ranging US debate on the First Amendment to the Constitution. Suggestive as this phrase is, are we really dealing with a marketplace? And what resemblances to and differences from other market places does it exhibit? The first – empirically based – observation is that whereas in a traditional market, such as can be found in a town’s main square, or the stock exchange in New York, or Chicago’s commodities market, the dominant relations are between quantity and price, influenced by quality and time, different values predominate in the marketplace of ideas: all ideas (with a few marginal exceptions) are qualitatively equal; ideas are not consumable, nor can they be parcelled up, hence there is no direct quantity/price relationship; the aim is not economic efficiency, but to ensure the widest possible dissemination of different ideas.158 These features are enough to confirm that we are not dealing with a market in the traditional sense. The very notion of ‘ideas’ is itself ambiguous: a sports match, a concert or a film will certainly contain and express ideas, but then so does everything else, be it business activity, town planning or the choices of everyday life. In reality, this magic formula that has enjoyed so much success in the United States conceals the incoherence of a politico-legal theory aimed at expanding as far as possible the principle of freedom of expression.159

158 The father of economic analysis of law, R.H. Coase, examines the reasons for these differences in an article that has (not fortuitously) scarcely left a mark on the USA’s voluminous, but mostly one-sided, literature on free speech: The Economics of the First Amendment. The Market for Goods and the Market for Ideas (1974, p. 384). It is symptomatic that one of the most prominent exponents of the so-called Chicago School, R.A. Epstein, did not cite it in his critical essay, Was New York Times v. Sullivan Wrong? (1986, p. 782). Nor is it cited in books nearly entirely devoted to the ‘marketplace of ideas’ theory: C.E. Baker (1989), or P.M. Garry (1990). 159 Among the many criticisms of the theory, see Coase (1974), who shows how contradictory is the thesis according to which the market in goods can be heavily

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Freedom of Expression and Economic Regulation

Nevertheless, the relationship between economic rules and expression of ideas becomes ever more intense and provide ever more areas for study, some of which we shall now examine.

6.1. Ideas as products From a certain point of view, contemporary society lives by ideas and transforms them into products. Can it be established whether, and to what extent, an idea is solely that, and when it becomes a product like any other? A flag is an object that identifies a country and can have a value that is absolutely neutral or purely decorative (as, for example, do flags erected outside a hotel or camping site); but it can also symbolise belonging to that country (as does a flag flown in honour of a visiting head of state, or attaching one to one’s car or balcony); or it can express hostility (typically by being burnt). Is the image of a guerrilla leader printed on a T-shirt an ideological or a fashion statement? Is a war film purely a piece of entertainment or an anti-war manifesto? These examples occur at the limits of areas that are tolerably clear-cut, but they are representative of a fairly extensive body of cases.160 The first distinction we might make is between the ‘production’ of an idea and its dissemination. The first phase is subject to all the rules typical of productive activity: the fact that a film is ‘committed’ does not absolve the maker from observing rules of employee safety; the ideological content of a book does not give the publisher licence to print it on substandard paper. These observations may appear trivial, but it seems necessary to make them for the purpose of definition – as has been carried out above – of businesses operating in the ‘expression of ideas’ sector, and they form one of the grounds for not applying a different set of rules to them, to either their benefit or detriment. The second distinction, fairly hard to pin down in concrete terms but unavoidable, concerns the content of the idea. This is how preferences – necessary for all that they are debatable – are shown. In other words, given that, as we have seen, all human activity (and inactivity) expresses an idea, it is not possible to put all ideas on the same level. To assert this is to go against the dominant theory which puts the value of ideas beyond challenge, and indeed to go against the whole relativist agenda.

regulated whereas the market in ideas must remain free of all regulation. See also A. Howarth (1998, pp. 68f.), and S. Holmes (1990, pp. 53ff.). 160 For further examples, see E. Barendt (1987, pp. 41f.).

Freedom of Expression and Economic Regulation

This contrary view has complex grounds which can be summarised as follows. (a) If the freedom of expression has a primarily (in the sense set out above) political dimension, it is constructed so as to satisfy this demand; this implies a setting of priorities. (b) Historical experience shows which types of idea have had most need of protection, because the content is so often antagonistic: in politics, religion and philosophy. So there is no lack of precedent for the viewpoint. (c) The content of ideas cannot be neatly categorised, but exists on a continuum. This makes distinctions difficult, but seen from a distance the extremes of the spectrum are clear. Thinking of ideas as products adds a further point to clarify the picture: just as freedom of expression has, in practice, to be reconciled with other rights and freedoms, so do the various systems of rules designed to protect them, whether directly or indirectly. One of these is the long-standing law of copyright. In this there is an element of moral right – most evidently akin to the right of paternity – but also the protection of the economic opportunity arising out of an idea expressed in a creative form, especially by reserving exclusive rights over its reproduction. Set alongside this is the right – clearly connected to freedom of expression – to make use of works of ingenuity for the purposes of discussion, debate, study and instruction. It is at the same time clear that modern copyright law increasingly takes a form specific to enterprises in the so-called ‘culture’ industry (publishing, cinema and music recording) which, aiming to simplify the economic process as much as possible, buy ideas from the author ‘retail’, as it were, and then reprocess them to a greater or lesser extent before selling the final result on to the public or to other intermediaries. Thus the legal framework within which businesses dealing in ideas operate is this, rather than a more generalised freedom of expression applicable to physical persons and their interest groups. Finally, regarding ideas as products raises the issue of their ‘dangerousness’. Can one conceive of a situation where an idea can pose a real danger to the physical integrity of the person who consumes it? The recurring cases involve conjuring tricks, auto-erotic practices, diets, esoteric diets or recipes and chemical experiments. In some of these examples the ‘ideas’ content is objectively modest, but in others it has a larger role. If they are to be considered merely as forms of expression of thought, the principle of personal responsibility must be the dominant factor, but if they are to be regarded as products, then the producer will be obliged to conform to

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the legal requirements not only of production but also to provide all the necessary user information and notices.

6.2. Business information One area in which a communicative activity is more and more considered a product is that of economic information. To anticipate some points that will be explored in greater detail in Chapter 10, we shall use as our starting point a dictum that has become axiomatic among economists: that information is the strategic cornerstone of the global economy. Choices, whether made by individuals, businesses or public authorities, depend on the information one has at one’s disposal. Such information is gathered, researched, processed, bought and sold. It is not limited to simple and unproblematic factual data, but more often involves methods of selection and evaluation and, above all, forecasting. This entails processing and expression of ideas. At this point one may legitimately ask if there is – or ought to be – any difference between the judgement of a cinema critic who portrays a film as a ‘turkey’ and so induces most of the potential audience to stay away, that of a political commentator who ‘talks down’ the fortunes of a political party thus creating an electoral bandwagon effect, and that of a financial analyst whose laudatory assessment of a company’s stock forces up its price by convincing investors to buy shares. All three are exercising a fundamental right, and all three have a positive or negative effect on the well-being, economic or otherwise, of third parties, and yet a significantly different set of rules applies to each of the three situations. Let us start from the current regime and how we might expect it to develop, so as to try and understand its rationale. In general we may observe that we are dealing with expressions of opinion which are, as such, protected. However, while the first and, to an even greater extent, second instances above are almost entirely free of restraints, except in extreme circumstances, the third – financial information – is subject to heavy regulation. There are many reasons for this: the markets, especially the financial markets, function on the basis of information available to its players. Accordingly, a series of guarantees, virtually inherent in the contract-based operating context, is extended to all participants. Whoever supplies information undertakes to verify sources and content and to indicate prospects on the basis of professional diligence.161 The minutely detailed rules covering financial information are part and parcel

161 See

the numerous contributions in N.T. Gavin (1998).

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of the regime governing the sector as a whole and conform to its general requirements. One might say that all this has little to do with expression of ideas and the example with which we began. Nevertheless it shows the interdependence of facts and opinions. The latter may not be expressed except on a basis of facts, but if the facts are distorted or negligently ascertained, the resulting opinions will be deceptive.162 Hence light is shed on a further substantial difference between the various types of opinion, such as to justify the differing regimes applied to them: whereas the film critic and the political commentator base their judgements largely on aesthetic or ideological (hence highly debatable) criteria, financial analysts can only base theirs on ascertained facts. This applies moreover to a large extent to other professions, such as medicine. It is significant that in the very legal systems – those of the United States – where freedom of expression has undergone the greatest expansion, economic information is subjected to a thoroughgoing regulatory regime.163 This is not, or only to a very small extent, due to the powerful influence of commercial interests in that country, but is rather the functional expression of a duty assumed by certain actors towards the wider community in which they operate.164 The content of the thought expressed is thus not a matter of indifference, and neither is the effect that flows from it. To reprise the examples we began with, they are not treated in the same way, even though one can just as easily read, in a single issue of a daily newspaper, a scathing critique of a film, the last rites of a political movement, or a rose-tinted assessment of a company’s share prospects. In these cases one can readily appreciate that the law applies a metaphorical three-dish set of scales to balance the interests of the speaker, the recipient and the subject of the communication. While between the first two the scales are weighted in favour of the former, the last-named can by far outweigh the other two.165 And this, let it be noted, applies not only in an economic context, which can certainly be considered influenced by the need to protect expression of ideas, but sometimes also to the political sphere, such as in the case of electoral opinion polls, which are subject to rules governing procedure, permissible times and methods. It is no accident that this occurs in a sector where on the one hand the methodology has been extensively tested and

162 For an analysis of the rich EU regulation of financial information, in comparison with the US approach, see the references in V. Zeno-Zencovich (2006, pp. 157ff.). 163 See the cases cited by R.A. Shiner (2003, p. 285). 164 R.A. Shiner (2003, pp. 305f.). 165 In a significant passage, S.H. Shiffrin (1999, p. 50) states: ‘I believe First Amendment issues are […] of minor importance in this area’.

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generalised and on the other its influence on voter behaviour is held to be significant.166

6.3. Information and competition Does the peculiar nature of enterprises that conduct their business in the area of communications justify applying a special competition regime to them?167 It would seem so, were one to judge from the extensive intervention that occurs in all legal systems, including in the USA. The reason usually given, as examined above, is pluralism. Limits are set on the ownership of communications enterprises to ensure diversity of opinion. This tendency has already been criticised for its strong ideological connotations and for the inadequacy of its results.168 It is none the less convenient to examine the question from a more strictly economic viewpoint, to see which principles ought, in any case, to be applied to protecting competition.169 The first problem – typical of all competition law – is the concept of ‘relevant market’. Traditionally, in the USA above all, the press is treated separately from radio and TV, including in the former usually only the daily newspapers, and in the latter only free-to-air broadcasters. This is not the only division by category, because the market of resources, generally advertising, is considered in tandem. The close correlation between audience size and advertising results in dominance in the one being reflected in revenues from the other, and also vice versa in the sense that greater financial resources allow the purchase of products that will attract a larger audience in a mutually reinforcing cycle. At this point, one might anticipate that the most important resource, which would determine the orientation of the market, would in practice be the programming content, particularly of the sport and films that

166 There

is specific legislation on the point in France (for recent developments see A. Lepage (2001, p. 2108) and Italy. The issue is debated in common law jurisdictions: see H. Kushner (1983), N.E. Devlin (1997). 167 More fully on this point, D. McQuail (2000, pp. 190ff.). 168 ‘Limitations on media concentration and their long and controversial history show no record of success. At the transnational level, all attempts to impose binding rules have so far failed; at the national level, the anti-trust legislation has largely proved inadequate to regulate the media sector’, according to D. McQuail and K. Siune (1998, p. 203). 169 For a listing of the complex problems posed by an anti-trust analysis of the communications system, see M. Gambaro and G.A. Ricciardi (1997, pp. 235ff.). More generally on differentiation of markets and the factors influencing competition, see R.G. Picard (2002, pp. 139ff.).

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attract most audience interest. And indeed it is on these sectors of the market that most attention has been focused by legislators and regulating authorities. If this is the terrain on which a coherent anti-trust regime is going to be imposed, the many and variable factors involved would evidently necessitate a clear-sighted identification of the objectives to be attained.170 Competition is usually propounded on the theoretical basis that it generates a greater variety of quality and price on offer in the market for consumers to choose among, and tends to lead to lower prices than in other economic models. Such an outline can generally be applied to the press in which sector, moreover, there is usually a range of published wares on offer sufficient to satisfy the most varied tastes.171 But it is more difficult to apply it to radio and television, where generally the price element is hidden. With commercial television, the price paid by the consumer consists of freely and willingly submitting to broadcast advertising during and between programmes.172 There are thus preferences that are not economic choices, and these can determine the audience and hence the success a broadcaster attracts, and competition cannot operate on the consumer’s desire to save money.173 The absence of the price element therefore makes it rather difficult to attain the aims of a policy of competition. Who, if not the user, will establish the greater quality of service offered? Who, if not the advertiser, is to assess whether the commercial messages delivered value for money? From this vantage point competition theory can yield not entirely coherent perspectives. If two broadcasters share the whole

170 See

R. Subiotto and T. Graf (2003); for the opposite view, see D. Geradin (2005). research yields somewhat variable results that are complicated to interpret, as can be seen from the clear analysis by F. Mosconi (1998, pp. 80ff.). To this may be added consideration (Gambaro and Ricciardi, 1997, pp. 238 and 240) of the difference between paper goods, which become the property of the purchaser and can be sold on by him to others, and radio and TV, for which acquisition and trading on the user’s part is a more complex proposition. On the differing production costs in publishing and television, see P. Barwise and A. Ehrenberg (1998, pp. 91ff.), R.C. Collins et al. (1988, pp. 20ff.); see also T. Gibbons (1998, p. 217) on the difficulty of measuring the influence that some media might have on the public. 172 Cf. M. Gambaro (2002): ‘with a price of zero it is difficult to construct traditional demand curves to represent the amounts of television consumed at different price levels as a basis for models of equilibrium and consolidated methods of evaluating product substitution’ (p. 82). See also Barwise and Ehrenberg (1998pp. 109ff.). M. Polo (2007, p. 150) gets to the point (p. 157) but does not draw the necessary conclusions. 173 For an identification of the complex problems of economic analysis (diversity of receipts, cost structures, competition for finance), see D. McQuail (2000, p. 194). See also D. Goldberg et al. (1998a, pp. 304f.). 171 Moreover,

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market equally, an advertiser will find it necessary to buy slots from both of them. If, however, one of them commands two-thirds or threequarters of the market, advertisers may well be content to buy from only this dominant player, and so also allow economies of scale to reduce the unit cost of reaching each viewer or listener. From the viewpoint of the interests of an important part of the market – enterprises that compete with one another and buy advertising – a priori fragmentation of the market to ensure a plurality of broadcasters does not necessarily operate to their advantage.174 How is market share to be quantified?175 It is usually done by reference to the number of transmitters controlled or, what amounts to the same thing, the right to operate them. This is a fairly approximate way of measuring as will be readily appreciated if one considers two transmitters, one of which reaches a very high and the other a very low audience. But the very concept of an ‘audience’ conceals hazards, in the first place because it measures the success of a transmitter by allowing viewers’ choices, which, as has been noted, are not dependent on economic factors, to determine the permitted levels of concentration. Here a parallel with traditional markets may be observed: in these the monopolist obliges the customer to pay a higher price because of the absence of choice and may employ predatory pricing tactics to see off potential new entrants into the market. A monopoly broadcaster does not, however, have this power over the viewer or listener, but rather over the advertiser, from whom it can in theory demand any price it wishes. However, whereas in traditional markets a monopolist can increase production to satisfy demand, the TV and radio broadcaster’s ‘productive capacity’ is limited by the essential inelasticity of the critical resource: time.176 They can of course increase the availability of advertising slots, and employ other promotional techniques such as programme sponsorship, teleshopping and live advertising, but there is a point beyond which this cannot be done: the audience watches TV and listens to radio for the programmes and there is a limit to the amount of advertising they are prepared to put up with. Once this is exceeded they will turn to other sources of

174 See the similar issues addressed by F. De Vescovi (1997, pp. 50, 64ff.). See also T. Congdon (1995, p. 20): ‘It has to be conceded that a highly-concentrated media industry might be much more efficient, in an economic sense, than an atomistic industry in transmitting news and public affairs programmes’, even though the author does not believe this would be ‘politically desirable’. 175 For some pointers see the study carried out by the European Audiovisual Observatory (2000, pp. 2ff.). 176 Cf. De Vescovi (1997, p. 37): ‘Time is, in a certain sense, the true object of exchange’. Which leads, inevitably, to the expansion of markets into new territories in search of new resources of ‘time’: see Collins et al. (1988, pp. 50ff.).

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information and entertainment. In any case there exists a potential for advertising resources that a monopoly broadcaster cannot find space for, so for this reason economic competition is advantageous.177 Of course, this does not imply a passive acceptance of the tendency to monopoly, which is kept at bay by the redemptive power of competition law, but it illustrates the peculiarity of the problem.178 In more recent times economic analysis of broadcasting has placed it in what are called two-sided markets: on one side broadcasters attract viewers offering them services that appeal to them, on the other side those individual viewers, which have become an audience, are ‘sold’ to advertisers.179 This implies that there is an inter-relation between the two sides of the market, and regulation of one side is bound to affect the other side. From a practical point of view reducing advertising revenues – such as putting a market share cap, or a limit to their amount, or fixing their price – determines a decrease in revenues which will adversely affect the ability of the broadcaster to compete in buying or producing programmes which are appealing to the public. This will reduce the number of viewers and therefore advertising rates. And in a market in which the main goal is ‘capturing eyeballs’ if free-to-air programmes are not competitive the public will move to other audiovisual services, from subscription TV to DVDs or to movie theatres.180 Again, regarding the ‘audience’ criterion, there is another disadvantage, this time technical. Which viewing and listening figures should be taken into account: daily, those for a given time period within the day, those for particular days or periods of the year? Or those relating to more ‘sensitive’ programmes (news, information in depth)?181

177 But in the case of TV ‘the number of operators is linked, not to the market dimension as with monopolistic competition […], but to fixed investments that determine the quality of the product […]. In this context it would be economies of scale in the programmes that determined a high level of concentration in the television market’, according to Gambaro (2002, p.83). 178 We return again to D. McQuail (2000, p. 203) for a summary of features peculiar to the media economy. 179 The specific characters of broadcasting markets in a EU perspective are sketched by A. Bavasso (2003, pp.150ff.). For a detailed and updated analysis see P. Seabright and J. von Hagen (2007) and the numerous contributions within. 180 This obvious consequence is not considered by out-of-date EC competition policies which still, and with no factual reason, separate free-to-air TV from pay-tv. For a critique see M. Arino (2004, p. 155). 181 ‘There is an intrinsic contradiction within the market share model in competing markets. Growth is one of the paradigms of the market economy. The audience share model does not approve growth but sets limits to it’, according to D. McQuail and K. Siune (1998, p. 204). And see B. Robinson’s observations (1995, p. 54), concerning the different types of product transmitted, requiring different sets of rules.

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One could, at this point, opt for a more objective criterion, that of resources, which would however require that they be calculated (prices of goods and services supplied, advertising, subsidies) to establish which were the relevant markets: daily newspapers competing with television, cinema with radio, sporting and musical events with outside advertising. And this in turn would pose further theoretical and practical questions about competition law.182 The difficulty in settling rules which are not pragmatic and ad hoc, penalising concentration, illicit agreements and other abuses ex post facto, should not make us forget that currently one of the most adopted approaches is to separate print from broadcasting media, limiting the latter’s scope for accumulating resources (usually advertising) with the declared intention of not ‘draining’ resources from the press.183 One medium is thus placed in a position of advantage vis-à-vis the other.184 If the intentions are clear, the reasons behind them are anything but. We seem to be given to understand that newspapers alone – and exclusively the dailies at that – play a more central public role than does television, justifying a privileged regime. This is the outcome of a prejudice: maintaining that some forms of communication are more deserving than others is, as we have seen, a widely-held position, but one that appears to be at odds with the ‘marketplace of ideas’.185 One could immediately argue that such a policy ends up driving certain types of programme from the television because they are not profitable enough. Because newspaper publishers do not restrict their output to this one format, the policy also benefits their other product types, such as glossy and gossip magazines, and the like. Protectionism in favour of the daily press shows itself in the widespread rules that prohibit simultaneous ownership of daily newspapers and radio or TV stations. The rationale for this is to prevent abuses of

182 Cf. B.M. Compaine (2000, pp. 485ff.: preference for audience figures as a criterion for assessing an operator’s market dominance). 183 This tendency can be found throughout Europe: see for Belgium, S.P. De Costier (in Various Authors, 1992, pp. 49ff.). 184 Cf. De Vescovi (1997, p. 78), where he aptly observes that the press is one of the main beneficiaries of the increased levels of advertising emanating from television, the very area to which the press is alleged to be losing resources. This is quite clear also in the German experience: see P.J. Humphreys (1994, p. 322). 185 For the theoretical origins of this thesis and its affinities with certain positions held by the Frankfurt School, see L. Taylor and A. Willis (1999, pp. 94ff.), where doubt is cast not only on the foundations of the thesis, but also on whether the tools employed by that School are adequate to a full understanding of the phenomenon.

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power by ‘rich’ enterprises at the expense of ‘poor’ ones, leading to the latter becoming dependent on the former and so resulting in a loss of pluralism. Here too, the prejudice is evident whereby stakeholders are considered ‘plural’ if they belong to, say, the automotive (rather than steel) or pharmaceutical or construction industries, but not if they are involved in broadcasting.186 Could one not argue to the contrary that the synergy of publishing and broadcasting enriches both by providing financial resources for the former and material for the latter? In conclusion, if a priori ceiling on concentration and the separation of enterprises appear unsatisfactory in both their premises and effects, identifying a coherent framework for ensuring competition is beset with difficulties.187 Some points can, however, be confidently asserted. (a) Competition law is for the pursuit of economic objectives, not other kinds (specifically political). (b) Just as communications businesses are not entitled to particular freedoms (especially freedom of expression), so neither should they be burdened with specific obligations to promote political values. (c) One cannot create a precise one-to-one equivalence between the number of enterprises and the number of different voices. It is not necessarily the case that a very competitive market has a large number of players or conversely that an oligopolistic one has very few.188 (d) The courts tend a priori to seek ways of finessing or circumventing prohibitions that appear purely formalistic. To make substantive prohibitions effective it is necessary to provide a thorough explanation of the reasons behind them.189

6.4. Market failures and public regulation In the previous paragraph we have attempted to show how, in systems that proclaim themselves to be based on freedom of expression, the enterprises largely charged with maintaining that freedom are subjected to

186 On this point see data relating to the USA in Compaine and Gomery (2000, pp. 481ff.). 187 For a summary of the problems see M. Di Filippo (2000, pp. 283ff.). 188 Cf. B.M. Compaine (2000, pp. 526), where the opinion is expressed that the history of the US exhibits three less than perfect models (monopoly, oligopoly and monopolisitic competition) from which to choose. 189 Cf. I. Nitsche (2001): ‘The EU’s broadcasting and television policy consists of various bits and pieces pursuing different and partly irreconcilable aims’ (p. 61).

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rigid regulation in the name of protecting pluralism.190 The spontaneous organisation of the market is seen – although this has hardly ever been put to any proof – as inimical to these arrangements and so is inhibited by legislation. If information and ideas can be viewed as products, to be produced, exchanged and sold, such restrictions are hardly satisfactory. If there are potential consumers of information and ideas, then willing suppliers will be found, usually for payment but often also free of charge or for indirect financial benefits.191 Freedom of expression should not, however, be confused with any concomitant obligation to disseminate ideas. Nor should every overlooked idea be held up as an example of discrimination. However, one can identify certain areas in which public provision, either in place of or addition to private, would appear useful if not essential.192 The first is where private operators do not and will not supply a service. The second is where there exists an obligation to provide a service. Into the first category fall those situations where to gather, edit and transmit information would be too onerous and offer a dubious prospect of financial return. The connection with the idea – of long standing, but to be sure not entertained unequivocally – of universal service provision is clear enough: postal services in rural areas, public transport at the peripheries of built-up areas, telephone lines in highland communities are all examples of uneconomic services provided at affordable and nondiscriminatory prices. In these cases, however, it is the medium and not the content that is addressed. In other words, it is easier to maintain that there should be guaranteed access to the wide and varied world of information and communication than to specify what precisely should be broadcast using public subsidies. Concrete examples are thus thin on the ground: expatriate communities abroad, linguistic minorities within a national territory, groups with particular disabilities, services with a high social, for example educational, value but little economic potential. Connected with these are instances where there is an officially recognised obligation to provide information. There are more of these than one

190 As well as the protection of the consumer, the efficiency and development of the sector; for a summary supportive of this thesis, see M. Gambaro and F. Silva (1992, pp. 71ff.). 191 See the informative tabulated data on availability of television programmes in the UK and US in E. Noam (1991, pp. 35ff.). 192 See the thorough acknowledgement of this point in R. Craufurd Smith (1997, pp. 58ff.); and see G. Doyle (2002, pp. 64ff., 161ff.), as well as O.M. Fiss (1990, p. 144).

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might suppose. Such matters include: public health and safety, including vaccination, epidemics and weather forecasting; public participation, for example electoral information; and those bearing directly on a citizen’s rights and responsibilities, such as familiarity with laws and regulations. There is a conception of obligation towards the young that would extend beyond a family’s duty to instruct its own children and charge the state with certain duties to provide its youngest citizens with a core of essential knowledge. The examples given mainly involve information, but a wider range of subject matter is involved when it comes to ensuring physical and virtual space is made available for opinions, as where elections and public consultations are concerned.193 In both areas – subsidised public provision and compulsory public service content – the means by which these functions are to be discharged need to be identified. In some cases it will be most convenient for the state to undertake them directly, while in others they can be farmed out to private operators.194 What it is intended to show is that the demands in this area have much in common with other areas. The solution is thus to be determined according to criteria of efficacy, seen from two angles: a proper use of taxpayers’ money and minimum impact on functioning market mechanisms. This leads to questions about the main medium – common to all European nations – for state intervention, and that is public radio and television. The justification for its existence rests on the need for public information, as well as on other grounds. Such need has evidently not had the same implications for other media, typically the press, either now or when they were the only ones available. The discrepancy arises from state broadcasting monopolies, but once these have been broken, it is necessary to demonstrate a market failure before arguing that significant public intervention is required.195 The other argument deployed concerns a community’s cultural identity and the role of public institutions in preserving it.196 This is an important concern, but solutions to the questions it poses seem to be heavily

193 The issue of political broadcasting is, however, full of pitfalls. See G. Druot (1995) and I. Cram (2006, pp. 50ff.). 194 See, for example, the proposal of a ‘Public Service Publisher’ suggested by the British Ofcom and discussed by L. Hitchens (2006, p. 313). 195 A serious contribution in this regard may be found in R. Gunther and A. Mughan (2000, pp. 434ff.). 196 The relationship between public broadcasting and citizenship is a theme amply developed in M. Feintuck (1999), see especially the conclusions at pp. 187ff.

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distorted by a priori reasoning. It is indisputable that public broadcasters have played an important part in constructing a sense of national cultural identity, but they have done so less in absolute terms than by virtue of the simple fact that in Europe private broadcasters have been non-existent or marginal since the early days of radio and television.197 Any suggestion to the contrary is once more refuted by the divergent experience of the United States.198 Solutions should thus be sought in diversity: given that a broadcasting company – just as any other well-managed enterprise – seeks to maximise its profits and will pursue a coherent strategy to that end, this can lead to the sacrifice or sidelining of programmes that have high cultural but low economic value. The market would not thus be able to provide programming of this sort and it would then be up to the state to fill the breach in the form of public radio and TV.199 Such a vision – which is widely recognised and supported in most European countries and substantially informs the position of the EU itself200 – can certainly be supported by a range of arguments and takes advantage of the stated aims of both public and cultural interest. It is, however, open to two objections, one preliminary, and one on its merits. (a) State intervention in the production of culture takes various forms, generally subsidy or facilitation. Theatre and opera, classical orchestras, circuses, cinema and publishing all benefit from state aid. They are sometimes almost totally integrated into public provision – usually in the hands of and run by local councils. Is it – or should it be – the same for radio and television? The answer depends to a large

197 Cf.

Noam (1991, pp. 11ff.). one cannot accept the broad statement according to which there is an inherent market failure in TV broadcasting (Hitchens, 2006, p. 252). According to the Author, one of the main evidences of a market failure in broadcasting is that nobody is willing to pay for free-to-air programmes. If that were so, the whole Internet economy would be a market failure requiring strict regulation. 199 See, for example, the study by R. van der Wurff and J. van Cuilenburg (2001), which points out that ‘moderate competition improves diversity, whereas ruinous competition produces excessive sameness’. 200 The principle applicable law is to be found in the Protocol on the System of Public Broadcasting in the Member States attached to the Treaty of Amsterdam (1997), which modifies the Treaty on the European Union and the treaties which created the European Communities; Council Resolution of 25 January 1999 concerning public service broadcasting ([1999] OJ C 30/01); and the Communication of the Commission on the application of state aid rules to public service broadcasting, [2001] OJ C320/04, and the comment by V. Zeno-Zencovich (2003b, p. 1). See also C. Baumann (2002, pp. 49ff.). 198 Therefore

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extent on the content of the programming to be supported. In other words, it is not the broadcasting medium itself that determines whether to invoke or impose state intervention, but the programme which it is intended to transmit. Any other approach would seem to be a vestige of the view of broadcasting as an essential public service to be exclusively reserved to the state. (b) And so we reach the point where we have to examine the substance of the activity in question and then identify who is to establish what it is and according to what measure it will be evaluated.201 Such a proceeding presents evident risks: the state decides which ideas deserve to be broadcast and undertakes the cost of so doing. Thus it is not society, but public authorities, who decide what gets said, seen and heard. Of course this warning does not carry any nihilist implications – along the lines of ‘any and all public intervention is wrong’ – but it serves to illustrate the delicacy of the operation and the importance of procedural considerations. Some principles need to be taken into account: The first is to be aware of the supplementation and displacement implied: inevitably, other programmes readily available in the marketplace will as a result of the intervention not get an airing.202 Because it will have a significant impact on the normal workings of the market, we must be aware that any justifications based on alleged market failure will not hold for interventions that do not in fact arise out of, but on the contrary aggravate a tendency towards, such failures. A second principle, of considerable importance here, is pluralism, in the sense that it is hard to reconcile the state as bearer of a single opinion, tendency or belief with its assumption of the task of representing the majority (though not all) of these to the outside world. The thrust of this discussion is that the importance attached to freedom of expression requires that outside interventions should be kept to a minimum and can only be justified where they are calculated to attain objectives that cannot be realised by other means.

201 J.

Keane (1991, pp. 16ff.) deals fully with this point. this sense, the use of radio and television to combat new forms of social and cultural marginalisation – see P. Caretti (2001, p. 138) – necessarily leads to intervention in areas that are by definition ‘marginal’ (from which it does not follow that they are unimportant). 202 In

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Chapter 7: The Main Areas of Conflict: Pornography, Peaceful Coexistence, National Security The history a freedom of expression has at all times been punctuated by repressive interventions with often extremely adverse effects on those who wished to exercise it. Even today there are important areas where the regime in place is anything but complete freedom. Some of these have peculiarities which merit closer attention, particularly as they involve the most important conflicts of outlook. These prove to be in the areas of public morality (especially as regards pornography), civic coexistence (especially as regards incitement to commit crimes, together with racial and religious discrimination) and state security (especially as regards official secrets).

7.1. Freedom of expression and public morality One of the principal targets of policies aimed at limiting freedom of expression has always been utterances deemed injurious to public morality. The concept is extremely wide in scope and has given rise to endless conflict, particularly in the context of that singular form of discourse, artistic expression.203 First writers and painters, and later photographers and theatre and film directors, have been, in different countries at different times, the object of police and judicial initiatives, usually accompanied by campaigns of public disapproval. An examination of this tendency, both in former times and more recently, is useful not only to establish the extent of the limits set to freedom of expression, but also to understand that each age has its own sensibilities: Boccaccio’s and Chaucer’s tales were considered licentious in later centuries and Dangerous liaisons was deemed perverted by nineteenth century morality. These judgements are certainly influenced by how secular – in terms of how much or little religious principles pervade it – a society is, but they are determined above all by how accepting it is of reality. Ultimately, anything that is labelled obscene or depraved is nearly

203 One cannot overlook, moreover, those perspectives which tend to detach artistic freedom from freedom of expression. See F. Rimoli (1992, pp. 23ff., 286ff.). See also E. Barendt (1987, p. 269).

The Main Areas of Conflict

always an artistic representation of an existing reality, the allegations in effect transferring onto the narrator the real or supposed ‘filth’ being narrated. In the contest between censorship and free expression, the battles won by the former give way over time to an eventual victory for the latter in terms of the progressive enlargement of permissible forms of expression. On the basis of experience, one can also argue that nearly all the barriers have now been breached and that public morality is no longer an obstacle – or is at most a feeble one – to freedom of expression. However, this conclusion needs to be modified by a distinction, essential but not easy, between artistic representation and representation tout court. This stands out most clearly in the case of pornography, in which the artistic content, if any, is overshadowed by the intention to stimulate and sexually excite. This raises certain issues. (1) Can pornography be said to be a form of expression of ideas?204 From a viewpoint that places all forms of expression on the same level, the answer would surely be ‘yes’: whether representing human or animal copulation, describing it with scientific or literary language, or indeed showing it ‘live’, all are equally valid forms of expression and hence deserving of equal treatment. If, however, one adopts a more realistic position, as this book has generally propounded – according to which not all types of content are in fact equally treated – one can point to the meagre expressive content of pornographic representations which essentially take the form of consumer products.205 Restrictions on the ‘if’, ‘when’ and ‘how’ of their circulation would thus be justifiable on the same grounds as for any other product that calls for particular user notices. There is certainly a grey area where literary and pornographic production merge, but this is inevitable and not such as to dictate the form of the rules. (2) Recently, the thesis has been forcefully advanced that pornography is not a form of expression so much as the visible representation of an actual act of sexual violence directed against one or more women.206 This view holds that as between someone who commits and films a murder in order to sell the images and one who organises an orgy

204 As

Barendt asks in Freedom of Speech(1987, p. 247; verbatim). is an extremely wide-ranging debate on this point. For a valuable summary and critique of the various arguments see R. Dworkin (1985a, p. 335). 206 This thesis is generally speaking part of the ‘legal feminism’ tradition. It is advanced with passion by C.A. MacKinnon (1993). See also the numerous essays in C. Itzin (1992). 205 There

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with the same intent there is a difference only of degree. Pornography is not an opinion, but the proceeds of crime, and is to be banned not for reasons of public morality, but to limit a repulsive use being made of a woman’s body. This thesis, a central part of ‘legal feminism’ as it is known, as well as being part of the reaction against the overblown interpretation of freedom of expression in the United States, has various weak points. Firstly, it assumes a yardstick of common sexual attitudes which are, however, not consensual in the west and depends on a problematic view of perversion. Secondly, it seems to seek to protect women only, leaving homosexual and trans-gender pornography out of account.207 Thirdly, it impinges quite drastically on the free use of one’s body and its energies, assuming that whereas mental and physical uses can be hired out, sexual ones cannot. Finally, it is all too easy to apply the ‘slippery slope’ argument: if what one is seeking to repress is representations of the subjection of women, this would open the floodgates of censorship to cinema, literature and other forms of expression (not least comics).208 The strong point of the thesis, and the one which opens up a debate about freedom of expression, however, is its connection with the protection of human dignity.209 We will deal with this aspect further in the next section. Here it will suffice to observe that by invoking a principle as privileged as dignity, one is promoting the idea that even freedoms ranking as highly as that of freedom of expression must be reconciled to it. (3) The thesis just raised is moreover directly applicable to a particular form of pornography: child pornography.210 The argument is straightforward: using minors for sexual gratification is also a criminal offence; the visual representation of such activity fulfils a purpose of the offence and so falls squarely within the scope of criminal penalties as the ‘result’ of the offence. There is, however, a clear-cut conflict with freedom when the subject matter of the image

207 See, however, the 2000 Canadian Supreme Court decision in Little Sisters Books v. Canada approvingly commented by C.N. Kendall (2001). 208 Not surprisingly, MacKinnon’s conclusion advocates ‘a new model for freedom of expression in which the free speech position no longer supports social dominance, as it does now’ (1993, p. 109), a position which contradicts the entire, complex, history of free speech. For a rebuttal of such arguments, see T.I. Emerson (1984). 209 See, at some length, on the connection between suppression of pornography (as a form of sexual contempt) and suppression of racial hatred, S.M. Easton (1994, pp. 158ff.). See also F.R. Berger (1991, pp. 156ff.). 210 The topic is thoroughly analysed by I. Cram (2006, pp. 141ff.). It should be noted, however, that focusing exclusively on child pornography does not offer a comprehensive framework for pornography tout court.

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of a minor is not intrinsically sexual, but the issue is the paedophile use to which it is put. Whereas imposing criminal sanctions for the possession of the ‘result’ of an offence is a logical – if somewhat difficult to enforce – development of criminal law, suppressing the possession and exchange of other kinds of image amounts to the repression of a sexual predisposition which may be repellent but has not in the situation in question produced any concrete consequences. It can thus be seen that pornography as a phenomenon does not fall squarely into the familiar arena of conflict between freedom of expression and public morality.211 This appears to be due to the influence of another axis of adversarial positions cutting across it: sexual freedom versus human dignity. The former has advanced rapidly in the last few decades, most significantly achieving social and legal recognition of homosexuality and of the disjuncture between sex and reproduction. These aspects have thus been moved from one context to another, which does not in itself diminish problems, but goes to show that the conflict between freedom and prohibition is common to large parts of the legal order.

7.2. Incitement and ‘fighting words’ It is traditionally held that the freedom of expression is bounded at the point where it translates into actions that might harm a protected interest. Where this point is reached has always been a matter of rather fluid interpretation, susceptible above all to individual judges’ estimation of the danger posed by an utterance. The approach adopted by different legal systems has in general been pragmatic, penalising types of utterance shown by experience to most likely to cause the harm it is sought to avoid. This certainly has the advantage of isolating the critical areas – in terms of the type of expression and the crime committed – but at the same time imposes liability on a person expressing opinions that he does not hold, but are connected with whoever uttered them in the past. The sensitivity of the subject arises from the fact that usually the expression suppressed has intrinsically political aims or content. The promotion of many different ideologies – and not only extreme ones, when one considers Ghandi’s advocacy of non-violence – entails the denunciation of

211 See I. Cram (2006, p.

140): ‘The value of sexually explicit speech seems to be linked more loosely to the intellectual growth and maturity of autonomous individuals. If selffulfilment/autonomy is taken to include making the most out of oneself or making oneself as wise as possible, the rationale is rendered so open-ended as to fail to mark out speech in particular as worthy of protection’ (italics in original).

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laws held to be unjust and hence violation of them. The critical instances are obviously not those where an incitement is made in so many words to disobey specific laws or subvert public authority, but those where the words used are less direct and less clearly calculated to have seditious effect.212 Although there have been attempts to reduce arbitrariness by identifying criteria, such as the ‘clear and present danger’ test adopted in the US, the area still lacks clarity and is fraught with difficulty in finding substantive distinctions between the various types of incitement, instigation, justification and moral complicity. The common rationale is that ideas are, or can be, dangerous and so their transmission is to be banned or limited, without checking whether it actually produces the apprehended effect. The choice of what to target has two components: the first concerns content, identifying what is actually being expressed. Despite considerable variety in detail, the offences generally come under the headings of incitement to commit an offence, or utterances endangering state security, public order and so on, or more specific instigation of racial hatred or disaffection in wartime. The second component is the form that the utterance takes, not only its style but also the place and means of communication, thus taking context into account. The conflict with expression of ideas is obvious, but it cannot be treated as just another episode in the struggle between liberty and authoritarianism. In many cases it can be shown that prohibitions on certain discourses serve to safeguard interests held to merit protection. Among the many examples are texts which explain how to commit suicide, carry out euthanasia, grow and use narcotic drugs, evade payment for the use of certain public services and so on. Usually, the competing values have been prioritised beforehand, especially in situations where criminal penalties are imposed. In this sense, the limiting of expression of ideas can be seen as a surrogate for the protection afforded by penal deterrence, as in the case of attempts for which criminal penalties are usually negligible. The prioritisation of values is even more clearly evident in the recent tendency, most marked in western European democracies, to penalise the expression of ideas that promote or incite discrimination on grounds of race, religion and ethnicity.

212 For a full treatment of this topic from a US, Israeli and German perspective, see the various essays in D. Kretzmer and F. Kershman Hazan (2000). See also the Italian point of view in S. Fois (1957, pp. 161ff.).

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The historical roots of the prohibition are clear, and date back to the horrors witnessed in Europe through large parts of the twentieth century, in their most extreme forms in Nazi Germany and the Soviet Union. Hence the determination to suppress any renascence of the ideologies behind the genocidal acts. While they are wholly understandable from a political point of view, such choices – and they have been made by most of the countries of Europe and by the European Union213 – pose difficult questions. Certain ideologies are prohibited outright, based on judgments that owe more to history than to legal principle.214 Whereas with incitement to commit an offence one can posit a causal relationship between the expression and the criminal act, here any such nexus is rather more vague and the outcome one is seeking to avoid is the dissemination through society of certain ideas that could crystallise into political movements.215 Symptomatic of the problem are the judicial difficulties faced by those dealing with socalled ‘holocaust deniers’, people who maintain that there never was any concerted Nazi policy to exterminate Jews. Someone who denies that the Earth orbits round the Sun, or any other historical event, will be judged by public opinion and not by a court. This does not imply that the choice of what to suppress is irrational. It rather points at the need to review the scope of freedom of expression,216 and to recognise that it may be compromised by the need to respect other interests deemed to have a prior claim to protection, in this case the insulted memories of the survivors.

7.3. National security and wartime Another front on which the freedom of expression is severely restricted is in connection with the many rules designed to protect the security of the state. These generally concern the disclosure of information classified as

213 See I. Cram (2006, pp. 97ff.). But see also the thorough examination of the problem in US law in T.D. Jones (1998), especially pp. 61ff. 214 The long shadow historical events dating back to the first decades of the twentieth century still cast on recent legislation is clearly shown in the title of L. Greenspan and C. Levitt (1993). 215 Some who advocate permitting such forms of expression argue from this general consensus-creating capability: see S.H. Shiffrin (1999, pp. 80ff.). 216 Shiffrin’s view stated at p. 50 of Dissent, Injustice and the Meaning of America, cited in the previous footnote, is significant: ‘I believe First Amendment issues are […] of minor importance in this area.’ For a critical analysis of the ‘absolutist theory’, see T.D. Jones (1998), especially chapter 3 on the ‘Myth of Absolutism: The First Amendment Right to Freedom of Expression’.

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secret and thus would appear not to directly affect expression of ideas. However, the distinction is not so clear-cut in practice: information is a prerequisite for criticism of the state and its policies and these can only be evaluated on the basis of that information withheld as secret. It can thus reasonably be asserted that a principal and direct effect of the classification of information is to reduce the scope for critical debate on the activities of the state. This conflicts with the historical basis of freedom of expression and its place in a democratic society. So the argument is less about freedom of expression per se than about the exercise of power itself and about whether there are – or should or can be – any areas of it concealed from public knowledge. Seen from this perspective – the form and limits of state power – the problem takes on a different dimension and invites solutions through regulatory and procedural mechanisms that, while permitting certain information to be kept secret, reduces the scope for unaccountable and hence arbitrary behaviour, including in regard to what does or does not need to be kept secret.217 The conclusion to be drawn from this is that the majority of democratic regimes do not consider that the restriction of knowledge (and hence the capacity to discuss and debate publicly) is a weak point of governance or an unacceptable infringement of a fundamental right.218 This would seem to confirm the absence of any one-to-one correspondence between democracy and freedom of expression, with the additional, non-negligible observation that the latter exists for human beings to explain themselves, but can be, and indeed is, reduced in order to safeguard political institutions to which those same persons belong. Alongside the traditional concept of state secrets there is, increasingly in recent years, another issue that interweaves new questions with the old ones.219 This is the relationship between information and armed intervention:220 the starting point – as particularly evidenced by the abundant experience of the United States – is that military interventions in foreign countries, whatever their purpose (humanitarian, peacekeeping or purely and simply belligerent) and whatever their status in international law, depend on the support not only of political institutions (normally expressed through votes in parliament), but also of the public. In this the role of information, only in part spoken or written and increasingly in the form of images, is crucial.

217 See

the various contributions to S. Shetreet (1991).

218 An attempt to establish some common principles in democratic countries is included

in the Johannesburg Principles on National Security, Freedom of Expression and Access to Information of 1995, for a comment on which see S. Coliver et al. (1999). 219 For the earliest modern analysis of the various issues, see Z. Chafee (1919). 220 See generally, S.L. Carruthers (2000), especially chapter 3.

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The dilemma can be readily understood. On the one hand, the military are inherently resistant to internal and outside discussion of their actions, operating according to rules of hierarchy and obedience justified by tradition and the demands of effectiveness in the field.221 On the other, the information media do not share these values and are accustomed, in contrast to other institutions, to an extremely high degree of freedom.222 So a circle of interactions is created. Democratic governments need to win acceptance for extraordinary decisions that may have tragic consequences in terms of dead and wounded. To do this they have to compel the armed forces, charged with the success of the undertaking, to overcome their ingrained institutional secrecy and open themselves to outsiders. At the same time, the armed forces need to legitimise their actions and so wish to supply information selectively so as to cast them in a positive rather than negative light, while the purveyors of information to the public have a sense of professional responsibility that bridles at any attempt to use them as filters allowing success stories through and screening out the failures.223 From the legal point of view, a situation of mere fact becomes transformed into one of detailed regulation of the times, places and means of access to information on military operations which the news media have no choice but to accept. One can imagine a future in which media coverage of war events is ‘negotiated’. We are here confronted with one of many instances of voluntary restraint on the freedom of expression, the validity of which may also be debatable. The still embryonic development of legal standing for war correspondents does not permit firm conclusions to be drawn. We are in a transitional period in which the demand for secrecy chafes against the demand for knowledge of the actions of public authorities and the relationship between them has still to settle down. This amounts to a step forward, even if the long and often frustrating experience of humanitarian law seems to confirm the dictum, drawn from the Anglo-Saxon experience, that truth is always the first victim of war.224

221 See the salient judgment of the European Court of Human Rights in Grigoriades v. Greece (25 November 1997) 24348/94 [1997] ECHR 93 at para. 45: ‘the proper functioning of an army is hardly imaginable without legal rules designed to prevent servicemen from undermining it’. 222 See the many contributions to S. Shetreet (1991), G.R. Stone (2006); Note (1997). 223 This dynamic applies in general also to foreign policy decisions: see P. Seib (2002). 224 On the status of the war correspondent in humanitarian law, see D. Barrelet (1998, pp. 119f.).

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More specifically, the topic discussed here places freedom of expression in a complex relationship with the creation of consensus around government decisions in a democratic society. This is the primary objective, and experience shows that it is not always pursued by widening the scope to express ideas, often indeed the reverse. This is a further confirmation of the fact that, despite declarations to the contrary, the actual principles of freedom of expression are very often applied with a functional approach: what is their scope?

Chapter 8: Towards a European Framework?

The analysis that has been conducted in the previous chapters has avoided focusing on any one legal system. Although it has centred on the European experience – rather than on that of the United States – it has pointed out some common features which are found in the European legal culture as a whole, including therefore legislation, case-law and scholarly works. Some distinctions must, however, be made.

8.1. A civil law/common law divide Although it is generally acknowledged that the traditional civil law/ common law distinction is grounded mostly in private law rather than in public law, it is appropriate to point out that, at first glance, there appears to be a significant difference in approach, in the field of freedom of expression, between Great Britain and continental countries. While a considerable number of British scholars point out the many facets of freedom of expression, the contradictions that emerge, and the evolution of the subject in the light of technological changes, mainstream continental sources appear strongly influenced by a much more dogmatic – a priori – approach. The difference reflects not only the distinctive character of each legal culture, that is, mentality, but also the hierarchies in sources of law. The circumstance that freedom of expression is laid out in constitutional documents – the most relevant are the Italian constitution of 1948 and the German one of 1949, which have served as models, in the 1970s, to the Spanish, Portuguese and Greek constitutions, and in the 1990s to Eastern European ones – enhances what is commonly called Begriffjurisprudenz: A legal system in which concepts and general principles come before and above the factual reality, and are meant to mould it. From this point of view one can quite readily trace a parallel with the US experience. Although in no European country is there a rhetorical equivalent of the First Amendment, there is, however, a clear tendency, especially by the national Constitutional Courts, to use the relevant provisions in a very broad fashion, following the ‘cornerstone’ approach which is so typical of the US Supreme Court decisions.

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By contrast, until recent times, the British attitude – whether judicial or academic – has been much more cautious and has, despite some frequent lip service to the fact that Britain presents itself as the birthplace of freedom of the press, more often than not imposed severe restrictions on publishing and broadcasting activities, especially in times of significant social changes. It should be noted that these differences tend to be mitigated by the fact that in the last six decades, English history is parallel, if not joined, to Western European history and the values shared – especially as opposed to those of dictatorships past and present – have been substantially the same. If one takes a pragmatic look at the deployment of the principle of freedom of expression it is apparent that while in the conflict between media and individuals the continental theory of ‘personality rights’, which dates back to the nineteenth century, has played an important role in the protection of reputation and of privacy, the English model of public-service broadcasting continues to set the standard in the rest of Europe. In moments of crisis, government and the courts in Great Britain have not hesitated to impose severe restrictions on the dissemination of information considered important for national security.225 At any rate, whatever the differences, they are gradually blurred by the day-to-day pressure of European law in its manifold aspects: from the 1950 European Convention on Human Rights, which through the Human Rights Act of 1998 has taken on the role of a constitutional charter in Great Britain, to the 1957 Rome European Community Treaty; from the 1992 Maastricht Treaty on the European Union to the 2000 Nice Charter on Fundamental Rights, which has been recently (2007) encompassed in the Lisbon Treaty.

8.2. The making of a European ius commune Over the last fifty years the European Court of Human Rights has developed a rich and wide-ranging case law on article 10 of the European Convention on Human Rights.226 Although most of the decisions tend

225 The obvious reference is to the so-called ‘Spycatcher case’: see E. Barendt (1989, p. 204); Lord Oliver of Aylmerton (1991, p. 23); L. Vickers (2002, pp. 119ff.); H. Bosma (2000, p. 80). The decisions by the English courts were considered contrary to article 10 by the ECHR (1991). 226 Among the many commentaries see A. Mowbray (2007, p. 623); H. Thorgeirsdottir (2005); M. Oetheimer (2001); H. Bosma (2000); M. Delmas-Marty (1992); H. Fenwick and G. Phillipson (2006).

Towards a European Framework?

to be taken on a factual and case-by-case basis, some general principles can be extracted: i. Freedom of expression is a central aspect of the European system of human rights and limitations to it must be scrutinised very closely. ii. The guarantees offered by article 10 are mostly aimed at protecting ‘valuable speech’, that is, speech that brings a significant contribution to public debate.227 Some kinds of speech – and the ECHR refers generally to gossip press228 – do not deserve, on balance, the same protection. iii. Not only is the subject matter of expression relevant, but so also is the person involved. There is a tendency in the Strasbourg jurisprudence to single out politicians as deserving a lesser degree of protection of their personality.229 iv. Freedom of expression, and especially freedom of the press, has to be balanced with public interests and private rights, as laid out by para. 2 of article 10. The individual right to reputation, to a fair trial,230 to privacy (article 8) often outweighs that of the press. v. The ECHR case law tends to quash judicial decisions which apply criminal or civil sanctions to the press or to individuals for purported violation of the limits set to freedom of expression.231 It is much more lenient towards administrative decisions which have a wider, and often general, scope.232

227 See

Jersild v. Denmark (1994); Plon v. France (2004). von Hannover [of Monaco] v. Germany (2004). 229 see M. Delmas-Marty (1992, p. 66). The leading case is Lingens v. Austria (1986), which sketched the notion of ‘public figure’ and his or her more limited sphere of protection; among the many sequels see Tammer v. Estonia (2001); Scharsach v. Austria (2003); Karhuvaara v. Finland (2004); Wirtschafts-Trend Zeitschriften v. Austria (2005). If, however, the news is of no public interest and involves third parties, the politician regains his right to privacy: Craxi v. Italy (2003). 230 See M. Delmas-Marty (1992, p. 73). Prager and Oberschlick v. Austria (1994); Dupuis v. France (2007) (but on the specific facts the Court favoured the applicant journalist). For an English overview, see A.T.H. Smith (2000, p. 123). 231 Also, M. Delmas-Marty (1992, p. 60) points out that spoken words and pictures are more subject to restrictions than the written word. 232 Among the many decisions see Handyside v. UK (1976) (no violation of article 10 for the seizure and destruction of hundreds of copies of a book addressed to teachers and students and containing 26 pages devoted to sex); Otto-Preminger-Institut v. Austria (1995), in which the seizure of a film depicting Christian divinity in a way considered blasphemous was upheld; Wingrove v. UK (1996), in which the censorship of an 18-minute film depicting an erotic Santa Teresa d’Avila was upheld [incidentally it is fortunate that Bernini’s statue of the same saint in Rome, depicting a beautiful angel in the act of aiming an arrow at an ecstatic woman, did not undergo the same censorship 228 Carolina

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vi. Although it is not easy to establish the effective role of the Strasbourg jurisprudence in shaping the law of freedom of expression in national jurisdictions, significant inferences can be drawn from the growing number of citations it receives in national decisions.233 This is part of the general tendency of national courts to justify their decisions by making explicit reference to the European Convention and its case law. This is particularly clear in decisions involving personal freedom, where article 6 of the Convention is invoked, and in the English decisions – noticeably by the House of Lords – since the enactment of the Human Rights Act of 1998.234 A further element that will have a growing impact in national jurisdictions is the enforcement of the decisions reached by the European Court, which tend to be considered as superseding even res judicata.235 It has taken almost six decades to arrive at this result but one can now, quite easily, trace a fil rouge between comparable decisions of European courts held together by a common use and interpretation of the ECHR.

8.3. The role of the Council of Europe The importance of the European Court of Human Rights in shaping a European notion of freedom of expression must be considered together with the growing role of the Council of Europe (of which the Court represents the judicial expression). The activism of the CoE coincides with the accession to it of Eastern European countries emerging (or re-emerging) after the fall of the Berlin wall in 1989, and of a number of former Soviet republics, some of which cannot easily be classified (geographically, historically and culturally) as ‘European’ (e.g., Armenia, Azerbaijan, Georgia).236 This has prompted the CoE to set up special offices and institutions (the Commissioner for Human Rights, the ‘Venice Commission’, the Standing Committee on Transfrontier Television et similia) with the aim of enhancing the transition from post-authoritarian regimes to fully democratic ones.

by the Catholic counter-reform movement; nor was his statue of the blessed Ludovica Albertoni with a near-orgasmic expression]; Groppera v. Switzerland (2000) in which the denial of a cable TV licence was considered not in breach of article 10. 233 For a detailed overview see M. Oetheimer (2001, p. 219). 234 The literature on the subject is vast: see ex multis B. Markesinis (1998), H. Bosma (2000), H. Fenwick and G. Phillipson (2006). 235 See J. Polakiewicz (2001, p. 66). 236 For a summary of the problems posed by the enlargement of the CoE see S. Greer (2006, pp. 28ff.).

Towards a European Framework?

The main consequence of this trend has been to establish de facto models of legislation and interpretation in the field of freedom of expression, following a pattern of legal transplants common to post cold-war Europe. However meritorious the intentions may be, what does not appear to be sufficiently clear is that the framework of freedom of expression in mature democracies – as most of the Western European countries are – is quite different to that of democracies in transition, especially in countries where there is practically no tradition of representative institutions and of public and peaceful debate over political, economic and social issues. It is therefore extremely difficult to apply the same yardstick, especially if it is fraught with controversial issues such at the legitimacy of the power of the press and of strict state control over broadcasting activity.

8.4. The ‘TV without frontiers’ Directive The activism of the Council of Europe can be explained also on strictly normative grounds. Whilst the ECHR contains an explicit provision (article 10) concerning freedom of expression, the various EU treaties, from Rome to Maastricht, do not tackle the issue.237 Not until the 1997 Amsterdam treaty was a Protocol on public service TV annexed, and subsequently the 2000 Nice Charter on Fundamental Rights has wrought some significant changes to the ECHR approach. It is therefore not surprising that the first – and for the moment, only – substantial EU intervention in the field of media regulation was preceded by a CoE Convention on Transfrontier Television, whose text was substantially copied and pasted into the 89/552 EC Directive on ‘TV without frontiers’.238 This explains why such a Directive does not have a market-oriented vision and aims mainly to establish some very minimum rules that are mostly set in the interest of the general public (advertising breaks, right of reply, protection of minors) rather than to create a common market for audiovisual services. There is also another reason for the very limited scope of the Directive: it is the result of very strong lobbying by public-service broadcasters grouped in the powerful European Broadcasting Union, a cartel whose role has been challenged only years later.239 It is quite clear that public

237 See

B.J. Apt (1998). the analysis of the EC competence issue in D. Goldberg et al. (1998b, p. 11). 239 See P.J. Humphreys (1996, p. 269), D. Goldberg et al. (1998b, p. 39). 238 See

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television – in all member States controlled by its governments – could not favour opening the market, and tailored the rules to its own exigencies.240 There is a striking contrast with the parallel history of the liberalization of telecommunications. While this was forcefully pursued by the Commission in those same years – the first Directive dates from 1988 and the one on ‘full competition’ from 1995 – following strong political pressure by the British government which had liberalised its system with the 1985 Telecommunications Act, Directive 89/552 remains an isolated and minimalist intervention.241 Nearly two decades were to elapse before freedom to render audiovisual services was asserted in the reviewed version of that Directive (07/65). The role of publicly owned enterprises in shaping European broadcasting law – a role quite inconceivable in all the telecommunications directives – was further strengthened by the aforementioned Protocol to the Amsterdam Treaty.242 Again public television – obviously supported by the respective governments – obtained an exemption from the strict prohibition of state aid, ensuring for themselves a general recognition of the legitimacy of their public funding. However, the formula used in the Protocol to limit State aid (which should ‘not affect trading conditions and competition in the Community to an extent which would be contrary to the common interest’) is such that the broadcasting market is permanently, and adversely, influenced by the presence of a competitor – especially in the premium content (films and sports events) market and in the advertising market – which does not follow common economic rules and is well aware that losses will be paid not by shareholders but by taxpayers.243

8.5. ‘Freedom of the media’ in the European Charter of Fundamental Rights In this context, how are we to interpret article 11 of the European Charter of Fundamental Rights (ECFR) on ‘the freedom (…) of the media’, which has subsequently been enshrined in Article 6 of the 2007 Lisbon Treaty? One is immediately struck by the use of the word ‘media’ in a sense new to the jurist, but above all by the uncertainty as to its meaning. Should it be 240 Quite appropriately, Goldberg et al. (1998, p. 20f.) point out that ‘the Community’s media (or audio-visual) policy is certainly not the product of a single and unified Community vision of the sector’. 241 It is sufficient to see what the main issues debated at the time were: see K. Dyson et al. (1988). 242 See R. Craufurd Smith (2001). 243 Advocates of what is considered a ‘key tradition’ in Europe are not lacking: ex multis see M. Varney (2004). For an open market view see M.E. Beesley (1996, p. 1).

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read as equivalent to ‘mass communication media’? And what are these? The traditional press, plus radio and television clearly fit the definition, but what about cinema and multimedia products? And informational activity on the Internet? The origins of this provision can be found in cases decided in the European Court of Human Rights, in decisions of the EU Court of Justice and in specific EU rules, in particular directive 89/552 cited above. Whereas the ECHR has not delved deeply into the themes of ‘freedom’ and ‘pluralism’, dealing mostly on a case-by-case basis with issues relating to the application of article 10 of the Strasbourg Convention, the Court of Justice has been more incisive, and its decisions wider-ranging, and has repeatedly indicated that to uphold and promote ‘pluralism’ is a legitimate objective for Member States as well as the EU itself. This case law should be read in conjunction with a series of important provisions including, in addition to the directive cited above, the Green Paper on pluralism and media concentration and the Protocol annexed to the Treaty of Amsterdam on public service broadcasters. However, it is not easy to express what these decisions imply in concrete terms. A first element may be inferred from the deletion of a clause from the provision – article 10 of the Strasbourg Convention – on which the ECFR is based. It states, ‘This Article [10] shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises’. ‘Freedom of the media’ thus should be read, firstly, as elimination (or a severe reduction) of the myriad of regulatory barriers to forming enterprises in this sector.244 From this point of view there would be a connection with, for example, the absence of a licence requirement for provision of ‘information society services’ (directive 31/00), or with the simplified licensing regime based on ‘consent by silence’ for setting up companies which provide telecommunications networks suitable also for carrying radio-TV signals (directive 21/02). An ‘American’ reading of the expression, as it were adopting the ‘Freedom of the Press’ by incorporation of the First Amendment, appears rather less plausible. Elements important to any attribution of a similarly privileged status to the media are missing from, among other places, the European legal tradition, which – as set out in Chapter 1 – has always viewed the mass communications industry as an activity to control or indeed to monopolise. It is symptomatic that Article 11(1) ECFR states

244 One for all: the obligation in Directive 89/552 for terrestrial broadcasters to transmit a certain percentage of ‘European programmes’. See, for a critical examination of the principle, I. Katsirea (2003).

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that ‘Everyone has the right to freedom of expression’, accentuating the individual character of the right. The same article and subsection then goes on to state that everyone shall be free to ‘receive and impart information’, which appears to imply that obligations could be reasonably laid on mass communications enterprises to provide it and to allow access.

8.6. Pluralism and media diversity Greater problems of interpretation arise with the concept of ‘pluralism’ of the media. Indeed, on the one hand ‘pluralism’ is used in EU circles to justify State intervention on the declared grounds of promoting cultural diversity, especially as regards TV and radio. On the other, the term is used with reference to specific regulations concerning the maintenance of competition, in senses that diverge from its other use. Yet in the absence of detailed EU policy on the matter, the term ‘pluralism’ appears to be used to come to the rescue of national rules, which, if viewed objectively, could only be described as restrictive, distorting and discriminatory.245 Hence the recent attempts to establish what are the real nature of the concept and its relation to diversity in ownership of the media. Following a first Green Paper on ‘Pluralism and Media Concentration in the Internal Market’ dating back to 1994, the EC Commission has released (2007) a further working document on ‘Media pluralism in the Member States’, which examines topics such as the interrelation between politics and economic interests and the media, media concentration and the ways to assess it,246 cross-border concentration and global competition, media content, ‘internal’ and ‘external’ pluralism, technological developments. It is important to point out that the concept of ‘pluralism’ has been forged mainly in relation to broadcasting (and specifically TV rather than radio) and in an age when the role of such a medium appeared to be overwhelming. But, as will be outlined in the following chapters, in the twenty-first century that role appears to be greatly surpassed by different, and digital, media. To insist on a notion of ‘pluralism’ which almost exclusively takes into account – and stigmatises – broadcasting means ignoring that audiovisual services can now be purveyed by an increasing number of apparatuses (traditional TV sets, PC monitors, mobile phones, stand-alone

245 For 246 See

a poignant critique of the Commission’s positions see E.J. Carter (2001). A. Bavasso (2003, p. 160).

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handsets, etc.). And ignoring that the sources of information have multiplied in quantity, quality, speed and ubiquity. If it is correct not to establish a direct correlation between pluralism and competition rules, this means that the criterion for establishing whether and when there is a threat to the former must take a much wider picture into account. It could well be – and should not be ruled out a priori – that a significant reduction of competition has no effect on pluralism, and vice versa that transactions that escape antitrust scrutiny may bring about a cut back in diversity.247 The main difficulty consists in translating what clearly is a political issue into economic regulation and in trying to expand in this field the notion of market failure.248

8.7. The fruits – and contradictions – of convergence The last decade has seen the emerging of a phenomenon described as convergence, that is, the gradual narrowing of the technological, economic, social (and therefore legal) gap between telecommunications and broadcasting. From certain points of view the EU institutions are well aware of the process and have actively promoted it. In particular, it is an acquired notion that electronic communication networks can readily transport any kind of message, whether it be voice, data, images, sounds or videos. However, the complete consequences do not appear to be entirely grasped, partly because of the unwelcome (to some) effects that would ensue, partly because of strong opposition from consolidated lobbies and constituencies.249 The necessary starting point is article 49 of the Rome Treaty which establishes the freedom of rendering services as one of the basic freedoms of the European Community.250 Among these services, information services are becoming ever more widespread and valuable, as will be set out in the following chapters. Among these services the EU seems to have singled out what it calls audiovisual services. These, however, comprise a variety of situations whose boundaries are unclear: a film which can be seen on a pay-per-view basis is surely a service, but can that same film 247 For

an attempt in the US context, see D.G. McDonald and Shu-Fang Lin (2004). assuming that, in any case, there is a market failure in TV broadcasting (L. Hitchens, 2006, pp. 251ff.). For a comment see note 198. 249 The many contradictions underlying the EU policies in this sector are illustrated by S. Venturelli (1998, pp. 195ff.). 250 D. Goldberg et al. (1998b, p. 41) point out that ‘the activities of the European Community take place in an environment of international norms which further distinguish the media from purveyors of other commodities’. 248 Without

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rented on DVD at a specialised shop be considered a product? Are the innumerable video games which have ended up being identified with the producer’s trademark (e.g., Game Boy, Play Station, Nintendo, etc.), and for which there is a limited scope license, products or services?251 The EC institutions have tried to trim down the possible ambiguities by introducing – in the revised TV ‘without frontiers’ directive (07/65) – the distinction between ‘linear’ and ‘non-linear’ services. The first are those for which only the ‘media service provider decides upon the moment in time when a specific programme is transmitted and establishes the programme schedule’. The latter are those for which ‘the user decides upon the moment in time when a specific programme is transmitted on the basis of a choice of content selected by the media service provider’. Only the first would be subject to the obligations imposed by the directive, not the latter. The distinction appears technologically frail and open to considerable legal doubts, especially in view of likely future developments in the ways audiovisual services can be rendered.252 One can readily predict that specific means will be employed in order to make the service fall within the second – mostly unrestricted – category rather than the first. Furthermore the linear/non-linear divide appears to be at odds with the whole process towards convergence, inasmuch as it clearly favours telecommunication services – which typically are non-linear – over broadcasting services – which traditionally, in free-to-air television, are linear. Moreover, apart from the market distortion which will ensue, one of the main, and undesirable, side-effects is that expression will be regulated asymmetrically, with certain media undergoing strict control over content and time of dissemination,253 and others being completely – and quite correctly, in a liberal and free-market society – free.

251 One should note that the ideological grounds on which broadcasting regulation has generally been set has for a long time fostered an attitude of disregard towards economic facts and figures. For one of the first attempts to turn the tide see A. Pilati (1993). 252 Just as technological development upset the original principles in broadcasting frequencies in an analogical environment: see L. Woods and A. Scheuer (2004). The revised text of the 89/552 Directive has attempted to update the solutions given, but it is reasonable to expect that new technological advances will imperil them. 253 And this tendency would be further promoted by the introduction at a Community level of limits to media ownership, advocated, inter alios, by R. Craufurd Smith (2004).

Chapter 9: Freedom of Expression in the Internet Age

In the previous chapters we have shown the many limits imposed on freedom of speech in democratic societies, emphasising the reasons for them and the contradictions they embody. Until recently, this has taken place as a series of interventions within the framework of established forms of media. But in the last ten years or so this framework has been drastically altered by a process commonly designated as convergence between broadcasting and telecommunications,254 and by the advent of that new form of communication known as the Internet, which, without going into technical detail, is a means of turning instruments of interpersonal communications, typically the telephone network, into a means of expression of ideas that can reach a large number, predetermined or otherwise, of people. It was of course possible before the Internet to send a circular letter to a list of addresses or hand out leaflets to passers-by in the street, but these techniques were very limited in their reach and thus of marginal interest. Over the last decade the Internet has become the most efficacious and widely used means of communicating facts, information, feelings, opinions and judgements. This has reached the point where one could argue that, whereas if television programmes were no longer transmitted we would find ample substitutes in the form of radio, newspapers, video and DVDs, it would take only a single day’s interruption to the telecommunications network by a virus blocking access to or use of the net for the world’s social and economic system to be brought to its knees. The advent of the Internet has had an epoch-making influence on expression of ideas, changing it in certain essential aspects that will be outlined below.255

254 See D. Goldberg et al. (1998a), especially the Introduction, p. 1, and the conclusions, p. 295. 255 These aspects are clearly set out by M.E. Katsch (1989, pp. 112ff.).

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9.1. Freedom of expression as an individual freedom The first point to emerge is that the Internet has resurrected the notion of freedom of expression as an individual liberty. We have seen how, over the course of two centuries, this concept has become essentially emptied of substance with the need for complex structures of communication – newspapers, radio and television – beyond the reach of individuals. There were of course other possibilities, action groups, leaflets, demonstrations, but these have never, with the exception of a few clamorous actions, made much impression and such attention as they did attract was courtesy of the aforementioned media. This inspired a close study of the techniques of media communications, and of ways to get the media interested enough in one’s campaign to give it publicity.256 Freedom of expression certainly existed, but it was in practice confined to those few individuals in whose hands media control was concentrated and they had the power to decide, on economic or ideological grounds, which ideas were to be widely circulated and which not. This only fuelled the growth in the inappropriate role of the press that we examined in Chapter 1. It is no accident that in the European political history of the last 200 years any movement that wished to disseminate its ideas has sought to acquire facilities to produce periodical, even daily, newspapers, to try and circumvent the barriers imposed by the traditional organs of the press. A new pattern has emerged where, while these traditional organs remain dominant, possibilities now exist for individuals to disseminate their ideas independently of them. This is not merely a question of economics, despite the gulf between the cost of setting up a publishing or broadcasting business and the cost of setting up a website.257 More important still is how simple the organisational requirements are, allowing access to the individual who wishes to air his or her views; the lack of the administrative overheads typical of any business enterprise, and those such as licensing, registration and the need to designate an Editor-in-Chief that are specific to broadcasting; and the worldwide diffusion of the idea unburdened by further requirements.258 US case law has been quick to identify and emphasise these characteristics, and for this reason has described the Internet as ‘the most participatory form of mass speech yet developed’.259

256 The various techniques in ‘setting the media’s agenda’ are illustrated by M. McCombs (2004, pp. 98ff.). 257 For similar comments see H. Fenwick and G. Phillipson (2006, p. 3ff.). 258 Cf. R. Klinger (1996, p. 162). 259 ACLU v. Reno [E.D. Pa. 1996],929 F. Supp. 824 and its aftermath in front of the Supreme Court, 521 US 844 (1997).

Freedom of Expression in the Internet Age

One can point to additional features: the speed of the medium, its capacity to combine text with speech and video, the virtually unlimited space available in the form of electronic memory; search engines. All these contribute to making expression of ideas an effective exercise, not merely potentially, but in actuality as attested by the millions of users. This does not of course mean that the differences between individuals and large companies using the web have been eliminated, nor that absolutely everyone can avail themselves of the medium. Cultural and economic barriers persist, but it has certainly reversed a tendency that had appeared well entrenched: without mass communication there is effectively no real expression of ideas, so the issue of freedom of expression is essentially one of mass communications media.

9.2. The media and the loss of their intermediary role The new scenario, in shifting attention onto expression of ideas by individuals, has significantly changed the traditional role of the mass media.260 Not only have they lost their monopoly on the diffusion of ideas, but they have above all ceased to be a privileged source of information.261 Turning back to life before the net, seekers of information could turn to four competing markets: radio and television (in every home), newsagents (ubiquitous in built-up areas), bookshops (rather less widespread) and libraries and archives (still less so). There is no need to delve into microeconomic theory to explain the consumer preference for the first two of these, with their readier availability. The media ‘mediated’, affording access to news, information and the ideas of others that would otherwise not have been available to the public. The Internet, in eliminating a great many intermediaries (one has only to consider the burgeoning of e-commerce), is reducing the importance of this role, at least for a growing number of citizens, by providing just as easy, if not easier, access to primary sources without incurring the expense as well as cost in time of re-editing for publication.262 Moreover, those who have studied the subject have noted another change. While traditional media, particularly television, rely on passive consumption on the part of its audience, online media require a mental engagement in searching for, selecting and collating information in the

260 This point is developed extensively in economic terms by B.M. Compaine (2000, pp. 538ff.). 261 Again one can refer to M.E. Katsch (1989, p. 116). 262 ‘Both the quantity and the quality of useful political information now available to the average citizen far exceeds that to which past generations had access’ (B. McNair, 2000, p. 178).

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desired amount of detail.263 Thus freedom of expression acquires another dimension not only in the manner in which ideas are transmitted, but also in how they are received. This creates a perception of the relationships involved as non-hierarchical – the purveyor no longer powerful and authoritative, the consumer isolated and weak – and becoming increasingly equal, as expressed in the expression ‘peer-to-peer’. This process too is far from complete, and the old order has not been completely overturned,264 but it is none the less time to examine the freedom of expression – the who, how, where, when and limits of its exercise – in a new light.

9.3. A world of information The Internet has had a further effect on the theory and practice of freedom of expression, the systemic implications of which will be analysed in the next chapter. The telecommunications networks, thanks to the digitalisation of messages, are now structured for data transmission. Any element of the real world can be represented, not only on paper or threedimensionally, but as items of data. This has clearly not just become the case, but previously the form of data meant their circulation (and thus reproduction in print) was restricted to immediately interested parties. Now that data, whether text, sound or image, are digitalised at their point of capture, and the costs of disseminating them are equal wherever they are downloaded – and it is the user who bears the costs of downloading – the world of communications is awash with data that can be accessed by anyone, anywhere, at any time.265 Clearly expression of ideas has also been reduced to data form, but this becomes quantitatively a minor part of the data in a system that can – is indeed designed to – circulate data that represents reality. This promotes the verifiability of opinions expressed, added to which the facts on which they rely and are based are readily accessible (notably by the frequent provision of links between one web page and another). On the other hand the distinction between fact and opinion, drawn in Chapter 1, is reinforced. The focus of the issue is thus displaced from freedom of expression to freedom to communicate and disseminate data, or, as some have termed it, the freedom to inform.

263 Among many others, D. McQuail (2000, pp. 126ff.). The significant change from a TV-dominated world to an electronic communications one is well set out by M.E. Katsch (1989, pp. 105ff.). 264 In this regard, see N.W. Netanel (2002, especially pp. 330ff.). 265 On the reducing cost of information, from the typographer’s art to digital compression, see E. Noam (2002, pp. 48f.).

Freedom of Expression in the Internet Age

But whereas in the traditional system this last was a right vested in communications enterprises, it is now one enjoyed essentially by individuals, and one that it is convenient to distinguish from freedom of expression which, as has been stated, applies to opinions. It is possible, therefore, to describe a system in which data, an element representing reality as distinct from an opinion, is central and various regimes of use, dissemination and circulation can be identified. From rules concerning secrets, which are alluded to, to those on personal data, to intellectual and industrial monopolies and so on, it is possible to posit a framework far more coherent and better adapted to the demands of contemporary society and within which a balance can be struck between individual rights and the public interest. The precipitate emergence of a new right, that of disseminating data, does not necessarily entail any narrowing of the scope of freedom of expression, but it does require a redefinition of its content in relation to what its original and basic objectives were: the expression of the individual personality in order to permit men and women to participate actively in the political, social, cultural and economic life of their communities.

9.4. Rules for communicating on the web The advent of the Internet has not only changed the factual context of communication and expression, but also brought about a shift in the legal approach to the issues they raise. We have seen how states have, as long as there have been media to regulate, first with the press and then with radio and television, adopted more or less invasive forms of control. Freedom of the press, for all that it is more real than that of radio and television, is subject to various legal limits on how, when, where and by whom it can be operated. This has not (yet) happened with the Internet and there are reasons to believe it will not. The various grounds for this include: the versatility of communications networks that can be used for passing messages between individuals as well as to or from a larger number of people at once; the trans-national nature of the net that renders attempts to regulate on a national basis futile; the simplicity of the equipment to install. Thus a phenomenon has occurred that is unique in the modern history of expression of ideas. There is no thicket of rules circumscribing the freedom; indeed for the first time the rules are conspicuously absent. Any discussion of freedom of expression on the Internet begins from quite different premises. For the traditional media, one has to give an account of the reasons behind so much regulation. For the tabula rasa of the net, however, the question is rather whether and to what extent any regulation might be desirable or necessary. This is not an idle question.

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Some have argued that as the net is effectively authorless and that activity in what is termed ‘cyberspace’ should be free of legal rules and governed by conventions and practice.266 This is not as convincing a thesis, as it seems to reflect wishful (or utopian) thinking rather than the actual state of affairs. But even if one does not support it the question remains whether the new medium should be controlled and to what extent. This in turn reopens the issue of control of the press and broadcasting. The approach adopted here will be first to articulate the values that one would wish to adopt and hence protect, and then consider what form of legal intervention would best serve this end. A preliminary distinction should be made between the use of the net for personal communications and those where the senders or recipients are numerous and indeterminate. In the first case it will suffice to reaffirm the principle of freedom of correspondence, including its confidentiality, and to outline a regime that would cover the very rare cases in which the right is to be limited (e.g., for serving prisoners) or interfered with (as with interceptions). This would thus be a minimal intervention. For the second, we must keep in mind the freedoms of expression and of communication and access to data. The analysis here will be more complex because alongside these freedoms are ranged third-party and public interests. There was a time when printers, and later newspaper editors, had to obtain a permit to practice their profession. Broadcasters have always had to do likewise. Is this a reason to impose similar compulsion on the Internet? The answer usually given is that – aside from any of the still current questions about the validity of political control – the licensing requirement, including commercial licences, ensures that not just anyone, but only those who can meet certain criteria, can operate and that this (it is said) is in the public interest. The point is that the use made of the Internet by individuals posting facts and ideas does not always resemble business activity, so why should it be subject to rules appropriate to these? Nevertheless, doubts about these rules remain. Looking at historical development from the French revolution onwards, the principal form of press control in continental Europe, the designation of a ‘manager’ or ‘editor-in-chief’ has been justified by the widely exercised – until recently there were no alternatives – recourse to penal sanctions for abuses. The tenet that only human individuals could be responsible for crimes entailed designation of this kind for each publication.

266 On

this point see N.W. Netanel’s critique (2000, p. 395).

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In view however of the ineffectiveness and disproportionate nature of criminal penalties for press abuses – a preference evolved for other sorts of remedy, based usually on compensation rather than punishment – there seems no reason to extend to a new medium a regime that was justified only in the past. As for other means of selecting which enterprises would be ‘suitable’ to pursue activity on the Internet, and leaving aside questions of practicality of enforcement in an international system where companies do not hesitate to change domicile according to where the most favourable laws are to be found, the question arises of what criteria one would use to establish whether an enterprise was in a position to fulfil its obligations, be they contractual or non-contractual (the latter to be most effectively covered by taking out insurance). So, in keeping with the approach we have adopted in earlier chapters, business activity in the communications sector (whatever the medium employed, the Internet included) should neither enjoy privileges nor be subject to additional burdens not applied in other sectors.

9.5. How the communications networks influence freedom of expression The novelty of the Internet leads us to inquire into certain aspects that, in the case of traditional media, are usually neglected or considered of little relevance. Characteristics of the medium itself, as well as of the message, merit further attention. While we shall start from the premise that the Internet is in the first place an essential instrument for the exercise of individual freedom to express ideas and communicate them widely, the existing, albeit limited, legal regime relating to the exercise of this freedom is not to be overlooked. This point will be clearer if we remember that individual access to television and radio broadcasting has, with the wholly marginal exceptions of certain experiments in direct participation, been substantially excluded, whereas where the press is concerned, anyone can go to a printer to run off copies of any material he or she wishes. The exercise of the above-mentioned freedoms on the Internet requires individual access to the communications networks, unhampered by legal, technical and economic restrictions. The rules regarding access – and specifically interconnections – thus acquire a more than instrumental importance and become central to the exercise of fundamental rights.267

267 Cf.

G. Sias (2002, p. 15).

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So measures of the following kinds are far from trivial in this regard: fixing minimum transmission capacities for networks; computer literacy projects; policies to reduce inequalities – by age or region – in technological awareness; imposing general obligations on certain bodies, private and public, to provide Internet access; and competition rules aimed reducing the cost of access.268 This invites the question of why we should wish to ensure access and thence to issues of content. The law is evidently not indifferent on this point and in fact privileges certain types of content. Is this to be true also of the Internet? It would be trite to reiterate, if it were not so often forgotten, one of the cornerstones of modern communications theory, Marshall McLuhan’s dictum of nearly half a century ago that ‘the medium is [sc. determines the content of] the message’. The press, radio and television emit different kinds of message because they are technically different and address different senses. Internet is thus modelled by certain peculiarities of the medium which, taken individually, seem of slight importance but which in aggregate amount to a distinctive mode of communication. (a) The length (or rather brevity) of texts dictated by the size of the screen which allows only a certain number of lines to be viewed at a time. This restricts the size of texts as beyond a certain size it is convenient to read them only if they are transferred to a traditional medium, in practice by being printed. (b) High transmission speeds make for immediate use of material, but at the same time contributes to their obsolescence as messages can be very quickly replaced by others. (c) The ephemeral nature of the message is compensated for by the ease with which more or less substantial parts of it can be updated and also by ease of downloading. All messages can be stored and similar use can then be made of them. Any chronological difference between two or more messages can thus to a large extent be suppressed giving the impression that they have been produced as a sequence over a single time period. (d) The use of English as the lingua franca of the net, even though it will not in the short time affect the diversity of cultures, reinforces certain tendencies characteristic of English: a rich language with a predilection for short phrases, syntactically organised in direct linear forms, at the cost of a certain amount of reiteration. Expressing an idea in

268 Cf. D. Green (1995, especially pp. 28ff.). But see the many perplexities expressed, above all in a political philosophy discourse by S. Venturelli (1998, especially pp. 268ff.).

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English is not, as translators know well, the same as expressing it in Italian, Spanish or German. The thought is modified and over time more and more people will not only write in English, mentally translating from their mother tongue, but will think in English as well, which again is different from thinking in Italian, Spanish or German. To sum up, what this means is that the Internet has its own logic and semantics, distinct from that of the press, TV and radio, and that this creates a new idiom or modifies existing ones. Expression of ideas is since the Internet no longer the same thing, not only in itself, but also by reason of its implications for the legal order.

9.6. Limitations to freedom on the Internet Having outlined the most significant aspects of the Internet and its importance for the expression of ideas not only in practice but also how we conceive of it, we must not then think that the system has no limitations. This was indeed the point of departure of the present work. Identifying what these limits are, however, is not easy and requires investigation. We can base a first approximation on the observation that the Internet cannot be bound by duties over and above those applying to other media of communication. But this is where the parallels with the latter end and it does not appear that past rules can be imported to fit the new context. In previous chapters we have tried to demonstrate how the rules applied in Europe to the press and broadcasting have not been predicated on freedom of expression, but instead have imposed severe limits designed to protect and give priority to other interests. Also that the sole rational justification for such a system is that there has arisen a defacto identification of the expression of ideas with the activities of the mass communications industry. Thus the advent of the Internet leads us to reconsider the question, clearing away preconceptions so as to decide on the merits of the current state of affairs, whether restrictions need to be introduced and if so, of what kind. The first distinction, an obvious one that we have already noted, is between individual and commercial use of the net. This opens the possibility of a regime differentiated according to the type of user. There are ample precedents for this distinction, not only in the field of noncontractual liability (e.g., strict and aggravated liability of employers and manufacturers) but also in many other sectors such as environmental protection, employee safety, formation of consumer contracts and supply of services. In setting the limits to an individual’s exercise of the freedoms of expression and communication on the Internet the guiding principle could well be reciprocity, or to put it in more evangelical terms, ‘do not

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do unto others what you would not have them do unto you’. In other words, given that everyone is free to express themselves on the Internet, we must identify the balancing point which corresponds to the amount of restriction on that freedom we would willingly accept so as to protect our moral, physical and proprietorial security. This presents us with a familiar quest for solutions that has confronted society in other spheres: how much policing are we prepared to tolerate in the name of safety? How much tax are we prepared to pay for pensions and social security? How much traffic restriction will we accept to prevent accidents and pollution? Put in systematic terms, it means that limits on the Internet, between the extremes of complete licence and total prohibition, will reflect this balance of values prevailing at the historical moment that society has reached, as mediated through rules created by our lawmakers: the legislature and the judiciary. The reciprocity principle evidences a tendency often overlooked in the politico-legal culture of continental Europe (but not in the Englishspeaking world). It is that the expansion of the scope of rights – these exist in situations where a group of people has a legitimate demand that other people will behave in certain ways, specifically by providing something – brings with it a concomitant erosion in that of freedoms – the area within which one may act without asking the consent of or accounting to others, in authority or not. So freedom on the Internet is intrinsically malleable, a situation further justified by the novelty of the medium and by the fact that it is as yet used only by a part, albeit a substantial one, of the population of developed countries. The hypothetical automatic application to the Internet of rules that already exist raises two questions. (a) Are there grounds which would require or favour applying different forms of protection, be it stronger or weaker, in situations where certain interests were harmed through the new technologies? (b) What might the features of a differentiated regime be? The answer to the first question depends on how we would respond to two others: why should an interest harmed via information technology be afforded less protection and why should an interest harmed via information technology be afforded greater protection? Various replies may be offered to the first of these ulterior questions. •

Certain conduct associated with the Internet is so widespread as to be considered less blameworthy than its equivalent in other contexts: an example is the ‘downloading’ of material technically protected by copyright.

Freedom of Expression in the Internet Age

•

Certain conduct, when it takes place on the Internet, has less harmful consequences than its equivalent in other contexts and so attracts less blame: for example, interception of emails might be regarded as less serious than opening someone else’s letters.

In either case, it can be seen that communication via the Internet does not in itself necessarily imply a need for equal or greater protection, but may indeed suggest a diminution or outright abolition of the sanctions that exist. To the second of the ulterior questions the replies are analogous. •

•

Behaviour on the Internet, especially since its use has become so widespread, can become a matter of intense social concern and cause grave harm to affected interests. This is already familiar in the case of use of personal data, where the potential effects of abuse are so much more serious than in the days of manual, paper-based processing of data. Or again, in the case of information compiled into databases, the economic value of which has spurred the introduction of directive 9/96. Telecommunications networks play a central role in modern societies, to the extent that enhanced protection is called for. Here, too, the situation is not a new one: we may recall that in the nineteenth century numerous crimes were aggravated by the use made of railways and public roads, and similarly in the twentieth century by being committed on board or causing damage to aircraft.

To digress for a moment from the strictly legal, we can hardly fail to notice the contradictory attitude in modern society towards new technologies. On the one hand, their advantages are proclaimed and they are promoted vigorously; on the other, they are seen as a source of grave dangers, as evidenced by rules imposed on the cinema, radio and television.

9.7. Business activity on the Internet While our main interest may be in defining the parameters of individual freedom of expression on the Internet, this does not mean attaching no importance to business activities using the net. These raise different issues, but we can focus more clearly on them using the bearings provided by the well-mapped terrain of individual expression. Among other distinctions, online businesses ply their trade in ideas that are not their own but have been ‘acquired’ (whether in an economic or a figurative sense) from others. They are thus important as suppliers of access to a protected ‘commodity’ – the ideas of others.

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Moreover, a significant decision has been taken at the European level, in the wake of more specific developments in the United States, to follow, where the Internet is concerned, a path rather different from press and broadcasting. In these latter, publishers and producers select and create informational–communicational products and disseminate them, taking responsibility for their content, because without the media under their control nothing could be published or broadcast. To mitigate their potential liability, they invoke – erroneously, as we have argued – freedom of expression, claiming to be exercising a right. In the world of the Internet, to apply a division of responsibility applied in the field of telecommunications, whoever merely transmits a piece of data, news or an idea, without having prepared nor selected it, nor identified its recipient, is exempt from liability. This amounts to a departure from the principle of material contribution to an injurious act. But even in the case where the enterprise has produced the prejudicial information itself, the criteria for attributing liability on the Internet are (or ought to be) different from those currently applied to the press and broadcasters. Whoever acquires data from a given supplier in order to then disseminate it on the Internet places himself in the same intermediary position, and hence assumes the same responsibilities, legal and organisational, for ensuring that there are no defects in the product he is handling, as if he were part of a similar chain dealing in any other ‘part-finished’ product. The changes in the structure of the industry affecting Internet-based communications businesses should lead to a rethinking of the criteria for attributing liability. Nor should it be forgotten that the aim of the system ought to be to ensure that in a society dominated by information it is collected, processed and diffused in a responsible manner.

9.8. The trans-national dimension The Internet’s trans-national character is evident and becomes ever more so, with significant implications for the content and enforcement of legal rules applied to it. We are concerned here with its effects on freedom of expression. Where the press and broadcasting were concerned, each democratic country was able to interpret the scope of this freedom more or less as broadly or narrowly as it wished, by applying domestic law. There were certainly border conflicts concerning (rarely) the movement of books and newspapers and (more frequently) radio and television transmissions, but these were and remain marginal phenomena or at least made more easy to resolve by the limited number of people or interests involved (e.g., broadcasters with various state-defined transmission zones). With the Internet, the exception has become the rule: communications and

Freedom of Expression in the Internet Age

websites are by their nature located and accessible throughout the world and their contents cannot be constrained by the rules of individual legal systems. What is required is for common rules to be developed, no small task when we consider that each country has imposed, according to its traditions, experience and dominant values, myriad restrictions on freedom of expression, fragmenting the ways in which it can be exercised. So the first upshot is surely positive: although freedom of expression is fundamental (at least when applied to individuals), its dismemberment by so many local systems has reduced its scope and cast doubt on its status as a universal right. Imagining a global system is an intellectual challenge that invites us to unbind the chains accumulated over the course of centuries and to establish a set of rules that will be at the same time essential, shared and effective.269 But as soon as we embark on the task we are confronted with its complexity. Freedom of expression is not an absolute principle in the proper sense of the term and so cannot be extricated from the rest of the system. It is dependent on the values held by a society at a particular historical juncture. Even given the undeniable affinities between democratic societies, particularly ‘western’ ones, we soon realise how many remaining differences impinge on the exercise of the right in question, including religious factors, the sense of national identity, and the experience of historical encounters with various ideologies. A symptom of this is the different trajectories taken by the freedom in the United States as opposed to Europe, trumpeted and developed to extremes in the former and surrounded by countervailing values in the latter. The difference is displayed in concrete terms in the clashing perspectives on the concept of ‘human dignity’, which is incorporated in Europe into the Charter of Fundamental Rights, but is viewed across the Atlantic as an unwarranted public incursion into the individual’s autonomy and right to self-determination.270 Alongside the need for a common set of rules is that for adequate means of enforcement. And it is here that the defacto reality of freedom on the Internet becomes clear as a result of the difficulty of imposing whatever rules may be proposed. A state of liberty exists so to speak by default, with the result that the provision of rules analogous to those that apply to the press and broadcasting is discouraged, while the scope for abuse is immense. Here again, the situation is not a new one: if we look for analogies we might trace a parallel in the development of navigation (a term

269 See 270 Cf.

C.J. Hamelink (1994) and H. Mowlana (1997). the opposing views of J.Q. Whitman (2004) and of G. Resta (2002, pp. 819ff.).

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appropriate to our context) in international waters. But the important point to bring out is that the demands of effectiveness, the particularities of the medium and its global reach render traditional forms of control, legal or otherwise, to a large extent futile. It is doubtful whether seizure and injunctions, designed to apprehend material evidence or inhibit certain conduct, can actually be imposed. Procedures of investigation and prohibition have to take account of the immediacy of illicit acts that can be committed anywhere and at any time, necessitating ‘encroachment’ on territory outside the jurisdiction. To conclude: freedom of expression on the Internet, and limits to it, present so many and such various problems particular to it, that the whole issue has become ripe for a fundamental re-examination.271

271 Without leaving out of consideration the convergent process whereby enterprises engaged in traditional broadcasting become internationalised: see M. Wheeler (1997, pp. 175ff.).

Chapter 10: From Information, to Communication, to Knowledge

Reconsideration of the current contours of freedom of expression is necessitated not only by the advent of new media, but also by their entering a different context. It has been emphasised how data and information have acquired a pre-eminent position in modern society, becoming the most valuable strategic and economic asset,272 putting expression of ideas in the shade, or rather, specifying its content. But data are only one aspect, or component, of that much wider process that we label ‘knowledge’.273 These are its salient features.

10.1. Freedom to disseminate data Even though it saw the light of day much later – in the twentieth century – than the freedom of expression, the notion of a freedom to inform is implicit in its forbear. Opinions are formed on the basis of information received.274 If the data cannot be disseminated it becomes impossible, or at least much more difficult, to persuade others to accept one’s ideas. Freedom of expression can be readily distinguished from freedom to inform: the latter is usually limited to a simple diffusion of data with no intrinsic evaluative content, which will be supplied later by those who receive, interpret and assess it. Whether they occur in economic or meteorological surveys, sports results, statistics, lists or catalogues, or scientific findings, the important point is that they can circulate freely, independently of their content, which could by contrast be important where opinions are concerned. Freedom to inform, or to put it better, to disseminate data, has a different foundation from 272 Cf. C. Shapiro and H.R. Varian (1998, passim, but especially chapters 1 and 2). On the process of transforming information from public into private property, see E. Noam (1991, pp. 28ff.). 273 The study of this phenomenon goes back to the nineteenth century with the (more utopian) writings of A.E.F. Schäffle and those (more scientific) of K. Knies and K. Bucher, on whom see H. Hardt (2001, pp. 43ff.). 274 On the relationship between freedom of expression, freedom of information and freedom of communication, see D. Fisher (1983, pp. 13f.).

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freedom of expression. The latter reflects a need to protect the human personality by affording everybody the opportunity to participate, with their own ideas and opinions, in the political, economic and social life of society. With freedom to disseminate data something more profound, more fundamental to human nature is being protected: knowledge. Without trespassing on evolutionary theory and anthropological studies, we can distinguish humankind from animals through the unquenchable thirst for knowledge and the need to build our own world, our own societies based on this knowledge. This is particularly marked in what we call ‘western’ societies, in which since antiquity – as Greek philosophy reminds us daily – what we want to know about is not only the transcendental and the divine (although this is not a negligible aspect), but also reality, that which happens and is perceived primarily through our senses. The scientific revolution of the sixteenth and seventeenth centuries separated western culture – until that time primarily concerned with the religious and the philosophical – from all others and set in motion a process of innovation that is still, indeed becomes ever more, central to it. Freedom of expression is a political freedom. The freedom to disseminate data is pre-political. A community constructs its relationships and institutions based on the knowledge that it has of the world. To put it in an extreme form, one could say that without expression of ideas there is no freedom, but without dissemination of data there is (or would be) no humankind.275 This freedom is and will assuredly remain a fundamental and irrevocable human demand in that it is what our evolution is based on. This is not to deny that such an interpretation relies on a dominant philosophy of knowledge that can be termed – in a technical, but also in another, not wholly laudatory sense – materialist, because it privileges certain insights and relegates those that are not received via the senses, or cannot be accounted for by scientific rules, or cannot be justified using the current canon of rationality. But while contemporary western societies certainly pay little attention to the sacred and transcendent, one could attribute a larger role to these without reducing the importance of the freedom to disseminate data. If this is to be the role we posit for the freedom to disseminate data, it follows that we cannot share the opinion of those who would treat it as ancillary to, or a ‘by-product’ of, freedom of expression.276

275 Cf.

K.E. Rosengren (2000, pp. 38ff.). a full critique of the ‘almost mechanical application to this freedom [sc. of information] of the solutions proposed to the issues raised by freedom of expression’ see P. Costanzo (1992, p. 29). 276 For

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Its fully autonomous status appears even more secure if we consider what it implies. (a) Freedom to disseminate data necessarily implies freedom to seek those data. Aside from the area of secrets, both public and private, the chance to carry out in the first place scientific research, and then research in a more general sense, needs to be assured. So this entails a freedom of choice, but also a right to access, which in turn implies the data in question should be in public hands.277 A society dependent on information is necessarily one in which public access to the data is assured as far as possible in order for it to be disseminated.278 (b) While the acquisition of data is ‘upstream’ to its diffusion, ‘downstream’ lie the rules applied to the media through which diffusion is to occur, using telecommunications networks. The importance of rules on access and interconnection has already been shown (in Chapter 9.5), but in general the whole system can be seen in relation to how effective and well-adapted it is to the exercise of freedom to disseminate information. (c) In this context – rather more so than in that of freedom of expression,279 which as we have seen is a personal right with strong connotations of individuality – one can rationally elaborate and justify certain privileges to be attributed to the mass media in terms of access and dissemination, to be exercised of course within a regime of professional diligence and respect for the rights of others.

10.2. The right to access information As we have seen, the right of access to data is inherent in the right to disseminate the same. The former is instrumental to the latter, and this is important from the viewpoint of what we may call the end user of the data. The connotation is all the stronger in that the use of the term ‘right’ is not limited to the abstract facility of receiving data, but extends to the legitimate claim of its beneficiary to be able to

277 On the plethora of problems raised by the public ownership of data, see H. Maisl (1996) and F. Cardarelli (2002, p. 321). As far as established law is concerned, see EC Directive 98/03 on the use of public sector documents and profiting from them for commercial ends, set out in Il Diritto dell’Informazione e dell’Informatica, 2003a, p. 202 (with a comment by V. Zeno-Zencovich). 278 On the ‘right to information’ regime in Community law, see M. Migliazza (2001, pp. 73ff.), in which the scope of article 255 of the EC Treaty in particular is analysed. 279 In this regard see J. Curran and J. Seaton (1997, p. 6).

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receive them.280 This translates in concrete terms into what we usually define as ‘universal service provision’: the requirement that a provider supplies certain information services such as news and emergency announcements, or certain technical structures – relays, telephone cables, transmission capacity – that facilitate data reception. 281 It will be noted that from this point of view as well there is a significant difference from freedom of expression which has historically been seen as a freedom, a licence to act, rather than as imposing specific duties on certain persons or bodies. To take the simplest of examples: there is no duty to provide the orator with a soapbox, the pamphleteer with stationery, or those eager to spread their opinion with a newspaper column. Where this kind of thing does happen, it is on a negligible scale. And, apart from at election times, there is no recognisable mechanism to ensure that various sides of an argument are put. With data, the aim is to allow the greatest number of people access to whatever they have an interest in by fixing costs and minimum standards of service. We have referred here to the ‘end user’, but these are evidently not (or not necessarily) the only interested parties. Once more a comparison with traditional media is useful. The recipient of information through the press, radio or TV can re-disseminate it at a rather more modest level by word of mouth or by other means such as running off a few photocopies. With the modern forms of communication, there is no proper ‘end’ user because anything received can be passed on instantaneously and virtually free of charge, either with the same or modified form and content, to an unlimited number of potential recipients. The network effect is thus amplified by adding this further flow of data to the more familiar flow between transmitters and receivers of information services. The right of access to information therefore entails, in general and where no exclusive rights are involved, the right to retransmit it.

10.3. The right to be informed Moving a stage further on, we can address more specific issues concerning the right to be informed. We can examine them conveniently not only from a socio-political viewpoint, with its ever more blurred outlines, but also from a strictly legal viewpoint. It is not redundant to point out that, quite apart from contracts in which information is a main or secondary

280 Even in a context as traditionally unsuited to this kind of hierarchical categorisation as Great Britain, the expression ‘constitutional right’ is used: see J. McDonald and C.H. Jones (2003, p. 813). 281 On the evolution of ‘public service’ into ‘universal service’ in the EU sphere, see A. Bavasso (2003, pp. 388ff.). Similarly, D. Goldberg et al. (1998b, p. 127).

From Information, to Communication, to Knowledge

service to be rendered, there are numerous other examples of a duty to inform: in the phase of pre-contractual negotiations, in the relations between doctor or clinic and patient, between company and shareholder, financial institution and potential investor and between producer and consumer. The mainly private law emphasis of these examples should not allow us to forget that duties are most commonly imposed by special laws seeking to protect public as well as private interests. So the state often secures the right of individuals to be informed by imposing specific duties owed to everyone by private entities and individuals. But it is possible to compile, using particular laws or general principles, a series of rights and obligation relationships between individuals and public bodies. The relevant arenas are many and various: meteorological, particularly sea, conditions, information before, during and after natural disasters, advice concerning epidemics or more generally any event posing a risk to public health, traffic conditions. Such obligations are being progressively extended, hand in hand with the increase in state intervention overall and especially pursuant to function of protecting citizens. It is worth asking, however, what the effectiveness of these obligations may be, and in practical terms what the consequences, beside the merely political, of breaching them are. One cannot generalise, and each case must be considered separately. We may hypothesise, though, that in many of these, whether they concern damage or injury to the person, to property or to individual property interests, we are dealing with non-contractual liability on the part of the state or a public body. At the lowest level, there are straightforward examples such as failure to post warning signs on a dangerous bend, or indeed issuing false information. The application of civil liability rules is made easier by the direct causal link between the missing or false information and the resulting harm. But in numerous other cases, above all where complex choices depend on the existence and nature of the information, the outcome is rather less certain, as is well known to those who deal with analogous issues wholly within the private law realm: if the public health information had been accurate, would the complainant have been able to avoid the epidemic? If the storm warning had been given in time, would the yachtsman have stayed in harbour? If the public authority had issued a warning of the risk of robbery, would the tourist have ventured into that neighbourhood? It is equally necessary to pose the question of if and how those who are meant to benefit from the ‘right to be informed’ (in theory, every citizen) are to make sure the obligation is met so that they receive the service they expect. The answer to this is more perplexing still. So, looked at from a practical point of view, one may readily conclude that the expression ‘right to be informed’, seen as an essential feature of the information and communications society, while indulging a sense of

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entitlement in the abstract, is hard to translate into actual relations of obligation properly so-called. In any case, we are here moving into territory quite remote from and having few points of contact with the freedom of expression, in relation to which these considerations are of no importance.

10.4. Legal information as a right One aspect among others that assumes an increasing importance in the context of obligations to inform imposed on public authorities is the question of legal information.282 It is of interest because it is uppermost in the minds of jurists and because there is usually a public monopoly over its ‘production’. The legislature, courts and the public administration are the sources of these data. But it is of interest also because it casts light upon the indissoluble link that exists between the governance of a community and knowledge of its rules, between information and action and between knowledge and responsibility. The starting point is, as with so many other aspects of this analysis, the enlightenment and the demand for the principle that publication of a law should be a prerequisite for its enforcement. The upshots of this are, on one hand, the ‘official gazettes’ in which all legal enactments must be published before they can take effect, and its corollary, the presumption that once it has been duly published, everyone has notice of the law, as expressed by the maxim ‘ignorance of the law is no excuse’. Is this system still valid in an information society? One cannot ignore the fact that the principle of legal notices was (and still is) based not only on the fiction of knowledge of the law but also on a citizen’s economic obligation towards the state, in that it is his or her duty to acquire the nation’s gazette so as to know which laws are in force. But apart from the oddity of a situation where a person who owes a duty of one kind is further obliged to contribute part of his property as a condition of discharging it, a question must be raised about the efficiency, and hence rationality, of this kind of paper-based procedure for giving notice, which is becoming increasingly obsolete from both a technical and a formal point of view. The crisis in the 200-year-old orthodoxy of gazettes is exacerbated by the fragmentation of sources of law, be they national, local, supranational or sectoral, making the presumption of knowledge of the law a yet more untenable fiction. A solution is to be found in the use, varying from case to case but especially with the identity of who the rule is aimed at, of all the methods

282 On this point see Y. Poullet (1999, p. 133), D. Poulin (2002, p. 27); also see contributions to the volume edited by F. Di Ciommo (2002).

From Information, to Communication, to Knowledge

that the new information and communications technology has to offer. Here too there is a corollary: failure to use these methods would preclude the promulgator of the rules from enforcing them. In the information society those who produce rules will find themselves in a position not dissimilar to any other producer’s, with specific obligations to provide ‘consumers’ with information.

10.5. The juridification of information and knowledge If it is true – as elaborated in Chapter 6 – that ideas are often products, this is even truer of data, information and knowledge. And as ‘products’ they belong at the centre of legal and economic relations, raising a series of questions to which the answers given are either longstanding or of more recent origin. 283 Whether a lawyer belongs to the common law or civil law tradition, the reaction to new entities is the same: to see whether any exclusive rights can be claimed over them. Once a property right is established, its object can be more easily exchanged or used in other legal arrangements, in short increased in value. But the continental lawyer, although much attached to land schemes as distinct from rights in rem, chooses in action and other such intangibles, knows well that these latter can benefit from a privileged regime known, not fortuitously, as intellectual or industrial property. The reasoning is disarmingly simple: if knowledge is public property (in the legal, not the economic sense), anyone may appropriate it and there are thus no incentives to produce any. If, on the other hand, there is a prospect of granting it exclusively to a ‘possessor’, this person will profit from it and will gradually create a ‘chain of value’ as it is transmitted.284 Hence the race to seek exclusive rights in ever more new domains, generally granted once the operators in a particular field become numerous and influential enough to bring sufficient pressure to bear.285 The areas in which knowledge is the object of a consolidated regime of appropriation are varied.

283 On information as an economic resource, see, among others, N. Elkin Koren and N.W. Netanel (2002) and M. Gambaro and G.A. Ricciardi (1997, pp. 31ff.). 284 Cf. E. Noam (2002, pp. 49ff.). 285 Which raises well-founded questions on the legitimacy of such operators seeking new rights: see E. Mackaay (2002, p. 133). Also, on problems of compatibility with the freedom of expression itself, see P.B. Hugenholtz (2002, p. 239). See also J. Griffiths and U. Suthersanen (2005) and in particular E. Barendt’s essay (2005, p. 11ff.). For different views (marginal conflict between the two rights) see Y. Gendreau (2004, p. 21), and V. Zeno-Zencovich (2007, p. 251).

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10.5.1. Patents law Patents law was the earliest of the models of knowledge regulation. How it works is clear enough: the exclusive protection afforded by law to inventors is justified by the obligation they thereby assume to make the invention public through registration. There could be a greater immediate gain from keeping the invention secret, but as it would not be covered by an exclusive right, anyone finding out about it could then legally and easily reproduce it. The issue of patents is predicated on the public interest in knowledge of inventions being spread, thus engendering competition between inventors, which leads through step-by-step advances to greater technological progress.

10.5.2. Software protection Software is essentially the organisation of knowledge using logical– mathematical methods. The more complex the knowledge, the more complicated and costly it is to produce the software – an example is the ‘expert’ systems which must be able to select among all the useful knowledge available for that which is relevant to the specific context. The protection afforded in all legal systems for computer programs and semiconductors offers a clear incentive to invest in the sector, to create programs for the many and various economic, social and individual applications and to develop forms of ‘artificial intelligence’, that is, the automated interaction of vast numbers of items of knowledge. At the same time, the laws seek to limit the use of information that competitors can acquire by examining a computer program, thus imposing fairly rigid controls on so-called reverse engineering.

10.5.3. Database protection Most items of information, and thus of knowledge, are currently collected and stored in databases from which they can be extracted, isolated or combined with other data using search engines. Directive 96/9 on protection of databases gives those who set them up a right (on the model of copyright or sui generis) to exclusive use of whole or part of their contents. Bearing in mind the immense capacity for data retention in a database, this shows plainly how far the juridification of knowledge has advanced.

10.5.4. Protection of know-how The accumulated knowledge about industrial techniques, used to produce goods, launch productive processes or ensure technologies are used correctly, as well as knowledge of commercial business management

From Information, to Communication, to Knowledge

techniques, may be protected by the granting of exclusive rights under certain conditions, usually concerned with the novelty of the process and lack of publicity to date. It is interesting to note that here we are dealing with knowledge in the purest sense of the word, to which a privileged regime is extended by virtue of its industrial and commercial applications.

10.5.5. Copyright Copyright law is increasingly used as a means of securing exclusive rights for knowledge and information.286 This aspect is not usually considered alongside the traditional ambit of copyright law (artistic production, literary, musical and figurative) and it is generally an important feature of copyright that it does not impede the circulation of knowledge: indeed its function is to encourage it. However, where technical and scientific publications are concerned, that is, where the knowledge involved has a higher practical utility and hence economic value, copyright is used to obtain royalties from all users, allowing copying for private use only.287 Publication by electronic means especially as well as on paper facilitates enforcement of the law relating to databases and technical limits on reproduction.

10.5.6. Industrial secrets The economic worth of knowledge does not always lie in its exchange value to the person who holds it exclusively. Sometimes its value depends precisely on its not being shared: such is the case with industrial secrets. These are present in derivative form in the many instances where a duty of confidentiality is imposed, not only during the course of employment or other work relationships, but after they have finished. There are different ways of imposing it, but the intention is always the same: to ensure that a competitive advantage due to the possession of the relevant knowledge is maintained, whether or not the knowledge is new, and to prevent competitors from using it.

10.5.7. Protection of personal data Personal data are generally considered aspects of the personality to be protected from unwarranted intrusion and appropriation. But it should

286 For an account of the plethora of uses to which copyright law can be put, see L. Chimienti (2000, pp. 9ff.). 287 The point is clarified in the countless writings of P. Samuelson, among which see Samuelson (2002, pp. 63ff.). See also E. Mackaay (1992, p. 43).

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not be overlooked that the law on handling personal data accords a person exclusive rights in various situations over his or her personal data. Thus certain types of knowledge can be circulated only with the permission of the person concerned, or else within a restricted ambit. The basic problem, however, remains the fact that information per se can be designated as an object to which exclusive rights can apply. Although there has been much debate in recent decades about whether, why and how information should be protected, the practical results so far have been modest and amount to the aspects listed earlier. It appears especially difficult to frame a law on single items of information except in particular cases while, as has been shown, large complexes of information can be protected so long as they exist in databases. Hence information can be protected en masse, but not its single components. Account must be taken, moreover, of a far from insignificant economic factor: while it is natural that owners of information wished to be paid for it, there is nevertheless strong resistance from recipients to being charged for it, especially as it is relatively easy to find it on offer elsewhere free of charge or at very low cost.288 This obstacle can be circumvented if we consider information and knowledge as the subject matter of a contract. Apart from where exclusive rights apply, information and knowledge are increasingly becoming exchangeable commodities regulated by contract.289 Indeed, even if there are a large number of potential owners involved, the gathering, selection and presentation of the most complex information and knowledge requires a developed commercial structure. When somebody ‘buys’ a report on the solvency of a company, a refresher course, a directory or a management guide, what is needed is not exclusive rights in favour of the supplier so much as his or her ability to guarantee the quality and accuracy of the information or adequate techniques for imparting the knowledge. The added value in the service provided consists in knowing how to transfer and to impart that specific knowledge. The system of attribution of exclusive rights generally includes rules of civil liability. But just as the rules for appropriation are not clearly defined, those on civil liability occupy an uncertain terrain that has been described as a ‘no man’s land’. Where a claimant has been harmed by information there are numerous possibilities. In some cases a contract can be invoked and hence the well-established consequences of breach

288 Cf.

Noam (2002, pp. 48f.). is explored in depth by Noam (2002).

289 This

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can be applied; but this will often not be the case and then recourse must be had to a duty of diligence or to tort principles. If there appears to be no breach in terms of these, then the ‘information as product’ perspective – the ‘producer’ is then liable for ‘defects’ – may assist. The terms of Directive 95/46 on personal data are highly significant here: they provide for strict or aggravated liability for harm caused by information not being handled with the due diligence.

10.6. The knowledge society When we observe freedom of expression from a less narrow perspective than the one which privileges the mass media and those who work for them, we realise that it is only one aspect of this brave new society where information should be freely produced, distributed, used, recycled and made the basis of yet more information.290 This circular process encompasses also ideas and opinions, which make up only part of the data disseminated and to which a special legal regime applies insofar as they can be attached to an individual or a pressure group. Freedom of expression thus forms part of a dense web of relations with the much more widely based freedom to disseminate data and its scope cannot be considered divorced from this more general context. What we would wish to do, metaphorically speaking, is to throw the gates of freedom of expression wide open to that whole complex of individual, political and social relations that are usually excluded from it, but which provide a vision more interconnected with the various other freedoms and legal situations. But the process of pushing back boundaries does not end here. It has already been said that the history of humanity is the history of acquiring knowledge, manipulating it and thus attaining further knowledge. Expression of ideas plays a particularly significant role in this process because it provides critical (in the etymological sense of the word) readings of the available data and stimulates divergent interpretations, which can then be ranged against one another. So a concept of freedom of expression can be devised that is not the exclusively (or predominantly) political one set out at the beginning of this essay, but to do this we must look further afield. The theory of knowledge developed by economists and sociologists, though it exists in various versions, turns on three aspects; information, learning and knowledge. These are linked by a dynamic and almost perpetual process whereby information generates knowledge, which in

290 For

a reading that tends in this direction, see: A. Loiodice (1999, pp. 3ff.).

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turn generates new information that adds to or modifies that already available, giving rise to yet more knowledge.291 Moreover, although at the end one can check the quantum of knowledge an individual has acquired and can use, of greater interest are the social processes by which knowledge formation occurs and the issue of how this can be encouraged and directed. The typical examples are schools and universities, which in an institutional setting transmit information that is transformed by learning into certifiable knowledge.

291 Specific references to the literature can be found in V. Zeno-Zencovich and G.B. Sandicchi (2002, p. 971).

Chapter 11: Conclusive Remarks

11.1. Freedom of expression as a variable freedom This essay began by showing the dynamic and often adversarial nature of the freedom of expression. Examination of its many facets reveals that it does not and cannot have a single unchanging dimension, but depends on a set of political, social and cultural factors. It is thus a freedom that varies according to both time and space: it is shaped by its historic juncture, but also by the community where it is expressed. This entails foregoing a dogmatic vision of this freedom, defined a priori on ideological grounds – debatable in themselves – made to apply in all situations and at all times. One may seek to establish which conception of the freedom of expression is the most fitting for the here and now, taking into account all the factors that influence, favour or obstruct it. We cannot, without resorting to the dogmatism that we are deploring, specify what features it will have in the future, as to do so would prejudge and pre-empt any developments that do not correspond to the arbitrarily fixed framework assigned to it. Freedom of expression obviously has an essential central core, and identifying and describing it clearly are indispensable, bearing in mind those countries (most of the countries in the world) where the freedom is suppressed or restricted. In the following pages we will reflect on the situation in mature democracies, but a consideration of those countries a long way from this status (as was a large part of Europe throughout the twentieth century) will serve to remind us how this can vary according to the political regime in place. From this point of view the relationship between freedom of expression and the political system may be graphically represented by what economists commonly call an ‘S-curve’, which is almost flat to start with, takes off in its middle phase and finally reverts to being almost flat. The steepest part of the curve corresponds to the transitional period between an authoritarian and a democratic regime,292 and to the settling-in period 292 On

this point see the various ‘regional’ contributions in P.H. O’Neil (1998); also R. Gunther and A. Mughan (2000, p. 25, and also various essays on the media in the transition to democracy); and M.E. Price (1995).

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of the latter. The flattening at the crest has its logic: it reflects the course of political freedom in general, which is not open-ended and tends to find a level, a point of stability. In the same manner, freedom of expression beds in and its trajectory of expansion dips. To express the concept, still in graphical terms, one cannot imagine the curve of freedom of expression to be a hyperbolic one soaring ever higher. The variability of freedom of expression is not only a historical and geographical phenomenon, but, in a way that is significant for our times, thematic also. It is not the same in all realms of activity: the final ‘S-curve’ is a synthesis of a series of curves each pertaining to politics, religion, science and figurative arts and each distinct from the others both in time and space. There can be a high level of freedom in some of these areas and rather less in others. This fragmentation has a reason: freedom of expression varies because the interests it expresses and those ranged against them are variable too, and just as we well understand the difference between a political idea and a novel, we realise that they represent different aspects of humanity and are to be read in different ways.293 It should not be thought that the primarily political dimension of freedom of expression entails there being more freedom in this realm than in others. Advocate the extermination of Jews or some other race from a political platform and the result will be a prison sentence; produce, distribute and show hundreds of films glorifying the extermination of American Indians and the result will be profit, recognition and fame as well as consumer satisfaction with the celluloid product. This variation is neither fortuitous nor, worse, capricious. It depends on all the other freedoms, rights and values, taken together, with which freedom of expression comes into contact.294 Unless we prefer to think (as many mistakenly do) that it is at the apex of a system of values or (to make the same point more rhetorically) it is the foundation, the ‘cornerstone’ of the politico-social edifice, its extent is in practice circumscribed by the scope accorded to other freedoms and values, which exist alongside without submitting to it.

11.2. A relational freedom The history of freedom of expression does not however consist solely of confrontation or trade-offs.

293 For a different way of expressing a similar view point see F. Schauer (1982, pp. 134ff.). 294 Similar conclusions are reached, albeit from a rather different point of departure, by P. Costanzo (1998, para. 16).

Conclusive Remarks

It is strongly ‘relational’ in the sense that it must be viewed together with other, different, freedoms to which it is closely connected. Their growth or their contraction, are usually correlated and each one reflects the condition of the others. The most evident relationship is with political freedom tout court. In a normal democratic regime, there are no significant restrictions in either realm, but there are occasions (typically in wartime) when limits are imposed on both at the same time. The same can be said of freedom of conscience: where it exists in abundance, so will the opportunities for debate and criticism. Where however there is a state religion, sanctions will be imposed for blasphemy or offending the established church. Again, we have discussed at length the emergence of the right to disseminate data and the changes that freedom of expression has undergone with the advance of the new media. We would submit that the freedom of expression should be analysed not in isolation but as part of an array of closely interconnected freedoms. The complete picture is to be found in the nexus between them, not just in establishing the status of freedom of expression, but also to understand the direction it is moving in. This is not merely speculative, but has clear practical repercussions. Judges, legislators and public bodies are daily called upon to establish the limits of freedom of expression and its relations with other factors; having a wider frame of reference will allow decisions to be made on a more solid basis and ‘costs’ and ‘benefits’ (in a predominantly non-economic sense, of course) to be more accurately measured.295

11.3. A functional freedom We are rather sentimentally inclined to characterise freedom of expression as an essential human impulse to be protected regardless of its merits and usefulness in given situations which are extremely difficult to identify and evaluate a priori.296 Reason tells us that it exists for functional purposes; this is usually implied or hidden, but sometimes made explicit. Why this should be so is clear enough: the subordinate relationship with political freedom explains why expression of some extreme ideas is suppressed insofar as it is judged to place the latter at risk.

295 For a series of precautions that a constitutional court above all should bear in mind when broaching these issues, see E. Barendt (1987, pp. 299ff.). 296 see W. Sadurski (1999, pp. 41ff.).

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In general, however, the fact that our societies are organised around certain values virtually entails that freedom and rights are constructed so as to cohere with these values and thus with the function they serve. To speak of a ‘functional freedom’ cannot be considered an affront to some transcendent, inviolable belief: the concept of ‘function’ must be understood as must the point at which it turns a freedom into a duty, a burden or a service. But in itself, saying that freedom of expression is functionally dependent on certain values means, in practical terms, denying that the freedom is there to be used for denying it to others. It means that when these values are not being served the reasons for the unrestricted exercise of the freedom disappear. A functional account certainly explains the current and otherwise unjustifiable tangle of regulations and restrictions applied in the fields of broadcasting and advertising and should help to elucidate the grounds for the various measures, and so help scrutinise them and reduce their arbitrariness. This does not mean we will necessarily agree with them all, but they will be easier to understand.297 There is no doubt that freedom of expression, like all aspects of human rights, is suffused with a high degree of utopianism, which tends to eschew functional concerns. Its origins and history, inextricably linked with those of political freedom, however, guide it towards more realistic paths which take account of other factors which are similarly evocatively charged: the ‘common good’, the ‘public interest’, the ‘human personality’. The functional choice thus appears as a methodological compromise that aims to avoid otherwise irresolvable and mutually destructive conflicts.298 We could also go into more detail and observe that functionality is not the same for all forms of expression, being virtually absent from some and central to others. The typical example is the arts, to which the only external (hence not functionalised) limitation that generally applies is public morality.299 Whenever there is uproar over an alleged suppression of musical expression, or of a play or film or television programme, the impression one forms after the event is that the controversy was stirred up essentially to attract attention and thus publicity, and that the spectre of censorship

297 For the most developed account of the ‘functional’ thesis, see C. Chiola (1973, especially pp. 59ff. and 154ff.). 298 Even in a context where an ‘absolutist’ reading of freedom of expression is widely held (see above all D. Meiklejohn, 1961, p. 245), more balanced and realistic treatments are not lacking: see D.E. Lively (1992, pp. 19f.). 299 From this point of view the break with past decades is palpable as regards the active intervention of the state which used to be viewed negatively from a liberal perspective (see V. Crisafulli, 1964, pp. 301ff.).

Conclusive Remarks

was invoked not because it was a real threat but because it increased sales, audience and profits.

11.4. An individual freedom The functional reading, even if rebarbative to an idealist, demonstrates unequivocally that freedom of expression is a freedom for individuals, or for campaigning groups of individuals. Only with reference to these can we explain the need constantly to examine the grounds for and scope of the freedom. As for businesses, whether they claim to be the medium for the message or indeed its authors, the account we give is quite different. Their raison d’être is profit (not just in money terms) for their entrepreneurs. So this is their ‘function’ and it is relatively indifferent to the expression of ideas. This is not to evade the historical fact that in the western world that liberty and economic freedom are interwoven, and the achievement of one or the other has often been a common struggle. But this forms part of a society’s ‘rich tapestry’. What is intended here is that commercial freedom in itself has no need of the expression of ideas and beliefs, and the experience of both history and the present shows that it can prosper without them, and indeed often benefit from their suppression (not least from the repression or limitation of freedom for trade-unions and their communications). As for enterprises whose object is the dissemination of ideas, the freedom of expression is merely instrumental. The more freely ideas can circulate, the bigger the market; this is the opposite of what is commonly believed, namely that the mass media create ideas themselves. But just as freedom of movement was not devised and propounded by car manufacturers, neither is freedom of expression functional to the legitimate expectation of profit on the part of communications enterprises. Logically, therefore, these enterprises must yield to the freedom of expression. We return here to the idea of function, but with a slightly different meaning. The law applying to mass communications enterprises is functional to the affirmation of this freedom, usually in the form of not erecting obstacles to it, but sometimes as positive duties. The affirmation of freedom of expression as an individual freedom, however, is not merely an observation but is also coherent to a system that places man at its centre. Above all at a historical moment when corporations become ever more important – of more importance in some cases than single states – it must be remembered, especially by believers in commercial freedom, that men are not made by businesses, but vice versa. This is, of course, an entirely political

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viewpoint, but it does not seem desirable that economic entities should substitute individuals in the affirmation and exercise of this and other freedoms.300

11.5. A freedom at a cost The main feature of nineteenth century freedoms is that they did not (or did not appear to) entail any cost, in the sense of imposing economic burdens on the state. Only towards the end of the nineteenth century did those social rights emerge that implied progressive policies of resource redistribution via the state. In some respects, things have not changed much, although in some countries a particular notion of freedom of expression has been used to justify – or as a pretext for – continuous state largesse towards the mass media in an ill-disguised attempt to secure its favour or at least a certain complicity in its spending policies: ‘You can hardly criticise existing economic policies and tax subsidies since you benefit from them too’.301 But if we shift onto the territory – closely connected, as we have seen – of freedom to communicate and disseminate data, it is clear that these depend very much on policies towards the communications networks, the minimum access that each citizen is to be entitled to, and investment in computer literacy. Once the individual dimension of freedom of expression has been reclaimed and its profound difference from the pursuit of commercial mass media activity has been made clear, we must then ask how this freedom can be turned into reality for everyone and not just the few, and emphasise its capacity to stimulate ideas rather than the economic resources underpinning it. And this of course implies choices, wholly political, for public expenditure. If we then widen our outlook to encompass the information society, this economic aspect becomes more important still, with the confrontation between the state that has to decide how much to invest in raising citizens’ awareness, and how much individual consumption or other

300 For the opposite view see the final statement in H. Thorgeirsdottir (2005, p. 521: ‘The press should be the instrument to protect society from itself, whether locally or globally, and constantly challenge conformity, passivity and intolerance’). 301 A salutary reminder of the incompatibility of such largesse is given by P. Caretti (2001, p. 72). For a detailed reconstruction of the historical continuity of the regime of public subsidies to the Italian press, from the dicatorship to democracy, see R. Lupo and S. Troilo (1988, pp. 517, 895; 1989, p. 219). For a European overview, see K. Jakubowicz (1999, pp. 180ff.); also, for the UK, J. O’Neill (1992, p. 24).

Conclusive Remarks

social provision these same citizens are willing to relinquish in order to give the state the necessary resources. This is not a question of detail to which the answer can be taken for granted: one need only think of the widespread lack of enthusiasm (to put it mildly) for spending on education in the face of other choices that deliver more immediately perceptible benefits, such as health, transport, security and defence.

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Index

Abuse of freedom 11, 13, 40, 104, 111 Access to network 105–106 Accountability 18–19, 21–22 Advertisement 33, 50, 58–64, 70, 71, 94 Air-waves 24, 39 Alcohol 61 Armed forces 46, 86–87 Art 81–82, 128 Audiovisual services 73, 93–94, 96, 97–98 Cable TV 39, 73 Censorship 81–82, 128 Child pornography 39, 82 Cinema theatres 31, 73 Circulation of the press 21, 74 Civil servants 57 Comedy 30 Commercial speech 58–60, 68–70 Commodification of information 14, 47, 61, 68, 76, 109–110, 122 Competition 27, 29, 59, 70–79, 94, 96–97, 106, 120 Computer literacy 106 Computers 39, 96, 106, 130 Concentration of market power 28, 70–75, 96 Conscience clauses 55 Consideration 53, 54, 56 Consumer information 14, 39, 48, 59, 119 Consumption (of TV programmes) 36, 39 Content of expression 13, 24, 58–62, 66–68, 79, 91 Convergence 97–98, 99–103 Copyright 43, 59, 67, 108, 121

Correspondence (confidentiality of) 104 Criminal sanctions 82–83, 84, 91, 104–105 Cross-ownership of media 70, 74, 96 Cultural identity 77–79, 96 Cyber-law 104 Data banks 39, 109, 120–122 Data protection 103, 109, 121 Decision-making process 21 Declaration of the Rights of Man 6 Diets 67 Digital divide 106 Digital TV 39, 96 Downloading 39, 102, 106, 108 Duty of care 15, 17, 47–50, 110, 117, 122 Economic freedom 36, 60, 95, 129 Elections 21, 40, 41, 69, 77 Employees 42, 52–56 English as lingua franca 106 Entertainment 16, 26, 30–32, 39, 66, 73 Equal opportunities 28 Essential facilities 32 European Convention on Human Rights 90–92 European Broadcasting Union 93 European Charter of Fundamental Rights 6, 90, 94–96 Exclusive rights 45, 67, 116, 119–123 Facts 14, 44, 48–50, 60, 69 Fair trial 91 Fashion 45, 63, 66

Index Films 30–31, 37–38, 65–66, 68, 70, 94, 97 Financial information 49, 68–69 Financial markets 68–69 First Amendment 6, 8, 65, 69, 89, 95 Flags 22, 66 Flowers 22 Forecasts 15, 69, 77 Freedom of expression; as individual right 12, 43, 100, 103, 105, 129; as political freedom 1, 3, 7, 52, 67, 114; as source of revenue 44, 62, 67; in associations 54–55, 57; in employment 52–55 Freedom of thought 7, 8, 43, 52–53, 58, 67 Freedom to disseminate information 15, 45, 90, 102–104, 113–115 Functional approach 16, 31, 43, 69, 88, 127–128 Fundamental rights 12–13, 25, 37, 51, 55–56, 63–64, 68, 86, 105 Globalization 45, 103, 110–112 Gossip press 74, 91 Headlines 49, 50 “Holocaust deniers” 85, 126 Horror films 37 Human dignity 10, 82–83, 111 Human Rights Act 92 Ideas as products 61, 62, 66–68, 76, 81, 84 Images 25, 35, 37, 39, 66, 81–82, 97, 102 Influence of the media 11, 34, 40–41, 70 Information as product 13–14, 49, 59, 76, 102–104, 110, 119 Insurance 105 Intellectual development 26, 29, 37 Intellectual property 103, 119–123 Internet 38, 45, 99–102 Judicial proceedings 49 Know-how 120 Knowledge 113–115

Legal information 118–119 Liability by fault 17, 107, 110, 117, 122 Limits 2, 11–13, 51, 90, 91, 103, 107, 127 Market failure 33, 75–79, 97 Market information 14, 68–70 Market-place of ideas theory 29, 62, 65–67, 74 Medicines 61 Minors (protection of) 31, 34, 37, 93 Mobile phones 39, 96 Monopoly 24–25 72–73 Music 30, 38–39, 67, 74, 121, 128 News presentation 49–50, 122 Newsagents 31, 101 Newsgathering 46, 47 Obligation to provide information 76–77, 96 Obscenity 31, 80–83 Offences to sex, race, religious belief 31, 84, 126 Opinions 14, 44, 48–50, 60, 69, 103 Patents 120 Paternalism 26, 29 Pay-per-view 38, 73 Personality rights 10–11, 55, 57, 90, 91, 121 Pervasiveness 25, 40 Philosophical expression 13, 67 Pluralism 26, 65, 70, 74–76, 79, 95, 96–98 Police investigation 46, 48, 112 Political expression 13, 40, 67, 83, 126 Political parties 17, 19, 40–41, 48, 100 Politicians 91 Polls 69 Pornography 80–83 Price of information 71 Printing industry 7, 8, 31, 32, 67, 104 Privacy 46, 47, 90–91

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148

Index Professional liability 15, 17, 47, 50, 68, 87, 115 Professional secret 16 Professional standards 50, 115 Profit 17–18, 27, 31, 41, 42, 78, 129 Programme content 35, 78–79 Psychology 37 Public information 113 Public opinion 20–22, 85 Public service 32–34, 77, 79, 90, 93 Quotas (of programmes) 35 Racial hatred 80, 84, 126 Regulation 11, 23, 38, 75–77 “Relevant market” theory 70 Religious belief 3, 8, 31, 53–55, 80 Religious expression 13, 55, 67, 126, 127 Reputation 47, 90–91 Right of access to information 16, 33, 45, 46, 76, 115 Right to be informed 116–118 Scarcity of frequencies 24–26, 32–34 Science-fiction 37 Secret 56, 80, 85–88, 103, 115, 120–121 Self-regulation 41

Semantics 107 Software 120 Sources of information 16, 21, 45–46, 48, 68, 97, 101, 118 Sponsorship 54, 72 Sport 30, 38, 45, 65, 70, 74, 94 Strict liability 17, 107, 123 Subsidies 28, 76, 94, 130 Telecommunications 94–97 Tobacco 61 Trade unions 17, 56, 129 Tragedy 37 Transition democracies 92–93, 125 Transparency 46 Truth 27, 50, 87 Tune 22 TV licences 38 Two-sided markets 73 Universal service 32, 76, 106, 116 Verification of news 48 Video rental 39, 73 Videogames 98 Video-on-demand 38 Violence 31, 81 Voting choices 34, 40 War theatres 46, 87 Weather forecasts 117