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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Freedom of the Press

Norikazu Kawagishi

Censorship — Freedom of expression — Freedom of the press — Hate speech

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Introduction

1.  The meaning of ‘freedom of the press’ may vary depending on the meaning of the word ‘press’. According to the Oxford English Dictionary, ‘press’ means ‘a machine for printing’ and ‘a place of business centred on the printing press, in which all the stages and processes of printing books, journals, etc. are carried out’. In this sense, freedom of the press signifies freedom of expression through printed media. The press may also refer to ‘[n]ewspapers, journals, and periodical literature collectively’ or ‘[j]ournalists, newspaper reporters collectively’. The American Heritage Dictionary of the English Language, in this second sense, defines the press as ‘[t]he communications media considered as a whole, especially the agencies that collect, publish, transmit, or broadcast news and other information to the public’, ‘[n]ews or other information disseminated to the public in printed, broadcast, or electronic form’ and ‘[t]he people involved in the media, as news reporters and broadcasters’. Here, the freedom referred to means media freedom or freedom of expression in the media. The former may be regarded as a subcategory of freedom of speech or expression because the press in that context presents a method of expression. The latter instead carries a clearly distinct meaning in the context of protecting freedom of speech or expression: institutional free speech that is different from the right of an individual.

2.  Freedom of speech or expression itself may generally promote several social as well as personal values, such as an individual’s self-expression, self-realization, or self-fulfilment, wise collective decision-making on political and social issues in a community, diffusion of knowledge and extension of human cognition, and maintaining the balance between stability and change in a society (Emerson (1966) 3–15). Mass media particularly may provide community members with information and views necessary for their daily life and relevant for participation in the political process and social activities. Through disseminating information about what the public want and ought to know and, especially, checking social abuses, governmental malfunctions, and political corruption, the news media as a professional institution have a valuable and even critical role to play in liberal democracy (Blasi (1977)).

3.  Free expression by the media has thus attracted attention for distinct protections that correspond to the role they play in society. Because the news media—sometimes called the fourth estate—may, with their significant influence, constitute manners of perceiving, discussing, and solving the problems a society faces, power holders tend to acquire control of or meddle in them. Dictatorial or authoritarian (authoritarianism) leaders generally adopt various measures for media control to misinform their people and thereby maintain their positions—through government-owned or official newspapers and broadcasting stations, censorship or prior restraint, crimes such as treason, sedition, and defamation, and crafty manoeuvres for media control. The appropriate protections of a free press are thus central constitutional and legal issues in countries that have struggled over liberal democratization, such as Russia, Poland, Hungary, and Turkey, as well as in those countries where liberal democracy has already taken root.

4.  However, the mass media as social power may themselves exercise undue influence over society as well as individuals, such as by reporting false information, by defamation, and by invading the privacy of citizens. Claims that the mass media deserve special protections are not by themselves sufficiently persuasive when we take into account the simple fact that the mass media are in most cases private corporations which, in essence, pursue profits.

5.  Questions of whether media freedom deserves special treatment and, if so, how far it goes may depend on the legal, political, social, and historical circumstances of each state in which the media are embedded. In this article, the discussion will be confined to constitutional and legal issues over protection of a free press, particularly in liberal democracies, because the constitutional and legal texts there generally possess more normative power to actually guide practices in the political and legal process. Along with the relationship between editorial freedom and individual free expression in the media and the application of fair competition law to the media industry, special treatment includes legal issues such as governmental conveniences for the media—such as tax exemptions and discounted postal rates—its rights of special access to information, and its privilege not to disclose its sources of information. This article will briefly address a variety of constitutional texts on matters to do with freedom of the press and its scope, censorship, institutional media freedom, autonomy of editorial decisions, regulatory schemes based on media features, special treatment for the media, and the impact on freedom of the press of the Internet age.

B.  Constitutional Text

6.  Freedom of speech or expression is widely understood as one of the most important freedoms in liberal democracy. Freedom of expression tends to enhance individualistic values like self-fulfilment and self-realization, and social and political values like the search for truth and wise, collective self-determination. Most liberal democratic constitutions thus declare free expression in their catalogue of fundamental rights. But the constitutional status of freedom of the press as media freedom is usually not the same. Modern constitutions in liberal democracies do not necessarily declare freedom of the press. The French Declaration of the Rights of Man and of the Citizen (1789), one of the oldest bills of rights in the world, for example, guarantees ‘[t]he free communication of ideas and of opinions’ as ‘one of the most precious rights of man’ and provides that ‘[a]ny citizen may therefore speak, write, and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by [l]aw’ (Declaration of the Rights of Man and of the Citizen: 26 August 1789 Art. 11 (Fr)). This formulation of free expression is fairly individualistic, not institutionalist. The First Amendment to the Constitution of the United States, another important modern formation, takes a different textual stance and refers to freedom of the press: ‘Congress shall make no law… abridging the freedom of speech, or of the press’ (Constitution of the United States of America: 17 September 1787 (as Amended to 7 May 1992) (US)). If this mention of freedom of the press in addition to freedom of speech can be interpreted to mean a special protection for the press, then it might prove to be a good constitutional foundation for the media’s institutional freedom of expression (Stewart; Anderson (1983) and (2002); West (2011)). However, the Supreme Court of the United States has been almost consistently unenthusiastic about interpreting the clause concerning freedom of the press in a way that enables freedom of the press to enjoy a distinct constitutional status. In a recent important campaign-financing case, the Court reaffirmed that: ‘[w]e have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers’ (Citizens United v Federal Election Commission Case (US) (2010) 352), quoting Austin v Michigan Chamber of Commerce (1990) 691 (US) (Scalia, J, dissenting), overruled by Citizens United). The Court has further observed the difficulty in treating media freedom differently by pointing out that: ‘[w]ith the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred’ (ibid).

7.  This understanding of the press as a technology well reflects constitutional conceptualization of free expression in the modern age. The modern idea of free expression was created when political and religious powerholders attempted to and actually did censor expression by controlling a new printing technology: freedom of expression as freedom from censorship. The press as a technology has been taken into consideration since the very inception of freedom of expression. A question remains as to whether the press as an industry is constitutionally protected.

8.  In contrast to the United States Constitution, the German Basic Law, one of the more contemporary constitutions, has provided for freedom of the press and reporting by broadcasts and films in addition to freedom of expression: ‘[f]reedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed’ (Basic Law of the Federal Republic of Germany: 23 May 1949 (as Amended to 13 July 2017) Art. 5(1) (Ger)). While ‘every person’ has the right to free expression, the constitutional text does not specify who enjoys freedom of the press. Thus, the constitutional text implies that there is an essential difference between free expression as a fundamental right and freedom of the press as an institutional right. The Federal Constitutional Court of Germany (Bundesverfassungsgericht) has granted constitutionally protected status to the media (eg First Broadcasting Case (1961) (Ger); Spiegel Case (1966) (Ger)). A constitutional text that specifically mentions media freedom here may provide the court with a clue that indicates a way to interpret it in a way that is different from that of an individual’s free expression. The press as an independent institution may be understood to have a special care in a liberal democracy.

9.  The Canadian Constitution clearly declares that ‘everyone has … freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication’ (Schedule B Constitution Act 17 April 1982 Art. 2(b) (Can)). Sweden has established as constitutional law the Freedom of the Press Act (SFS nr 1949:105): (as Amended to 1 January 2003) (Swed) and more recently the Fundamental Law on Freedom of Expression (SFS nr 1991:1469): (as Amended to 1 January 2003) (Swed) to include freedom of communication. The constitutional text provides that: ‘[e]very Swedish citizen is guaranteed the right under this Fundamental Law, vis-à-vis the public institutions, publicly to express his or her thoughts, opinions and sentiments, and in general to communicate information on any subject whatsoever on sound radio, television and certain similar transmissions, through public playback of material from a database, and in films, video recordings, sound recordings and other technical recordings’ (Chapter 1 Art. 1 para. 1). The South Korean Constitution of 1987 also refers to media institutions with communicative technologies: ‘[t]he standards of news service and broadcast facilities and matters necessary to ensure the functions of newspapers shall be determined by Act’ (Constitution of the Republic of Korea: 12 July 1948 (as Amended to 29 October 1987) Art. 21(3) (S Kor)). The Russian Constitution provides that: ‘[t]he freedom of mass communication shall be guaranteed’ (Constitution of the Russian Federation: 12 December 1993 Art. 29(5) (Russ)). The South African Constitution mentions ‘freedom of the press and other media,’ although the subject who may claim this right is ‘everyone’ rather than institutions per se (Constitution of the Republic of South Africa: 11 October 1996 (as Amended to 1 February 2013) Art. 16(1)(a) (S Afr)). The Polish Constitution also refers to ‘the means of social communication’, ‘the press’ and ‘a radio or television station’: ‘[p]reventive censorship of the means of social communication and the licensing of the press shall be prohibited. Statutes may require the receipt of a permit for the operation of a radio or television station’ (Constitution of the Republic of Poland: 2 April 1997 Art. 54(2) (Pol)). The Swiss Constitution straightforwardly declares: ‘[f]reedom of the press, radio and television and of other forms of dissemination of features and information by means of public telecommunications is guaranteed’ (Federal Constitution of the Swiss Confederation: 18 April 1999 Art. 17(1) (Switz)).

10.  There is a general tendency here: the more recently constitutions have been established, the more ready they are to include freedom for the media. As is often the case with constitutional issues, however, constitutional text is not necessarily determinative, because legislative, executive, and judicial practices greatly matter as well. Free expression including media freedom depends on communicative technology that has grown rather swiftly, which has made it more and more policy-dependent (Balkin (2004) 50–54). Some constitutions, in fact, make a legislative matter of protecting the press, including broadcasting, as in the Dutch Constitution: ‘[r]ules concerning radio and television shall be laid down by Act of Parliament. There shall be no prior supervision of the content of a radio or television broadcast’ (Constitution of the Kingdom of the Netherlands: 17 February 1983 (as Amended to 2002) Art. 7(2) (Neth)). United States federal and state laws, for example, allow the press to enjoy some legal benefits, such as tax exemptions and discounted postal rates, and the privilege not to disclose informational sources, to which ordinary citizens are not entitled.

C.  General Framework: its Scope Against Other Important Interests

11.  Freedom of the press, as a subcategory of freedom of expression, generally has the same scope and limitations as freedom of speech or expression does. The issues related to freedom of the press in particular will be briefly examined here.

12.  Although it is sometimes burdensome to define clearly the scope of expressive activities like symbolic speech, freedom of the press as media freedom generally has boundaries that can be identified without too much difficulty. The idea of a free press tends to cover a variety of communications, such as printed publications and oral broadcasting. It is not absolute and unlimited, however, even with its significant function of providing people with indispensable information, facilitating the collective decision-making process, and checking abuses by the influential. It may conflict with other important social and individual values and be occasionally surpassed by the maintenance of political order, the preservation of decent communal values, the protection of human dignity, and so on (dignity and autonomy of individuals).

13.  The actual scope of freedom of the press may differ from state to state based on their political regime and historical and cultural background. An authoritarian regime tends to protect freedom of the press as little as possible, while also attempting to control communications, including the media, to its own advantage. Expansive protection of media freedom, which more or less enriches social understanding and promotes the democratic decision-making process, may be considered the most urgent issue. In a regime in a transition stage, a free press may play a pivotal role in consolidating its liberal democratization; while, in contrast, reactionary leaders are apt to seek influence over the media. In former communist (communism) countries such as Russia, Poland, and Hungary, the media have suffered from harsh political pressure and have had difficulty implementing their inherent function of acting as a check on political and social abuses. The South African Constitution has clearly declared that freedom of expression does not extend to ‘propaganda for war’, ‘incitement of imminent violence’, or ‘advocacy of hatred that is based on race, ethnicity, gender[,] or religion, and that constitutes incitement to cause harm’ (Constitution of the Republic of South Africa: 11 October 1996 (as Amended to 1 February 2013) s 16 (2)).

14.  Even within liberal democracies, furthermore, the protective scope of freedom of the press varies according not only to what it is balanced against, but also to the political and historical conditions under which they are situated. When public order, national security, and general welfare are the interests that compete with a free press, the government must ordinarily show that limitation of freedom is necessary to achieve the purpose that is related to one or more of these general interests and that the limitation is not disproportionate to that purpose. Freedom of the press tends to be favoured in these situations. To deal with advocacy of illegal conduct, for instance, it is well known that the United States Supreme Court developed the clear and present danger doctrine early and the Brandenburg standard later (Thornhill v Alabama (1940) (US); Cantwell v Connecticut (1940) (US); Brandenburg v Ohio (1969) (US)). In the latter formula, the government must demonstrate that ‘such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action’. When freedom of the press collides with rights such as those of access to a fair trial, reputation, and privacy, however, courts tend to strike a delicate balance between two competing, important rights. Particularly when competing rights are constitutionally protected, courts may not take unilateral preference of freedom of the press over other rights, because both are co-equally valued at the constitutional level. At this point, political, historical, and social circumstances in a given state matter when courts try to bring these rights into equilibrium (Barendt (2012) 902–903).

15.  The trend is more or less commonly shared toward an extensive protection of political expression, such as harsh criticism of government members and their policies (New York Times v Sullivan Case (US) (1964); ‘Soldiers Are Murderers’ Case (1995) (Ger)). The United States Supreme Court is, however, much more active in protecting freedom of the press against decency, reputation, privacy, and claims of equality than their European counterparts. Hate speech regulation is, for example, a highly controversial issue, in which a salient contrast has been recognized. Hate speech may be defined as communication that ‘expresses, encourages, stirs up, or incites hatred against a group of individuals distinguished by a particular feature or set of features such as race, ethnicity, gender, religion, nationality, and sexual orientation’ (Parekh 40). Even though hate speech is understood as belonging to political speech, European countries tend to regulate racist or discriminatory speech rather widely, because of the maintenance of fairness and harmony in today’s diversified society and the vivid memory of racial abuses by totalitarianism, such as occurred in Nazi Germany. The German Federal Constitutional Court has held Holocaust denial as a false factual claim beyond the coverage of free speech (Holocaust Denial Case (1994) (Ger)). The French Gayssot Act of 1990 has also prohibited Holocaust denial as a criminal offence (Law of the Press of 29 July 1881 (as Amended to 12 July 1990) Art. 24bis (Fr)). Both the United Nations Human Rights Committee and the European Human Rights Commission have justified this offence because of its compatibility with the International Covenant on Civil and Political Rights (1966) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (ECHR) respectively (Faurisson v France (1996) (UN HRC); Marais v France (1996) (ECommHR)). Moreover, hate speech and group libel laws—such as can be found in the British Public Order Act of 1986 s 18, the French Press Law Art. 32, the German Penal Code s 130, and the Canadian Criminal Code s 319(2)—are interpreted as consistent with the protection of freedom of expression and the press, although their specific application might be understood as infringement of freedom of expression and the press. In a case where a journalist who conducted and edited a TV interview with members of a racist group in which they made abusive and derogatory remarks about immigrants and ethnic groups in Denmark was convicted under domestic law for assisting in the dissemination of racist speech, the European Court of Human Rights (ECtHR) held that Denmark violated freedom of expression (ECHR Art. 10) because the journalist’s conduct during the interview clearly dissociated him from the persons being interviewed and the ‘punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest’ (Jersild v Denmark (1994) (ECtHR)).

16.  In sharp contrast, the United States of America has refused to ban hate speech because open and robust public discourse is considered to have a high priority. Although the United States Supreme Court has not reviewed the constitutionality of an ordinance that attempted to ban a march by a Nazi organization in a village where many Holocaust survivors were resident, federal lower courts denied it by following precedents (precedent) on freedom of speech (Skokie Cases: Collin v Smith US District Court for the Northern District of Illinois (1978) (US) and Collin v SmithUS Court of Appeals, Seventh Circuit (1978) (US); Smith v Collin US Supreme Court (1978) (US) certiorari denied; Strum; Bollinger (1986) 23–39, 53–58). The Court did indeed invalidate a city ordinance that banned the display on public or private property of any symbol that ‘arouses anger, alarm[,] or resentment in others on the basis of race, colo[u]r, creed, religion[,] or gender’, when it reviewed a conviction on the grounds that the petitioner who had burned a cross in the backyard of an African American family violated the ordinance. In that case, the Court held that the ordinance prohibited ‘otherwise permitted speech solely on the basis of the subjects the speech addresses’ (RAV v City of St. Paul 505 US 377, 381 (1992) (US)). This well shows that the United States Supreme Court has traditionally been antagonistic to content-based regulation of speech (Barendt (2005) 185). Later, the Court reviewed a state statute that made it a criminal offence for any person with the intent of intimidating any person or group to burn a cross on another property or public place, and provided that any such burning should be prima facie evidence of an intent to intimidate others. The Court had upheld the statute to the extent that it prohibited the burning of crosses with the intent to intimidate others, because ‘burning a cross is a particularly virulent form of intimidation’ and the state ‘may choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm’. However, the Court has rejected the prima facie evidence provision because that provision ‘makes no effort to distinguish among these different types of cross burnings’, such as ‘between a cross burning done with the purpose of creating anger or resentment and a cross burning done with the purpose of threatening or intimidating a victim’, or ‘between a cross burning at a public rally or a cross burning on a neighbo[u]r’s lawn’ (Virginia v Black 538 US 343, (2003) (US)). In the United States, therefore, hate speech that causes an actual threat may be constitutionally banned, while restrictions on hate speech as an ideological expression may be widely considered inconsistent with freedom of the press.

17.  Conflicts between freedom of the press and reputation or privacy, both of which are derived from due respect for human dignity, may be adjudicated by an ad hoc balancing test (defamation; right to privacy). Alternatively, a more standardized analysis may be favoured, because case-by-case assessments by this test might lose the virtue of predictability that constitutes an essential part of modern law. At any rate, the balance tends to lean more to freedom of the press in the United States than in Europe.

D.  Doctrine Against Censorship

18.  Power holders may naturally hate hearing disagreements with and criticisms of their ideas and policies. To curb unfavourable information and dissenting views, they may attempt to suppress what others say about them. The modern conception of a free press started as freedom from censorship. In Areopagitica, published in 1644, John Milton delivered a speech that argued for unlicensed printing. Printing, then a newly developed technology, was a revolutionarily convenient device for disseminating information, but the establishment feared for the foundation of their power and authority, which was generally derived from an overwhelming asymmetry in access to information between them and their followers and could well be undermined through the wide diffusion of information. They attempted to control the flow of information by requiring that printing machines be registered and their output censored. The right to a free press was thus formulated to mean, first of all, freedom from censorship and prior restraint.

19.  William Blackstone’s Commentaries on the Laws of England well expressed this manner of interpreting freedom of expression: ‘[t]he liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published’ (Blackstone 151). While the First Amendment to the United States Constitution was introduced to constitutionalize freedom of speech and of the press, its purpose has been much debated—whether it merely followed the tradition of a free press or expanded it to cover a degree of protection from ex post penalties. Despite the controversy, however, freedom from ex ante restraints is undoubtedly included in the constitutional protection of a free press. Although the United States Constitution does not directly mention prohibition against censorship, the Dutch Constitution, for example, protects freedom of the press and of expression as denial of prior restriction (Constitution of the Kingdom of the Netherlands: 17 February 1983 (as Amended to 2002) Art. 7(1),(3) (Neth)). Other constitutions explicitly provide for prohibition against censorship in addition to declaring freedom of expression, as in the German Basic Law (Basic Law of the Federal Republic of Germany: 23 May 1949 (as Amended to 13 July 2017) Art. 5(1)(1–3) (Ger)) and the Japanese Constitution (Constitution of Japan: 3 November 1946 Art. 21(1)–( 2) (Japan)).

20.  There are several reasons why prior restraint is regarded as more antagonistic to freedom of expression than subsequent punishment (Emerson (1955) 655–660). First, a system of prior restraint generally covers a wider range of communications than a system of subsequent punishment. Second, whereas within a system of subsequent punishment communication is made anyway before governmental action is taken, a system of prior restraint completely excludes communication itself from the marketplace of ideas, banning it in advance. Furthermore, in a system of subsequent punishment, sanctions for expression are imposed after a fair trial strictly bound to meet the standards of criminal procedure. In contrast, a system of prior restraint that all too often lacks procedural protections tends to allow a censor to prohibit expression with great ease. It is true that some argue a system of prior restraint grants publishers the security of being able to avoid the risk of severe punishment that may ensue from publications. With prior restraint, however, the quantity of information and opinion is most surely reduced in society as a whole and, more seriously, the idea of legitimate thought prevails, which is fundamentally inconsistent with guaranteeing freedom of expression.

21.  In the United States, indeed, ‘[a]ny system of prior restraints of expression comes to [the United States Supreme] Court bearing a heavy presumption against its constitutional validity’ and ‘[t]he [g]overnment ‘thus carries a heavy burden of showing justification for the imposition of such a restraint’’ (New York Times Co v United States (1971) 714 (US) (internal quotations omitted)). This interpretation well reflects extraordinary hostility toward prior restraint. Prior restraint is understood as what the government can rarely, if ever, meet the strict requirements of.

22.  One important issue is whether judicial injunctions may constitute prior restraint or not. In traditional administrative prior restraint, as the very essence of the thing, censors tend to be motivated to prohibit expression. Prior restraint is also apt to be conducted without clear and specific rules by which expression may or may not be prohibited. Procedural safeguards for communication may further be lacking in typical censorship proceedings. Judicial injunctions, in contrast, may differ in that they are ordered after a neutral judge ascertains the existence of the right allegedly preserved by the injunction and the necessity of such a preservative measure, based on a petition by the concerned party with regard to the individual private dispute over the expression. In effect, judicial injunctions seem to expose freedom of the press to less menace than does the typical form of administrative censorship.

23.  In the United States, however, even judicial injunctions may be scrutinized with deep suspicion. The United States Supreme Court has denied as prior restraint an injunction against the publication of what was described as a ‘malicious, scandalous and defamatory newspaper, magazine[,] or other periodical’ (Near v Minnesota (1931) (US); likewise, the executive’s seeking of an injunction against leading newspapers from publishing material classified as top secret on United States policy in Vietnam for reasons of national security and diplomatic interests (New York Times Co v United States (1971) (US)). Although the possibility cannot be excluded that injunctions against media coverage may be issued for guaranteeing criminal defendants their fair trial rights (right to a fair trial in criminal law cases), the Court has also held that such injunctions are presumptively unconstitutional as prior restraint, and that they could be justified only if the injuncted publicity in fact constitutes a clear and present danger to the fair administration of justice (Nebraska Press Association v Stuart (1976) (US)).

24.  European countries, in contrast, tend to admit judicial injunctions even with the traditional administrative prior restraint denied. The German Federal Constitutional Court has narrowly defined censorship as prohibitions of prepublication in which the authorities shall inspect and approve the materials submitted before their distribution (Film Propaganda Case (1972) (Ger)). Temporary judicial injunctions to keep reputation and privacy intact do not constitute the censorship prohibited in the Basic Law.

25.  The Supreme Court of Japan (Saikô saibansho) has also interpreted constitutionally banned censorship as something that ‘has, as a special quality, the prohibition of publication of what are judged inappropriate, after the administrative authorities as the main organ, for the purpose of prohibition of publication as a whole or a part, covering the matters of expression of substance of thought, etc, conduct the comprehensive and general examination of the above specific matters of expression prior to its publication’. While this censorship is absolutely prohibited, according to the Supreme Court, the principle against prior restraint provided for in the free expression clause, which covers a ban on publication in advance by not only administrative agencies but also public authorities, may tolerate a wide range of exceptions, such as judicial injunctions (Constitution of Japan: 3 November 1946 Art. 21(1)–(2) (Japan); Zeikan kensa Case (1984) (Japan); Hoppo Journal Case (1986) (Japan)).

26.  Doctrine against censorship or prior restraint is an analytical tool for protecting freedom of the press that is targeted only at timing of expression. Timing is surely an important part of the idea of freedom of expression and the press, but substantial protections of expression also deserve careful attention to enhance the right. Self-censorship is another critical issue, though it is difficult to actually address on an everyday basis. Fear of retaliation, a desire to avoid social disputes, or the pressures of the market may lead citizens—and even journalists—to choose not to express their own views. Such chilling effects matter because the flow of information in a society may then diminish, and that is contradictory to the idea of modern constitutionalism in which deliberated opinion should prevail. An effective theory of freedom of the press could hopefully cope with this conundrum.

E.  Media Freedom

27.  Freedom of expression is traditionally understood as individualistic. Citizens exercise free expression as a fundamental right. If freedom of the press is recognized as media freedom, the freedom is distinctively institutional. There are generally three perspectives on media freedom (Barendt (2005) 419–424). As we have already seen with United States Supreme Court judgments, on the one hand, a first view denies special treatment of the media and claims that media freedom is essentially equivalent to freedom of expression. Freedom of the press in this sense thus analytically breaks down free expression on the part of the media’s owners, editors, or journalists. This view is fairly natural by tradition and has the advantage of avoiding the difficult task of defining the media in a way that shows it deserves special protection. As we saw in section B, however, constitutional text in some cases presents clear reference to the media, including broadcasting. Special protection of media freedom may correspond to the reality that the media usually play a critical role in a liberal democracy.

28.  According to a second position, on the other hand, special treatment of the media is legally authorized to protect media institutions. In this view, freedom of the press includes substantive media freedom in addition to free expression by those involved. This view reflects the press’s unique and critical feature that, while being a private institution, the press disseminates information that people not only want but also need to know in a society; they play a watchdog role in general and a check on the government in particular. However, special protection for the media may lead to serious questions as to why the media, usually in the form of a private and profit-making company, should be entitled to such treatment over the heads of ordinary citizens; why the established media should enjoy an advantageous position over freelance journalists and bloggers; and how freedoms among media owners, editors, and journalists should be regulated in a media company.

29.  By making the most of the merits of the previous two views, a third perspective may be distinguished between free expression as a fundamental right and media freedom as an instrumental right (Dworkin 373–397; Lichtenberg 104–105; Hasebe 1–44). As the latter, freedom of the press exists as far as it performs in a way that enhances rich public debate in society. This is thus more practically eclectic. This perspective does not have to rely on the distinction between institutional media freedom and free expression, as far as both are of service to the values of freedom of expression. To deserve special protection, the media must make a positive contribution to provide citizens with the wide variety of information, views, and ideas that is necessary for a liberal democratic society to survive. Thus, although it has regularly recognized institutional freedom of the press, the German Federal Constitutional Court readily denied protection for a frame-up story about the personal life of a celebrity (Princess Soraya Case (1973) (Ger)). Some constitutions, like the Canadian Constitution, refer to media freedom but at the same time identify everyone as capable of exercising that freedom. Institutional media freedom is thus supposed to be protected in a way not inconsistent with free expression as a fundamental right. This third way may have more influence on the legislative than the judicial process, to create a statutory framework for the concrete conditions under which media freedom especially is guaranteed, which has become more and more crucial for freedom of expression and the press in the Internet age.

F.  Editorial Autonomy

30.  One of the most significant issues of institutional media freedom concerns the degree of independence the media may enjoy in terms of editorial autonomy. Editorial autonomy is situated at the core of a free press. As freedom of expression is conceptualized as the self-autonomy of those who express themselves, freedom of the press as institutional freedom must grant members of the media as broad a framework of independent judgment as possible. This independent judgment of the media institution is usually reflected as editorial freedom, which in reality may often be in peril. The issue of editorial freedom may take several forms. Advertisement is one of them. Editorial discretion basically works when the media decide whether advertisements should be carried, and if so, which. General legal rules like non-discrimination against fundamental human attributes may be applicable due to the publicness of the media. More seriously, however, the withdrawal of advertisements because of the media’s viewpoint may endanger the media themselves and editorial autonomy. Because the private media are more or less dependent on advertising revenues, this pressure through economic power may stifle the activities of the media and reduce rich public debate in society (Baker (1994)). In the following, internal freedom and the right to reply will be discussed separately.

1.  Internal Freedom

31.  This is related first to the question of institutional structure within the media. Who has the decisive voice within a media institution: proprietors, editors, or journalists? How much may the media’s owners or editors exert their discretionary editorial power over individual journalists? Conversely, may journalists claim their right of free expression against their editors or owners? The United States Supreme Court has held that institutional media are not immune from labour relations law and thus cannot dismiss an employee for union membership. But the Court has also suggested the media are ‘free at any time to discharge … any editorial employee who fails to comply with the policies it may adopt’ (Associated Press v National Labor Relations Board (1937) (US), which the Washington State Supreme Court distinguished in Nelson v McClatchy Newspapers, Inc. (1997) (US)). In the latter case, a newspaper employee alleged that the newspaper had improperly deprived her of her position as a reporter because of her political activities. ‘The ethics code defines conflicts of interest to include all situations in which readers might be led to believe that the news reporting is biased, including situations in which reporters participate in high profile political activity’ (ibid at 527). This code of conduct is designed to ‘limit conflicts of interest which may diminish publication credibility’. Three fourths of American newspapers have adopted a more or less identical code (ibid at 543). The Court recognized the employee’s ‘statutory right to avoid workplace discrimination based on her politics’ but held the right cannot prevail over the newspaper’s editorial freedom. According to the Court, ‘the First Amendment freedom of the press is the constitutional minimum regardless of the legal source of government abridgment. Choosing an editorial staff is a core press function, at least when that choice is based on editorial considerations’ (ibid at 543–544). General legal regulations may be applicable to institutional media, but its editorial autonomy may matter when editorial policy conflicts with the views and opinions of individual journalists.

32.  The German Federal Constitutional Court found that a statute that required a media owner to consult a works council before dismissing an editor was not repugnant to freedom of the press. The Court evaded the serious issue of whether the statute was constitutional and solved the dispute by understanding a council’s authority related to a dismissal as derived from social, not editorial, judgments (Internal Freedom Case (1979) (Ger)). In Germany and France, labour-management agreements generally attempt to resolve issues over internal freedom to strike a difficult balance between managerial interests, editorial autonomy, and individual free expression.

33.  Owners of the media institution may have the last word as a property right. The authority relationship between owners and editors or journalists may usually be determined by employment contracts. If media freedom means something distinctive, however, editorial freedom and internal freedom may be protected in some cases. Preventing media owners from interfering with editorial autonomy may be highly significant for maintaining a diversity of information and views, which is crucial to a liberal democracy (Baker (1989) 253–255). From the instrumental perspective of media freedom, media owners may not claim free expression to force their editors and journalists to follow their own view.

2.  The Right to Reply

34.  Media freedom may, secondly, invoke editorial freedom to cope with intervention from outside. Access to the mass media has been widely discussed because ordinary citizens lacked effective tools for disseminating their own views before the advent of the Internet (Barron xiii–xv). The right to reply is one of the most arduous issues. The United States Supreme Court once upheld the Federal Communications Commission’s fairness doctrine and the personal attack rules, one of its corollaries. The fairness doctrine required broadcasting licensees to give fair coverage to controversial issues of public importance. The personal attack rules also required them to offer a person who was the subject of a personal attack on character or integrity an opportunity, without charge, to reply to it with an equivalent amount of time. These regulations were viewpoint-based as well as content-based, and undoubtedly interfered with the licensees’ editorial freedom. The court unanimously endorsed the regulations by emphasizing that: ‘[b]ecause of the scarcity of radio frequencies, the [g]overnment is permitted to put restraints on licensees in favour of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount’ (Red Lion Broadcasting Co v FCC (1969) 390 (US)). (Owing to lingering doubt about its constitutionality, however, the Federal Communications Commission (FCC) abolished the fairness doctrine in 1987.)

35.  In stark contrast, the United States Supreme Court has invalidated a state statute that granted electoral candidates a mandatory right to equal space reply to attacks on their character. The Court has reasoned that mandatory publication of a reply imposes a significant burden on free expression based on the content, which might lead newspapers to avoid controversies and result in a situation where political and electoral coverage may be blunted or reduced. The Court has also attached importance to editorial autonomy. ‘The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials—whether fair or unfair—constitute the exercise of editorial control and judgment’ (Miami Herald Publishing Co v Tornillo (1974) 258 (US)).

36.  The German Federal Constitutional Court has been more sympathetic about the right to reply. The Court understands the general right of personality derived from human dignity as the basis of the right to reply (Basic Law of the Federal Republic of Germany: 23 May 1949 (as Amended to 13 July 2017) Arts 1 and 2(1) (Ger); Right to Reply State Radio Law Case (1983) (Ger); Fourth Broadcasting Case (1986) (Ger)). The Court has upheld the clause of the Hamburg Press Law that provides that a publisher or editor ought to publish a reply to his or her publication about a factual matter on a person or governmental office (Art. 11). The Court reasoned that this clause was a ‘general legislation’ provided in Art. 5 (2) Basic Law, and that this limitation on freedom of the press was proportional (proportionality) to the imminent danger to the person whose private matter was published (Right to Reply State Press Law Case (1998) (Ger)). In Germany, the right to reply is understood as part of the legal interests derived from human dignity, not access to the media (Suzuki 38–40). The press’s primary purpose is to collect information, distribute the news, and contribute to the development of public opinion. Through publishing a reply, therefore, the media may make a contribution to forming public opinion freely. In France, the right to reply has been legalized since the Press Act of 29 July 1881. This French right to reply is also based on personal interests and applies to an opinion or evaluation, as well as to a fact about a person mentioned in the media (Sogabe 40, 51, 233–234).

37.  The instrumental view of freedom of the press may justify some burden on editorial freedom in cases where the free expression of individuals would be thereby enhanced (Barendt (2005) 427). Although the advent of the age of interactive media like the Internet has certainly reduced the demand for the right of reply, editorial freedom and the right to have access to the mass media still have to be subtly balanced, because the mass media have enormous influence on our daily lives.

G.  Dichotomy of Regulations of Print and Electronic Media

38.  In liberal democracies, the media tend to be regulated in accordance with their particular characteristics. Print media like newspapers are free from regulations that are directly targeted toward them, although general legal principles such as defamation and invasion of privacy are applicable to them. In contrast, electronic media such as broadcasting are under governmental license and content-based regulations which might come into serious conflict with protection of free expression. The dichotomy of media regulations is commonly recognized.

39.  Why is this type of dual regulatory system sustainable? Several arguments have been offered to justify the dichotomy. One theory argues that electronic waves belong to the public domain. According to this theory, unlike paper and ink electronic waves are special enough to warrant public management. While broadcasting organizations are granted an exclusionary right to use electronic waves, in this scheme they have to accept various burdens on their broadcasting owing to its public nature. However, this theory is apt to cause governmental intervention in broadcasting organizations which should be autonomous as exercisers of free expression. Electronic waves have also now become an object of auction. This theory has only limited power of persuasion.

40.  Another argument—more influential—is based on the scarcity of electronic waves. This theory reasons that frequencies are limited for broadcasting and are scarce in the relation between supply and demand, so broadcasting organizations, selected through severe competition, should be subject to reasonable governmental regulation to make effective and proper use of those scarce frequencies available to society. This is basically what the United States Supreme Court argued to validate the fairness doctrine in the Red Lion Case (Red Lion Broadcasting Co v FCC (1969) (US)). This scarcity theory has been criticized because there are more television and radio stations than newspapers in virtually all cities. The advent of cable and satellite broadcasting systems has further undermined this theory. Moreover, the Internet has blurred the distinction between print and electronic media, as most newspapers and journals also provide articles on the Internet. The United States Supreme Court has never denied Red Lion, and held that lenient scrutiny like Red Lion is applicable even in the cable television system. The Court upheld the regulations of ‘must-carry’ that require cable operators to provide channels for local broadcasting signals (Turner Broadcasting System Inc v FCC (1994) (US); Turner Broadcasting System Inc v FCC (1997) (US)). Cable operators exercise bottleneck control, in the Court’s view, in that they decide which programs are available to viewers on their system, and this bottleneck control makes cable operators more influential than newspaper owners, who are generally unable to monopolize their readers in the way that cable operators can.

41.  Another powerful argument is a theory that focuses on broadcasting’s social impact. The United States Supreme Court upheld FCC sanctions on indecent (not necessarily obscene) expression in a radio program (FCC v Pacifica Foundation (1978) (US)). This theory argues that special treatment for broadcast is justified because the broadcasting media are pervasive and influential in citizens’ everyday lives, and are also uniquely accessible to those who are unwilling to see or hear what they think undesirable—particularly so with children. However, the print media may also have a huge impact on citizens’ social lives. The general principle of free expression, moreover, inhibits the imposition of special regulation on some kinds of speech because their communicative power is more effective than others.

42.  A fourth alternative, which has recently become popular, is a theory of partial regulation. The combination of unregulated print media and regulated broadcasting media, the theory argues, makes the flow of information in society as a whole freer and richer. While the broadcasting media may cover various views in society because of regulation, newspapers and magazines may publish information not disseminated by broadcasting and provide an effective check against governmental abuse (Bollinger (1991) 109–132). This thesis also begs a number of questions, however. Extensive cross-ownership, for example, between newspapers and broadcasters may undermine the premise of the theory of partial regulation. Furthermore, the rapid development of communicative technology may eventually make the print media completely obsolete. In addition, the authority to regulate the broadcasting media may provide a breeding ground for governmental and political abuse (Powe (1987)).

43.  Pluralism may furnish further justification for differential treatment of the two branches of the media (Barendt (2005) 446–448). In the European context, the systems of the governmentally owned broadcasting media have recently been liberalized, and commercial channels have flourished, with cable and satellite broadcasting readily available. At the same time, a realistic fear has arisen that commercialism overwhelms the variety of views and opinions. Thus, pluralism of information should be emphasized to maintain and promote a liberal democratic society. Two types of pluralism are relevant here. In terms of internal pluralism, public broadcasting channels should carry diversified programs and a wide range of views to which citizens may be exposed in order to properly understand and actively respond to what goes on in the society in which they live. As for external pluralism, private channels should be kept competitive to avoid the concentration of media in the hands of a few billionaires. The German Federal Constitutional Court, the Constitutional Council of France (Conseil Constitutionnel), and the Constitutional Court of Italy (La Corte costituzionale della Repubblica Italiana) have all supported pluralism of information and views as a constitutional principle (Third Broadcasting Case (1981) (Ger); Fourth Broadcasting Case (1986) (Ger); Decision No 81–129 (1981) (Fr); Decision No 86–217 (1986) (Fr); Decision No 88–248 (1989) (Fr); Decision No 420 (1994) (It)).

44.  These theories all have shortcomings. In an era of privatization, however, the pressure of the commercial market as well as governmental abuses may stifle the diversity of voices in society. A wide variety of programs and views should not thus be taken for granted, but should be protected more and more carefully. Some special regulation of broadcasting media may be necessary to enhance the free and rich flow of information that forms the liberal democratic foundations of a society. Broadcasting is important even in the Internet age for offering the basic information that is universally needed in citizens’ everyday lives. Discussion continues as to what the most appropriate regulatory system of the media should look like in a liberal democracy.

H.  Special Treatment for the Media

1.  Gathering News

45.  The guarantee of freedom of expression may be understood as an attempt to protect the whole process of human communication. In that process, gathering information is the first step in communication. According to the general understanding, however, free expression does not include a right of positive access to information without a statute that materializes the right. Does media freedom offer journalists an access right distinct from free expression? The United States Supreme Court has been reluctant to recognize a constitutional right to have access to information, because ‘[t]he Constitution does not … require government to accord the press special access to information not shared by members of the public generally’ (Pell v Procunier (1974) 834 (US)). The Court upheld a prison regulation under which media representatives were able to interview inmates, but they were prohibited from interviewing individual inmates based on their own choice. However, a fragmented Court supported a TV station’s access to a jail; a swing vote in the case pointed out ‘terms of access that are reasonably imposed on individual members of the public may, if they impede effective reporting without sufficient justification, be unreasonable as applied to journalists who are there to convey to the general public what the visitors see’ (Houchins v KQED (1978) 17 (US)).

46.  The media’s access to a criminal trial is also controversial. The United States Supreme Court once denied the argument that the Sixth Amendment to the United States Constitution grants the media and public a right to have access to pre-trial proceedings (Gannett Co, Inc v DePasquale (1979) (US)). The right to a public trial guaranteed in the Sixth Amendment is at best designed for defendants and the society as a whole, not for journalists and the media. One year later, the Court held that the right to attend criminal trials was implicit in the guarantees of the First Amendment and the right was protected unless an overriding interest in not opening the trial is articulated in findings (Richmond Newspapers Inc v Virginia (1980) (US)). A plurality opinion empathized with the Anglo-American legal history of criminal trials being open to the public—an openness that makes criminal trials fair and impartial—and the value of public trials in terms of community therapeutic and educational values. According to an opinion concurring in the judgment, public access may lead the public to more confidence in the administration of justice in particular and the structure of self-government in general. The Court also invalidated a state statute whereby courtrooms were closed whenever a minor victim of a sexual crime testified: ‘[w]here … the [s]tate attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest’ (Globe Newspaper Co v Superior Court 606–607 (1982) (US)). Further, the Court continued to grant the media access to criminal trials—voir dire transcripts in a murder trial and transcripts of a preliminary hearing in a murder trial (Press-Enterprise Co v Superior Court (1984) (US); Press-Enterprise Co v Superior Court (1986) (US)). The Court did not recognize the right of the media to have access to criminal trials as absolute, but held the state may demonstrate compelling interests to justify closure of criminal proceedings with specific findings. It may be difficult for the state to meet this requirement.

2.  The Privilege to Keep Information Sources Confidential

47.  When the media gather information for news, it is common practice for them to make a promise to keep their news sources secret. Can journalists enjoy the privilege of refusing to testify? In the United Kingdom, the House of Lords rejected such a common law right (British Steel v Granada Television (1981) (UK)). But a statutory measure was taken to establish Art. 10 of the Contempt of Court Act of 1981. A person may now keep his or her information source confidential ‘unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime’. Thus, journalists have some right to refuse to testify, because they serve the public interest in making relevant information available, although any person may exercise this right (Secretary of State for Defence v Guardian Newspapers (1985) (UK)).

48.  In the United States as well, the Supreme Court maintained the convictions of three reporters for refusing testimony before a grand jury by denying media privilege based on the First Amendment. The reporters argued for a qualified privilege that they may refuse to testify unless the state could demonstrate that the reporters had information unavailable from other sources and that the necessity of the information was compelling enough to justify the constitutional disadvantages brought by disclosure of the information. By turning down the argument, the Court pointed out four reasons: first, general laws are also applicable to the media; secondly, although forced disclosure of information brought by sources under a condition of confidentiality might seriously endanger the rich flow of news to the public, it is questionable whether this argument can be empirically confirmed; further, the public interest in securing the safety of people is paramount, and the grand jury plays a crucial role in a system of criminal justice that tends to realize that interest and needs journalists’ testimony to operate properly; finally, it is extremely difficult to define which ‘journalists’ deserve the privilege (Branzburg v Hayes (1972) (US)). The Supreme Court of Canada (Cour suprême du Canada) took more or less the same attitude toward this privilege as its United States counterpart (Moysa v Alberta (1989) (Can)). In contrast, the German Federal Constitutional Court held that confidentiality of information sources was protected as an essential part of freedom of the press (Spiegel Case (1966) (Ger)).

49.  In a case of breach of contract where a newspaper voluntarily revealed the identity of an information source, the United States Supreme Court denied constitutional free press justification and applied the law of promissory estoppel to the media (Cohen v Cowles Media, Inc, (1991) (US)). Ironically, this judgment has made more reliable the promise of confidentiality by the media in gathering news.

50.  Although it may not be easy to authorize a constitutional privilege to keep an information source secret, many states in the United States have now established a shield law to protect journalists’ privileges. They use a different definition of a journalist by focusing on the medium of communication, news affiliation, news-related activities, circulation or regularity publication, or earning a livelihood (West (2011) 1062–1068).

51.  The Supreme Court of Japan has recently, for the first time, upheld a reporter’s privilege to refuse testimony in a civil case as a ‘professional secret’ (Code of Civil Procedure, Art. 197(1)(iii)) (NHK Reporter Case (2006) (Japan)).

3.  Protection against Searches and Seizures

52.  The United States Supreme Court again rejected a student newspaper’s claim of a constitutional privilege to refuse a police search of its newsroom to seize photographs that might identify individuals who had assaulted police officers in a violent demonstration. The Court did not take seriously a fear that the governmental search of newsrooms and the seizure of confidential news documents might deter effective newsgathering (Zurcher v Stanford Daily (1978) (US)). In responding to the decision, Congress enacted a provision that normally prohibits the government from searching newsrooms and seizing news materials except in exceptional circumstances (Privacy Protection Act of 1980, 42 USC s 2000aa (US)).

53.  The German Federal Constitutional Court supported the legislative distinction between work products by journalists and materials offered by third parties under the condition of confidentiality, the latter of which should be more carefully dealt with (Barendt (2005) 439–440; CICERO Case (2007) (Ger)). The European Court of Human Rights also held that Art. 10 ECHR covered the denial of unreasonable searches of newspaper offices and journalists’ homes (Ernst and Others v Belgium (2003) (ECtHR)).

4.  Governmental Benefits

54.  Special treatment of taxation and postage for the media is also much discussed in terms of freedom of the press. It may be easily judged as unconstitutional when a tax is purposely targeted at newspapers and journals to suppress the flow of information to the public (Grosjean v American Press (1936) (US)). The United States Supreme Court invalidated a state tax on the ink and paper used in publishing newspapers with a special exemption, which resulted in a discriminatory effect of the tax on large and small newspapers. Although the state had no intention to use this tax to censor newspapers, the Court required the state to show a compelling interest to support the differential effect of the taxation, because it feared a potential burden on newspapers that play an important role in checking governmental powers (Minneapolis Star and Tribune Co v Minnesota Commissioner of Revenue (1983) (US)). The Court also invalidated a state general sales tax that exempted only some newspapers and magazines (Arkansas Writers’ Project, Inc v Ragland (1987) (US)). However, the Court upheld a state statute in which cable television services had to pay a general sales tax from which newspapers and magazines were exempted (Leathers v Medlock (1991) (US)). In European countries, it is common practice to have a special zero or reduced rate for Valued Added Tax on newspapers and magazines. These policies mainly reflect legal support for the media’s role in liberal democracies.

55.  Newspapers and magazines also enjoy special discounted postage in many countries. The German Federal Constitutional Court upheld the constitutionality of a neutral allocation of reduced postage to newspapers and other print publications that was non-discriminatory against their contents and views, although commercial and trade journals were entitled to no such subsidies (Postal Subsidies Case (1989) (Ger)).

56.  There may be no constitutional right of the press to require the state to have advantageous measures like reduced tax rates and subsidies, but, once it establishes such a scheme, the entitlement may compel the state to manage it fairly. Statutory measures to enhance active media are generally introduced to realize the widespread distribution of relevant information as a matter of public value in liberal democracies.

5.  Preserving the Competitive Media Market

57.  The media are also economic enterprises and are thus affected by the power of the market (Baker (2002) and (2007)). Freedom of the media as free expression may shrink if the media concentrate on a limited number of proprietors as a result of economic competition. Measures for properly controlling excessive competition are necessary to maintain the pluralism of views and opinions that is essential for a liberal democracy. The media as an industry are subject to not only general but also to media-specific competition law, the latter of which typically provides for heavier requirements regarding mergers and acquisitions in the media industry than in other industries, and special limitations on cross-media mergers and acquisitions. These regulations have been upheld by the highest courts in several jurisdictions: Associated Press v United States (1945) (US) held antitrust law was applicable to the media industry; FCC v National Citizens Committee for Broadcasting (1978) (US) held constitutional a regulation that prohibits cross-media mergers; Informationsverein Lentia v Austria (1994) (ECtHR) held the Austrian public broadcasting monopoly conflicted with Art. 10 ECHR; the French Constitutional Council, Decision, No 84–181 (1984) (Fr) held constitutional some limitation on newspaper mergers and acquisitions because freedom of expression was not effective if the readers of newspapers were unable to have a sufficient number of publications of various tendencies and character.

I.  The Internet and Freedom of the Press

58.  The development of the Internet has dramatically altered our daily lives. The Internet is ‘the global network comprising a loose confederation of interconnected networks using standardized communication protocols’ (Oxford English Dictionary). The Transmission Control Protocol/Internet Protocol (TCP/IP) is a standardized communication protocol. It is truly a network of networks without the centre, which comprises local, national, and international government, and academic and business networks, connected by a variety of electronic cable and wireless networking technologies. The Internet provides a vast array of information services—electronic mail, web pages, telephony, streaming, file sharing, and so on. With services by means of the Internet continuing to expand, human communication has been fundamentally transformed, as was the case centuries ago with letterpress printing technology.

59.  A number of issues concerning the Internet will be addressed here, from the viewpoint of freedom of expression and the press (Barendt (2005) 451–474).

1.  Communications Transformed

60.  With a networked computer or smartphone, ordinary citizens can, without much difficulty and at relatively low cost—at least in developed countries—have access to a range of information so extensive that it could not have been imagined even two decades ago. Through the Internet, people can talk about issues that range from political affairs to matters of social concern, from worries about work to household topics, expressing themselves directly to people all over the world, and exchanging information and opinions. They are as likely to be engaged in lively, participatory, and interactive communications as members in the mass media. With the Internet, people may conceive of structuring a global public sphere based on deliberation.

61.  At the same time, however, the very accessibility of the Internet may render a social and political order chaotic. Individuals can send to the world messages that have just occurred to them. The enormous range of information the Internet can provide may also lead individuals to a focus on nothing but their own interest, though there will always be issues in society to which all citizens should pay attention. As a result, citizens may fail to share basic information about their society—which is something indispensable for society if its members are to make collective decisions wisely. The segregation of society from the perspective of the necessity of shared information has become a real danger (Sunstein (2007) and (2017)).

2.  Features of the Internet

62.  The Internet as a form of recent communication technology may be considered in the same way as broadcast media and print media. The traditional mass media are generally subject to highly different regulatory schemes. While the Internet may be categorized as belonging naturally to the broadcasting model because of its use of electronic devices, in liberal democracies it is generally not under any comprehensive regulation targeted solely at it. The print media model may also be seen to be applicable to the Internet, though this is uncertain—as in the question, for example, of whether a webpage operator is entitled to a guarantee of editorial freedom at the same level as a newspaper (Barendt (2005) 455–456).

63.  In fact, the global features of the Internet require special consideration. First, communications through the Internet transcend national borders. It routinely occurs that a message uploaded on a webpage produced in country X is viewed in country Y via a server located in country Z. Territorial jurisdiction becomes an issue because the scope of freedom of expression and the press differ from one place to another. Under the current principle of state sovereignty, a single incident may be treated differently from one state to another. United States legal practices and those of Europe, Canada, and Australia, for example, are sharply divided, particularly in areas such as defamation, invasion of privacy, hate speech, and obscenity. The choice of legal forum is thus decisively important.

64.  It may seem reasonable to apply the general rule of tort law, but the impact of a message sent over the Internet may be so great in other territorial jurisdictions that following the rule may not be sufficient to furnish a serious dispute with a fair and pertinent solution. A further question concerns the possibility of enforcing judgments in a foreign country. A ruling against a defendant in English libel litigation, for example, may not be enforced in the United States because courts there interpret the judgment to be inconsistent with First Amendment protection—for instance, in Telnikoff v Matusevitch (1997) (US), the highest court of Maryland refused to enforce an English libel judgment because of incompatibility with the public policy of the state. Particularly when a message comes under the ambit of freedom of expression or the press, ways of striking a balance between free expression and other rights vary from state to state, and the Internet has brought to light this contrast, as not just a theoretical interest of scholarship but also as an actual issue to which all concerned must somehow strive to provide a practical answer.

3.  Accessibility

65.  The Internet has provided ordinary citizens with ample opportunity to express themselves, which may make an issue all the more serious. Before the age of the Internet the mass media monopolized access to the general public; but ordinary citizens equipped with the Internet can now reach that same audience. However, they are laypersons who, by and large, have neither training as professional journalists nor institutional support to write articles. Defamation and invasion of privacy through the Internet could thus be more serious, and put the human dignity of individuals at greater peril. Conversely, those who are concerned with free expression should pay heed to a different issue which this amateurism may cause. The standards for judging requirements of defamation and invasion of privacy have generally been formed by courts in the process of making decisions on cases involving the established media. The requirements for the media as professional institutions tend to be, by nature, very difficult for ordinary citizens to meet. An argument could be made that speech by ordinary citizens on the Internet should be dealt with differently, because such strict requirements may deter the rich flow of information in a society, and because users of the Internet generally recognize that messages in cyberspace do not carry the same credibility as those circulated by the established media because of the latter’s accessibility by a vast number of citizens. The argument may be countered, however, as messages on the Internet are more instantly and extensively spread than those produced by the traditional media. In defamation cases, the Japanese Supreme Court has recently rejected the argument and made it clear that the requirements remain the same even for Internet messages (Supreme Court Judgment (2010) (criminal) (Japan); Supreme Court Judgment (2012) (civil) (Japan)).

4.  Liability of Internet Service Providers

66.  The Internet is usually accessed via an Internet service provider (ISP). When reputation or privacy is injured by a message on the Internet, the liability of an ISP comes into play. In the United States, the Communications Decency Act of 1996 (US) has stipulated the immunity of ISPs (s 230). Even if messages by third parties are tortious or criminal, the operator of a website is not liable for them. A federal court of appeals has further extended its immunity to ISPs as distributors, who are traditionally in common law liable only if they have specifically learned that messages supplied by third parties carried tortious or criminal content (Zeran v American Online (1997) (US)). The ruling covered ISPs’ immunity from obligation to remove a defamatory message posted by a third party even after they have been given notice of it. Copyright infringement claims on the Internet are different because ISPs are entitled to immunity only as long as they have no actual knowledge of the infringing activity and promptly remove the offending item once they know about it (Digital Millennium Copyright Act (US) Section 512(c)).

67.  Other countries have adopted a different approach. The High Court of the United Kingdom has held that an ISP is liable if it has failed to remove a defamatory message from its service after being notified of the defamation allegation (Godfrey v Demon Internet Limited (2001) (UK)). In the European Union, Member States cannot force ISPs to monitor the contents they manage, but they may have immunity only if they play a neutral and merely technical and passive role towards the hosted contents and if, once they are aware of the illegal nature of the hosted contents, they remove it or disable access to it expeditiously (Directive 2000/31/EC Arts 12–15). Japan has also established a law stipulating that an ISP shall be immune unless it knew that the infringement of the rights of others was caused by its service or unless it knew the information was being distributed via its service and if there is a reasonable ground to find it could have been aware the infringement of the rights of others was caused by its service (ISPs Limited Liability Act No 137 of 30 November 2001 Art. 3 (Japan)). This Act also provides for a countermeasure to cope with anonymity of information on the Internet, by allowing a person alleging infringement of his or her right to demand an ISP disclose identification information of the sender under specific conditions (Art. 4).

5.  The Right to Be Forgotten

68.  Information may be deleted in cyberspace, but not deleted completely; a person may thus be perpetually or periodically stigmatized as a result of a specific act performed in the past. Some accordingly claim the right to be forgotten as a form of privacy right in the digital network age. This recognition of a new right would be in conflict with freedom of expression or the press, which may demand to make public relevant information which a person wants others to forget. The paths taken by the United States and Europe have again been divergent here. The First Amendment casts a sceptical eye on this right, because robust free expression on the Internet and the right to know are more highly appreciated (Rosen). In the UK, on the other hand, the Rehabilitation of Offenders Act of 1974 has provided that after a certain period of time—the rehabilitation period—if there has been no further conviction, the conviction is ‘spent’ and, with certain exceptions, need not be disclosed by the ex-criminal in any context such as seeking employment, obtaining insurance, or in civil proceedings. French law has also recognized le droit à l’oubli, or the right of oblivion, a similar right which allows a convicted criminal who has served his or her term and been rehabilitated to object to the publication of the facts of his or her conviction and imprisonment. In a case in which a Spanish man, in following data protection procedure, requested the removal of a link to a digitized 1998 newspaper article about an auction for his home foreclosed for a debt that he had subsequently fully paid, on 13 May 2014, the Court of Justice of the European Union held that ‘an internet search engine operator is responsible for the processing that it carries out of personal data which appear on web pages published by third parties’—thus, Google was required to remove a link to the newspaper article that was legal and accurate (Google Spain SL, Google Inc v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González (2014) (CJEU)). Beyond Europe, the Argentine Constitution has specifically guaranteed the right to suppress, rectify, make confidential, or update false personal data in an amparo action (Constitution of the Argentine Nation: 23 August 1994 s 43(3) (Arg)). The Japanese Supreme Court has already recognized an ex-criminal’s legal interest to be forgotten in a tort action where the plaintiff claimed damages because a nonfiction book revealed his crime of injury causing death, committed more than ten years previously in Okinawa, then under United States occupation (Gyakuten Case (1994) (Japan)).

69.  The European Union has recently declared the right to erasure—‘right to be forgotten’—as one of the rights of the personal data subject (Regulation (EU) 2016/679 Art. 17). Importantly, this regulation has required Member States to ‘by law reconcile the right to the protection of personal data pursuant to this [r]egulation with the right to freedom of expression and information, including processing for journalistic purposes and the purposes of academic, artistic or literary expression’ (Art. 85(1)). Recognition of the right to erasure or to be forgotten may lead to rewriting the past, which would be seriously inconsistent with the concept of freedom of the press. In the process of being conceptualized as a right, careful and judicious judgments on a case-by-case basis are essential in striking the appropriate balance between freedom of the press and this right.

6.  The Role of the Traditional Media in the Internet Age

70.  The Internet has supplied ordinary citizens with extraordinary opportunities to make their own views public in a meaningful way. This has blurred the line between the ordinary public and the traditional mass media, which used to monopolize communications as far as the public was concerned. Blog journalism is an eminent representative of recent developments. Active engagement on the part of ordinary citizens in public discussion is surely desirable in a democratic society. It has the undesirable side-effect, however, of enabling groundless arguments, untrustworthy statements, and even obvious lies to be disseminated easily and extensively. The segregation of information encouraged by the Internet may make some citizens become unreasonably biased; they may refuse to see the world as it is. Objective facts may become less influential in shaping public opinion than appeals to emotion and personal belief. The negative consequences of ‘the post-truth era’ are unfortunately not fictitious. The established media can play a critical role in providing citizens with information that is not only accurate but also necessary for the members of society. Freedom of the press as media freedom has become all the more significant in the Internet age.

J.  Conclusion

71.  The conception of freedom of the press as media freedom may be derived directly from a constitutional text, but it is often based on the legislative, administrative, and judicial practices found in liberal democracies. The actual state of affairs may conform well to the understanding of media freedom as instrumental, not intrinsic. The freedom of the press should be protected as long as the media play a pivotal role in disseminating important and necessary information to the public and checking social authority and political power in society. The media can actually enrich the social lives of ordinary citizens by providing them with extensive information that they not only want but also need to know. Through competitive interactions as a whole, various entities and different types of media can make a significant contribution to the free and rich flow of information, views, and opinions. The function of the media may, therefore, justify special treatment for them, such as protection of news gathering, the privilege not to disclose informational sources, and governmental conveniences like tax exemptions and discounted postal rates. The instrumental view of media freedom may also offer a constructive clue for deciding how much editorial autonomy should be respected in complicated cases concerning internal freedom and the right to reply.

72.  One clear advantage of the instrumentalist argument is that it is not necessary to minutely predefine which media deserve special protection. It is free from the general fear that a definition of institutional freedom of the press might be too narrow to cover a person relevant to and a sphere appropriate for the activities of the press. Institutional journalists may successfully claim their own freedom of expression as a fundamental right, even if they fail to convince the court of their media freedom. Freelance journalists and bloggers may also enjoy their own right to free expression. Institutional media freedom may only be protected as far as it is serviceable to liberal democratic values from a consequential point of view.

73.  These discussions are generally oriented towards policy, not principle. Protection of media freedom may depend on the concrete circumstances under which media activities are carried out and the legal interests that would be sacrificed as their outcome. Media freedom should be delicately balanced against other important constitutional interests such as reputation, privacy, criminal justice, and public safety. If the media fail to live up to their assigned role in a particular situation, then media freedom yields to other important interests. Freedom of the institutional media is, therefore, based on citizens’ broad understanding and support of the normative as well as the descriptive role of the media in a liberal democracy. The media, after all, constitute one of the most important sources in a policy judgment.

74.  Because they are mostly private and profit-seeking organizations, the media are exposed to the logic of economic power. Media freedom relies on how the media manage to preserve their institutional autonomy, not only from the traditional threat of governmental abuses but also from the enormous pressure of the market. Loss of autonomy on the part of the media must lead to a less diversified flow of information, views, and opinions, which then endangers a liberal democratic system that is premised on the interaction of a wide range of information and ideas. Preserving a pluralism of views and opinions is, therefore, a matter of legitimate constitutional concern.

75.  The realization of this constitutional concern is greatly dependent on the social situation of the media. The Internet has exerted a far-reaching influence on the established media and thus media freedom. The rapid development of new communicative technologies has obscured the traditional distinction between the print and electronic media. As a result, freedom of the press including media freedom has become much more policy-dependent. Because the court may reasonably be reluctant to evaluate policy matters, one has to pay due attention to legislative and executive practices as well as judicial decisions. As a matter of constitutional law, it is necessary to be cautious about new schemes for a freer and richer flow of information, views, and ideas that may be more appropriate in this age of digital networks and other new communicative technologies.

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