Media law and regulation

The role of the media, both mass media, community media and small and medium-sized media outlets, is instrumental in realising and exercising the right to freedom of expression. Media regulation is enforced by of law, rules or procedures and varies across the world. They exist to protect freedom of expression and media freedom and regulate media markets, ownership, infrastructure and technical standards and, importantly, protect public interests such as media pluralism and diversity.

Regional instruments, a category of international soft law – see the page on International Standards – , offer insight into which areas should be protected by national law and regulated to defend the right to freedom of expression and media freedom. This page does not attempt to compare all relevant sections contained within these regional instruments, but will mention a few to clarify the main areas

The Declaration of Principles on Freedom of Expression and Access to Information in Africa 2019 of the African Court of Human Rights (ACHR), covers 16 principles to which national legislation should adhere, i.a. and covers media diversity and pluralism, independent, community and private media, criminal measures and prohibited speech and economic measures that ‘promote a conducive economic environment in which all media can flourish.’

Declaration of Principles on Freedom of Expression of the Inter-American Commission on Human Rights of the Inter-American Court of Human Rights (IACHR) covers 13 principles, i.a. prohibition of prior censorship, source protection, privacy laws, public funding and advertising and plurality and diversity and anti-trust law.

The Council of Europe adopted a declaration urging Member States to ‘put in place a regulatory and policy framework that facilitates the operation of quality journalism, while not constraining media outlets’ editorial and operational independence. Recommended measures include a beneficial tax regime, financial support schemes and the possibility of media outlets to operate as not-for-profit organisations and receive donations from philanthropic programmes.’

Furthermore, the Council of Europe emphasises in a 2018 recommendation that States ‘have a positive obligation to foster a favourable environment for freedom of expression offline and online’, which includes that ‘[s]tates should guarantee that the media are free and pluralistic.’

Regulation

Different parts of the a media landscapes can be regulated in different ways:

  • Self-regulation: a system of self-regulation where news media (collectively) draw up their own regulations and take full responsibility for monitoring compliance with those regulations through a media council
  • Statutory-regulation: The state sets the relevant legislative or regulatory rules and monitors and enforces compliance in a transparent way
  • Co-regulation is a hybrid form where self-regulation ultimately is back-stopped by statutory regulation

Media councils are typical independent industry self-regulatory bodies that will defend the independence and operational autonomy of the media. In some countries, such as in Kenya, the media council is a statutory body established by a media act. Areas of self-regulation can include:

  • codes of conduct for journalists
  • complaint mechanisms
  • training of journalists
  • advertising

Areas of statutory regulation can differ greatly per country, but common areas for a regulator are:

  • broadcasting regulation and frequency allocation
  • infrastructural regulation
  • internet regulation
  • advertising and election broadcasting
  • protection of independence public media and operational autonomy
  • (cross-) media ownership
  • media diversity
  • licensing and taxation

In countries with limited space for independent media, state regulators typically control:

  • publishing and licensing
  • content
  • issuing of press cards
  • internet access

Media Ownership Concentration

In the past decade, more discussion is taking place about regulatory responses to a worldwide trend of increasing media capture. Media capture can be defined as a situation in which media either ‘are ideologically controlled by government; media that are controlled by advertisers and owners; [and] media coverage that pushes a certain agenda’ (CIMA, 2017).

A 2016 publication of the Council of Europe’s European Audiovisual Observatory states that at European level, ‘the nature and scope of competences in terms of guaranteeing media diversity are unclear.’ The report ‘Media ownership -Market realities and regulatory responses’ makes the case for applying competition law provisions as enshrined in Articles 101 and 102 of the Treaty on the Functioning of the European Union and the Merger Regulation.

The wisdom of this approach is being questioned in a Politico article on the consolidation of Hungarian media outlets in one dominating consortium that is politically aligned to the leadership of the country. The authors point to the tendency of Brussels to apply the subsidiarity principle when dealing with media regulation, ‘something best handled by national governments’. Media concentration policies are a national concern. No legislation exists at European level that specifically aims to ensure media diversity. Rather, the European Commission focuses on stimulating competition and supplier diversity.

The Politico article authors state that European Commission Vice President for Values and Transparency Vera Jourova noted that ‘EU merger rules are under review’ but that she remained cautious over ‘whether the law would be revised to integrate media plurality as a criterion.’ According to a Commission spokesperson, ‘Media freedom and pluralism raise many important issues that go beyond the remit of EU competition law. It is for member states to ensure that their national media ownership and plurality rules are up-to-date and properly enforced.’

Principle 11 of the Declaration of Principles on Freedom of Expression of the IACHR does however recommend to protect plurality and diversity through anti-trust-laws: ‘Monopolies or oligopolies in the ownership and control of the communication media must be subject to anti-trust laws, as they conspire against democracy by limiting the plurality and diversity which ensure the full exercise of people’s right to information.

The 2019 ACHR Principles are less prescriptive and says: ‘States shall adopt effective measures to avoid undue concentration of media ownership, whether horizontal or vertical. Such measures shall not be so stringent that they inhibit the development of the media sector as a whole.

Standards

Recommendation CM/Rec(2018)11of the Committee of Ministers to member States on media pluralism and transparency of media ownership

Concentration of media ownership and freedom of expression: global standards and implications for the Americas

Promoting media diversity and pluralism

There is no international consensus on the meanings of media diversity and media pluralism and sometimes these two are used interchangeably. Media pluralism often refers to types of media (radio, print, tv, etc.) and ownership. Media diversity often refers to types of content (formats) and opinions. See the Definitions page for a discussion of these concepts.

Principle 11.3 on media diversity and pluralism of the Declaration of Principles on Freedom of Expression and Access to Information in Africa 2019 offers a detailed list of areas that should be considered according to the ACHR.

According to the Dutch Media Authority, five types of measures can be distinguished to promote media diversity in terms of suppliers and in terms of cultural diversity:

  • restrictions on media concentration, for example in terms of ownership;
  • “counterweights”, efforts and systems that provide the audience with alternative to the free-market or commercial media outlets, for example public service broadcasting, non-profit (or ‘community’) media, internet;
  • economic interventions, for example reduced tax rates, financial support for development, etc.
  • transparency measures, for example providing the public with insight into the ownership relationships of media companies;
  • organizational measures, such as the establishment of independent authorities that monitor media concentrations, such as the Dutch Media Authority.

Economic regulation and advertising

With the decline in readership and – since the advent of social media and search platforms – advertising income, commercial media outlets, big and small, have seen their business models rendered obsolete, forcing them to find new ways to attract readership and income. Part of the economic enabling environment for media is determined by the structure and concentration of media ownership, competition policy, the costs of establishing media and having access to advertising and state-subsidies, next to the overall economic situation of a country and ability and willingness to pay for content. With the disappearance of income and readership, media have become more vulnerable in securing their financial independence from strong political and business interests, or a combination thereof.

In 2019 the Cairncross review was concluded, a British study into the future of the press and the sustainability of the production and distribution of high-quality journalism and public-interest news. Among it’s key recommendations to the UK government were the launching of a government innovation fund aimed at improving the supply of public-interest news; new forms of tax relief aimed at (i) improving how the online news market works and (ii) ensuring an adequate supply of public-interest journalism; and direct funding for local public-interest news.

Resources

Courses and literature

Platforms and networks

Standards