Convergence has traditionally been committed to neo-liberal ideals, aligned with the archetypal conception of the press as a free-market medium, hostile to state intervention and subordinate to market forces. In recent times, concern about the online circulation of content that could harm individuals and society at large has triggered a ‘regulatory turn’.1 National governments have been striving to develop policies to render online platforms more accountable to the public interest. Some of these policies target platforms’ market dominance, while others address the content they distribute. They are crafted amid uncertainty about whether platforms are media companies or mere conduits. By remaining wedded to regulatory models from the analogue era, they risk failing the test of time.
The shift from platform self-regulation to nation state and supranational regulation has created a new paradigm for online news media. The prevalent political culture of control driven by fear poses a risk that the electronic news media are seen as vectors of the same harms that beset the internet at large. Hence they may be gradually transformed from ‘technologies of freedom’ to technologies firmly placed under the tutelage of the state, or otherwise subjected to ‘collateral censorship’, with private entities and algorithms suppressing them in the service of the state.2 Journalism’s boundary struggles as a result of its lack of professional status exacerbate the risk that publications which serve the public interest will become mixed up in this. The obstacles to distinguishing between recognised news publishers and other journalistic content in the UK Online Safety Act and in the European Media Freedom Act (EMFA) are a prime example of this conundrum.
From journalistic status to journalistic function and back again
At the height of the pandemic, YouTube banned TalkRadio on its platform for allegedly breaching its policies on medical misinformation related to COVID, only to reverse its decision hours later amid criticism of its policies.3 YouTube’s actions highlighted the need to free mainstream media from the grip of online platforms. The UK Online Safety Act attempted to achieve this by completely exempting the websites of ‘recognised news publishers’, including below the line comments, from its online safety duties.4 At the same time, major services are obliged to protect all ‘journalistic content’, including ‘news publisher content’, shared on their platform. However, only ‘recognised news publishers’ are entitled to advance notification when platforms contemplate taking action in relation to their content.5 Overall, the duty of care for journalistic content at large is far more tentative than the clear-cut exemption reserved for news publishers’ content. Nonetheless, the requirements for qualifying as a ‘recognised news publisher’ are easily met. A standards code, for instance, may be published by an independent regulator or by the entity itself. This might enable outlets specialising in hate speech and disinformation to pass the threshold by drafting a code on the ‘back of an envelope’.6 At the same time, the requirement for recognised news publishers to have a variety of contributors might exclude bona fide journalistic outlets.
The same problems surfaced in the context of the European Media Freedom Act. The EMFA provides advance notification and appeal rights for media service providers that are editorially independent from member states and third countries, and which are subject to mechanisms governing editorial standards that are widely recognised and accepted.7 These criteria are so sensitive and complex that they will be impossible to implement with legal certainty. They are also potentially at odds with the Media Pluralism Monitor’s finding that only eight of the 32 EU and candidate countries had effective systems of journalistic self-regulation in place in 2021.8 This situation has since further deteriorated.9
The unevenness of safeguards and benefits for legacy media vis-à-vis non-traditional media becomes especially pernicious when only the latter are faced with inordinate burdens. The German Interstate Media Treaty opted for this asymmetrical allocation of costs and benefits to new media actors under the impetus of the ‘fight against disinformation’.10
A state-sanctioned duty of accuracy
In Germany, the Commission on Licensing and Supervision of Media Authorities (Kommission für Zulassung und Aufsicht der Landesmedienanstalten, ZAK), the central authority tasked with licensing and monitoring nationwide private broadcasters and platform regulation, decided in 2021 that a hobby blog commenting on an Italian newspaper article about the use of COVID-19 detection dogs in South Tyrol schools breached the journalistic due diligence obligation to accuracy. This decision, which led to the blocking of the blog and the imposition of administrative costs, was nearly unanimous. Only one state media authority questioned the classification of the blog as a ‘journalistic-editorial telemedium’ and rightly argued that the challenged passage voiced exaggerated comments rather than factual allegations.11
It is difficult to comprehend why individuals with little reach should be sanctioned for alleged violations of the accuracy standard while mainstream media regularly commit such transgressions with impunity
Online news in Germany is regulated under the heading of ‘telemedia with journalistic-editorial offerings’. This concept includes not only the ‘electronic press’, but also online services that display an element of editorial work, a selection or commenting function that goes beyond the simple mechanical transmission of data. The Interstate Media Treaty, which entered into force on 7 November 2020 after lengthy negotiations, expanded the existing category of ‘telemedia with journalistic-editorial offerings’ to other services which ‘on account of their nature or structure do not resemble publishers’ traditional offering…, but possess journalistic relevance.’12 The catalyst for this extension was the perceived need to tackle online disinformation.13 Under the Interstate Media Treaty these non-traditional ‘other’ services are to be regulated by the German Press Council or a yet to be established self-regulatory body, if the provider in question has joined either of them. Otherwise, they will be regulated by the competent state media authority, which can also step in if a self-regulatory body has exceeded its discretion.14 As a result, the threat of state supervision hangs over those ‘other’ online news providers, a prospect not shared by their counterparts who are members of the German Press Council. In the above-mentioned blogger’s case, the state media authorities’ backstop powers came into play. As a result, one of these authorities was able to single-handedly initiate a challenge to the truthfulness of the one-person blog in question instead of only reacting to complaints as the Press Council does. What is more, bloggers and other non-traditional news sources do not have access to information in the same way as traditional media.15 While they are expected to adhere to journalistic editorial standards, they are cut off from the source of information. The imposition of journalistic duties without the concomitant rights, coupled with the prospect of state media authorities’ sanctions, seems inequitable. It is difficult to comprehend why individuals with little reach should be sanctioned for alleged violations of the accuracy standard while mainstream media regularly commit such transgressions with impunity.
The media treaty thus empowers the state media authorities to second-guess editorial choices made by digital news media, including when based on their alleged inaccuracy. This is especially problematic given that the press cannot be obliged to report the truth, but only to strive for the truth, while being allowed to be tendentious. That such state powers over the online press might be abused to purge unfavourable political opinions is a concern that cannot be dismissed. Unlike traditional journalism, new media are thus committed to a state-sanctioned duty of accuracy. Further challenges for online news media arise on account of blind spots in their constitutional position in conditions of convergence.
Press freedom denied
In 2022, Fragdenstaat.de, a German investigative online platform, put an urgent application to the Berlin administrative court challenging the federal chancellery’s refusal to supply information about the appointments of Gerhard Schröder, the former chancellor, with Russian energy companies. In accordance with the Federal Administrative Court’s (BVerwG) established jurisprudence, this right to information could have been derived from the constitutional right to press freedom.16 However, following a summary examination of the merits of the case, the Berlin court concluded that the applicant was not entitled to the right to press freedom given that it did not publish a print publication but only an online portal.17 Complicating things further, the administrative court considered that the question about whether the applicant had a right to information derived from broadcasting freedom could not be conclusively answered in summary proceedings. By leaving this question for the principal proceedings, the administrative court effectively denied the portal’s right to information on what was an explosive topic. Fragdenstaat.de, consigned to a constitutional no man’s land, took the matter into its own hands. By publishing a 2,000 copy first print run of its blog, it was able to claim the right to press freedom.18
That such state powers over the online press might be abused to purge unfavourable political opinions is a concern that cannot be dismissed
In Germany, the constitutional position of the online press has been mired in controversy. Traditionally, press freedom has only covered the transmission of contents on printed paper or other physical means of dissemination, so long as these do not fall under the scope of film or broadcasting freedoms.19 According to this view, the physical transmission of content by way of printed publications falls within the scope of press freedom, while its online transmission comes within the remit of broadcasting freedom. This view has been criticised for overstretching the concept of broadcasting while reducing press freedom to a residual, ever diminishing role.20
The prevailing view in recent case law and in some of the academic literature is that the ‘online press’ should benefit from freedom of the press in the same way as its offline counterpart.21 The BVerfG held that including reports in an online archive or otherwise making them available online does not suffice to classify them as ‘broadcasting’ in a constitutional sense.22 The decisive criterion for the distinction between press and broadcasting is not the mode of transmission, but the typical look and feel and the mode of consumption of the medium in question. Content primarily consisting of moving images constitutes broadcasting. Content that is mainly reliant on the written word and static images belongs in the realm of the ‘press’. However, the Fragdenstaat.de case shows that this debate is far from over. Despite the anachronism in the traditional delineation between print and broadcasting freedom, a rounded explanation for the constitutional classification of new media is still outstanding.
‘Press Freedom and Regulation in a Digital Era: A Comparitive Study’ is available from the Oxford University Press.
