Peter Ramage* for Alochonaa
There is a looming challenge for media legislators. It is one which many among the public have yet to realise is a problem, but it will shape the way we all communicate, access the news and entertain ourselves in the near future. This challenge is a result of the regulatory gaps which are increasingly revealed – and sometimes exploited – by digital platforms and new media. We currently live in a world where any Twitter feed, Facebook page, blog or YouTube comment might conceivably constitute a media outlet. Most countries currently lack a framework for the regulation of content on these new media platforms, and in Western developed countries there seems to be a reluctance to admit that such regulation is even possible.
The freedom of the press has long been held to be absolute: it is enshrined in the United States’ constitution, and is listed among in the Universal Declaration of Human Rights. However, this ‘absolutism’ is far from the case in practice, even in the most liberal western democracies. For example, legitimate and legitimised limits are placed on the media in the course of criminal trials: things like name suppression of the accused, and prevention of libel or hate speech. In our broadcast media there are limits on objectionable content, particularly before so-called ‘watersheds’ (9pm in most places). In less serious media, comic books were for years dominated by the restrictive and often arcane Comics Code Authority, brought in to forestall government regulation. It created bizarre situations such as one where werewolves were specifically banned, but were-bats were apparently fine.
The solutions which have been attempted for large scale digital media regulation have largely been less than satisfactory. Many countries engage in a broad, crude filtering of web content. In New Zealand the extent of content filtered remains ‘secret’. Australia filters everything which would be refused classification if it were in other media, and is attempting to pass laws to extend such censorship, according to Reporters Without Borders. In contrast, Bangladesh filters very little, though the OpenNet Initiative has identified that specific sites deemed “subversive” and “anti-Islamic” have been blocked.
Such filters in practice tend to be overly broad, and apply their criteria indiscriminately. Australia in particular has an often criticised history of censoring video games, for example Fallout 3 was originally banned because it realistically and positively depicted drug use, despite the fact that abusing these ‘chems’ could result in crippling addictions for the player character. Recent attempts at filtering pornography in the United Kingdom have also been widely criticised. Their indiscriminate nature has led to over-filtration of legitimate websites:
the changes have led to internet users being denied access to a wide range of organisations including child protection charities, women’s charities and gay rights groups. Among institutions that have found themselves subject to the blocks are the British Library and the National Library of Scotland.
The opt-in filters also deny access to the Parliament and Government websites and the sites of politicians, including Claire Perry, the MP who has campaigned prominently for the introduction of filters. The Independent
However, the direct censorship of objectionable material is not as serious an issue as the wholesale re-shaping of our media, and what it means for legislators. We live in a world where any distinction between print, broadcast and digital media is increasingly obsolete. Most newspapers run websites where they host videos alongside their articles, and television networks’ websites often read like newspapers. There has even been some debate (in relation to the NSA surveillance scandal) whether online communication should be treated as equivalent to a letter (i.e. private communication) or a public notice or poster.
Because there is little to formally distinguish between various types of online broadcast it can be hard to recognise concrete distinctions between traditional media, and blogs, Facebook pages, or Twitter accounts. In 2001, Singapore’s Media Development Authority made use of existing laws to prevent ‘divisive’ content in traditional media. This ‘divisive’ content is delineated by poorly defined ‘Out of Bound Markers’. The Authority made Dr. Tan Chong Kee, the founder of dialogue platform Sintercom, personally liable for any such content posted in public forums. This effectively meant anonymous users could maliciously post prohibited material, which Dr. Kee would then be liable for.
The blurring of the line of what counts as ‘Media’ is particularly pressing when corporations, NGOs and even government departments and ministers are increasingly making use of multiple platforms to communicate, engage and advertise to the public. Are such communications analogous to large scale mail-drops, commercial cold-calling or traditional television or print media? There is also some confusion about just how public many of these platforms are. Ample evidence of the lack of understanding about the pseudo-private nature of online broadcasts can be seen in the steady stream of online faux pas, especially from large companies or their representatives.
We are also creating a situation where media outlets can increasingly ‘game’ the systems of content classification and regulation. Anecdotal evidence from some of New Zealand’s media regulators suggests that pornography producers are increasingly distributing their content online, where it is free from oversight from the Office of Film and Literature Classification (who traditionally regulate such content). Even if internet media were to be regulated, it is likely that producers would merely shift their distribution to countries with more liberal classifications – a media version of the ‘flag of convenience’ in international shipping. Conversely, the use of ‘Virtual Personal Networks’ or DNS servers allow users to ‘lie’ about their location to access restricted content. New Zealand ISP Orcon advocates such legally grey actions to gain access to American video streaming service Netflix.
Because of this we are increasingly living in a world where it is anachronistic to speak of ‘American’ television or ‘British’ newspapers. Netflix and online piracy allow people around the world to view content with no domestic moderator or intermediary. Papers such as the Wall Street Journal and the Guardian have world-wide audiences, but they are regulated by the country in which they happen to have an office. But how can Britain’s new Royal Charter on self-regulation of the press take into account the needs of a global audience? We might even go so far as to ask why no-one even considered it a priority: the internet which gives the press global access also grants them, in effect, a global freedom from regulation.
The solutions to these problems will be complex. Wholesale filtering or censorship, as is currently occurring, is a less than ideal solution. They are likely to over-filter – catching acceptable content accidentally and unnecessarily. The internet challenges legislators because of the rapidity with which it evolves: by the time legislators write regulations, the internet has often moved on, rendering them obsolete. Before we even attempt such regulation however, we need to at least recognise that such regulation is desirable, and that it may be possible. When we do, we can pursue legislation informed by an experience with other media, such as the Hutchins Commission on Freedom of the Press. It is likely that the global nature of the internet will also demand a global response.
*Peter is based in New Zealand and holds a Masters degree in Political Studies. He is most interested in Electoral Systems, Authoritarian use of New Media and Asia-Pacific relations.He established the Grafton Project, A New Zealand based Policy focused think- tank/blog.
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