By prompting a convergence of both technology and information, the new media has forced a new consideration of the legal and political principles on which the regulation of the traditional media was founded; as well as the unique circumstances that come with participation in the information society. Braman (2009) notes that the law changes in response to “…technological, demographic, political and other social developments; what is learned from research; and new ideas.” (Braman, 2009 pg8) but that “…not every legal problem involving new media is itself new, but often even issues with very long histories require new thinking.” The ‘Big Four’ new media issues: access to infrastructure, access to content, intellectual property rights and privacy; are examples of areas of concern which are debated at the dawn of each new technological innovation, as they form the foundation for all communication including political and legal decision making within the technology’s epoch. As such, while new media use may bring with it new problems which require new policies and regulations; it is equally significant to note that the traditional concerns may continue to exist in traditional forms or that new forms of traditional concerns may evolve as more use is made of the new media and more patterns of use are recognised.
CALLING THE TUNE
The “Big Four” media issues that surround the development of the new media can be seen, in a broader context, as the issues that define citizenship and its subsequent right of participation in society for the end user. Prior to the digitalisation and convergence of information, the regulatory frameworks of the press, telegraph and telephone, radio and television each addressed one of these “Big Four” issues.
Press regulation in western democracies continues the Habermasian view of the press as the foundation of the public sphere, free from government regulation, censorship, limits to freedom of publication. This negative concept of press freedom substitutes government control for that of the free market “…maintaining the pure principle of freedom to the maximum extent” (McQuail 2005, pg21). Other goals of press policy “…maintaining diversity, protecting the public from abuses of press power; ensuring high standards of news and promoting the essential contribution that the press makes to the democratic process” are what McQuail (2005) sees as positive concepts of press freedom which; according to Picard; are “…intended to promote the free flow of diverse ideas and public debate by removing and guarding against barriers to that flow.” (Picard 1985, pg49).
While press freedom is not exactly the same as the individual’s right to expression, in a democratic society; the press is immune from direct content regulation but constrained by the mores of the society in which it operates. As such, what can be said and how it can be said is contingent on laws that govern the right of the individual to privacy, the security and integrity of the state and matters of decency, public offence and morals. By conceding control of the press to the market, governments expose society to the “…highly subjective and idiosyncratic judgements …” (Dickinson) of the news professional with the understanding that the industry, through self regulatory mechanisms, will hold to its end of the social compact. The recent Levenson Inquiry into the British press is an example of the examination and resultant realignment of this compact.
By contrast to the press that operates with no direct state control, the very existence of broadcast media is subject to state control of the broadcast spectrum. Given the geographic reach of the medium and its perceived power of effects on the end consumer, social responsibility and public interest are the touchstones of broadcast regulation. Both Hoffmann-Reim (1996) and Feintuck (1999) elucidate the main reasons for broadcast regulation as to ensure universal availability of broadcast services to the population of the country in which the broadcaster is located; the equitable allocation of frequencies and broadcast concessions as well as the supervision of rules governing their allocation; the promotion of high quality content in line with local values and standards of information, education, advertising, culture, taste and decency; the encouragement of social, political, cultural and local diversity and the maintenance of security and good order in society. Broadcast media is anomalous in form to both the print and telecommunications media in that two forms of structure exist in the broadcast medium, public service and privately- owned. Public service broadcast media serves the agenda of the state and its various institutions of power and is accountable to the public and society who, as financiers of the infrastructure through regulation and tax collection are the de facto owners of the media channel. Private media is the direct contrast. Driven by market forces, private broadcast media can delineate their own agenda within the rules governing their broadcast licenses. These rules tend to address advertising (amount and type), potentially harmful content, procedures for a two way flow regarding complaints and alternative forms of financing.
In countries without a strong tradition of public service broadcasting, private broadcasters may have content controls imposed on them as conditions of their broadcast licenses; these controls tending to address any combination of education, news and information, indigenous content and minority needs. Though there are differences in structure and purpose between the private, profit driven model of broadcasting and the altruistic nature of the public service broadcast model, the nature of regulation is universal. Essentially, broadcast law and regulation tend to address the structure as a whole; identifying the goals of the system and identifying what bodies are able to operate as broadcasters and the conditions under which they will operate. Though the state controls the broadcast spectrum, often a state appointed enterprise acts as insulation between the government and the broadcaster, diluting direct government interference. With social responsibility and the public interest as key to broadcast media, there is no room for self regulation in the medium. The chain of control imposed on the broadcast media moves vertically down from the political to the legal to the administrative to the managerial and vertically from the bottom up; through the agitation of consumer and advocate groups for the enforcement of broadcast standards.
The ‘common carrier’ model of regulation which governs telecommunications positions this medium of information exchange as ‘point to point’; open to all to use but with a closed cycle of communication inferred - a private conversation within a public medium. With this concept of private dialogue paramount, telecommunications regulation seeks to attain network neutrality through basic laws governing ownership and control; governmental supervision of the technical aspects of the medium; conditions attached to operating licenses and concessions and a regulator to seek the public’s interest.
It is the concept of the neutral network that led to the technological development of ‘packet switching’ allowing information to be broken up into smaller ‘packets’ and sent asynchronously across telecommunications networks and be reassembled at the final destination that revolutionised the communications media. Packet switching meant that everyone had equal opportunity to access as it helped alleviate blockages on the network and faster transmission. The technological convergence heralded by digitisation of content makes the traditional separation of regulatory practice between “…print, broadcasting and telecommunications […] more and more arbitrary” (Mc Quail 2005 pg20) as digital content is in itself network neutral.
RIGHTS OF WAY
According to Flew (2002), “…the Internet refers to both a technical infrastructure of computers and other digital devices permanently connected through high-speed telecommunications networks, and the forms of content, communication and information sharing that occur through these networks.” (Flew, 2002 pg12). Due the nature of its use, the ‘new media’ can be termed interactive - at once both interconnected and interoperable; able to connect interaction across different networks and to access all available forms of information and media content regardless of the operating system used. This matrix structure of the new media, in which all senders and receivers are connected, has led to the development of what Castells (1996a, 2000b) terms a ‘network society’ based on open, flexible and adaptable communications flows. Castells sees this decentralised global matrix structure and the growing importance of information and knowledge as the means of the network form shaping the logic of social interaction, modifying “…the operation and outcomes in processes of production, experience, power and culture” (Castells 1996a pg 469).
Given that, along with digitisation, market forces have been instrumental in facilitating convergence and the development of new media, it is imperative that we note Castells’ argument that “…the new economy is organised around global networks of capital, management and information, whose access to technological know-how is at the roots of productivity and competitiveness.” (Castells 1996a, pg471.) as we seek to develop policy and regulatory frameworks for their use.
Murdock (2002) posits that “…internet access has become a basic entitlement of citizenship in the digital age” (Murdock, 2002 p386); however there are multiple dimensions of access and each requires its own legal prescription. The ‘Big Four’ new media issues: access to infrastructure, access to content, intellectual property rights and privacy are complex global legal matters that all affect freedom of expression and access to information.
Access to infrastructure speaks specifically to physical access to the network and to the interface used to connect. National governments seek to promote reach and penetration of networks by stipulating conditions for licences, pricing mechanisms and laws governing community level access including to communities that do not naturally relate to the english language based, western society oriented new media model. As such, efforts are being made to increase the ease of access across not just languages but alphabets. Further industry initiatives have also been developed to promote access and participation by the disabled.
The ubiquity of the new media has prompted the teaching of media, information and technological literacy alongside traditional literacy at all levels of the education system as “…the presumed communications revolution of our own time: the movement beyond literacy, beyond the printed word, to something quite new and problematic — visual literacy, computer literacy, the information society ” (Carey, 1998); makes access to the network is nothing without the promotion of the literacy required to bridge the digital divide.
The political economy of the new media is perhaps most evident in the control of access to content. The commodification of information means that conditions of access, censorship and concerns surrounding ‘network neutrality’ are fundamental to any regulation of the new media. Conditions of access are essentially predicated on the pursuit of stated goals; societally, the primary condition of access is content regulation; where the imagined absolute freedom of an ‘ownerless’ medium is mediated into a freedom of expression in line with local or societal mores. Other conditions of access involve the right of individual participation in activity deemed harmful by society such as pornography and gambling. Filters and controls at a local and individual level also contribute to issues surrounding access to content as control is taken from the end user and mediated by the level of control above (parent to child, employer to employee are examples). It must be noted particularly that end user licensing agreements that attempt to provide a global framework for access by outlining terms of service applicable across national boundaries govern any access to the new media. Physical access is also a point of contention as national agendas may be subsumed by local conditions that prevent the individual’s access such as denial of the right of anonymity.
In the context of new media, network neutrality seeks to ensure that all websites can be reached with the same ease and speed, regardless of the nature of the site. Economic concerns such as copyright infringement in particular; are at the forefront of legislation around the world that seems to propose the end of network neutrality. In the UK for example, the decision by some ISPs to prohibit access to was seen as an attempt at censorship and workarounds were almost instantly devised and disseminated.
According to Braman (2009), “…access to information is considered a fundamental right for freedom of expression […] it is impossible to take part in public discourse […] without knowing what is going on.” (Braman, 2009, pg37). Before the new media, this concept largely referred to information about the government and its activities but has since grown to encompass any such information and knowledge required to “…improve one’s socio-economic condition, participate fully in political life, and pursue political concerns.” (Braman, 2009, pg38). Given the reluctance by some in society to reveal information about themselves, the laws which govern information access should make provision for challenging refusals of information requests.
Braman (2009) writes that the transition to an information economy has affected how we perceive and think about property and property rights; transforming legal treatment of old forms of property and developing new forms of property which expand the boundaries of the economy. Domain names are an example of new forms of property as they can be bought and sold. ICANN, the first global communication organisation, regulates this trade by identifying which organisations can participate in the market for domain name related transactions and conditions of access. Castranova (2006) brings to our attention that virtual worlds have their own economies, including markets using currencies that exist only within virtual environments as well as interactions between those […] and ‘real’, or offline, capital and economic processes; giving rise to an example of new areas of concern for the media.
The transition to an information society has brought the traditional issues of intellectual property rights: copyright, patents, trademarks and trade secrets to the centre of the information economy and helped transform how these rights are managed. The new media environment has made copyright owners aggressive toward those they perceive as infringing their rights to the point that digital rights management control the end users’ right of enjoyment and sharing following purchase. ‘Fair use’ governs the extent to which copyright owners can prevent others from using their intellectual property and; in the new media environment, gives content creators the choice of defining their individual copyright terms through ‘Creative Commons’ licenses.
Patents have been the recent focus of contention in the new media environment. The global legal battles currently being waged between Samsung and Apple are being contested on the basis of utility and design patents and can be seen in the macro view as a battle between software protocols for market share. The digital environment has shifted the way we consider trademarks and trade secrets as today’s ‘electronic discovery practices’ make the maintenance of trade secrets very difficult and legal issues involving trademarks tend to be centred on the marks being used as avatars and other unlicensed creations in the virtual world.
Privacy is a fundamental human right essential to the exercise of many others including free speech, the right of assembly and property ownership. Privacy laws have always evolved to keep step with technological innovations and given the ubiquity of the new media, legal protection of this privacy is imperative for the medium’s continuing evolution. In democratic countries, the privacy of face to face conversations, letters and phone calls has long been protected. However, given convergence and the fact that these three protected communications may now be accessed through the new media; the opportunity to breach this privacy is but a ‘click’ away. The war on terror has also played a significant role in the privacy debate, as anti terror laws give governments the right to monitor most web based communication; putting paid to the anonymity necessary for free and open discourse. In reality however, anonymity may only apply in the course of communication, as the Internet user gives up anonymity by logging on and allowing ‘cookies’ to collate information about them. More significantly though, most legal frameworks around the world require identity authentication to use the Internet to access e-government and e-commerce sites; prompting concern about ‘data privacy’.
‘Data privacy’ is the security of an individual’s financial data, health records, commercial transactions, reading or surfing habits and seeks to mitigate the effects of identity theft and fraud; the marginalisation of vulnerable segments of the community through the dissemination of their private records; obtrusive marketing campaigns based on purchase history and surveillance by law enforcement based on visits to particular websites. The onus is on the individual to protect their data privacy however, by taking steps to ensure that their data and access to it is adequately protected by securing hardware, encrypting software and strengthening their technical literacy.
CONCLUSION
The Internet and the new media have changed the world. The media, according to Siebert et al (1956) “…take on the form and coloration of the social and political structures within which it operates […] reflecting the basic beliefs and assumptions that the society holds.” (Siebert et al, 1956 pg1-2). In the new media environment however, given convergence and digitalisation, the top down one to many flow of information, the mediated consumption imposed by national boundaries and the distinction between media sectors of the traditional analogue model of mass communication have become obsolete; making way for a many to many communications environment of which ‘disintermediation’ - “…the development of new content producers, the ability of users to link to information without any indirect barrier or mediation, and the ability to obtain non-linear access to programming…” (Verhulst,2006, p.333) is a key characteristic.
The reality of this ‘disintermediation’ and the resultant globalisation of the new media promote greater communications across borders and a heightened intercultural awareness between users; which, in turn, gives possibility to the development of what McLuhan termed ‘the global village’. Another consequence of the new media has been the ‘harmonisation’ or convergence of laws and regulations across borders so that they reflect fealty to the same concerns. However, as each society is unique and views on the new media differ; the freedoms enjoyed under national legal systems vary subject to the government’s understanding of and willingness to extend these freedoms to their citizens. As such, the new paradigm of media regulation cedes control of rights of access to national governments but leaves the other fundamental concerns to industry self regulation as epitomized by the end user licensing agreements common to all technology providers. In 2012, much was made of the release of a movie trailer on YouTube which many in the Islamic world found offensive. The subsequent riots led to the deaths of the US ambassador to Libya among others; but YouTube refused to remove the clip as it did not infringe the EULA.
It seems therefore, that any attempt to regulate or legislate the new media has to start from the position that the virtual world is different to the tangible and that policy governing its existence should not try to address new problems in old ways but rather seek to define what this world is, recognize the value inherent in it and seek not to control but to mediate its use; thereby allowing the media to transmogrify from the mirror of society and an instrument of control; into what Bourdieu (1986) terms a ‘cultural intermediary’ at the ‘interface of society and technology’ (Winston, 1995, p.69) contributing to the creation of new symbolic and representational forms.
For after all, according to McLuhan in Carey (1998) “…technologies of communication were principally things to think with, moulders of mind, shapers of thought: the medium was the message.” (Carey, 1998).
BIBLIOGRAPHY
Braman, S. (2009) New Media Law and Policy. In Option E University of Leicester MA in Mass Communications. Leicester University.
Carey, J. (1998). Marshall McLuhan: Genealogy and Legacy. Canadian Journal of Communication Vol.23, No.3. June 23 2012
Castells, M. (1996a) The Rise of the Network Society vol.1 of The Information Age: Economy, Society and Culture. Malden MA: Blackwell.
Castells, M. (2002) The Internet Galaxy: Reflections on the Internet, Business and Society. Oxford: Oxford University Press.
Castranova, E. (2006) Synthetic Worlds: The Business and Culture of Online Games. Chicago: University of Chicago Press
Coyle, D. (1999) The Weightless World: Thriving in the Digital Age. London: Capstone
Dickinson, R. (1996) Media Professionals. In Module 7 University of Leicester MA in Mass Communications. Leicester University.
Feintuck, M. (1999) Media Regulation, Public Interest and the Law. Edinburgh: Edinburgh University Press.
Flew, T. (2002) New Media: An Introduction. Oxford: Oxford University Press
Habermas, J. (1969/1989) The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society. Cambridge, MA: MIT Press.
Hall, S. et al. (1978) Policing the Crisis. London: McMillan Press.
Hoffmann-Reim, W. (1996) Regulating Media : The Licensing and Supervision of Broadcasting in Six Countries. The Guildford Press
Licklider, J.C.R. & Taylor, R.W. (1968) The Computer as a Communication Device. Science and Technology, April 1968.
Lindlof, T.R., & Shatzer, M.J.(1998). Media Ethnography in Virtual Space: Strategies, Limits, and Possibilities. Journal of Broadcasting & Electronic Media, 41, 18-37.
McQuail, D. (2005)McQuail’s Mass Communication Theory. London: Sage Publications.
McQuail, D. (2005) Media Regulation. In Module 2 University of Leicester MA in Mass Communications. Leicester University.
Murdock, G. (2002). Review Article: Debating Digital Divides. European Journal of Communication 17 (3) p.385-90.
Picard, R.G. (1985) The Press and the Decline of Democracy. Westport CT: Greenwood Press.
Rice, R. (1999) Artifacts and Paradoxes in New Media. In New Media and Society vol. 1 no.1.
Verhulst, S.G.(2006) The Regulation of Digital Content. In Lievrouw, L and Livingstone, S. (Eds.) (2006). The Handbook of New Media 2nd Edition. London: Sage Publications.
by
dbrunton (student)
