Press Freedom and Regulation in a Digital Age is an excellent documentation and critical analysis of the way that a set of technological path dependencies has dominated regulatory approaches in the transition from traditional to digital media outlets. It seems as if there is no way to ease tensions between the old and the new when attempting to reconcile them. My discussion here will focus on two of Dr Katsireaās concerns, that press freedom will be diminished by state intervention to regulate the power of digital media, and that public service media values may lose their relevance.
1. Press Freedom
In relation to the press, the development of the internet offered the prospect of its being a ātechnology of freedomā that would expand opportunities for the creation and vastly extended reach of newspaper content. An underlying assumption was that existing regulatory attitudes to press freedom should be preserved in the new environment, a view based on the claimed right of proprietors and journalists to resist any interference with their freedom of speech, and the belief that any mass media implications analogous to broadcasting were irrelevant. However, as Dr Katsirea shows, the shift to a digital era presents significant challenges for the press, for example, relating to its treatment of accuracy and impartiality, the interaction between online news archives and data protection, its liability for online users of its websites, and the status of its online video material. As she illustrates, there is a host of different and inconsistent answers across jurisdictions and regulatory schemes that demand resolution.
A romantic history of press freedom implies that the press have aligned themselves with a libertarian conception of free speech, manifested in a similarly romantic image of the lone journalist or editor, fighting exploitation and abuse of power, and reflecting an implicit political claim that such activity is inevitably a public good. This perception has prevailed to secure a number of legal and regulatory privileges for the press, for example, freedom to promote the partisan views of its proprietors, protection of editorial decisions about content agendas and inclusion of material, and the protection of journalistsā sources. More generally, courts and politicians may be reluctant to jeopardise the broad benefits – of maintaining a āwatchdogā to scrutinise at least some public decision-making – by interrogating press judgements about the public interest benefits of its activities, preferring instead to rely on self-regulation.
This uncritical notion of a free press has had the effect of diminishing its de facto function as a platform for the dissemination and consideration of information and viewpoints. The press industry has exploited this and resisted attempts to require it to take responsibility for its platform character, claiming that its right to freedom from state interference in its speech would be compromised. I suggest, however, that this conception of a right to free speech is really only a selective promotion of some aspects of free speech: a right for individuals to speak out about a topic of choice. A stronger conception of freedom of speech emphasises what the actor is free to do, in the absence of interference. It recognises that the primary social interest and justification for presumptive protection of speech is to enable dialogue with others. In the context of engagement with wider society and the world at large, to the extent that media hold themselves out as providing a public platform where that dialogue is effected, a wholly partisan press creates a structural obstacle to speakersā wishes to engage with others. To mitigate that, a strong conception of free speech implies at least a minimal right for speakers to engage with othersā content on platforms. The development of digital media actually provides tools to enable that, for example, the moderating of online discussion and the signposting of material through recommendations.
Would this result in a diminution of press freedom? Only in the romantic sense. It would be more likely to enhance freedom of speech, by facilitating skeptical resistance to domineering promotion of information and opinion in an industrialised press. I would see this as complementing, not replacing, the dissemination of partisan viewpoints in a digital news environment. One reason is that a realistic funding model for the press will have to accommodate the constraints of immediacy, sharing and digital advertising. The other is that some regulation of the digital press would provide a positive opportunity to revitalise and articulate good journalistic practice of critical appraisal and analysis. Indeed, good journalism might be seen as a proxy for access to the dialogue that a strong conception of free speech entails, and its embrace might be regarded as a justification for continued acknowledgment of the privileges afforded to the traditional press, including some measure of self-regulation. The underlying objective would be regulation for prominent pluralistic journalism. But, in the new environment, I suggest it is no longer viable for journalism to continue to insist that it is a craft – a more professional approach to its values and practice, and there has been much discussion of the possibilities around the Leveson and the Cairncross inquiries, would provide a firmer basis for its legitimacy.
2. Public Service
All this is consistent with retaining a protected space for public service values in video and related services. In the presentation of news and current affairs, impartially is still relevant and important. The rationale is strengthened but perhaps different now, not so much the impact of coverage but the curation needed for understanding the sheer mass of information available in the digital environment. But the underlying principle remains, to prevent audiencesā and usersā experience of news from being dominated by limited perspectives. This fits with a strong conception of free speech and there exists a well-established and self-critical institutional culture of support for it.
An important issue here is whether press-like partial opinion and editorialising should be permitted on the digital media that has evolved from broadcasting. In my opinion, it should be accommodated, provided that it is complemented by positive measures to highlight its partiality and to signal alternative sources. It is important not to impose a hierarchy of preferred kinds of news but to reflect the existing diversity of news values.
One of the biggest challenges may be to secure prominence for public service output across social media platforms. There is scope for some regulation here, to require signposting, availability and discoverability. But the way to secure audience interest is to provide sufficient public funding to sustain public service āchampionsā that can compete successfully for attention and loyalty in the digital environment.
Posted by Thomas Gibbons (Emeritus Professor, University of Manchester)
British Association of Comparative Law 
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