As I say in the Introduction to my book, Media Freedom in the Age of Citizen Journalism, ‘journalism has changed’. The internet and social media have permanently altered the media ecology and have shifted the media paradigm beyond recognition by enabling new actors, in the form of independent publishers and citizen journalists, to enter the media marketplace, and by changing the way, and the speed in which, news is generated, published, and consumed.
On the one hand, these changes have had a profound effect on the viability of the traditional institutional press and on the extent to which journalists operating within the industry’s typical corporate institutional structure are able to discharge their ‘watchdog’ role and contribute positively to public discourse and the public sphere. The internet and social media have contributed to the pressures that are generated by corporate ownership of the institutional press. These pressures encourage journalists operating within this structure to publish content that appeals to mass audiences and attracts advertisers, rather than engage in high-quality, yet expensive and time-consuming, diverse public interest journalism.
On the other hand, however, the internet and social media do not only remove the technological and financial barriers to producing and disseminating content by allowing anybody with internet access to communicate instantaneously with a mass audience. They also enable journalists to circumvent the structure and some of the ‘norms’ of the institutional press, and, in a sense, they liberate those journalists from some of the constraints and pressures imposed on the press by the dominant proprietor and corporate ownership models. Consequently, there is an argument to be had that the internet’s dismantling of these obstacles has contributed to the democratisation of the public sphere by making the emergence of more voices in the public space possible; a contention that is animated by the ascendance of citizen journalism. Indeed, it is a central claim in my book that citizen journalists are no longer an outlier of free speech. Rather, they are central to how we receive and impart information and ideas.
It is this change in the media eco-system, and the shift this has caused in the media paradigm, and what this means for our understanding of free speech, press freedom and press regulation, and for the laws relating to, for instance, defamation, privacy, contempt of court, and how we manage online anonymity and pseudonymity, which really fascinates me. This is, therefore, the core motivation for my book and my ongoing research.
Before I discuss what, in my view, this all means, and the claims I make in my book, I want to explain what I mean by citizen journalism, and why citizen journalists are, I think, important.
The first thing to say about citizen journalism is that it is not new. In fact, its origins can be found in the 1980s. However, it was the internet and the emergence of social media that really provided the means for journalism to be opened up to ‘citizens’.
Because of the wide spectrum of activity that it covers, citizen journalism is not easy to define. At one end, at it its most primal and crudest, it could be an individual providing some sort of one-off ‘content’ on an event that contributes to public discourse. However, for some of these bloggers this can trigger, and has triggered, the beginning of a journey, in which their journalistic activity becomes increasingly ‘professionalised’ and important to the public sphere. Thus, at the opposing end of the spectrum, at its most sophisticated, citizen journalism can include actors operating outside of the institutional media structure as ‘professional’ journalists in all but name, and it can arguably even encapsulate professional journalists blogging in an individual capacity rather than as part of the institutional press and broadcast media (and indeed, something I discuss in the book is how job cuts in the press industry have led to a growth in independent journalists who then compete with their former employers which can, in turn, further undermine the financial viability of the press).
Citizen journalists at this end of the spectrum contribute to the robustness of the public sphere in a myriad of different and impactful ways from countries all over the world. For instance, the blog Night Jack, which I discuss in detail in the context of the Author of a Blog v Times Newspapers Ltd litigation, won the 2009 Orwell Blogger Prize for citizen journalism. The blog’s author, Richard Horton, was a serving police officer, who used it to pseudonymously discuss his work and criticise government ministers and police operations. According to the judges who awarded the prize to Night Jack, the blog’s whistleblowing content provided a valuable ‘insight into the everyday life of the police’ which took the audience ‘to the heart of what a policeman has to do.’ The content produced by the political blog Guido Fawkes, which is authored by Paul Staines, has also been the subject of significant critical acclaim, and the the blog’s extensive reach was the subject of evidence presented to Lord Justice Leveson during his Inquiry into the Culture, Practices and Ethics of the Press.
Arguably however the positive impact of citizen journalism on the public sphere is most obvious in conflict or crisis situations that present significant dangers and/or accessibility challenges to the institutional press and their reporters. In these situations, citizen journalists provide ‘real time’ ‘on the ground’ coverage of events as they unfold from areas that are often inaccessible to ‘professional’ reporters. They have not only provided alternative content to what the mainstream media is able to publish or broadcast but, perhaps more importantly, they have covered events that would have been, or have been, missed entirely by institutional media outlets. We saw this during the height of the COVID-19 pandemic, and we are, unfortunately, seeing it again now in the conflict in Ukraine.
Additionally, citizen journalism helps to make the institutional media more transparent by virtue of blogs such as Jim Romenesko’s Poynter Institute MediaNews that, in his view, is a ‘water cooler not just for journalism but for people who observe journalism.’ So, in addition to acting as a public watchdog by producing important and diverse public interest content, citizen journalists are performing another vital democratic function: they are making ‘professional’ journalists and the institutional media more accountable by exposing unfair and inaccurate reporting.
A FUNCTIONAL DEFINITION OF MEDIA
I make the claim that the enhanced right to media freedom attaches to actors defined as ‘media’, and that this right is a freedom which serves specific positive goals for democratic participation. Therefore, it affords media entities privileged protection over and above non-media but, as a result, it carries with it concomitant responsibilities and obligations. Consequently, I argue there are two categories of free speech: (i) the personal right to freedom of expression and (ii) media freedom, and that free speech ought to be treated differently to media freedom.
In a world where citizen journalists are making an important contribution to the public sphere by reporting on matters of public interest, being able to identify the beneficiaries of media freedom is critical to the effective operation of the right. However, in the current categorisation of who belongs to which group there is a gap, or confusion, as there is a definable category of actors who are, as citizen journalists, effectively, ‘media’, but are not always recognised as such. This is because the methods that have traditionally been used to define media, and therefore who should be subject to the enhanced right to media freedom, at best lack merit and are, at worst, redundant. Because of the vital role being played by citizen journalists in the newsgathering process, and in the publication of public interest news, both as publishers in their own right, and as sources of news used by the institutional media, this situation is problematic.
This difficult situation that we find ourselves in with citizen journalists is understandable. The dominant philosophical theories that underpin free speech and media freedom are John Stuart Mill’s argument from truth and, particularly in the context of online expression, the marketplace of ideas. However, these libertarian arguments are based on nineteenth and early twentieth century means of communication. They are not, in my view, suitable for twenty-first century speech, and the modern media, of which the internet and social media, and citizen journalism are central components. As it stands the law relating to the operation of free speech and media freedom is lagging-behind reality. Consequently, the law’s treatment of media freedom as a normative concept needs to be modernised, but for the law to catch up, so must its theoretical foundations.
Thus, in the book I offer an alternative framework that deals with these problems and understands media freedom within the context of twenty-first century means of communication, and the legal challenges this creates, and that, ultimately, improves access to the public sphere.
To facilitate this modernisation I advance a new functional definition of the media that distinguishes media from non-media actors. I call this the media-as-a-constitutional-component concept, and it is underpinned by social responsibility theory and the argument from democratic self-governance. I argue that although the conditions created by the internet has meant that libertarianism has become the dominant normative paradigm for online speech, in reality, social responsibility theory provides a more appropriate foundation for the modern media. Essentially, the theories differ in that libertarianism dictates that free speech is absolute and, as a result, does not propagate duties and responsibilities that attach to the right to freedom of expression and media freedom, whereas, under social responsibility theory, this freedom carries concomitant responsibilities and obligations to society, employers, and the market. This foundation provided by the social responsibility theory supports its premise that adherence to certain norms of public discourse (in other words the type of speech conveyed by the actor) and standards of professional behaviour (for example, acting ethically and in good faith, and publishing content that is based on appropriate research to verify the provenance of it and its sources), rather than the education, training or employment of the actor, should define who is a ‘journalist’. In turn, this functional rather than institutional approach to defining media determines who should benefit from the enhanced right to media freedom and be subject to its concomitant duties and responsibilities.
The definition, in a nutshell, is as follows: (1) a natural and legal person (2) engaged in the process of gathering information of public concern, interest and significance (3) with the intention, and for the purpose of, disseminating this information to a section of the public (4) whilst complying with objective standards governing the research, newsgathering and editorial process. These standards would include, for instance, the time spent researching stories and ensuring the provenance and reliability of information.
Thus, the concept’s norms of discourse and standards of behaviour create a threshold. Actors operating within this are classed as ‘media’ and are therefore entitled to the benefits that come with being defined as such, whilst those operating outside of it are not afforded the same status, and the protection that comes with it, albeit, of course, they are still subject to the general right to freedom of expression pursuant to Article 10 of the European Convention on Human Rights.
I should add at this point, that in making these claims I argue that although the media-as-a-constitutional-component concept shares similarities with Robert Post’s participatory theory of democracy it overcomes problems with it relating to access to the public sphere. Central to Post’s thesis is equality within public discourse, as opposed to fair access to it: accordingly everyone who already has access to the public sphere should have equal autonomy.’ This means that the state should treat with equal respect the ideas and opinions of those already engaged in the formation of public opinions, but it cannot introduce mechanisms to ensure fair participation in it. The scope of free speech protection afforded by Post’s theory is therefore reduced to those already contributing to public opinion, meaning that it tends to reproduce the inequality that benefits dominant speakers, to the detriment of weaker ones. Consequently, his theory is structurally limited to, predominantly, the institutional media, and the dominant online platforms, as it excludes groups or individuals who cannot gain, or who have difficulties gaining, access to the public sphere, which could be citizen journalists or any number of alternative or minority voices.
This is the point at which Post’s conception of participation in the public sphere and that cast by the media-as-a-constitutional-component concept diverge. Unlike the theory of participatory democracy, that arguably does little more than maintain the public sphere status quo, the media-as-a-constitutional-component concept is not concerned with the actor having institutional ‘status’ by virtue of their education, training, or employment, or because they already are contributing, or have previously contributed, to public discourse. Rather, it expands the public sphere by normatively securing access to it as media for any actor that adheres to its standards of professional behaviour and norms of discourse, which are equally applicable to all citizens. In a nutshell, I suggest in the final part of the book that this conceptual framework could help to deal with a number of legal challenges that exist as a result of the modern media landscape. For instance, it could: (i) improve the credibility of anonymous and pseudonymous speech through its harmonisation of speaker and audience interests; (ii) help to maintain fair trials, whilst allowing citizen journalists to access court documents and legal proceedings; (iii) better promote and protect media freedom in the context of the law of defamation; and (iv) provide a conceptual rationale that could underpin a modified regulatory scheme.