Freedom of the press on the internet. Blurring boundaries

This section is a short overview of the challenges faced by regulators approaching user generated content and the internet in general.

Prior to the internet era, delimiting individual freedom of expression and the freedom of the press was not so difficult as relatively few groups, and individuals (pirate radios, community media, newsletters) had access to publishing or broadcasting technology. With the advent of the internet the boundary between mass media and audience became blurred and it is now unclear who should benefit of the special provisions for the press such as for instance the protection of confidential sources. The question is whether freedom of the press is in any way different from the general right to free speech enjoyed by individuals. According to Barendt

88 Matsuda, 1989, cited in Barendt, 2007, p 173.

89 Butler, Judith. 1997.Excitable speech : a politics of the performative. New York: Routledge. p 4

90 Delgado and Stefancic,Must we defend nazis, 88-89.

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there are three perspectives on this issue.⁹¹ In the United States individuals have the same rights as the media. However, it can be argued that in order to fulfill their vital role in democracies the media need special privileges, for instance access rights to official events, documents, places not available to the general public. On the other hand it is unclear how and why should then a journalist be differentiated from a blogger or any individual with access to publishing technologies. The second approach grants some special immunities and privileges to the media but it is again open to objections. Therefore a third approach emerged which grants some privileges to media institutions as long as it is in the public interest for instance such a privilege is the right to protection of sources in some countries.

Regulation of the internet is made complicated by the immediate and global nature of the medium: immediate in this case refers to the ease of distributing content without being filtered by professional gatekeepers⁹², while the global nature refers to jurisdictional issues caused by the fact that content can be published and accessed across physical borders. As Barendt shows these features create specific problems in the regulation of hate speech and pornography.

Another question is whether the net should be treated as an open forum similar to the streets where citizens have protected rights to express their opinion and to have access to other people’s. According to Barendt the net is established by private actors therefore the providers rules apply. Thus in the case of the United States as other countries as well, the first amendment or similar free speech provisions are not engaged, meaning then the assumption of users creating UGC that they have some kind of protected right to free speech in online forums is wrong.

91 Barendt, E. 2007.Freedom of speech. 2nd ed. Oxford ;;New York: Oxford University Press. pp. 417-424.)

92 the lack of gatekeepers refers to the perceived absence of control, in reality there are many gatekeepers such as ISP’s, hosting providers, site administrators making internet in fact into the most controlled media. For more on the issue of controlling and surveillance on the internet see. Morozov, 2011. However, in the case of user generated apparent content the lack of gatekeepers is one of the most important features.

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Braman adopts a more nuanced view and distinguishes between public, public, quasi-private and quasi-private forums, differentiated according to ownership, functions, levels of free expression and privacy one might expect.⁹³ For the purpose of this thesis the most important of these categories are the quasi-private forums. The participatory spaces of news sites, such as comments could fit in this category similarly to restaurants and café’s in the offline world.

According to Braman although they are privately owned since they serve public functions there should be “some freedom of expression” in these spaces, yet restrictions are also legitimate if they are necessary for the functioning of the service. On the other hand Braman also points out that the case of the internet is complicated by the fact that to gain access one has to accept the providers terms of service (TOS), which became a “de facto communication regulation.” It is this “de facto communication regulation role” in which I will examine the TOS of the sites in sample. The findings of authors such as Fuchs, Ruiz et al.⁹⁴ and my research as well, shows that the acceptance of the TOS is implied when accessing the site, for both readers and commenters. On the other hand this implied consent only becomes evident at a detailed examination of the TOS, and because usually the users do not have to accept them in order to access the site their legitimacy can be questioned.

In addition to the already existing difficulties in regulating online hate speech, UGC presents further challenges to legislators. As Valcke and Lenaerts show, it is difficult to identify with certainty the traditional categories of author, editor, publisher, hosting provider on which media and early internet regulations are based.⁹⁵ Therefore the existing two approaches, the publisher or the Internet Service Provider (ISP) models, cannot readily be applied to UGC platform providers, leaving for the moment UGC in a grey area. Hateful comments on online news articles perfectly illustrate the legislators dilemma. While it can be argued that media

93Braman, Sandra. 2006.Change of state. Cambridge (Mass.) ;;London: the MIT press., 93, 94

94 Fuchs,The political economy of google. Ruiz et al.,Public sphere 2.o.

95 Valcke, Peggy, and Marieke Lenaerts. 2010. Who's author, editor and publisher in user-generated content? Applying traditional media concepts to UGC providers.International Review of Law, Computers & Technology 24, no. 1 (3): 119-131.

doi:10.1080/13600861003644533.

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organization bears full responsibility for what is published on their pages (online or on paper) as under national media law, at the same time they can defend themselves by pointing out that media organizations merely provided a space for comments as in the hosting model, thus not being responsible for third party content.