By: Guy Pessach
The purpose of this research is to conduct a comparative study of the impact of digitization and free content on the institutional functions of a free press. Together with a critical-theoretical introductory analysis, the research will focus on two case-studies. The first case-study deals with the question whether news publishers should have legal rights that would entitle them with control, or at least equitable remuneration, regarding the utilization of their materials by news retrieval services such as Google News. The second case-study examines the recent phenomena of “button-up” fake news through social networks, twits and other large-scale internet platforms-:
The implications of digitization and networked communication platforms on information flow, free speech and cultural diversity have been extensively researched in the last two decades, including through the prism of legal regulation. The predominant view was and to a large degree, still is that the emergence of the internet and the departure from the traditional corporate media model, towards free distribution of content, should be regarded as a positive development that justifies its endorsement by law makers in areas such as copyright law and media regulation (e.g. in contexts such as safe-harbors for content and information platforms or broad interpretation of permitted uses in copyright law in the context of networked retrieval mechanisms).
In a retrospect of two decades, reality reveals as more complex: traditional media institutions, such as newspapers and news agencies are in a constant decline. Media institutions that used to be characterized as “the Fourth Estate” and the “watchdog” of democracy, are confronting increasing economic difficulties in adjusting their business models to a networked environment in which content and information are distributed for free. At the same time, new emerging institutions, such as social networks, function as market substitutes for the traditional press institutions. These new institutions lack the legacy of traditional media institutions. Platforms such as Facebook, Twitter and Google News operate as de-facto speech institutions, yet, absent of any professional or social commitment to the values and goals of freedom of the press. Moreover, the business model of such platforms relies heavily on automated-algorithmic collection, filtering and distribution of newsworthy information, as well as on targeted advertisements’ revenues and the collection and commercialization of personal information. This model implicates both on the nature of the content that is being collected (or produced) and on its distribution.
Along with technological, communicative and economic causes, these developments are also partially driven by legal policy in the areas of copyright, media and telecommunications laws. One principal example is the current discussion whether news publishers should have legal rights that would entitle them with control, or at least equitable remuneration, over the utilization of their materials by news retrieval services, such as Google News. The debate in this regard is not just an internal matter of copyright policy. It is also a reflection of the question whether and how, policy makers should support the continuous existence of the traditional free press model without undervaluing the prospects of an open, robust and accessible internet. Another principle example refers to the recent phenomena of fake news through social networks and other large-scale internet platforms. This phenomenon emerged through large-scale automated content retrieval mechanisms and it raises the question whether and how such frameworks should be acknowledged and regulated as media institutions.
The purpose of this research is to conduct a comparative study of the impact of digitization and free content on the institutional functions of a free press. Together with an introductory critical-theoretical analysis, the research will cover two layers: (a) a comparative study that will examine the communicative and legal regimes of Germany, the United States and Israel; (b) regarding each system, the research will concentrate on two particular topics that exemplify the impact of digitization and free content on the future of a free press.
The first topic is the interface between copyright law policy and institutional dimensions of a free press. The main challenge in this regard is to reach an equilibrium that maintains free flow of information in a decentralized competitive environment along with stability and longevity of social institutions that are committed to their press and media functions. The second topic is the manner in which law should classify and regulate internet platforms, such as social networks, in terms of their media capacities both as producers and as distributes of newsworthy information. Should such institutions be treated as media institutions? as mere conduits? or as a new hybrid media entity that requires a paradigm of its own?
My hypothesis is that these two seemingly separate topics are interconnected in terms of the fact that they represent two models that are either substitutive, or accumulative, in their objective to maintain the functions of a free and responsible press in a networked environment. The first model is largely based on strengthening the economic stability of news publishers and press institutions. The second model is based on acknowledging and considering the consequences of the de-facto press functions of new internet social institutions. Both models raise counter dimensions that derive from the well-acknowledged internal conflict of media regulation: state intervention may be required in order to overcome the weaknesses of a market-oriented media system. At the same time, state intervention also raises serious concerns of abridging the core essence of freedom of the press and free flow of information. Although this tension is not fully resolvable, it still requires responses by policy makers, particularity due to the new challenges that are imposed by networked communication platforms.
The comparative study part of the research will focus on both doctrinal legal aspects (including pending reform proposals) and on a field-study through interviews of stakeholders and professional key holders within traditional news publishers and new internet media institutions. I have chosen Germany, the United States and Israel as the “laboratories” for my examination because these three legal systems are currently confronting such dilemmas while representing distinct approaches both in terms of their copyright policy and in terms of their internet media regulation approaches. An outline of the relevant policy considerations and the desired legal treatment will also be proposed as an outcome of the research.