This article suggests a multi-disciplinary framework for evaluating the political and constitutional legitimacy of both traditional and new media (such as Netflix, YouTube), and explores the double function of public law: supervising the media (television, Netflix or Youtube) and their regulators. By turning to insights from political theory and social sciences, the article argues that current discourse of justifications for (any) media regulation is exposed to two main flaws: (a) Lack of rationality or social facts (due to consistent governmental bias of over-estimate the risk posed by mass media, while underestimating the their political or cultural value) and (b) Insensitivity to the hidden liberal-democratic costs of media regulation – as a cultural regulation. It then suggests how decision makers (judges, regulators, and citizens) can and should evaluate the legitimacy or desirability of various regulatory practices – present and future – in a structured, fact-based method.
Since the 1930s one of the fundamental First Amendment doctrines has been the rule against prior restraint of speech: there are strict limitations on the constitutionality of preventing expressions, even harmful ones, before they occur. One of the implications of the doctrine is the courts’ refusal to issue injunctions against speech. The rationale of the doctrine is the need not to chill lawful speech. The emergence of the network society has raised new considerations regarding how the First Amendment should be interpreted in an era when anyone with an Internet connection and a computer has the ability to transmit messages to potentially large audiences. Expressions that appear on the Internet, have eternal exposure; Internet access is extremely broad; and posts on social networks and actually any publication on the web may have a viral effect. Against this background, we suggest a reshape of the prior restraint doctrine in regard to expressions in the new media.
Instances of friction between the judiciary and the executive have become fairly common in modern politics. Although episodes of disagreement between the two branches are well documented in established democracies, little is known about informal judiciary-executive exchanges in competitive authoritarian contexts. In this paper, we examine recent episodes of judiciary-executive friction in Turkey and Bangladesh, and show how the media has been appropriated as an instrument of public disagreement. By analyzing national news, we observe new forms of confrontation between judges and politicians in which the media has become a platform for disputing judicial issues that are otherwise shielded from public scrutiny as part of the constitutional culture. Moreover, it is not just governments that utilize the media to advance their interests, we are also witnessing a growing parallel tendency among members of the judiciary to give statements for public consumption to advance their positions.
Judges live and work in a society and cannot be isolated. They enjoy freedom of expression, but it may jeopardize their impartiality or even their independence. A reasonable, constitutional balance needs to be struck in this field. Should a judge appear in a media? As a judge or as a private person? What type of media is she allowed to use? Giving an interview, appearing in TV shows, writing a blog, being active in social media? Is she allowed to talk about pending cases, the role of judiciary, problems in the judicial system, critics on the judicial administration, threat against the independence of judiciary, her personal life? Answering the theoretical questions about the judges’ presence in the media may help their everyday decisions.
The paper aims to assess these questions from a comparative point of view, using recent examples from the regulation and practice of several European and North-American countries and the case law of the European Court of Human Rights.
European Court of Human Rights ruled in 2016 that European Convention on Human Rights guarantees a right to access information held by public authorities. While according to international documents procedures for accessing information should be ‘rapid’, the courts have yet to rule on what “rapid” means and when procedures are so long that they violate rights of those asking for information. This paper analyses the lenght of proceedings in access to information cases in five European democracies: United Kingdom, Austria, Slovenia, Croatia, Bosnia. It shows that – at least in these five countries – there is no mechanism for effective protection of rights. The authorities can easily delay the disclosure of information for several years. The paper then presents solutions for improving access to information procedures in order for them to become ‘rapid’.