The legal environment of the media
First of all, it should be noted that the legal regulation of mass media in democratic countries is carried out by laws guaranteeing, on the one hand, freedom of the media, on the other hand, the human right to freedom of information, freedom of expression and self-expression, pluralism of opinions in society, the media's control over society, and their responsibility.
The system of laws in these countries has evolved over the centuries and has developed in the direction of developing and preserving a fragile, delicate balance between freedom of the media and their restriction in the name of the right to privacy, the right of everyone to freedom of expression and in the name of preserving pluralism in society. Thus, the functions and place of mass media in society are recognized as a means of informing society and as a way for society to control the activities of the authorities, which, naturally, as a rule, excludes the possibility of the authorities to directly control the media, using them for their own purposes. Nevertheless, the authorities and the state retain some ability to regulate and control the processes in the field of mass media.
The regulation and control of the authorities in the field of mass media, the regulation of the concentration of mass media is carried out by the legislative system of each country, both by laws and by general and special government programs for the promotion of mass media.
The European Court of Human Rights has ruled that freedom of the media requires special protection to ensure it can "play a vital role as a public guardian" and "disseminate information that is of public interest."
In countries such as Austria, Canada, Germany, the Netherlands, Norway, the USA, France, Sweden, freedom of expression is enshrined in writing in the constitutions of these countries. The UK and Australia do not have such a position. Legislators in these countries claim that freedom of expression is guaranteed in their unwritten constitutions. In Germany and Spain, it is believed that representatives of the press have more rights than anyone else to collect and disseminate information. These rights are a consequence of the special role of the mass media in shaping public opinion and serving the public interest. In some countries, the Government has a duty to support media freedom and pluralism of opinion (in addition to the traditional liberal duty to refrain from interference) in accordance with the provisions of the Constitution (Netherlands, Sweden) or with judicial interpretation (France, Germany), media freedom is most protected.
Australia, Austria, Canada, Germany and the USA are countries with a federal government structure. In Australia, Canada and the USA, the main laws relating to the media, including laws on defamation and interference in private life, are the laws of the constituent entities of the federation. In Austria, the Federal Government has full powers in dealing with issues related to the media.
In Germany, issues related to defamation and interference in private life are regulated by federal law, while other issues related to mass information are resolved at the level of land legislation.
Only Austria and Sweden have a separate law on printed publications.
The law contains the main provisions concerning the press (in Sweden, such a law has constitutional status). At the same time, Germany has a number of federal laws concerning the press, each land has a separate law on printing media, and they are all built on the same model. France has a number of laws on printing media. Countries such as Australia, Canada, the Netherlands, Norway, Spain, the United Kingdom, and the United States do not have a separate law on print media and have few (or no) laws that apply exclusively to the press. In many countries, reformers have called for the codification and improvement of laws.
Modern foreign researchers, in particular M. Price and P.
The Circle identifies four main aspects of the legal environment in which the media operate and through which legislation either promotes or hinders their independence and effectiveness:
1) collecting information;
2) Content regulation;
3) content-neutral regulation, which at the same time is able to influence the content indirectly;
4) protection of journalists in the course of their professional activities, including protection from physical attack.
Information gathering, the main function of the press in a democratic society, is the main prerequisite for the effective work of the media. Information laws include laws that recognize and guarantee public access to government information and institutions; exceptions here are cases related to the sphere of national security, protection of privacy, crime prevention and any other cases. Laws related to licensing and accreditation of journalists are also relevant to the issue of effectiveness.
Another set of laws related to the regulation of content (here we mean interference by State authorities) either by legal means (i.e. on the basis of legislative acts and norms created by judicial authorities), or by extralegal means (government acts not based on legislative or judicial norms directly related to the regulation of content). These laws, aimed at ensuring the relevant State, public and private interests, operate by implementing a variety of preliminary censorship, creating restrictions on access to the information market, as well as regimes for subsequent punishment for obvious violations of journalists' freedoms. The range of such problems (concerning content) and their methods of solution are the best evidence of the existence of a favorable environment for the media in society.
The third category includes laws that do not directly relate to editorial content, that is, externally neutral in content, but have a side effect on it and therefore create a danger of external manipulation in their application, or these are laws designed to protect the media from external pressure.
Finally, let's consider the issue of protecting journalists in the course of their professional activities. There are two points here. Firstly, the guarantee of employment of journalists, when considering this problem, attention should be paid to the so-called internal freedom of the press or to the relationship between journalists and media owners. Secondly, it is a matter of physical security: journalists often have to face threats and seizures, physical harassment from either public authorities or private individuals, the degree of protection of journalists from this legal system is a key component of a favorable environment.
The following can be added to the above in general. Firstly, the recognition of the fact that the regulation of content by legal means is carried out both by generally accepted laws (laws that apply to all persons within the jurisdiction of these legal systems and do not directly concern the media) and by special laws that relate to these means. This aspect is important when deciding on the constitutionality of specific government acts. The fact is that, based on external signs, it is much more difficult to challenge the constitutionality (in terms of freedom of the press) of one or another generally accepted law, rather than a special law on mass media. Generally accepted laws relate precisely to those aspects in which the activities of the media intersect with the main legal system.
Regarding special laws on mass media, two categories of them are distinguished:
media laws or press laws, which in many countries are the main ones in regulating the media;
legislative acts dealing with more specific, narrow topics, such as the regulation of broadcasting or the rights and obligations of journalists.
Secondly, it should be noted that, although we are mainly considering State acts, the private sector also plays a significant role in the legal environment in which the media operate.
For example, one of the important points of information collection is the amount of access to information about private enterprises and individuals. Regarding the direct impact on the content, in all legal systems, private enterprises and individuals can file lawsuits demanding to initiate legal proceedings in case of violation of their rights by the media. With regard to indirect impact, not only government agencies, but also private individuals and companies have significant weight, especially in the case of private ownership of mass media.
Finally, the consideration of legal norms has a broader character.
These include not only legislative acts, but also regulatory administrative acts, taking into account potentially applicable constitutional and international norms.
