Challenges and dilemmas for the national regulatory authorities in the age of convergence with respect to hate speech

Bissera Zankova, Media 21 Challenges and dilemmas for the national regulatory authorities in the age of convergence with respect to hate speech Since the time of their inception media regulatory bodies have always faced big challenges. The latter pertain either to their status, structure and independence or to their competences and the effectiveness of the control they exercise over particular types of content. Nowadays media regulators have to cope with their own problems how to operate best in the new media environment and also to combat successfully various types of expression that affect human rights and undermine democratic values such as hate, inflammatory and offensive language. The issue does not only relate to the regulatory approaches that should be in force but also to the allover transformed media reality and the new subjects which have emerged. In several waves due to the technological revolution and convergence we have witnessed the rise of new media, the new media and communications services, social media and social networks. All these subjects have been and are to a greater or to a lesser extent depending on the development of society, technology, the market and their level of maturity operating as media as the Council of Europe recommendation on a new notion of media has described (Recommendation CM/Rec(2011)7 of the Committee of Ministers to member states on a new notion of media (Adopted by the Committee of Ministers on 21 September 2011 at the 1121st meeting of the Ministers’ Deputies), https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805cc2c0) Such complex and fast developing environment demands new solutions with respect to regulation. As legal regulation is a conservative tool for impact it changes its specific instruments more slowly if at all but continues to be relevant in the media field nowadays (still we have in mind the typical normative legal regulation when discussing regulation per se).  These are more general theoretical themes which I am not going to tackle because they are on the public agenda and vigorously discussed by an array of specialists and organizations. I am just going to concentrate on three questions, more precisely on what or who should be regulated, who should regulate and how the latter should regulate. Stakeholders, leading international organizations and the EC report that hate speech and offences on the ground of race, sex, ethnicity or religion abound on social platforms and networks. As Alkiviadou (2018) stresses “social networks serve as effective platforms in which users’ ideas can be spread in an easy and efficient manner. However, those ideas can be hateful and harmful, some of which may even amount to hate speech.”(Alkiviadou, N. Information &Communications Technology Law, 4 July 2018, https://www.tandfonline.com/doi/abs/10.1080/13600834.2018.1494417)  She also argues that the Code of Conduct on the regulation of illegal hate speech signed between big social networks with the European Commission (EC) “serves as a light at the end of the Internet hate tunnel” where plenty of complexities exist. There is no one universal definition of hate speech, though at a European level the ECtHR in its case law provides for the factors that have to be taken into account when determining whether certain forms of expression constitute attacking language on the basis of a number of attributes and affecting human dignity. To this direction work also the recommendation of the Committee of Ministers on hate speech (1997) and ECRI’s recommendations. The dominant social media companies hold considerable power over the flow of information and ideas online and publish a huge amount of content. It can be admitted the way in which social media giants have handled the issues pertaining to hate speech and discrimination are not always satisfactory especially from the standards on freedom of expression as every one of them pursues its own less or more liberal policy of content publishing. The amended Audiovisual Media Services Directive (AVMSD) adopted by the EC which will become effective after its official publication and will demand the elaboration of novel and more efficient approaches towards social media content. However, it is not expected to solve completely the problems posed by the online  proliferation of hate expression in Europe as it provides for certain audiovisual rules which extend to video sharing platforms: services such as YouTube as well as audiovisual content shared on social media services, such as Facebook, only. Focusing on the topic of the conference “Addressing hate speech in the media: the role of regulatory authorities and the judiciary”, which took place in Zagreb, Croatia on 6 and 7 November 2018” it should be underlined that media authorities occupy a prominent place in the fight against various forms of ill speech in the public space. This relates not only to the scope of these bodies vis-a-vis traditional media but also how they will develop in the new environment with regard to social media.  Sound solutions have to be searched for on the basis of the ECHR and CFR. The right to freedom of expression is not absolute. More generally, any restriction on freedom of expression, whatever the objective it seeks to achieve, necessarily raises a series of legal questions especially applying the triple test of the ECtHR. States may, exceptionally, limit the right, but any limitations must conform to the strict requirements of the Court. International and regional human rights standards provide for protection of the right to freedom of expression and the right to equality which can sometimes come into conflict. Any State response in the from of any type of regulation to ‘hate speech’, intolerance and, discrimination should be based on the human rights principles and as such it should be considered  as ensuring protection of the rights provided they are based on the human rights principles.  Namely, they must demonstrate that the limitation is provided for by law and any law or regulation must be formulated with sufficient  clarity to enable individuals to adjust their conduct accordingly; in pursuit of a legitimate aim, listed exhaustively as: respect of the rights or reputations of others; or the protection of national security or of public order, or of public health or morals; and necessary in a democratic society, requiring the state to demonstrate the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat identified.When restricting the right to freedom of expression, the least restrictive measure capable of achieving a given legitimate objective should be imposed. The principles stated constitute the basis of media regulation.  It should be emphasized that these requirements are not valid only when the court entertains a particular case, they are of universal significance and should permeate any piece of legislation, self-regulatory or co-regulatory effort and practices no matter what the decision-making body is. It should be a guiding rule for the media regulatory bodies as well despite its status and area of activity. Turning to self-regulation as a much acclaimed approach towards the media a critique can be raised that such-regulation is not the perfect solution and a panacea to any problem. Self-regulatory bodies can find it difficult to gain public trust. In the Central and Eastern European states a problem can be that the media ethics commissions are structured with the predominant involvement of proprietors and not of journalists. Besides they act within a sector specific environment and decisions can be taken to the interest of one or another media but not necessarily to the public interest. In countries where the state has traditionally played a powerful role in the media field, and where stricter content regulation through legislation is applied, there is likely to be less enthusiasm for a system of self-regulation. In these countries media ethics commissions can be decorative structures only without real authority in society. Another point which comes to mind provoked by the book “The European handbook on media accountability”(2017, Routledge, eds. T. Eberwein, S. Fengler, M.karmasin  ) is that self-regulatory bodies which are supposed to implement the self-regulatory codes are volatile and can easily without  a clear and visible reason stop operating under a pressure coming either from the business or from the profession which may be disappointed with their results. In this respect laws and statutory bodies bring greater stability and foreseeability to the regulation implemented in the sector. Most major social media companies such as Google, Facebook and Twitter have their own policies regarding whether and what kinds of hate speech are permitted on their sites and there were serious accusations against Twitter for gender discriminatory practices, for instance. Policies are often inconsistently applied and can be difficult for users to understand them. Many of the decisions made by the content removal teams at these organizations do not take into account the rules protective of freedom of expression. Thus, the current situation gives social media companies’ unprecedented power to control what videos, text, images, etc. users may or may not post or access on those social media sites. It is a complex task to decide under the conditions of operation of social networks whether a specific message can be classified as illegal and, as such, whether it should or could legitimately be prohibited.  Against this backdrop media regulatory authorities remain an essential player in the process of combating hate speech in the present fast changing media environment. In order to cope with the challenges of the digital platforms national regulatory authorities should be not only buffer bodies standing at an arm’s length from the government but genuinely independent and strong ones. They should have real competences to act. Another principles underpinning their activities is to pursue consistent practices, to be transparent and to generate trust. Two fundamental Council of Europe documents come to mind when discussing the status, organization and competence of the media regulators  – Recommendation Rec(2000)23 of the Committee of Ministers to member states on the independence and functions of regulatory authorities for the broadcasting sector (Adopted by the Committee of Ministers on 20 December 2000 at the 735th meeting of the Ministers’ Deputies), https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=09000016804e0322, which provides for the basic conditions that have to be fulfilled when establishing such bodies and Declaration of the Committee of Ministers on the independence and functions of regulatory authorities for the broadcasting sector (Adopted by the Committee of Ministers on 26 March 2008 at the 1022nd meeting of the Ministers’ Deputies), http://mediainitiatives.am/wp-content/uploads/2017/01/Council-of-Europe-Declaration-on-the-Independence-and-Functions-for-the-Broadcasting-Sector-in-English-1.pdf which is a monitoring exercise and stresses the “culture of independence” as a pivotal notion related to the stature and activities of the regulatory agencies.Media regulatory bodies no matter in what environment and relationships function have to be independent, efficient and objective.We can also mention that there are ECtHR decisions that can guide member states how to create within their positive obligations effective guarantees in order for media accountability mechanisms pf any caliber to operate best. An interesting question is what kind of body is necessary to be established in order to respond adequately to the challenges of the digital age nowadays. It is not easy to provide a conclusive answer under the present dynamic conditions. The Horizon 2020 EC project COMPACT envisages as one of its deliverables to create a report on the regulators’ structure and competences related to social media in the age of convergence. In its work on the matter the Slovak School of Media and Communications (SCAMBA) which is the leading organization for this particular product uses several definitions of social media and convergence revealing different traits and perspectives of these phenomena. For the preparation of the report on the social media regulators they circulated a questionnaire among different regulatory and self-regulatory bodies and organizations across Europe including EGRA. Though not all respondents show enthusiasm to contribute to the accomplishment of this task (27 more or less detailed replies were received), responses are interesting to provide insights about different ideas how the regulation and the regulatory authorities in charge may develop. What early conclusions can be made on the basis of the answers? I present a brief summary of the replies categorized along some regulatory basic issues. Regulation in general is acceptable to most responding bodies and organizations. The regulation of social media should respect fundamental rights, including the right to information and freedom of expression (CZ).The adoption of the revised AVMSD is stressed to be a factor for introducing certain regulation for social media especially for the videosharing audiovisual platforms which may influence the social media regulation in gerenal. However, regulation of social media will be something new and distinct from existing media regulation and social media do not completely overlap with the concept of a videosharing platform. Type of regulation Isolated replies opt for a special law on social media (Ro). However, Swedish answers consider existing laws and self-regulation rules sufficient if they are regularly implemented.  Self-regulation and co-regulation prevail as instruments. Most of the approached regulatory bodies stress self-regulation as a possible solution for social media regulation. Self-regulation can be viewed as a first step towards regulation of social platforms (IR). Co-regulation is also not excluded. It denotes joint responsibility (ND). Some of the organizations and bodies admit that there is no experience in media co-regulation in their countries but do not deny its role. The national regulatory authorities have to conclude administrative agreements with co-regulatory bodies and/or delegate them some regulatory powers (for instance: monitoring, evaluation, preliminary resolution of disputes and complaints, reminders, etc.). (PL)  The regulators would probably need to move into more co-regulation and cooperation with the stakeholders. From direct monitoring and enforcement the regulators might need to adopt a more oversight role to assess if the self-regulation set-up system of the platform is working properly. This means, for example setting up a multi-layered system for complaints so that the media regulators are not overburdened and play more of a backstop role if the system is not operating effectively. The size factor is crucial here since even the platforms themselves have to increasingly rely on automated means of overseeing the vast amounts of available content combined with human intervention at the end of the process.    How to apply self- and co-regulation Self-regulation backed by common codes or guidance at the EU level is seen as a desirable solution. Co-regulation can be applied as well, possibly harmonized at the EU level.Within the framework of co-regulation, there could be synergoes between journalistic bodies, university institutions and independent authorities.  National or supra-national body Having in mind the specific nature of social media and the European endeavours a European body will be an acceptable formula to provide basic and uniform protection across the whole EU countries and thereby avoiding the pitfalls of the fragmented national jurisdictions. Under such regime national bodies will not be redundant. They will be of particular importance in specific culturally hued situations like elections, for instance and to preserve national media diversity. Type of regulatory body/ies Social media by their specific nature require to be overseen by ac new type of regulatory body.. This can be a newly set regulator following the example of the traditional media regulatory authority (RO). Extending the powers of current audiovisual media regulators can be another solution (IR). The role and competencies of the regulators might need to be adjusted to take all existing specificities into account. The AVMSD adoption and transposition will amend the current system of media regulation and raise challenges to the regulators in force.  In my personal view these challenges pertain more precisely to challenges with respect to the scope, competences, skills, structure and operation of the regulators. A cost benefit analysis will be also necessary to provide more data and analysis whether it would be economically justified to create a new body instead of extending or reforming the current one. Principles of operation of the regulatory bodies in the convergent environment The respondents stress the need of greater transparency, a direct dialogue with the platforms, crossborder cooperation especially at a European level, civil society involvement and thorough implementation of the principle of multistakeholderism. In a nutshell the replies received delineate the difficulties experienced by various organizations and bodies, the dilemmas they face and the possible solutions for the accomplishment of effective social media regulation. Some of the models suggested sound reasonable but there is still lack of experiences to compare with. As rightly formulated by one of the responding organizations the process of regulation of social media will move along “a test and error procedure”. The COMPACT report will analyze in depth these issues and provide conclusions in 2019.

Dr. Bissera Zankova, Media 21 Foundation

PS This article together with a power point presentation has been prepared for the international conference “Addressing hate speech in the media: the role of regulatory authorities and the judiciary”, organised by the Council of Europe in partnership with the Croatian Agency for Electronic Media, Zagreb, Croatia, 6 -7 November 2018 to which I have been invited as a panel speaker. The following positive response has been received from the chair of the panel Stanislav Bender , Head of Monitoring Department of the Croatian Agency for Electronic Media which also highly assesses the work within COMPACT. “Dear Ms. Zankova,  I would like to express my sincerely thanks to you for your participation in our recent conference in Zagreb on the “hate speech” and at the panel “The role of the national regulatory authorities (NRAs) in a digital environment”. Your skill in presenting European experiences (dealing with hate speech, changes in the new media environment, self-regulation…) was very much appreciated by many colleagues in regulatory and other bodies representing all sides of extremely sensitive topic such as “hate speech”. Although there was not enough time to discuss everything we planned (I have prepared enough questions for you and for other panelists, too 🙂 and the schedule of conference has been affected by insertion of one new panel, everything went fine. My colleagues and me are very grateful for the time and effort you took to share your thoughts and experiences from “Media 21” Foundation and Horizon 2020 EC project COMPACT.   Judging from the comments of those who attended, our panel  was very successful. Most of the credit goes to you and the others (Asja, Elfa, Rosa and Adam) who gave such interesting presentations. Thank you again for your contribution and I wish you every success in your future work and looking forward to see you again.  With best wishes, Stanislav Bender” The complete conference file is now available on the conference webpage at https://www.coe.int/en/web/freedom-expression/zagreb2018. You will find there the Programme, the Speakers profiles and the List of Participants. Uploaded are the conference Presentations, Report and Conclusions – fill free to distribute them widely.You may learn about further activities following the Information Society Group  at its FB page. 

The information is prepared by the team of the COMPACT project.

COMPACT is a Coordination and Support Action funded European Commission under framework Horizon 2020.

The objective of the COMPACT project is to increase awareness (including scientific, political, cultural, legal, economic and technical areas) of the latest technological discoveries among key stakeholders in the context of social media and convergence. The project will offer analyses and road maps of related initiatives. In addition, extensive research on policies and regulatory frameworks in media and content will be developed.

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