Society of Legal Scholars Criminal Justice Section Response to Sexual Offences Guideline Consultation (Sentencing Council Consultation 2012-2013)

Consultation Report

Redefining 'media' using a 'media-as-a-constitutional-component' concept:an evaluation of the need for the European Court of Human Rights to alter its understanding of 'media' within a new media landscape

This paper considers the impact of new media on freedom of expression and media freedom within the context of the European Convention on Human Rights and European Court of Human Rights jurisprudence. Through comparative analysis of US jurisprudence and scholarship, this paper deals with the following three issues. First, it explores the traditional purpose of the media, and how media freedom, as opposed to freedom of expression, has been subject to privileged protection, within an ECHR context at least. Secondly, it considers the emergence of new media, and how it can be differentiated from the traditional media. Finally, it analyses the philosophical justifications for freedom of expression, and how they enable a workable definition of the media based upon the concept of the media-as-a-constitutional-component.

A seismic shift? An evaluation of the impact of new media on perceptions of freedom of expression and privacy

New media platforms have changed the media landscape forever, as they have altered our perceptions of the limits of communication, and reception of information. Platforms such as Facebook, Twitter and WhatsApp enable individuals to circumvent the traditional mass media, converging audience and producer to create millions of ‘citizen journalists’. This new breed of journalist uses these platforms as a way of, not only receiving news, but of instantaneously, and often spontaneously, expressing opinions and venting and sharing emotions, thoughts and feelings. They are liberated from cultural and physical restraints, such as time, space and location, and they are not constrained by factors that impact upon the traditional media, such as editorial control, owner or political bias or the pressures of generating commercial revenue. A consequence of the way in which these platforms have become ingrained within our social culture is that habits, conventions and social norms, that were once informal and transitory manifestations of social life, are now infused within their use. What were casual and ephemeral actions and/or acts of expression, such as conversing with friends or colleagues or swapping/displaying pictures, or exchanging thoughts that were once kept private, or maybe shared with a select few, have now become formalised and potentially permanent, on view for the world to see. Incidentally, ‘traditional’ journalists and media outlets are also utilising new media, as it allows them to react, and disseminate news, instantaneously, within a hyper-competitive marketplace. However, in a world where we are saturated, not only by citizen journalists, but by traditional media outlets, offering access to news and opinion twenty-four hours a day, via multiple new media platforms, there is increased pressure to ‘break’ news fast and first. This paper will argue that new media, and the culture and environment it has created, for citizen journalists, traditional journalists and the media generally, has altered our perceptions of the limits and boundaries of freedom of expression dramatically, and that the corollary to this seismic shift is the impact on the notion of privacy and private life. Consequently, this paper will examine what a reasonable expectation of privacy may now mean, in a new media world.