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“The media is the most powerful entity on Earth. They have the power to make the innocent guilty and to make the guilty innocent, and that’s power. Because they control the minds of the masses.”-Malcom X
INTRODUCTION
Ever since the advent of the printing press, it can be seen why mass media is a powerful tool. Mass media has resulted in revolutions of all kinds be it cultural, political or social. As Malcom X noted, having the ability to influence mass media might be better money spent than the hiring of the most expensive Queen’s Counsel (after all, very few has the ability to ‘make the innocent guilty and to make the guilty innocent’).
To better understand the mass media markets across the globe (and affiliated opportunities, both business and political), one should refer to the unique legislation born in various jurisdictions over time.
And whilst world governments might be scrambling to read this latest Legal Update Express article to understand mass media law in their neighbouring jurisdiction, to stay updated for more content, don’t forget to hit the subscribe link provided to see more Law Society materials.
GLOBAL OVERVIEW
The following is a brief comparative overview of the Global Media and Entertainment Laws in several of the major jurisdictions across the globe:
Hong Kong
The Communications Authority (“CA”) is an independent statutory body established under the Communications Authority Ordinance (Cap.616) (“CAO”). As part of their statutory mandate, the CA regulate the broadcasting and telecommunications industries in Hong Kong.
As a unified regulator, the CA’s functions include regulating the broadcasting and telecommunications sectors by performing the functions conferred on it pursuant to the Telecommunications Ordinance (Cap.106), Broadcasting Ordinance (Cap.562), Broadcasting (Miscellaneous Provisions) Ordinance (Cap.391) and the Unsolicited Electronic Messages Ordinance (Cap.593).
2. People’s Republic of China (“PRC”)
By comparison in the PRC, the media sector is heavily regulated. The key regulators involved in the process in the PRC includes the National Radio and Television Administration (the “NRTA”) and the State Administration of Press and Publication (the “SAPP”), which were established back in 2018.
Unlike Hong Kong or other common law jurisdictions, it is noteworthy that foreign investment into PRC media business is prohibited by law. In particular, it should be noted that foreign investors are prohibited from investing in businesses involved in the following activities in the PRC:
editing, publication or production of books, newspapers or other publications; and
editing, publication or production of audio or video products or any other e-publications.
With exclusive control also comes exclusive opportunities for PRC media firms which enjoys a growing and wide market with natural advantages against foreign competition.
3. United Kingdom (the “UK”)
Generally, the press is not regulated in the UK. As a result of the Leveson enquiry (2012) into the phone-hacking scandal, a Royal Charter created a new regulator, IMPRESS. However, IMPRESS is voluntary and many newspapers remain members of the Independent Press Standards Organisation (IPSO) (also voluntary). Both regulators have their own code.
It is noteworthy that major national newspapers (e.g. The Guardian, the Financial Times) do not belong to IPSO or IMPRESS and as such, they have their own complaints procedures.
Recently, there have been recent tensions between the government and the media due to the government's handling of Brexit and the COVID-19 pandemic. For example, on 3 February 2020, political journalists boycotted a government briefing after certain publications were banned from attending, stating that the restrictions curtailed press freedom
4. United States of America (the “USA”)
Overall, it is well established in the USA that ‘the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content’. Press freedom is therefore at the heart of the American legal systems.
That having been said. There are a few, limited categorical exceptions include obscenity, child pornography, defamation, fraud, incitement, true threats and speech integral to criminal conduct. The reasons for such exceptions are clear.
The enforcement of general laws against the press ‘is not subject to stricter scrutiny than would be applied to enforcement against other persons or organisations’.
Generally applicable laws ‘do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news’
It should be noteworthy that journalists do not have a First Amendment or common law right to refuse to comply with a grand jury subpoena, even if doing so requires the disclosure of confidential sources despite the aforementioned heart of American press freedom values.
5. European Union (“EU”)
The EU prides the fact that media freedom or freedom of the press in the EU is considered a fundamental right that applies to all member states which is enshrined in the EU Charter of Fundamental Rights and the European Convention on Human Rights (the “ECHR”).
Notably, article 10 of the ECHR provides that”
“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall nor prevent States from requiring the licensing of broadcasting, television or cinema enterprises”
Such level of press freedom results in a relatively open mass media market. The European Commission’s competition department further reinforce such environment through their works to ensure that the competition rules are respected in the media sector. That said, with ever increasing misinformation campaign (which has been observed to have abused historical press freedoms), there are some efforts to reign in this issue when on 26 April 2018, the Commission adopted a Communication on tackling online disinformation entitled ‘a European Approach (COM(2018) 236 final)’.
6. South Korea
One cannot talk about mass media and law without touching upon the home of K-Pop, South Korea. The governing legislation of mass media in South Korea is The Act on the Promotion of Newspapers (the “Newspaper Act”). The principal regulator pursuant to the Newspaper Act is the Ministry of Culture, Sports and Tourism (the “MCST”).
Among other things, the Newspaper Act regulates business registration for newspaper businesses and prohibits foreigners or foreign entities from publishing newspapers in Korea.
Broadcast communications are governed by the Broadcasting Act and the Internet Multimedia Broadcast Services Act, the latter of which governs businesses delivering broadcasts through internet protocols, and both of which are regulated by the Korea Communications Commission (the “KCC”) and the Ministry of Science and ICT (the “MSIT”).
Among other things, the acts regulate broadcasting operator licences and rating systems. Broadcasting operators must either obtain a licence from the KCC, or obtain a licence or an approval or file a registration with the MSIT.
7. Canada
The entertainment industries which involve TV, film, or radio are regulated by the Canadian Radio-television and Telecommunications Commission (CRTC).
The relevant legislation governing and empowering the CRTC begins with the Canadian Radio-television and Telecommunications Commission Act, and includes the Broadcasting Act and the Telecommunications Act.
Similar to most western counterparts, press freedom is enshrined under existing Canadian Law with much of its domestic markets open to foreign investments. One of the fundamental reasons behind Canada’s strong reputation for press freedom lies in its model of private or partially private ownership of competitive forms of news media. It is this factor that helps to create a great amount of freedom of expression with competing sides being able to present their competing views (media not being publicly owned or controlled by the state). That said, it is also well noted that individuals with strong political opinions are at risk of receiving misinformation being catered to their specific audience and it remains to be seen how Canada will combat misinformation without the implementation of excessive regulations in this new age.
8. Australia
One of the most recent and controversial developments within the mass media market in Australia is the nation’s decision to pass a new law that requires digital platforms like Facebook to pay local media outlets and publishers to link their content on news feeds or in search results. This is part of a newly proposed bill, known officially as the News Media and Digital Platforms Mandatory Bargaining Code.
Australia will become the first country in the world where a government-appointed arbitrator can decide on the final price that either platform will have to pay Australian news publishers, provided a commercial deal cannot be reached independently.
9. India
Home of Bollywood, The regulatory regime governing the media sector in the great nation of India is contained under the Prasar Bharti Act 1990 and the Cable Networks Act 1995 and the rules framed thereunder.
These government bodies have been entrusted with the activities of governance through the issue of guidelines, policies and rules and the granting of licences for the broadcasting and electronic media sector.
India, being one of the most populous nations in the world, is home to a growing mass media market second only to the PRC with much opportunities abound.
CONCLUSION
“Of all of our inventions for mass communication, pictures still speak the most universally understood language.”- Walt Disney
Again, we can see how the different in cultural values largely influence each jurisdiction’s mass media laws which in turn influence their markets.
However, a common cause that can quickly be observed is how every jurisdiction, both open and restrictive, have recently move to address a new issue that is affecting each and every jurisdiction, misinformation. We can therefore anticipate that as time moves forward, more and more laws will be implemented to govern mass media, or at least, regulate activities to curb misinformation. The COVID vaccination programs for example have illustrated the need to reign in control against misinformation, which is a universal concern crossing borders.
“If you are not careful, the newspapers will have you hating the people who are being oppressed, and loving the people who are doing the oppressing.”- Malcom X
This article is co-authored by Joshua Chu from ONC Lawyers