Globalizing media law and policy

Communication networks have long provoked the development of new forms of transnational governance, including both the first international organization (the ITU, to regulate the telegraph, in the 1860s) and the first global organization with regulatory-like powers (ICANN, to manage the internet, in the 1990s). The literature on international and comparative media law and policy is well developed,1 but the difference between international and global organizations is significant: the first involves geopolitically recognized states, while the second also includes civil society entities such as non-governmental organizations (NGOs) and corporations in decision-making. The effective appearance of non-state actors in law making and implementation marks a dramatic turn in relations among states, societies and legal systems that highlights the need to globalize, as well as internationalize, media law and policy. The impact of globalization is most visible in the formation of law-making

institutions at the global level, but goes far beyond. The modes of policy transfer and coordination through which the legal dimension of globalization is accomplished are referred to as policy convergence (Jordan, 2005); harmonization is the outcome of such processes when they result in conformance of the laws of multiple states with each other. Legal globalization reaches the very foundations of jurisprudence, the principles and arguments upon which law making and interpretation are based (Twining, 2000). As a consequence, the opening of the twenty-first century is considered equivalent in historical importance to the period during which the international system of geopolitically recognized states first formed several hundred years ago (Kirby, 2006). Since differences in jurisprudence both manifest and justify differences in the ways that democracy is theorized and implemented (Edelman, 2005), these developments are of enormous political importance. Harms argued as early as 1980 that communication policy should always be

thought of in global terms, mainstream authors such as Mowlana (1996) called for a turn from international to global communication by the mid-1990s, and by the close of that decade doing so had become so common that it could be referred to as a cliché (Cunningham et al., 1998). However, this insight has not yet widely infiltrated the study of media law and policy beyond the work of

those doing research on ICANN (see, notably, Mueller, 1999). Credit must go, therefore, to the few existing exemplars, such as research on the use of public diplomacy to align media policies of transition societies with those of other nations (Price and Thompson, 2002), policy convergence efforts that appear in government commitments to the use of communication in health campaigns (Smith et al., 2004; Taylor, 2004), antitrust law as applied to media and telecommunication oligopolies (Donovan, 2006), and treatment of consumer fraud (Rabkin, 2007). The relative paucity of analysis is problematic because globalizing media law

and policy is of constitutional significance, for all communication issues are of constitutional status (Tribe, 1985). Uncertainty regarding jurisdiction can leave crucial constitutional values to self-regulation (Dommering, 2006). Arguments for shifting the constitutional act to the international level support moving even further away from society-oriented principles (see, for example, Petersmann, 1991). The threat to freedom of expression and related civil liberties is thus of intense concern. Pool (1983) long ago warned that as diverse legal systems dealing with communication converge in response to technological change, it was likely that the most restrictive of available models would come to dominate. Competition, it turns out – rather than freedom of speech or the public interest – is the most important explanatory variable for legal globalization, whether that competition is economic (Howard, 2007; Swank, 2006) or political (Murillo and Martinez-Gallardo, 2007). If Sassen (2003) is correct that we are currently only in the ‘incipient’ phase of legal globalization, achieving a better understanding of how these processes unfold is critical. This chapter introduces frameworks being used to analyse legal globalization

across the law as they appear in government (formal institutions of the law), governance (decision-making with structural effect whether it takes place within the public or private sectors, and formally or informally), and governmentality (cultural predispositions and practices that enable and sustain governance and government) (Braman, 2006). This allows us to identify corresponding lacunae in the literature on the globalization of media law and policy and to explore the implications of both models and lacunae for theory, research and teaching. International law and policy is now a sub-set of global media law and policy, and comparative research is critical for understanding the processes by which globalization of the law takes place. Because research on international and global organizations, regional integration and multilateral treaties is relatively well represented in the media policy literature, the focus here is on other types of processes by which the law is becoming globalized. Many of these are relatively new, while others simply become more visible when the analytical lens is widened.2

Legal theory historically has been bound tightly to specific states (Street, 2003); as comparative legal scholar Ugo Mattei (1998) notes, most attorneys and legal thinkers operate as if they believe the country in which they live has

a monopoly on the production of law. Thus it should not be surprising that most research on and theorization of globalization have taken place in fields other than the law (Berman, 2005b). The notion of an ‘international plane’ of law, however, first appeared in 1911 (Charnovitz, 2003), appreciation of the importance of transgovernmental relations through informal and non-governmental processes was evident by the mid-1970s (Keohane and Nye, 1977), and by the late 1980s the concept of internationalization had become a ‘codeword’ for modern legal development (Blume, 1989: 12). Today it is not possible to fully understand cross-border norm development and policy convergence solely within the bounds of international law. Legal scholars are interested in non-state actors, revisiting the concept of citizenship, and developing new theoretical and pragmatic approaches to state actions that take place beyond their geopolitical borders. It may or may not be coincidental that so much of this literature is dominated by thinkers from the US during a period in which a great deal of harmonization of the legal field also involves its ‘Americanization’ (Dezalay and Garth, 1996). The linkage between jurisprudence and specific states is also a strength,

because it means that new legal theories, practices and institutions always accompany changes in political form (Mattei, 1998). The very phrase ‘international law’ was coined by Jeremy Bentham in 1789 at a time when the ‘law of nations’ had to cope with the appearance of new states, and new types of states. The use of political theory to study globalization of the law significantly enriches analytical opportunities (Charnovitz, 2003). The extent to which current media laws and regulations should be deemed repressive, for example, can only be evaluated within the context of historical trends (Najjar, 1998). Taking an historical perspective also makes clear what is not unique about current circumstances. Previous waves of legal globalization included the spread of Roman law across Europe and the diffusion of European legal models during the colonial era (Kelemen and Sibbitt, 2004). Perceptions that current legal innovations have their origination in American practices are not always historically accurate (Schick, 2006). And the purportedly ‘stable’ system of sovereignty and territoriality that globalization is said to challenge may never have actually existed (Berman, 2005b). Many key moments in the history of internationalization and globalization

of the law involved the media. Experience with the telegraph convinced European governments that their regulatory interests differed from those of private parties (Pircher, 1987). Negotiations over the First World War peace treaty introduced a role for journalists in peace-making and transparency and the free flow of information as international policy principles (Blanchard, 1986). The Second World War brought new transatlantic partnerships in matters involving global communication (Headrick, 1990), and that war’s atrocities catalysed development of international human rights laws that include protections for speech-related civil liberties (Dennis, 2006). Satellites required global coordination and, by introducing ‘open skies’ as another policy