The Doctrine of Self-regulation in the Contemporary Media Environment: Mapping Some Challenges

Abstrakti

Rapidly developing technical possibilities in the modern society have caused a rare situation where the legal and social regulation of media enterprises lags behind the challenges faced by the media enterprises in everyday situations, raising the question of whether self-regulation may be the answer. The proposition that the internet may “... be the greatest innovation in speech since the invention of the printing press” means that the challenges emerging from the internet possibilities to media enterprises are equally enormous. The international debate about the balance between the right to freedom of expression and the right to privacy so far has not resulted in a consensus on the question of the liability of an internet company for data it has not originally produced – such as anonymous comments on the internet or data processed by search engines. At the start of the new millennium, a tendency appeared that limits the accountability of online media enterprises. Thus, the European E-Commerce Directive is built upon the principle of the internet host’s non-liability. The United States courts apply the internet host immunity provision in an extensive manner. However, recent doctrinal developments in the case law of European regional courts challenge the proposition of host immunity of online media enterprises, while at the same time pointing to the difficulties of normative regulation. This article will identify some of the main reasons supporting the doctrine of self-regulation and will explore the dilemmas it causes for the media and judicial communities, as well as the civil society at large. The article will propose a solution whereby the different interested actors need to co-operate to achieve a binding and reasonable methodology for securing, on the one hand, the economic interests of media enterprises together with the possibility to retain the function of media as a public watch-dog, and on the other hand, balance these interests with the right of the public to receive bona fide information based on the respect towards the right to privacy and ability to stay informed. Methodologically, the article will first review some fundamental principles and their interpretation concerning the accountability of contemporary media, moving on to provide examples on the basis of the Estonian advertising environment. Estonia serves as a good example for this academic exercise, particularly since it has earned an excellent international reputation both for its internet and press freedoms