Lex Ferenda

Daithí Mac Síthigh / Professor of law and innovation / Queen's University Belfast

Medium Law

Medium Law is my first book, published in September 2017 by Routledge. It falls within a small, interesting series on Law, Society, and Popular Culture (edited by Guy Osborn and Steve Greenfield). Further information from the publisher is available here. It’s also available on Kindle – see here. Hardback copies can be bought at e.g. Blackwell’s, Waterstone’s. Review copies are available from the publisher, and I’m very happy to give talks on the book or provide further information.

I have been working on the ideas contained within the book for much of the 2010s – and bits and pieces have appeared as conference papers or lectures here and there. It’s a short book, with seven substantive chapters (covering medium theory, film, games, radio, video-on-demand, premium rate services, and entertainment licensing), alongside the introduction, conclusion, and bibliography. The rest of this page is a summary of the chapters (adapted from the introductory chapter).

In chapter two, I set out the conceptual basis for studying the medium within law. Within communication and media studies, a sustained engagement with the medium is found in the work of Canadians Harold Innis and Marshall McLuhan. Innis and McLuhan studied the history of communications, making arguments about the relationship between a medium and its social or economic impact. They distinguished between media, often situating the emergence of a new medium against the affordances of an older one (i.e. what it can be used for or what we think it can be used for). Their work, and the work of others, sits within the labels of the ‘Toronto School’ or ‘medium theory’; echoes are found in other work, including the ‘apparatus’ tradition within film studies. I summarise the main contentions of Innis and McLuhan, and respond to the criticism that the study of the medium is unhelpful because of the tendency to attribute excessive agency to technology, i.e. technological determinism. I then develop an argument in favour of using the Toronto School’s perspective as a tool for analysis of law, particularly media law. I note that searching for the role of the medium in media law allows for the examination of whether differences in the treatment of the ‘same’ content can be justified, as well as whether applying the same rule across more than one medium could lead to differing results depending on the characteristics of a particular medium. This means that although much of this book is an attempt to identify and explain what the law is, there is a strong normative dimension in that asking questions in this way is based on an assumption (which some would contest) that there is value in categorising media regulation in this fashion.

The other contention made in chapter two is that the medium of communication is the basis for regulation, or for the application of one set of rules over another, well beyond the area of media law. I support this argument through discussion of two examples in specific fields of law, and a broader argument regarding human rights law. The first example is ecclesiastical law, and more precisely a set of cases and statutory provisions relating to ‘ritual’ in the Church of England during the 19th century. These controversies demonstrate that the choice of medium is closely related to the desired communication or effect, but that regulating by reference to the medium presents opportunities for innovative legal arguments and, in some cases, avoiding the intended impact of regulatory intervention. The second example is how planning law treats the flying of flags. Flags are readily identified as a means of communication, but once more, there are flag-specific rules and also situations where a flag is deliberately used in preference to another medium. Finally, I highlight how human rights law (specifically, freedom of expression and of assembly) interacts with the medium used for communication; I find examples of this phenomenon in the legal control of advertising, processions, and the like.

Chapters three and four contain a detailed treatment of two broad themes: ‘film’ and ‘games’. Film is without doubt a contested label, especially in relation to its status as a medium. Legally, there are significant differences between the arguably narrower categories of ‘cinema’ and ‘video’, although there are also areas of overlap with, for instance, broadcasting law. Games (by which I mean video, computer, or digital games) might have a certain deal of attraction as a category, but even this younger sector has seen definitional and regulatory challenges, such as in relation to casual games and smartphone/tablet apps. In both cases, the goal is to identify and assess the regulation of the medium or media in question, with particular emphasis on how boundaries are set and how specific rules apply to a medium – whether that is above and beyond that applicable to other media, or copied from or influenced by the rules already in place elsewhere. Within these chapters, I attend to both internal and external aspects of the legal definition of a medium – the consistency (or otherwise) of the way that the terms are used in lawm but also the way in which audiences and the industry relate to the definitions and the specific technologies or platforms covered by a definition. Both chapters include a discussion of tax relief and (primarily regarding games rather than film) copyright law. These provide an important contrast with the more familiar discussion of content regulation.

Each of the following three chapters are then dedicated to the analysis of medium specificity within three fields: radio and audio, video-on-demand (VOD), and premium rate (telephone / SMS) services (PRS). As Marsden has highlighted through his work on net neutrality and on Internet co-regulation (while also using the label ‘medium law’), there is a need to identify aspects of content regulation even where not obvious at first glance (e.g. in his work, telecommunications law). The three sectors discussed in chapters five, six and seven have been chosen because they all fall, to some extent, outside the major preoccupations of media law. VOD is an emerging area and may take on more significance in future work, while PRS has been around for a while longer, but is re-emerging as an influential regulatory model in light of technological and market changes. The detailed investigation of press regulation through the Leveson Inquiry saw renewed discussion of the plethora of regulatory models used within media, although some remain better known than others. Textbooks and syllabi may deal with areas like radio to some extent, but often with much less detail than those issues of interest to television and the press. Of course, the regulation of television is still discussed throughout the book, often through comparing it with film, radio, and VOD. I contend that even in these arguably marginal areas, the significance of medium law can be tested. Indeed, it may be more relevant because of the growing pains or revisionist challenges that they are currently facing (e.g. the future of positive obligations within radio). The chapters therefore have the dual purpose of identifying the coherence of the regulation of the field through how the medium is defined by various means, and of interrogating the significance of the medium within the operation of the regulatory system.

The final substantive chapter could fall within what is sometimes labelled as ‘media and entertainment law’, although again the focus of scholarly attention and of teaching tends to be elsewhere (e.g. regulation of the music industry more broadly, aspects of intellectual property). This chapter instead considers the regulation of entertainment through the Licensing Act 2003 and other provisions. The 2003 Act is a notable high water mark of Parliamentary attempts to consolidate and to approach regulation in a demonstrably more ‘converged’ fashion. It is therefore significant that, not just in the Act itself but in subsequent amendments, the result has been the creation of a very complex set of medium-based categories and subcategories. The story of entertainment licensing serves as an illustration of the conflict between convergence and complexity, and the enduring appeal of the medium – even if the distinctions between one medium and another are sometimes beyond parody.

Unsurprisingly, the influences on this book are drawn from media studies and from law. Chapter two is based on a reading of Innis, McLuhan, and others who study the media (including through other disciplines; Innis was after all an economist and a historian, first and foremost). But even in later chapters, engagement with media studies is valuable. The question of defining a medium is a long-standing preoccupation of media scholars, especially in relation to a medium as it comes into significance, such as television; John Ellis summarises this as an attempt to ‘define what is new and special about their medium’ beyond existing media e.g. theatre or radio. Much of this relates to a search for legitimacy or identity, which may be easier to demonstrate if medium specificity is identified. In particular, evidence from media studies can inform an assessment of the characteristics of a medium (as required by the medium theory perspective), which can then be used in problematising the way in which the law identifies and regulates that medium.

Beyond its primary concern with the regulation of media and entertainment, this book might also be characterised as one about categorisation. Categories, including those derived from statute or from the actions of regulators, have political and ethical consequences. An area of law like judicial review is infused with attempts to work out whether the actions of a regulatory body are consistent with the categories established by a statute. What is the difference between a washhouse and a laundry? Are structures used for Hindu cremations ‘buildings’ under the law on cremation? Is bridge a sport? Is a lanyard containing a list of gig dates and football fixtures a newspaper?


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