We live in a mediatized world and there is really little choice we have in this regard. We can choose to limit our intake, or try to curate what it is we are consuming but ultimately, we exist in an economy wherein the currency is attention and there are a number of active parties competing for this resource.(1) The economics of attention is easily observed in a commercial context; the competing of brands in a specific industry vying for their customers attention or a business trying to attract new customers to avail of whatever professional service is being offered. The economics of attention is also active in a less obvious way in a political context within our democracies.(2) The economics of attention when viewed in the political context is where the connection between the rule of law and the free press can be found. Across all democratic societies mediatisation is easily observed yet the value of your attention within a democratic society is not uniform and it is in relative to the society you live in.(3)
Beginning in 2006 the trend of ‘democratic recession’ has overtaken the globe bringing with it a decline in the quality of democracy in both young and old democracies.4 A democracy is more than just elections(5), it is contingent upon liberal rights such as freedom of speech and the rule of law.(6) The economics of attention also relate to the functioning of a democracy as the freedom of the press is closely tied to the freedom of those who engage with media.(7) Within the EU this democratic recession is observable through a number of concerning developments which have culminated in the emergence of a rule of law crisis. Within the development of this crisis there are two countries that are experiencing a pronounced democratic decline; Poland and Hungary with each experiencing a rule of law crisis accompanied by pronounced attacks on the independence of the press.
Why should we care so much about these developments and what do they mean for you and the life you enjoy? If you’re not Polish or Hungarian, or a resident in either Member State than such a question is understandable but within this question lies a fatal mistake. Poland and Hungary are democracies that are located within in the center of Europe, with successful economies, democratic systems and both are members of the EU. If a central European democracy and member of the EU can experience a democratic decline then why not your state?
The many roles of the free press
To understand why the freedom of the press needs protecting it is useful to understand what it is that the free press does in a society. The press holds a special place in the liberal society and its influence is observable in the economy of attention. It is through the press that the flow of information within the society is enabled, altered, controlled and manipulated. Within a democratic society the individual enjoys a number of prescribed freedoms, obligations and protections. It is the individual who votes for their desired representatives, it is the individual who gives the aspiring president or prime minister his or her job and it is the individual who ultimately enables all subsequent changes in their political, economic, public and private lives.(8) The choice of the individual rests upon their awareness of the facts and the free flow of information within their respective society. The free flow of information is subject to the operation of the press and it is the press has been given the special task of ensuring the free flow of trustworthy information to the individual.(9) The freedom of the press also bears direct relevance to individuals' choice. The freedom of the press is an extension of the freedom of expression and relates directly to the freedom of the individual.(10) It isn’t difficult to see why politicians and stakeholders would seek to influence the economics of attention by manipulating or influencing the press.
The free press plays an integral part in fighting corruption and while the court is the forum through which law is administered it is the free press through which public accountability and scrutiny is enabled.(11) Without the free press the operation of the courts would be significantly more difficult and perhaps the most egregious forms of institutional corruption and other injustices would remain hidden. In 2015 Financial Times published an article presenting a number of documents and insights on a company called Wirecard at the behest of whistleblower Pav Gill.(12) The FT article outlined a significant gap between the companies' assets and liabilities. In 2016 Wirecard experienced a collapse of its share price and German market regulators moved to investigate the company and it was uncovered that an estimated €1.4 billion was unaccounted for.(13) The scandal revolved around an intricate web of third-party processors and shell companies incorporated in Dubai, Ireland, Singapore and the Philippines.
The scandal led to the arrest of CEO Markus Braun and the issuing of a warrant for the arrest of Jan Marsalek who remains at large. As the scandal unfolded it was also revealed that German market regulator BaFin failed to respond to allegations regarding Wirecard not once, but four separate times sparking a political upheaval in Germany.(14) The Wirecard scandal highlights the role of the free media in fighting corruption and illustrates the capabilities of the press to fight corruption even where the state may fail. If it wasn’t for the bravery of Pav Gill and the Financial Times it is unknown when the scandal would have been revealed. It was clear that the German regulators were unprepared to act given their prior inaction is well evidenced.
The media also plays an important role in the galvanization of public consensus and can act to provide a medium for the people to speak even where the state is preventing such activity.(15) As noted above, the freedom of the press is just a step away from the freedom of expression. A relevant example of this phenomenon is the Solidarity movement in 1980’s Poland. In 1980 an autonomous labor movement advocating for change led to the mobilization of the heavily censored press in Poland creating what people at the time referred to as the “Solidarity carnival”.(16) In response to the ”carnival” martial law was imposed on 13 December 1981 prompting a total media blackout and isolating Poles within Poland from the outside world.(17) While Poland fought for its freedom amidst a media blackout and martial law it did not do so in isolation. The free press outside of Poland amplified the plight of Polish people and turned a national struggle into an international affair. It was through the press that the Polish diaspora was mobilized and world governments, trade unions and individuals provided an outpouring of aid and support for those in Poland.(18) Ultimately, as we all know, Solidarity was successful in realizing its objectives and Poland peacefully transitioned from a Communist regime into a democratic state but I think it is important that we remember the role the press played in the success of the Solidarity movement.
These examples represent the wider role of the free press in a liberal society and demonstrates why it is important that the independence of the free press is protected in our societies. Nonetheless, exploitation of the media does occur and it is in states with weakened democratic institutions, where there is limited oversight and accountability then politicians, stakeholders and those who possess economic interest can more freely seek to undermine the free press and exploit the economics of attention. A restriction on the free press can leave the public blind and create a suitable set of circumstance wherein the deconstruction of a democracies instructions and political culture can be easily masked. The free press uncovers decay wherever it may arise.
Strong democracies and weak democracies
With the role of the free press briefly outlined above it is important to now consider the relationship between the rule of law and the press. The role of the free media in relation to the economics of attention and a democracy is not uniform across all societies. Commentators have noted that in societies with strong democratic institutions and a competitive media market the overall influence of the media in the outcome of political decisions or elections is relatively small.(19) The inverse is true in countries that have notably weaker democratic institutions and suffer from a lack of competition in the media market.(20) The media developments in Poland and Hungary have coincided with an emerging rule of law crisis in both states with has significantly weakened the democratic institutions of each respective state. Poland and Hungary offer a clear illustration of the relationship between the free press and the rule of law and evidence the duology of democracy.
In Poland the rule of law crisis began in 2015 and has resulted in the dramatic altering of the Polish judiciary through the reforming of the KRS and the reconstitution of the Supreme Court to include two additional chambers tasked with prosecuting judges. The ECJ ruled in A.K. and Régime disciplinaire des juges that the Disciplinary Chamber cannot be considered an” independent court” within meaning prescribed under EU law.(21) The Polish Supreme Court arrived at a similar conclusion confirming the newly established Disciplinary Chamber cannot be considered an” independent court” within the meaning of national law.(22) The net effect of the reforms to the Polish judiciary has been the removal of judicial independence, the placing of the Polish judiciary under direct political control and the decoupling of the judiciaries binding jurisdiction from the activity of the executive and legislative.(23)
In Hungary the National Judiciary Council tasked with supervising the administration of the courts continues to face a number of difficulties with has resulted in a systemic decrease in judicial independence the inability of the NCJ to counterbalance the powers of the President of the National Office of the Judiciary.(24) Judicial appointments to higher courts continue to be made by the President of the NOJ without any callings for applications and without NCJ consultation.(25) In addition, the President of the NOJ has continued the practice of cancelling appointment proceedings often without explanation.(26) On 19 October 2020 a new President of the Hungarian Supreme Court was appointed without any judicial involvement jeopardizing the integrity of the Hungarian judiciary and its independence.(27) The above activities have resulted in a rule of law crisis and have raised serious concerns as to the status of both Poland and Hungary as stable democratic societies. It is in a weakened democratic state that the economics of attention matter the most and it is not a coincidence that the emergence of a rule of law crisis in each state has coincided with attacks on the free press.
The EU Commissions in its 2021 Rule of Report observed a number of developments within Poland and Hungary that raised concerns regarding the operation of free media and media pluralism. In Poland, the constitutionally mandated media regulator was subjected to a concerning reform in 2016 that eroded its competencies.(28) On 7 July 2021, the controversial “foreign ownership” media bill was submitted to the Sejm and passed the Sejm on 11 August 2021 under equally as controversial circumstances only to fail at the Senate.(29) In 2016, a key independent media platform was controversially acquired by state oil company PNK Orlen.(30) The acquisition was halted by the Competition Court and the Warsaw Regional Court refused to register the new appointees.(31) Nonetheless, the acquisition continued and the publisher experienced a purging of its editorial and management team and the replacing of key figures with pro-government journalists.(32)
A similar trend is observable in Hungary. In 2019, the media regulator was reformed to reduce the independence of body and to place it under de facto political control.(33) The reform of the media regulator coincided with the creation of KESMA(34), a conglomerate through which a majority of media ownership has been consolidated into the hands of a few pro-government businessperson closely linked to Orban severely reducing media pluralism. (35) The rule of law and the free press are two concepts that relate to the wider societal spectrum that is democracy and they do so in a direct way; a crisis of one concept is more often than not closely accompanied by a crisis of the other. Where the rule of law is diminished and the press censored public scrutiny, accountability and the concept of justice decline and democratic institutions decay.(36) Almost without realizing a people may find themselves suddenly within the grasp of regime having not noticed the gradual decline of their democracy.(37)
Democratic decay
The value of your attention is relative to the overall strength of the democratic institutions present within the society you reside in. The more decay a democracy experiences the more value there is attached to your attention. As a step of logic this form of incremental evaluation also applies to the free press as the free flow of information within a society is influenced by the press. It is important to note that democratic decay does not mean outright democratic failure but rather should be understand to mean a gradual and incremental decline in democratic features.(38) The key democratic features are the holding of competitive and pluralistic elections, liberal rights and the rule of law.(39) The observance of democratic decay is achieved through the measuring of circumstantial evidence and the overall context attached to the evidence.(40)
Commentators have noted that in states experiencing democratic decay quite often there is some ‘master plan’ to undermine and control the democratic system.(41) This is not conspiratorial but rather it is a necessity. An example of a ’master plan’ can be observed in Poland wherein the so called ’master plan’ was to seize control of the Constitutional Tribunal and to seize control of the media.(42) The approach adopted by PiS in Poland closely mirrors the approach of Fidesz in Hungary. The net outcome of this two-step plan is to restrict the media so as to mask intended legislative reforms. If a populist would wish to reduce democracy so as to establish an alternative system of governance, then removing the legislative process from the purview of the people is precisely how one would endeavor to achieve this outcome. It is easier to get away with procedural sleight of hand and legislative manipulation when the scrutiny of the public and the judiciary is limited. The role of the free press in relation to democratic decay is clear. The independence of the press is a democratic feature that should be closely guarded. This is even more so the case in societies experiencing democratic decay wherein other democratic functions are limited such as the rule of law.
Limiting the independence of the press is an act that enables democratic decay and the ‘master plan’ is a means through which democratic decay is enacted. The genesis of this ‘plan’ is necessity. Necessity arises due to the limitations provided for under the respective state's constitutional theory. The means through which democratic decay is achieved is through the formal mechanisms of constitutional change present within the society and entails an appropriation of the existing institutional structures. (43) It is important to note that such acts and changes are not presented as alternatives to a democracy but rather as a variety of a democracy; the ”illiberal democracy” or the” conservative democracy”. Such terminology permeates the political discourse present within both Poland and Hungary.(44)
This is an important observation as it outlines the importance for an independent press within a democratic society. If an appropriation of the state's political structure is required then a decline in the rule of law is required. This is not so easily achieved but can be made immeasurably easier if the free flow of information can be influenced. This is the relationship between the rule of law and the free press; it is important that not just the judiciary ensures compliance with the law but that the public can see that this is done hence the title; it is better to see with two eyes rather than one.
Conclusion: A rotten apple...
In the 21st century it is your attention that is the most valuable currency in the mediatized world. It is for this reason that any democracy should guard the independence and integrity of the press. The incremental nature of democratic decay makes the phenomenon difficult to perceive in real time. In a society where the free flow of information is restricted or manipulated the observance of democratic decay is considerably more difficult. Activities and circumstances those would prefer hidden are unveiled to the public by the press.
Attacks on judges, the stealing of public finances, conflicts of interest, procedural ‘irregularities’(45) and much more are uncovered and laid bare for the public to see through the handwork of journalists, editors and publishers. History has proven time and time again that attacks on the free press are in reality attacks on democracy. The unfortunate reality is we don’t need to rely on historical references to engage in this discussion; right now, in the heart of Europe attacks on the free press are occurring on a regular basis.
Democratic decay may be difficult to measure due to the abstract nature of democracy as a concept. This difficulty is exaggerated even more so when we compare young democracies to older democracies and consider the influences of transitional justice and the transitional dilemma.(46) It is true that no “perfect” democracy exists but this should not detract from the discussion. We should not accept an erosion of norms and constitutionality.47 Attempts to control the free press have historically acted as forerunners for larger democratic shifts. This is also evident in a more modern context with both Poland and Hungary experiencing a rule of law crisis accompanied by limitations on the independence of the free press. The free press plays an important role in our societies and our democracies and our freedom is ensured through the guarding of the freedom of the press.
Illustration by me
Footnotes:
Litschka, The Political Economy of Media Capabilities: The Capability Approach in Media Policy, The Journal of Information Policy, Vol 9. (2019) ,pg 81
Meridor, A Free Press and Its Role in Society (1992) Kesher/1992, Vol 12 pg 22e
ibid
Diamond, Facing Up to the Democratic Recession, Journal of Democracy (2015) pg 141
Freedom House, Populists and Autocrats: The Dual Threat to Global Democracy, Freedom in the World 2017, pg 3
Huq and Ginsburg, How to Lose a Constitutional Democracy, UCLA Law Review, pg 6
Meridor, A Free Press and Its Role in Society (1992) Kesher/1992, Vol 12 pg 23e
Timothy Snyder, The Road To Unfreedom, Time Duggan Books, Chapter 20: Epilogue
Litschka, The Political Economy of Media Capabilities: The Capability Approach in Media Policy, The Journal of Information Policy, Vol 9. (2019), pg 88
Meridor, A Free Press and Its Role in Society (1992) Kesher/1992, Vol 12 pg 22e
European Commission, 2021 Rule of Law Report: Overview, pg 15 accessible at https://ec.europa.eu/info/sites/default/files/communication_2021_rule_of_law_report_en.pdf
Financial Times, The House of Wirecard, accessible at https://www.ft.com/content/534e7c4d-3101-3f6a-abc8-dc70beab35b7
Reuters, Germany's beleaguered Wirecard to proceed with business after insolvency, accessible at https://www.reuters.com/article/us-wirecard-accounts/germanys-beleaguered-wirecard-to-proceed-with-business-after-insolvency-idUSKBN23Y0QQ
Financial Times, Wirecard: inside an accounting scandal, accessible at https://www.ft.com/content/d51a012e-1d6f-11e9-b126-46fc3ad87c65
Remington, The Mass Media and Public Communication in the USSR, The Journal of Politics, Vol 43. No. 3 (August 1981), pg 804
ibid pg 813
Europejskie Centrum Solidarności, Your Solidarity – Our Liberty: Reactions of émigré Poles and the world to the imposition of martial law in Poland on December 13th, 1981, Lublin IPN (2017), pg 8 - 9
ibid
Enikolopov, Petrova, Zhuravskaya, Media and Political Persuasion: Evidence from Russia, The American Economic Review, December 2011, Vol 101, No. 7, pg 3254
ibid at pg 3282
C-585/18 - A.K. (Independence of the Disciplinary Chamber of the Supreme Court) and C/791-19 Commission v Poland (Régime disciplinaire des juges)
Judgment of the Supreme Court of 5 December 2019 in case III PO 7/18, and two rulings of 15 January 2020 in cases III PO 8/18 and III PO 9/18.
European Commission, 2021 Rule of Law Report, Country Chapter: Poland, pg 2 - 5, accessible at https://ec.europa.eu/info/sites/default/files/2021_rolr_country_chapter_poland_en.pdf
European Commission, 2021 Rule of Law Report, Country Chapter: Hungary, pg 2 – 8 accessible at https://ec.europa.eu/info/sites/default/files/2021_rolr_country_chapter_hungary_en.pdf
Contribution from the European Association of Judges for the 2021 Rule of Law Report, p. 7. accessible at https://pgwrk-websitemedia.s3.eu-west-1.amazonaws.com/production/pwk-web-encj2017-p/News/ENCJ%20contribution%20to%20EC%20Rule%20of%20Law%20Report%202021%20final%2019%20March.pdf
Decisions 373.E/2020. (X. 1.) OBHE, 388.E/2020. (X. 19.) OBHE, 415.E/2020. (XI. 12.) OBHE, 443.E/2020. (XI. 30.) OBHE, 444.E/2020. (XI. 30.) OBHE
Committee of Ministers of the Council of Europe Recommendation CM/Rec(2010)12, para. 47.
Sejm’s official communique of 7 July 2016 to European Commission
Draft law No. 1389 amending the law on the radio and television broadcasting, submitted to the Sejm on 7 July 2021. For further reading see https://wiadomosci.onet.pl/kraj/lex-tvn-sejm-przyjal-nowelizacje-ustawy-o-radiofonii-i- telewizji-relacja/8gk12qe
See press communique of the Ombudsperson of 13 April 2021 and https://www.onet.pl/informacje/onetpoznan/ludzie-orlenu-nie-zostali-wpisani-przez-sad-do-zarzadu-spolki-polska-press/nctqmvz,79cfc278
EURACTIV.com, Poland’s PKN Orlen says media takeover unchanged by court decisions of 14 April 2021. and Gazeta Wyborcza ‘Czystka w Polska Press’ of 30 April 2021
Act LXIII of 2019.
In Hungarian - “KESMA” Közép-Európai Sajtó és Média Alapítvány and in English – “CEPMF” - Central European Press and Media Foundation
European Commission, 2021 Rule of Law Report, Country Chapter: Hungary, pg 16
Daly, Diagnosing Democratic Decay, Comparative Constitutional Law Roundtable, Gilbert & Tobin Centre of Public Law (2017), pg 5
ibid pg 4
Huq and Ginsburg, ’How to Lose a Constitutional Democracy’, UCLA Law Review pg 16
ibid
Daly, Diagnosing Democratic Decay, Comparative Constitutional Law Roundtable, Gilbert & Tobin Centre of Public Law (2017), pg 10
ibid pg 11
Scheppele, The Rule of Law and the Frankenstate: Why Governance Checklists Do Not Work, (2013)
Landau, Abusive Constitutionalism, (2013) 47 Davis Law Review, pg 189
Edited by Paul Blokker, Constitutional Acceleration within the European Union and Beyond, Routledge (2017), Chapter 10, Halmai, The rise and fall of constitutionalism in Hungary ,pg 222
Notes from Poland, Polish parliament passes media ownership restrictions amid angry scenes (11 August 2021) accessible at https://notesfrompoland.com/2021/08/11/polish-parliament-passes-media-ownership-restrictions-amid-angry-scenes/
See generally Kuti, Post-Communist Restitution and the Rule of Law, Central European University Press (2009) and Cohen, Transitional Justice in Divided Germany after 1945, UC Berkeley, War Crimes Studies Centre
Huq and Ginsburg, ’How to Lose a Constitutional Democracy’, UCLA Law Review pg 16
