According to Daithí Mac Síthigh, Professor of Law and Innovation at Queen’s University Belfast, making distinctions between media technologies matters a lot for regulation and law. During a talk at Osgoode Hall Law School on November 6, Prof. Mac Síthigh elaborated on this idea, arguing for the importance of medium-specific approaches to media law and regulation. His presentation was based on his new book Medium Law (Routledge, 2018).
Mac Síthigh questions whether or not a technologically-neutral approach is really the best approach to media law and regulation. Building on the works of notable Canadian scholars Harold Innis and Marshall McLuhan, Mac Síthigh finds that it is time to reflect and fall back on old notions of technology. The medium is still the message.
Furthermore, Mac Síthigh contends that knowledge of the nature of the technology is essential for regulation – an idea that harkens back to an Innis-like understanding of technology. Understanding the essential characteristics of each medium “is absolutely necessary,” he said.
“We need to stop thinking about future-proofing as the answer,” Mac Síthigh argued. He further contended that there is a need for a more carful understanding of the role of the medium of communication in its regulation.
What happens when you take the nuance out of media law and regulation? You get terms such as “TV-like”, which, according to Mac Síthigh, is used in the United Kingdom. He says that the intention was to fend off arguments of regulating and as such “breaking” the Internet, but has the potential to create more problems than it solves.
This specific term raises a number of questions: What activities and projects are included and excluded by the term “TV-like”? What exactly makes a TV programme, a TV programme, and not something else? Where exactly is the line drawn?
“Television itself is changing,” Mac Síthigh said. “The idea that one rule would fit all is very difficult to sustain in practice,” he said, furthering his argument that regulation should not be based on an attempt “to be technologically-neutral”.
Beyond careful consideration of language, it is also important to thoroughly consider legislative goals, which Mac Síthigh pointed out are not always easy to work out. However, if legislative goals are not clear and well thought out, the result could be different tax breaks for different methods of distribution with no clear reason for the difference, he said.
Mac Síthigh used many examples throughout his talk, which suggest that a technology-neutral approach to media law and regulation is not particularly desirable given the complexity of the constantly changing media landscape. While arguing for paying close attention to the media technologies themselves, Mac Síthigh suggested that there is the potential that policy goals can be fulfilled by tweaking IP law as well as through regulatory bodies, such as the Canadian Radio-television and Telecommunications Commission. For Mac Síthigh, which regulators have the potential to take on the burden of some of the future-looking issues that need to be addressed.
Amanda Oye is a PhD Candidate in the York & Ryerson Joint Graduate Program in Communication & Culture. Her research focuses on news media policy and practice, with an emphasis on the on-going development of public broadcasting in Canada, Great Britain, and Australia.