Dr Rachael Craufurd Smith is a Senior Lecturer at the University of Edinburgh, specialising in media, the regulation of culture and European Union law. In 2003/4 she was a Jean Monnet Fellow at the European University Institute, Florence. She is a qualified solicitor and has worked both in the International and Policy and Planning Departments of the BBC, focussing on the impact of European Community Law on the public broadcasting sector. Rachael also worked as a trainee in the Internal Market DG of the European Commission and was a Fellow for a number of years at Trinity, Corpus Christi and St. John's Colleges and a University Lecturer at the University of Oxford.
She has written widely on media law and currently heads the University of Edinburgh team working on the EU funded Mediadem project, which seeks to promote free and independent media. Rachael was a co-founding editor of The Journal of Media Law, launched by Hart Publishing in 2009.
Advertising Commercial Speech and the Law (Honours) (Course Organiser)
European Union Regulation of Culture and the Mass Media (Honours) (Course Organiser)
Media Law (Honours) (Course Organiser)
Tobias Bednarz 'Collective Management of Copyright in Music for Online Uses: The Implications of the Cultural Functions of Collecting Societies for a Multi-territorial Licensing Model'
Humberto Carrasco 'Regulation as a mechanism to encourage competition in the area of telecommunications in Chile '
Nazli Ismail Nawang 'Weblog (Blog) and Freedom of Expression: A Case Study in Malaysia'
Wenlong Li 'Big data and data protection: A comparative perspective'
You-Hung Lin 'The Constitutionality and Legality of Forced Access of Telecommunications Networks; A Comparative Study of the EU and Taiwan'
Books and Reports
Rachael Craufurd-Smith, Yolande Stolte, The Transparency of Media Ownership in the European Union and Neighbouring States: Report on a Project by Access Info Europe and the Open Society Program on Independent Journalism, (Open Society Foundation, 2014)
Abstract: This report is based on a survey of media ownership transparency rules in 20 European Union (EU) and neighbouring states commissioned by the Open Society Media Program in 2011 and carried out by Access Info Europe in 2012. The survey has been designed to inform current debates about the roles of states and regional and international organizations in supporting freedom of expression and media pluralism. The countries represented in the survey are: Austria, Azerbaijan, Bulgaria, Croatia, Cyprus, Georgia, Germany, Iceland, Italy, Latvia, Luxembourg, Macedonia, Morocco, the Netherlands, Norway, Romania, Spain, Switzerland, Turkey, and the UK. They thus include 12 EU Member States, three candidates for membership, three European Free Trade Area states, and three members of the European Neighbourhood Policy.
Rachael Craufurd-Smith, Eric Barendt, Lesley Hitchens, Jason Bosland, Media Law: Text, Cases and Materials, (Pearson, 2013)
Evangelia Psychogiopoulou, Rachael Craufurd-Smith, Yolande Stolte, Anna Kandyla, Final Report: Project Output and Areas for Future Research, (Mediadem, 2013)
Rachael Craufurd-Smith, Yolande Stolte, Policy Suggestions for Free and Independent Media in the United Kingdom, (Mediadem, 2012)
Rachael Craufurd-Smith, Dia Anagnostou, Evangelia Psychogiopoulou, The Formation and Implementation of National Media Policies in Europe and Their Relationship to Democratic Society and Media Freedom and Independence: A Theoretical and Analytical Frame for the MEDIADEM Project, (Mediadem, 2010)
Rachael Craufurd-Smith, Yolande Stolte, The European Union and Media Ownership Transparency: The Scope for Regulatory Intervention, (Open Society Foundation, 2010)
Abstract: The challenge in relation to a media transparency proposal is to establish a convincing legal and factual basis for European intervention. As an initial contribution to this debate, the present report considers, firstly, the existing regulatory framework at both the Council of Europe and the EU levels and, secondly, whether the EU has competence to propose a measure in this field. The report identifies two main legislative bases for action: the Internal Market and Citizenship. In relation to both of these heads it will be necessary to establish that action is required at the EU, as opposed to Member State, level. In relation to the Internal Market head, it will be necessary to show that there are concrete barriers to the realisation of the Internal Market, which legislation of this type would address. The authors also consider the role that the Agency for Fundamental Rights could play in collating information and stimulating debate on media transparency. They conclude by making several recommendations for further research and possible courses of action that may help to put this issue on the political agenda and, ultimately, lead to an improvement in media transparency across Europe.
Rachael Craufurd-Smith, Culture and European Union Law, (Oxford University Press, 2004)
Abstract: This book explores the relationship between European Union law, culture, and identity. Community trade and competition rules have certainly affected many mundane, though highly formative, aspects of our day-to-day lives: when we shop, what we drink, even which football matches we watch on television. But Community law is not merely a vehicle for challenging established national rules which have a cultural dimension: Article 151 of the EC Treaty, which came into force in 1993, empowers the Community to 'contribute to the flowering of the cultures of the Member States', whilst at the same time bringing the 'common cultural heritage to the fore'. This book explores some of the challenges facing the European Union in developing convincing and coherent policies in the cultural domain. These challenges stem not only from the Union's fragmented institutional structure and Member State sensitivities but also from the uncertainty which surrounds the very meaning of the term 'culture' itself. The wide-ranging contributions illustrate how cultural issues can be seen to permeate all aspects of European Union law, by focussing on areas as diverse as international trade and aid, education, sport, language use, and the mass media.
Rachael Craufurd-Smith, Broadcasting Law and Fundamental Rights, (Oxford University Press, 1997)
Abstract: Considers the role that constitutional guarantees of free speech can play in shaping media regulation, with particular reference to the UK, Italy and France.
Gillian Black, Rachael Craufurd-Smith, Smita Kheria, Gerard Porter, 'Scotland the Brand – Marketing the Myth? ', (2015), Scottish Affairs, Vol 24, pp 47-77
Abstract: The paper considers the role of Scottish culture and history, real or imagined, in the commercialisation of iconic Scottish creations such as tartan and Scotch whisky. It notes that many of the forms of legal protection available to the producers of such products were developed to encourage individual innovation, not designed to address communal interests in the preservation of national or group identities and heritage. This may be one reason why, as is illustrated by the case of tartan, these rights offer patchy and incomplete protection to ‘authentic’ Scottish products. Over time, however, the UK has developed various forms of collective protection for cultural products such as Harris Tweed, the effectiveness of which is explored in this article. The final part of the paper considers the importance, in a globalising world, of European Union and international protection for valuable cultural ‘products’. But protection, whether at the national or international level, necessitates a difficult balance to be drawn between the interest in cultural innovation and development, on the one hand, and cultural preservation and the protection of the commercial interests of specific communities, on the other. The article concludes by exploring some of the practical and conceptual challenges associated with determining whether a product should be considered part of the cultural patrimony of the world or, rather, the property of a specific nation or cultural group.
Rachael Craufurd-Smith, Damian Tambini, 'Measuring Media Plurality in the United Kingdom: Policy Choices and Regulatory Challenges', (2012), Journal of Media Law, Vol 4, pp 35-63
Abstract: This article considers the rationales for, and techniques used to promote, media pluralism. It examines why structural regulation is so controversial, with specific reference to the uncertainties surrounding cause and effect in the media field and the technical and economic complexity of media markets.The paper then considers how UK strategy on media ownership controls has evolved over the last thirty years, increasingly reliant on the 'media plurality' test incorporated in the Enterprise Act 2002. It suggests that a radical re-appraisal of the test is necessary in light of the perceived risk of political intervention and the length and uncertainty surrounding the two investigations that have taken place to date. The paper examines the innovative ?share of reference? test developed by Ofcom in the News Corporation/BSkyB takeover bid and contrasts it with techniques employed in the United States and a number of European countries. It suggests that, of the various forms of measurement that can be employed in this context, consumer exposure appears best able to address converging media markets and provide, an admittedly indirect, indication of media influence. It similarly suggests that fixed ownership limits, though currently out of fashion, provide a relatively clear and effective form of control, reducing potential concerns over agency capture and political influence. It concludes by identifying certain areas where further coordinated research is desirable and notes the potential role that can be played by the European Union in this context.
Rachael Craufurd-Smith, 'Az audiovizuális médiaszolgáltatásokra vonatkozó szabályozói hatáskör meghatározása az Európai Unióban ', (2012), In Medias Res, Vol 1, pp 15-36
Abstract: Explores the operation of the jurisdictional rules in the Audiovisual Media Services Directive and in particular the 'evasion' principle in article 4. A translation into Hungarian of the 2011/3 Journal of Media Law article: 'Determining Regulatory Competence for Audiovisual media Services in the European Union'.
Rachael Craufurd-Smith, 'Determining Regulatory Competence for Audiovisual Media Services in the European Union ', (2011), Journal of Media Law, Vol 3, pp 263-85
Rachael Craufurd-Smith, 'TV Rights and Sport: Legal Aspects', (2010), Journal of Media Law, Vol 2, pp 147-152
Abstract: Review of Ian Blackshaw, Steve Cornelius and Robert Siekmann (eds), TV Rights and Sport: Legal Aspects (TMC Asser Press, 2009) 650pp, Hbk £90, ISBN 978-9067042819
Rachael Craufurd-Smith, 'Reflections on the Icelandic Modern Media Initiative: A Template for Modern Media Law Reform?', (2010), Journal of Media Law, Vol 2, pp 199-211
Abstract: This note explains the origins of the Icelandic Modern Media Initiative ('IMMI') and the various legal initiatives Iceland will be undertaking to give it effect. It distinguishes the IMMI from earlier programmes of media law reform, such as that carried out in Luxembourg in 2004, focusing on the IMMI's broad reach to encompass new and user-generated as well as more mainstream media. The note concludes by considering some of the challenges that countries face when seeking to establish a 'safe haven' for the media in today's networked world and what influence the IMMI is likely to have on projects of law reform in other countries.
Rachael Craufurd-Smith, Christopher Marsden, 'Net Neutrality: Towards a Co-Regulatory Solution', (2010), Journal of Media Law, Vol 2, pp 321-25
Rachael Craufurd-Smith, 'Digital Media Law ', (2010), Journal of Media Law, Vol 2, pp 326-28
Rachael Craufurd-Smith, 'Media Ownership and the Public Interest: The Case of Virgin Media, British Sky Broadcasting and its ITV Shares', (2009), Journal of Media Law, Vol 1, pp 21-36
Abstract: The Communications Act 2003 removed many of the existing UK restrictions on media ownership but also added new media public interest considerations to the Enterprise Act 2002. These enable the Secretary of State to request that the Competition Commission consider the potential impact of a relevant merger on media pluralism and diversity. Acting on the advice given by the Competition Commission, the Secretary of State then decides whether the merger is contrary to the public interest and the terms on which, if at all, it should be allowed to proceed. This article considers the first UK merger to trigger the application of the media public interest provisions: the purchase by BSkyB of 696 million shares in ITV in November 2006. It examines the various interpretations given to the media public interest considerations by OFCOM, the Competition Commission and the Competition Appeal Tribunal in that case and questions whether the Secretary of State is ultimately the right person to decide these issues.
Rachael Craufurd-Smith, 'Balancing Culture and Competition: State Support for Film and TV Sectors in European Community Law', (2008), Cambridge Yearbook of European Legal Studies, Vol 10, pp 35-67
Rachael Craufurd-Smith, 'Review of Hitchens, Broadcasting Pluralism and Diversity ', (2008), Public Law, Vol Summer, pp 404-06
Rachael Craufurd-Smith, 'Media Convergence and the Regulation of Audiovisual Content: Is the European Community’s Audiovisual Media Services Directive Fit for Purpose?', (2007), Current Legal Problems, pp 238-77
Rachael Craufurd-Smith, 'The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions: Building a New World Information and Communication Order?', (2007), International Journal of Communication, Vol 1, pp 24-55
Abstract: The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions was adopted in October 2005. This article explores the Convention’s objectives and the contribution that the Convention is likely to make to their realisation in the future. In its final form the Convention is considerably less ambitious than many of its promoters had wished: key provisions are expressed in aspirational terms, the Convention’s dispute resolution procedures are consensual and the Convention explicitly states that it does not modify the rights or obligations of its Parties under pre-existing international agreements. The extensive support that the Convention received from the international community at the time of its adoption, with one hundred and forty eight countries voting in its favour, nevertheless affords it considerable political weight. The Convention may consequently play a role in the interpretation of existing international agreements, including the WTO agreements, and in negotiations over their future development. The article also suggests that there may be more scope than is initially apparent for the Convention to be used as a basis for evaluating state measures, not only in relation to international trade, but also regarding the domestic treatment of cultural minorities. For such review to become meaningful, however, active support will be necessary not only from civil society organisations, which played a key role in the Convention’s initial development, but also from contracting states and the various Convention organs.
Rachael Craufurd-Smith, 'From Heritage Conservation to European Identity: Article 151 EC and the Multi-faceted Nature of Community Cultural Policy', (2007), European Law Review, Vol 1, pp 48-69
Abstract: This article considers Community action in the cultural field and the growing emphasis on cultural policy as a tool to promote European citizenship and European integration.
Rachael Craufurd-Smith, 'Bridging the Linear/Non-Linear Divide: The European Commission’s Proposal for an Audiovisual Media Services Directive', (2006), European Current Law, pp xi-xv
Abstract: Focus article.
Rachael Craufurd-Smith, 'Political Symbolism and European Integration ', (2006), Common Market Law Review, Vol 43, pp 1757-1759
Abstract: Political Symbolism and European Integration, by Tobias Theiler, is reviewed.
Rachael Craufurd-Smith, 'Review of ‘The European Union and the Regulation of Media Markets’ by Alison Harcourt ', (2005), European Law Review, Vol 30, pp 905-10
Rachael Craufurd-Smith, 'Public Service Broadcasting in the European Union: No Longer Simply a Matter of Domestic Concern', (2005), Hong Kong Media Digest
Rachael Craufurd-Smith, 'Rethinking European Union Competence in the Field of Media Ownership: The Internal Market, Fundamental Rights and European Citizenship', (2004), European Law Review, Vol 29, pp 652-73
Rachael Craufurd-Smith, 'Note dall'Europa - L'Unione Europea e la Liberta di Informazione: Il Caso dei Media in Italia', (2004), Quaderni Costituzionali, Vol 24, pp 632-34
Rachael Craufurd-Smith, 'Rethinking Community Competence in the Field of Media Ownership ', (2003), EUI Review, Vol Winter, pp 22-23
Rachael Craufurd-Smith, 'European Community Audiovisual Policy and Review of the Television Without Frontiers Directive ', (2003), European Current Law, pp xi-xvi
Rachael Craufurd-Smith, Bianca Boettcher, 'Football and Fundamental Rights: Regulating Access to Major Sporting Events on Television', (2002), European Public Law, Vol 8, pp 107-33
Abstract: An evaluation of European Community and UK listed event legislation
Rachael Craufurd-Smith, 'State Support for Public Service Broadcasting: The Position Under European Community Law', (2001), Legal Issues of Economic Integration, Vol 28, pp 3-22
Abstract: Considers the impact of Community state aid rules on the funding of public service broadcasting in Member States
Rachael Craufurd-Smith, 'The Establishment of Companies in European Community Law: Choice of Law or Abuse of Rights? ', (1999), European Current Law
Rachael Craufurd-Smith, 'Sex and Violence in the Internal Market: The Impact of European Community Law on Television Programme Standards', (1998), Contemporary Issues in Law, Vol 3, pp 135-53
Abstract: Considers the impact of the child protection provisions in the EU Television Without Frontiers Directive on the broadcasting regimes of EU Member States.
Rachael Craufurd-Smith, 'Getting the Measure of Public Services: Community Competition Rules and Public Service Broadcasting', (1997), Yearbook of Media and Entertainment Law, Vol 3, pp 147-75
Abstract: Considers the impact of European Community Law on the regulation of public service broadcasting in the Member States, with special reference to competition law.
Rachael Craufurd-Smith, 'Pluralism and Freedom of Expression: Constitutional Imperatives for a New Broadcast Order', (1996), Yearbook of Media and Entertainment Law, Vol 2, pp 21-44
Rachael Craufurd-Smith, 'Do Human Rights Require Private Broadcasting?: The Case of Informationsverein Lentia and Others v Austria', (1995), Maastricht Journal of European and Comparative Law, pp 63
Abstract: Assesses the impact of Article 10(1)(3) of the ECHR on domestic broadcasting systems. The article also considers the continuing legitimacy of public broadcasting monopolies in the light of the European Court of Human Rights case law.
Rachael Craufurd-Smith, 'Bright Line Versus Responsive Regulation Some Thoughts from the United Kingdom’' in Miklos Sukosd, Robert Picard, Peggy Valcke (ed.) Media Pluralism and Diversity (Palgrave Macmillan 2015) 310-324
Rachael Craufurd-Smith, 'The Cultural Logic of Economic Integration ' in Evangelia Psychogiopoulou (ed.) Cultural Governance and the European Union (Palgrave Macmillan 2015) 7-24
Rachael Craufurd-Smith, 'Article 167 and the European Union’s Competence in the Cultural Field At the Service of a European Cultural Identity or to Promote National Cultural Policies?' in Céline Romainville (ed.) European Law and Cultural Policies (Peter Lang 2015) 59-82
Rachael Craufurd-Smith, 'EU Media Law Cultural Policy or Business as Usual?' in Valentina Vadi, Bruno de Witte (ed.) Culture and International Economic Law (Routledge 2015) 208-228
Rachael Craufurd-Smith, 'Article 22 Cultural, Religious and Linguistic Diversity' in Steve Peers, Tamara Hervey, Jeff Kenner, Angela Ward (ed.) The EU Charter of Fundamental Rights (Hart Publishing 2014) 605-31
Rachael Craufurd-Smith, Yolande Stolte, 'Protecting the Public Interest in a Free Press The Role of Courts and Regulators in the United Kingdom' in Evangelia Psychogiopoulou (ed.) Media Policies Revisited (Palgrave Macmillan 2014) 129-46
Rachael Craufurd-Smith, Yolande Stolte, 'Media Policy in the United Kingdom Trust and Distrust in a Converging Media Environment' in Evangelia Psychogiopoulou (ed.) Understanding Media Policies (Palgrave Macmillan 2012) 230-46
Rachael Craufurd-Smith, 'The Evolution of Cultural Policy in the European Union ' in Paul Craig, Gráinne de Búrca (ed.) The Evolution of EU Law (Oxford University Press 2011) 869-894
Abstract: Examines EU engagement with culture and the culture industries. The paper considers both the relevance of EU internal market and competition law for the field and the development of a distinct EU policy focusing on cultural diversity and cultural exchange.
Rachael Craufurd-Smith, Yolande Stolte, 'The Case of the UK ' in Mediadem Consortium (ed.) Background Information Report (Mediadem 2010) 446-92
Rachael Craufurd-Smith, 'Media Convergence and the Regulation of Audiovisual Content Is the Audiovisual Media Services Directive Fit For Purpose?' in Thomas Gibbons (ed.) Free Speech in the New Media (Ashgate Publishing 2009) 489-528
Rachael Craufurd-Smith, 'Entries for The New Oxford Companion to Law ' in Peter Cane, Joanne Conaghan (ed.) The New Oxford Companion to Law (Oxford University Press 2008)
Rachael Craufurd-Smith, 'European Broadcasting Regulation ' in Peter Cane, Joanne Conaghan (ed.) The New Oxford Companion to Law (Oxford University Press 2008) 411-413
Rachael Craufurd-Smith, 'European Community Media Regulation in a Converging Environment ' in Niamh Nic Shuibhne (ed.) Regulating the Internal Market (Edward Elgar Publishing 2006) 105-43
Rachael Craufurd-Smith, 'Preserving and Promoting Media Pluralism and Diversity in Europe The Role of the European Union' in E. Brogi, V. Vodinelic, S. Gajin (ed.) Developing a Harmonized Information and Communication Law in Europe (Centre for Advanced Legal Studies Belgrade 2005) 89-116
Rachael Craufurd-Smith, 'Article 151 EC and European Identity ' in Rachael Craufurd-Smith (ed.) Culture and European Union Law (Oxford University Press 2004) 277-97
Abstract: Due to the way Article 151 of the EC Treaty attempts to deal with the heritage and cultural history that is shared by European people because of their European significance, the underlying principles for this Article involve cultivating support for the European Union and strengthening the identification of Europe as a cultural and geographical area. The Council believes that the mutual knowledge of various European cultures and how such cultures give much importance to diversity, democracy, freedom, and solidarity, plays no small part in fostering European integration. Community activity in terms of cultural affairs will experience significant effects if Article 151 is indeed focused on advocating measures of European integration. While the European Union already possesses its own judicial system and political institutions and is expanding its concerns to defence and policing, this chapter examines whether a European identity should be established for the further development of the European Union.
Rachael Craufurd-Smith, 'Community Intervention in the Cultural Field Continuity or Change?' in Rachael Craufurd-Smith (ed.) Culture and European Union Law (Oxford University Press 2004) 19-78
Abstract: The original draft of the European Economic Treaty in 1957 presented only two Articles regarding the possibility of incorporating cultural affairs into matters of Community competence — Article 131 EEC, which promotes how ‘cultural development’ may be achieved through Community association with various third countries, and Article 36 EEC, which attempts to protect a wide variety of ‘national treasures’ through imposing restrictions on both exports and imports. Only after thirty-five years was the European Union able to include the development of Member States' cultures in the Community's activities. This led to the addition of Article 151, which is specifically concerned with culture and heritage conservation. This chapter studies how Community institutions dealt with cultural policy issues before the establishment of Article 151. Also, it looks into the reasons for adopting this Article and how this aids in making future cultural policy.
Rachael Craufurd-Smith, 'Introduction ' in Rachael Craufurd-Smith (ed.) Culture and European Union Law (Oxford University Press 2004) 1-16
Abstract: The various books on the competition and trade laws in the European Community rarely start out by introducing the need to study the law and culture of the European Union. Since November 1993, Title XII of the European Community Treaty has started looking into matters of culture. Because culture is recognized as a subject of trade, possesses a commercial value, and enables the sales of various services and goods, the rules set by the European Economic Community (EEC Treaty) — particularly those on competition, custom duties, and movement — have proven to have some effect on the cultural sphere. Through exploring the interaction between the culture and law of the European Union, this book aims to examine how and why culture is integrated within European Union law. Also, we identify the economic, social, and political aspects of the development of EU cultural policy.
Rachael Craufurd-Smith, 'Remedies for Breaches of EC Law in National Courts Legal Variation and Selection' in Paul Craig, Grainne de Burca (ed.) The Evolution of EU Law (Oxford University Press 1999) 287-320
Abstract: Considers the gradual evolution of remedies for breach of EC law by the ECJ and the impact of Community law on domestic remedial rules
Rachael Craufurd-Smith, 'Old Wine in New Bottles?: From the ‘Country of Origin Principle’ to ‘Freedom to Provide Services’ in the European Community Directive on Services' 2007
Abstract: This article considers the fate of the ‘country of origin principle’ in the Commission’s 2004 proposal for a services directive. It argues that although all references to this principle were removed from the final version of the Services Directive, it lives on under a new name ‘freedom to provide services’. The European Parliament was ultimately not prepared to amend this aspect of the Commission’s proposal in the radical way that Evelyne Gebhardt, rapporteur for the Committee on the Internal Market and Consumer Protection, advocated. Instead, the concerns voiced by the European Parliament over the deregulatory forces potentially unleashed by operation of the country of origin principle were addressed through the wholesale exclusion of a range of sectors and activities from the scope of the Directive. Questions regarding the legality of the particular form of negative integration created by the Services Directive remain: in particular, the suitability of Article 47.2 EC as a legal base for the Directive and the compatibility of the ‘freedom to provide services’ principle with Articles 12 and 50.2 of the EC Treaty.