Lorna Woods, Professor of Internet Law, University of Essex
Photo credit: Bin im Garten, via Wikimedia
Commons
In her 2021
State of the Union address, EU Commission President von der Leyen stated:
Media
companies cannot be treated as just another business. Their independence is
essential. Europe needs a law that safeguards this independence – and the
Commission will deliver a Media Freedom Act in the next year.
The resulting Proposal
sits against a network of existing rules – notably the long-standing Audiovisual
Media Services Directive (AVMSD) and the e-Commerce Directive as well as
the recently agreed Digital Services Act (DSA) and Digital
Markets Act (DMA). It will be
accompanied by a Recommendation. The Proposal is a significant step; the
Commission is entering new regulatory terrain here. This move indicates
concerns not just about the state of the media but about public discourse more
generally, but how has the Commission sought to transfer this high level
concern into specific rules?
Outline of the Proposal
The Proposal can be said to be
divided into roughly five elements (in addition to the definitions and scope),
reflecting the fact that the concerns around media freedom have different aspects
and need a response that itself is multifaceted.
1 Media Freedoms
The first is about media freedom
(and the recommendation is relevant for this issue too as it focuses on
internal safeguards for editorial independence and ownership transparency). The
Proposal introduces rights and obligations on media service providers in
Chapter II. Specifically, it provides them the right to exercise their
“economic activities in the internal market without restrictions other than
those allowed under [EU] law” (Article 4(1)).
Article 4(2) then provides more detail. It specifies that Member States
are prohibited from:
-
interfering with editorial policies and
decisions by media service providers (Article 4(2)(a));
-
detaining, sanctioning, intercepting, subjecting
to surveillance or search and seizure or inspecting media service providers,
their employees, their families or their premises “on the ground that they
refuse to disclose information on their sources, unless this is justified by an
overriding requirement in the public interest” (Article 4(2)(b)); and
-
deploying spyware in any device or machine used
by media service providers, their employees or their families other than in
certain narrowly-defined circumstances (Article 4(2)(c)).
According to the Q&A
document, this is to “protect them from unjustified, disproportionate and
discriminatory national measures”. There
are provisions dealing specifically with “public service media providers”,
reflecting their “societal role as a public good” (Recital 14) but also their
“institutional proximity to the State, which puts them at peculiar risk of
interference (Recital 18): they are obliged to provide “in an impartial manner
a plurality of information and opinions to their audiences, in accordance with
their public service mission” (Article 5(1)), although what “plurality” means
for these purposes is not defined. It seems that public service media cannot be
self-declared as such – the definition of “public service media provider” requires
the media service either to be “entrusted with a public service mission under
national law” or receives national funding for the fulfilment of such a mission
(Art 2(3)).
There are some ownership transparency
obligations on media service providers who “provid[e] news and current affairs
content”. They must provide the provider’s name and contact details, and
details relating to certain shareholders and beneficial owners (Article 6(1)).
They must also “take measures that they deem appropriate with a view to
guaranteeing the independence of individual editorial decisions” (Article
6(2)).
The proposal also sets out the
right of the audience (“recipients of media services”) the right to “receive a
plurality of news and current affairs content, produced with respect for
editorial freedom of media service providers, to the benefit of the public
discourse” (Article 3(1)). Recital 11, however, clarifies that this right “does
not entail any correspondent obligation on any given media service provider to
adhere to standards not set out explicitly by law.”
2. VLOPS
Secondly, there are obligations
on Very Large Online Platforms (VLOPs), which are in addition to those in the
DSA. These provide additional rights to media service providers on VLOPs.
Specifically, VLOPs must provide certain mechanisms to deal with the media
(including applications of the requirements of the Platform to Business
Regulation – see Article 17 MFA, and Articles 11 P2B Regulation).
3. Media Regulation and Institutions
A third element concerns the
institutional set up of media regulation. There are provisions around
cooperation of national regulators. The Proposal expands the scope of the
existing European Regulators Group for
Audiovisual Media Services (ERGA), replacing it with the European Board for
Media Services (EBMS) which - with the European Commission - is to ensure the
consistent application of the MFA and the wider EU media law framework (perhaps
in a similar fashion to the EDPB in relation to the GDPR). Specifically, the
EBMS will
-
advise the Commission on the implementation of
the Regulation, for example, providing expertise on regulatory, technical, or
practical aspects concerning the identification of audiovisual media services
of general interest under Article 7a of the AVMSD;
-
mediate between the regulatory bodies of the
Member States;
-
assess areas of interest such as the functioning
of media markets and the potential impact of national measures; and
-
take a position if the functioning of the
internal market appears to be affected.
4. Media markets
A fourth element deals with the
market and includes requirements for Member States to put in place rules for
assessing media market concentrations (Articles 20-22). In addition for setting
rules for when concentrations must be notified, Member States should also set
out criteria for assessing the impact of a concentration on media pluralism and
editorial independence, an assessment which is distinct from that under
competition law.
5. Resources and Audience measurement
Finally, there are rules relating
to measurements of audience and to criteria for allocating resources to media
outlets. The Commission notes that ‘opaque and unfair allocation of economic
resources’ contribute not only to an uneven playing field but also to internal
market barriers. The “opacity of and biases inherent to proprietary systems of
audience measurement skew advertising revenue flows”, and the way state
advertising revenue is allocated is also problematic. The Proposal therefore
mandates transparent, non-discriminatory and objective measures and allocation
of resources.
Comment
Competence
The Proposal builds on the
Commission’s Rule of Law Report 2020 and the European
Democracy Action Plan, and seems to aim at some worthy objectives. Despite
this, the Proposal is not framed as directly protecting democracy. The Proposal frames issues as media
companies facing
“obstacles
hindering their operation and impacting investment conditions in the internal
market such as different national rules and procedures related to media freedom
and pluralism”.
This would seem to be aimed at
tackling concerns around competence and the fact that culture is typically for
Member States, not the EU. To be sure, there are often special ownership and
merger regimes for media undertakings, but these are often based on not on
economic considerations but on non-market concerns. The emphasis on the impact
that disparate rules have on media undertakings is used to justify the use of
Article 114 TFEU as the legal basis for the proposal. This re-emphasises that
this in not a specific piece of media policy, fields in which the EU has
limited competence and has no competence to harmonise (Article 167 TFEU), but
market regulation. The Commission has
pushed the extent of its harmonising powers before; while the AVMSD may have
started off dealing with restrictions on cross-border advertising, it has also
got a distinct cultural aspect (eg EU quotas). In this proposal, it is not
clear how the measures listed actually map on to addressing the internal market
problems identified in the Explanatory Memorandum. The extent to which a
harmonising measure has to deal directly with the eradication of barriers to
trade and the degree to which it may be directed at other policy issues has
been the subject of a certain amount of jurisprudence, as the examples of Titanium Dioxide case (Case 300/89),
Tobacco Advertising I (Case C-376/98),
Swedish Match (Case C-210/03) and Vodafone (Case C-58/08) illustrate,
and a cottage industry in legal commentary. On first glance, this proposal lies
quite close to the boundary. It is
noteworthy that the justification given in recital 6 – that the audience should
be able to receive cross boarder information flows – is linked to the
satisfaction of the requirement in Article
11 of the Charter on Fundamental Rights. Yet, the Charter in itself is not
a legal base for harmonising legislation. It is likely that this issue of
competence may lead to legal challenge in the measure is enacted.
Place in the Digital Regulation Landscape
There will be a question of the
interplay between this measure and others impacting on publicly available
content. The measure is to a large part aware of this and cross refers to some
of these relevant measures. It replicates some definitions from the AVMSD,
albeit slightly tweaked. For instance the definition of ‘programme’ is in its
base element the same that in the ADMSD (Art 1(b)) but excludes the reference
in the AVMSD to “including feature-length films, video clips, sports events,
situation comedies, documentaries, children's programmes and original
drama”. It is also notable that the
definition of “media service” moves the focus of the service on to the
provision of programmes or press
publications (Article 2(1), emphasis added); traditionally publications might
have been thought to be goods! The definition of audiovisual media service
remains the same as in the AVMSD. The terms “editorial decision” (Art 2(8)) and
“editorial responsibility” (art 2(9)) seem to be aimed at drawing the boundary
of these terms in the same place as the analogous terms in the AVMSD, though
the language has been revised to reflect the broader scope of the Proposal.
The Proposal also notes the
currently limited scope for the ERGA to take action; currently it is limited to
audio-visual media services only. The
development of EBMS, however, follows the approaches taken in the DSA and also
found in the EU’s approach to disinformation. Extending ERGA’s remit beyond
audiovisual media services brings into question the historic difference in
approach between broadcasting (and subsequently video on demand) and the print
media, even in their online formats. It has long been accepted that regulation
of broadcast entities is legitimate (even if different justifications might be
given for that regulation) whereas the press has typically been subject to
self-regulation. Giving ERGA (or the EBMS as it would become under the
Proposal) a role starts to challenge that settlement. It is worth reminding ourselves that the
national regulatory bodies making up ERGA must meet certain independence
requirements (and ERGA
itself emphasises the importance of independence – as well as adequate
resources!) – these independent bodies might start to have oversight over the
press (in the areas covered by the proposal).
Again, this is a sensitive topic.
Media Independence
The Proposal does contain some
important provisions that should benefit the maintenance of media independence
– though of course the inclusion of these provisions recognises the distinctive
nature of the media and the important role they play in an informed, democratic
society. There are specific provisions on editorial independence and for public
service media providers Member States will be under an obligation to ensure
they have “have adequate and stable financial resources to fulfill their public
service remit. These resources shall be such that editorial independence is
preserved.” (Article 5).
This requirement for sufficient
funding brings into law a principle long found in the Council of Europe
recommendations on this area. Indeed, EU state aid law has also long recognised
the need for State support (and the definition for public service media to a
large extent reflects the position under Article 106(2) TFEU). How this is to
be calculated or assessed however is not specified in the Proposal (the
Recitals merely noting that a multi- year funding model is desirable – see
Recital 18) and may cause tensions given the different levels of resources
available and funding models used across the various Member States. The Recitals are anxious to emphasise that
this obligation does “not affect the competence of Member States to provide for
the funding of public service media”, though it would seem that there is a
shift from the permissive regime envisaged by Protocol 29 and the mandatory
rule envisaged here. Currently Member States may provide such funding (subject
to competition law and state aid rules in particular); this Proposal suggests
that in future Member States must do so.
Moreover the Proposal introduces
obligations so that the senior management is to be appointed according to
transparent, non-discriminatory and objective procedures. They will also have
term limits and can only be dismissed if it is determined that they are no
longer fulfilling their legal duties. The rules around non-dismissal are
commonly found to ensure institutional independence in regulators but are here
extended to the media (though the Commission has noted that concerns remain
regarding the independence of some regulators - Rule
of Law Report (3.3) despite the provisions introduced by the 2018
amendments to the AVMSD).
The specific obligations in
Article 4(2) follow the lines set doewn in standard freedom of expression case
law concerning journalists – notably the protection of journalists sources, and
the importance of journalists’ communications remaining confidential, as noted
in Recital 16. In this, the prohibition of spyware in Article 4(2)(c) seems to
be a specific response to recent
scandals showing the use of these technologies.
Transparency
The lack of transparency in media
ownership has been seen as an issue specifically in relation to assessing
plurality of the media as well as for users to make assessments as to likely
bias in the information and opinions published by a media outlet, a point
recognised in Recital 19. This was an issue on which there was little action in
the individual Member States. The Commission’s Rule of Law report also noted
“The transparency of media ownership continues to present on average a medium
risk across Member States, due to a lack of effectiveness of legal provisions
and to the fact that information is provided only to public bodies, but not to
the public” (3.3). Against this background, the requirements to give
information to the public is a step forward; it might be questioned how
effective it will be, however, in the case of highly complex corporate
structures. Moreover, the transparency obligations are limited in to those
providing news and current affairs content.
This term, however, is not defined in the proposal – nor is it defined
in the AVMSD. There is a question as to
whether the rules apply only to those whose purpose is to provide news and
current affairs, or whether it includes providers whose offering includes news
and current affairs. If so, how big a proportion of the offering should news
and current affairs constitute to trigger the obligation? This of course
assumes we know what news and current affairs comprises; but does this term
encompass, for example, celebrity gossip? Broader aspects are contained in the
recommendation and are therefore not binding.
Rules on VLOPs
It is unclear what the
obligations on VLOPs add to the the obligations in the Platform
to Business Regulation (“P2B Regulation”) – which could apply to VLOPs
anyway – indeed, may apply much more broadly than to VLOPs or how the
relationship between the two measures might be managed.
VLOPs are likely to satisfy the
definition of “online intermediation service providers” within the meaning of
the P2B Regulation and therefore owe certain obligations to “business users”.
It seems also likely that media service providers using VLOPs (or other
platforms) to reach their audiences would constitute such “business users”,
though perhaps some citizen journalists might fall outside this
definition. Having said that, would
“citizen journalists” fall within the definition of media service for the
purpose of the Proposal; ‘services’ within the TFEU are limited to economic
activity – as Recital 7 to the Proposal recognises. It specifically notes that
[t]his
definition should exclude user-generated content uploaded to an online platform
unless it constitutes a professional activity normally provided for consideration
(be it of financial or of other nature).
This might adversely affect
charitable foundations and the like by contrast with influencers. Note,
however, that the recital specifically excludes ‘[c]orporate communication and
distribution of informational or promotional materials for public or private
entities”.
Article 17(3) deals with
complaints lodged by media organisations “with priority” and “without undue
delay”, yet Article 11 of P2B requires online intermediation service providers
to handle complaints “swiftly and effectively”. It is hard to see what added
benefit is from the requirement in Article 17 regarding “undue delay” adds –
indeed, it might be seen to be a lower standard than “swiftly”. The obligation
to give media entities priority does seem to suggest that their complaints be
dealt with in some sort of differentiated way.
This could be justified by the public interest in news and its
perishable nature; however, it seems less good if such claims – no matter their
merit - are automatically dealt with over other serious claims. While there
might be specified time limits for dealing with certain sorts of content
(notably terrorism), prioritising journalism leaves the victim of revenge porn,
for example, relatively unprotected. This may of course be the nature of a
legislative measure dealing with one type of content; specifying time scales
that are not comparative in nature (implicitly ‘with priority’ is whereas
‘swiftly’, for example, is not) could avoid that problem. Insofar as the Proposal envisages a separate
mechanism for media entities, there is a risk of confusion as to which
mechanisms for dispute resolution – whether those in the DSA or those envisaged
here – should be used.
There is also a concern about the
definition of media services which receive the benefit of this special
treatment as it covers what have
been termed ‘self-declared media’. This recalls the debates in the DSA’s
legislative process to create a media exemption, but which was ultimately rejected. The concern is that a wide range of actors
could self declare as media entities for the purpose of this clause – perhaps
benefitting those who spread disinformation.
VLOPs are also required to allow
their users to customise the audiovisual media offer (subject to Art 7a AVMSD)
(Article 19). It is not clear the extent to which this overlaps with Article 27
DSA, which provides for recommender system transparency, and Article 38 to
allow recommender systems not based on profiling.
Media Concentration
In the Commission’s
Rule of Law Report, it notes that the media market is at risk from high
levels of concentration. This seems to be a consequence of the dominance of
online platforms in digital advertising and the adverse impact that has had on
the financial stability of many media entities, a situation worsened during
COVID. Against this background some controls on media concentration are
required – though that then leaves the question of how the media entities are
expected to survive in an environment dominated by clickbait content especially
when the market dominance of the platforms and similar services are taken into
account. This Proposal does not include those services into account. While the
DMA provides some controls, it is not clear how the two sets of provisions will
work together and whether there would be gaps (think for example of a cross
media merger involving a platform and a content provider). Finally, these questions seem to be dealt
with at national level; rules may differ between Member States. The EBMS and
the Commission are envisaged as having advisory roles. While this may respect
divisions of competence, there are question about equality of enforcement – it
remains to be seen (in the light of the experience of the GDPR) how well the
co-operation provisions (Article 13, Article 14) work.
Resources
The final section relates to the
measuring of audiences (indirectly affecting resources) and the allocation of
State advertising – which is an important source of revenue in many places.
Recital 29 notes that state advertising can be used as a form of covert public
subsidy. Article 2(15) defines “State advertising” to mean the “placement,
publication or dissemination … of a promotional or self-promotional message,
normally in return for payment of for any other consideration, for or on behalf
or any national or regional public authority” – this includes state-owned
enterprises or other state-controlled entities.
This is a broad definition although there are limits on those subject to
the obligation. For example, there is a de minimis threshold of local
authorities with less than 1 million inhabitants. Recital 10 excludes
“emergency messages by public authorities which are necessary, for example, in
cases of natural or sanitary disasters, accidents or other sudden incidents
that can cause harm to individuals”.
Although the Proposal envisages that the reporting on advertising spend
should be monitored, it does not specify by which body.
Enforcement
One final point to note is that
the Proposal does not include a specific mechanism for enforcement; the
presumption seems to be that national mechanisms should be relied on (see eg
Article 4(3)) (and the Q&A doc notes that any claimed breaches can be
brought before national courts since the proposal – as a regulation – is
directly applicable). This may, for example, give a route to relief for those
subject to spyware – though the route to CJEU itself through the national
courts – especially when those courts form part of the regime deploying the
spyware and therefore may be unlikely to
provide adequate relief themselves - may be long. It is also unclear what
the precise role of the EBMS is in ensuring the consistent application of the
Proposal.
Conclusion
In conclusion, the Proposal marks a significant shift in the current status quo and attempts the important job of safeguarding media independence – independence which has come under increasing threat in recent years. In so doing, however, pushes at the edges of EU competence. Moreover, some of the measures proposed may prove controversial as they seek to support the media against authoritarian regimes seeking to control them, not least with some Member States. The passage of this proposal is unlikely therefore to be smooth or easy; whether it achieves its stated aims is yet another question.
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