Professor Lorna Woods, University of Essex
The European Democracy Action Plan (EDAP) (COM(2020)790 final) is part of a suite of measures all potentially affecting the online environment; indeed, it is one of the major initiatives announced in the agenda set by Commission President von der Leyen. The Digital Services Act (DSA) and Digital Markets Act (DMA) are also eagerly expected (probably just before Christmas so everyone is too distracted really to comment). As well as reflecting the shift in some of the underlying assumptions about the approach to the Internet, these measures also challenge our understanding of what we expect the EU to do and where the limits to its (legislative) competence lies.
Promoting free and fair elections and strong
supporting free and independent media; and
transparency of political advertising and
financing of European political parties;
cooperation to ensure free and fair elections;
democratic engagement beyond elections.
There is, apparently, wide recognition of the risk of interference in elections, and the use of social media in this regard is central. While the Communication recognises that some of the issues in this area may well fall within the GDPR already, it states that is will present a legislative proposal on the transparency of sponsored political content to sit alongside the rules relating to online advertising in the proposed DSA (with the aim that these rules be in place by the next EP elections). While little can be divined from one sentence, it is clear that there will be much heartache about which material falls within the rules. Note, for example, that the target of the measure will be ‘sponsored’ (is this payment for the content to be carried or might it cover financial relationships more broadly) or ‘political content’ (so presumably not limited to content that is understood as being an advert). Further, subjects of the regulation are proposed not to be limited to ‘sponsors’ but to those in production/distribution channels (including agencies and political consultancies) as well – of course – as the platforms themselves (though we do not yet know what precisely is a platform – does it include a search engine?). Interestingly, these rules do not seem intended to run just through election periods because the Communication also states that the Commission will investigate whether further/better rules would be needed during these periods. Key elements of the proposal seem to relate to putting in place transparency requirements to allow accountability, auditability, as well as tools related to information flow rather than content-based rules (for example, labelling, record-keeping, transparency of targeting and amplification criteria); the shift away from rules targeting specific types of content can be seen elsewhere too. The Communication also flags the possibility of co-regulatory codes (and supervisory authority).
Funding of European Political Parties
Funding of European political parties is governed by EU; the Commission envisages a review on the legislation (Regulation 1141/2014 on the statute and funding of European political parties) in this area.
Strengthened Cooperation to ensure free and fair elections
Elections are mainly a matter of Member State competence albeit with influence in some aspects from EU law (notable data protection). The Commission’s role in this context would be to facilitate cooperation between Member States based on the existing European cooperation network on elections. Possible activities include an online forum, joint training, pooled resources and expertise, as well as online monitoring capabilities. The Communication also suggests that these processes and their administration could fall within critical infrastructure regimes (e.g. Regulation (EU) 2019/452 establishing a framework for the screening of foreign direct investments into the Union); again, this seems part of a more expansive view of critical infrastructure.
Beyond technical security and the possibilities of e-voting, the Communication raises the issue of balanced media coverage during elections (a matter at the least outwith legislative competence), identifying the European Regulators Group for Audiovisual Media Services (ERGA) set up under the Audiovisual Media Services Directive (AVMSD) as relevant. In passing it may be noted that this is the body with the independent national supervisory authorities on it (see Article 30b AVMSD) rather than the Contact Committee. The Contact Committee may include representatives from the Member States’ governments. There is the potential for a competence question for ERGA here. Its tasks are set out in Art 30b(3) AVMSD, but while it is to provide technical expertise on ‘matters related to audiovisual media services within its competence’, it is not clear what ERGA’s competence actually is. Certainly, matters within the AVMSD would fall within remit, but balanced media coverage is not a matter covered by the directive.
The Communication also draws links with external relations in the context of elections, referring to the Council of Europe, UNESCO and the OSCE with the aim of sharing best practice.
Promoting democratic engagement
The EU has long struggled with citizen engagement – what used to be described as being part of the democratic deficit. Much of what the Communication proposes here has links to matters covered by the 2020 Citizenship Report and its Rule of Law Report as well as the 2020-2025 Gender Equality Strategy (COM(2020)152); the EU Youth Strategy (2019-2027); the EU anti-racism action plan 2020-2025 (COM(2020)565). As such, this Communication seems to function as a basket into which a range of pre-existing strategies can be put, a theme which is seen elsewhere in the Communication too.
More concretely, the Communication puts forward proposals with regard to tackling online hate speech, dealt with on a voluntary basis through the Code of Conduct on Tackling Illegal Hate Speech. The list of EU crimes (Article 83(1) TFEU) will be extended to include hate crime and hate speech (though it is not clear from this which characteristics might be protected – would the intention be to cross refer to those listed in Article 21 EU Charter on Fundamental Rights, as in the AVMSD?). Of course, this to some extent may become superfluous in the light of the DSA which, one might hope, would at least have hate speech within scope.
The Communication identifies two main aspects to media freedom and pluralism:
the online and physical safety of journalists,
as well as protection from abusive litigation (anti-SLAPP);
- the impact of the role of platforms as digital gatekeepers (and absorbers of advertising revenue).
Safety of Journalists
Impunity for threats against journalists has long been a problem and has been the subject of much debate for at least a decade. The Commission proposes to add to the dialogue through the European News Media Forum that it will establish, together with proposing a recommendation on the safety of journalists (to add to the various recommendations and declarations put forward by a phalanx of international human rights bodies). Of course, the EU is limited in terms of what it can do in terms of law internally in this field; externally, it proposes monitoring and public diplomacy. The provision of funding to support journalists (e.g. for legal aid and shelters for those in need) seems more likely to have concrete effects.
Anti-SLAPP and Professional Standards
Strategic lawsuits against public participation (SLAPPS) are noted as being a technique to harass journalists and others working in the public interest; this forms part of an increasingly hostile environment. SLAPPS take place within the Member States’ own national legal systems, though the Communication notes that they may have cross border effects, with risk of forum shoppping and increased complexity for a defendant (the impact of such actions and the countervailing interest in providing individuals with protection for their legitimate personality rights has not been fully considered in the context of the free movement of services and whether any such rules constitute a restriction). Some of this relates to areas where there is existing EU law: the Communication notes the evaluation of Rome II and Brussels Ia Regulations. A new initiative is planned in preparation for which the Commission is carrying out a mapping study. The Commission will set up an expert group on SLAPPs.
The Commission aims to promote stronger cooperation between media self-regulation bodies (presumably this is aimed at the press or the journalists themselves as television broadcasting and the like is regulated by virtue of the AVMSD).
The Communication notes the 2018 revision of the AVMSD requires transparency of media ownership. Note that while Art 5(1) revised AVMSD requires the provision of a service providers name, contact details and the Member State under the jurisdiction of which it operates (similar to requirements in the e-Commerce Directive as regards information service providers), the requirement on Member States to oblige media service providers to give further information regarding their beneficial owners and ownership structure is optional. This is a potentially significant gap and may disappoint some groups who have campaigned for more transparency in this regard.
In terms of ownership, there is a plan to analyse national rules on media diversity and media concentration, against a backdrop of the role of online platforms. There is no intention to legislate at Union level (the attempt to do so from the 1990’s sinking on the rock of EU competence); instead, the aim is to coordinate within a range of existing tools: competition law, freedom of establishment and the revised AVMSD (which contains more provisions expressly permitting Member States to take action on certain issues, for example the prominence of public service content). The Communication does not consider whether media services (or some of them) should be considered from the perspective of national security and the protection of critical national infrastructure. The Communication notes the need for (financial) support on the part of the Member States, but also underlines the fact that this would have to comply with the State Aid rules. There have been many decisions on such support – to the press as well as to public service broadcasters – but the Council has invited the Commission to consider these rules in relation to the press sector (whatever is comprised under that heading). Nonetheless, this still leaves a potential weakness in that the deployment of support seems to be a matter of individual Member State choice.
The Communication also highlights the importance in some Member States of state advertising (and this importance has been noted elsewhere, its withdrawal being seen as an interference with media speech by some international human rights bodies). EDAP suggests that transparent rules and fair criteria for the allocation of such advertising could mitigate the risks in this area; it also draws attention to the public procurement strategy. To a certain extent this maps on to issues dealt with by the Media and Audiovisual Action Plan (launched the same day as EDAP), key themes of which are about supporting the media and by tackling the segmentation of the European market. Comprising three main strands of activity (Recover, Transform and Empower), the Media and Audiovisual Action Plan contains no immediate or specific legislative proposals, a section deals with looking at the implementation of the revised AVMSD.
Often documents talking about disinformation start by distinguishing between disinformation and misinformation and stating that we should not really use the term ‘fake news’. The Communication spares us the latter point and, drawing on work from the Carnegie Endowment for International Peace, adds to the classification so it now comprises four elements:
information influence operation
foreign interference in the information space.
These may each require different treatment (though the boundaries between the categories may not be easy in practice to draw or maintain) and the possibility of introducing oversight may give rise to concerns in some quarters in relation to freedom of expression. Whether such a concern is justified is another question. The proposals seem to draw on existing initiatives in this field but emphasise certain factors in the online environment which give rise to or exacerbate problems: manipulative amplification of harmful content; the economic incentives for spreading disinformation; and the lack of costs for foreign actors seeking to engage in influence operations. These activities are stated not to “interfere with people’s right to express opinions or to restrict access to legal content” [p 19]. This may link to the distinction between have the ability to air certain views and the way that content is promoted/how easy it is to find. The Communication also notes the importance of fact-checking.
The actions in this section fall
into three categories:
obligations and accountability in re platforms;
One new proposal is that of seeking to impose costs on perpetrators. In the response to its consultation on the Communication, the Commission noted that civil society organisations stressed the need to make the threat of targeted sanctions more credible and frequent, to raise the cost of foreign influence operations and thereby deter interference. The mechanisms to do this need further development and also need to synergise with the ‘cyber diplomacy toolbox’ from 2017. The Communication also recognises the need to tackle threats through tackling them in third countries, suggesting that democratic governments should be equipped with the means to respond to such threats, especially in the European Neighbourhood and Enlargement region.
Increasingly policy-makers are recognising that the platforms are not neutral as to the content they encourage and promote; the recent assessment of the Code of Practice on Disinformation re-iterated this point (see also views of ERGA). The Commission now proposes a co-regulatory oversight mechanism, forming part of the DSA; this linkage significantly reinforces the importance ascribed to this issue. The DSA is described as requiring a risk managed approach to their systems (and if this is so, it seems to be following a similar approach to that proposed by Carnegie UK Trust [disclaimer: I co-authored the report] which seems to have influenced the UK Government’s Online Harms White Paper which talks about ‘safety by design’). In the meantime, the Commission will issue guidance on tackling misinformation with the aim of strengthening the code; the Commission also envisages more robust and on-going monitoring of the code. The Commission also emphasised the importance of the EDPB guidance on the application of the GDPR in this context.
This is essentially about strengthening media literacy through a number of mechanisms, including civil society and higher education establishments and it ties with a number of media initiatives. Intuitively, this sounds right but may be more difficult to achieve in practice and media literacy initiatives’ success may depend to some extent on changing to the business systems that at the moment seem to promote misinformation and disinformation and trigger ‘frictionless communication’.
The plan is broad and it will be
interesting to see the speed at which these new initiatives are rolled out and
more detail added to them (e.g. imposing costs on perpetrators). Much of the
work is not of a legislative nature but rather about ensuring co-operation and
making effective initiatives that already exist. While desirable in its own right, this fact
also reminds us that we are in terrain where the EU’s competence is limited,
certainly as far as legislative capacity goes. It is also noteworthy that much of EDAP refers
to other strategies and action plans. A cynic might say then what, in concrete
terms is new; but another perspective notes that the issue of disinformation
and misinformation is complex and touches on many areas. In this light, the
EDAP is a mechanism pulling these disparate strands and actors together. It
remains to be seen this impact that increased cooperation will have on the
problems in this area.
Photo credit: via Wikimedia
commons, by Skeptical