EU Media Freedom Act: the convolutions of the new legislation

 

Samira Asmaa Allioui, research and tutorial fellow at the Centre d'études internationales et européennes de l'Université de Strasbourg

 

Photo credit: Bin im Garten, via Wikimedia Commons

 

Journalists are under pressure in different ways. Throughout the last few years, media freedom and especially media pluralism are in peril.

On December 15, 2023, the European Council and the European Parliament struck a deal on rules to safeguard media freedom, media pluralism and editorial independence in the European Union. The EU Media Freedom Act (EMFA) promised increased transparency about media ownership and safeguards against government surveillance and the use of spyware against journalists. The agreement comes after numerous revisions of the Audiovisual Media Services Directive (AMSD) and new regulations such as the Digital Market Act (DMA) and Digital Services Act (DSA). As a reminder, the EMFA builds on the DSA.

The aim of this contribution is to present an overview of the EMFA and specifically to analyse to what extent its rules still contribute to the limitation of freedom of speech, the erosion of trust, the breach of democratic processes, disinformation, and legal uncertainty.

The EMFA requires EU countries to respect editorial freedom, no spyware, no political interference, stable funding for public media, protection of online media and transparent state advertising.  It established a European watchdog: a new independent European Board for Media Services to fight interference from inside and outside the EU.

Nevertheless, this new EU legislation tries to set boundaries for the journalists’ actions through Article 18 EMFA on the protection of media content on very large online platforms (VLOPs), and the potential detrimental effects of introducing something akin to a media exemption. But the most significant ambiguity is addressed by Article 2 of the EMFA on the definition of ‘media service’ which appears to be the problem everyone acknowledges. This raises the question of who the EMFA is protecting. Are democracy and the possibility for people to get impartial and unbiased information really strengthened? Not forgetting that for the European Parliament elections, there is a potential danger of political interference by extra-European countries that will try to take advantage of democratic elections to influence the media illegally, by creating fake social media accounts and by launching a massive propaganda campaign to disseminate conflict-ridden content.

 

THE ACCURACY OF INFORMATION

The EMFA focuses on two main points regarding VLOPs. First, it asserts that platforms limit users’ access to reliable content when they apply their terms and conditions to media companies that practice editorial responsibility and create news conforming with journalistic standards. First, the Regulation takes aim at VLOPs’ gatekeeping power over access to media content. To do so, the EMFA aims to remould the relationship between media and platforms. Media service providers that exercise editorial responsibility for their content have a primary role in the dissemination of information and in the exercise of freedom of information online. In exercising this editorial responsibility, they are expected to intervene diligently and provide reliable information that complies with fundamental rights, in accordance with the regulatory or self-regulatory requirements to which they are subject in the Member States.

Secondly, it asserts that the quality of the media may fight against disinformation. To consider this problem, the EMFA’s objective is to adjust the connection between platforms and media. According to Article 2 EMFA, ‘media service’ means ‘a service as defined by Articles 56 and 57 [TFEU], where the principal purpose of the service or a dissociable section thereof consists in providing programmes or press publications, to the general public, under the editorial responsibility of a media service provider, by any means, in order to inform, entertain or educate’  A ‘media service’ has some protections under the Act.  According to Joan Barrata, the media definition under EMFA is an overly “limited” definition, which is not “aligned” with international and European human rights standards, and “discriminatory”, as it excludes “certain forms of media and journalistic activity”. The DSA classifies platforms or search engines that have more than 45 million users per month in the EU as VLOPs or Very Large Online Search Engines (VLOSEs). As an illustration, according to Article 18 EMFA, media service providers will be afforded special transparency and contestation rights on platforms. In addition to that, according to Article 19 EMFA, media service providers will have the opportunity to engage in a constructed dialogue with platforms on concepts such as disinformation. Under the agreement, VLOPs will have to inform media service providers that they plan to remove or restrict their content and give them 24 hours to answer (except in the event of a crisis as defined in the DSA).

Article 18 of the EMFA enforces a 24-hour content moderation exemption for media, effectively making platforms host content by force. By making platforms host content by force, this rule prevents large online platforms from deleting media content that violates community guidelines. Nevertheless, not only it could threaten marginalised groups, but it could also undermine equality of speech and fuel disinformation. This is a vicious circle between the speaker planting false information on social media, the media platform spreading the false speech thanks to amplifying algorithms or human-simulating bots, and the recipients who view the claims and spread them.

According to the EMFA provides that, before signing up to a social media platform, platforms must create a “special/privileged communication channel” to consider content restrictions with “media service providers”, defined as “a natural or legal person whose professional activity is to provide a media service and who has editorial responsibility for the choice of the content of the media service and determines the manner in which it is organised “. In other words, instead of being forced to host any content, online platforms should provide special privileged treatment to certain media outlets.

However, not only does this strategy impede platforms’ autonomy in enforcing their terms of use (nudity, disinformation, self-harm) but it also imperils the protection of marginalised groups who are frequently the main targets of disinformation and hate speech. Politics remains fertile ground for hate speech as well as disinformation. Online platforms and social media have played a key role in amplifying the spread of hate speech and disinformation. As proof, recent reports reveal the widespread abuse of these platforms by political parties and governments. Indeed, it turns out that more than 80 countries around the world have engaged in political disinformation campaigns.

This could also permit misleading information to remain online which allows sufficient time to see the information transmitted and disseminated, hindering one of the key objectives of EMFA - to give more reliable sources of information to citizens.

ABUSIVE REGULATORY INTERVENTION AND DETERIORATION OF TRUST

Primarily, one can only be concerned about any regulatory intervention by governments on issues such as freedom of expression or media freedom. Through their EU Treaty competencies in security and defence matters, EU Member States seem to be winning because their options to spy on reporters have been reaffirmed. However, according to the final text (April 11, 2024), the European Parliament added important guarantees to allow the use of spyware, which will only be possible on a case-by-case basis and subject to authorization from an investigating judicial authority as regards serious offenses punishable by a sufficiently long custodial sentence.

Furthermore, it must be emphasized that even in these cases the subjects will have the right to be informed after the surveillance and will be able to challenge it in court. It is also specified that the use of spyware against the media, journalists and their families is prohibited. In the same vein, the rules specify that journalists should not be prosecuted for having protected the confidentiality of their sources.

The law restricts possible exceptions to this for national security reasons which fall within the competence of member states or in cases of investigations into a closed list of crimes, such as murder, child abuse or terrorism. Only in such situations or cases of neglect, the law makes it very clear that this must be duly justified, on a case-by-case basis, in accordance with the Charter of Fundamental Rights, in circumstances where no other investigative tool would be adequate.

In this regard, the law therefore allows for new concrete guarantees at EU level in this regard. Any journalist concerned would have the right to seek effective judicial protection from an independent court in the Member State concerned. In addition to that, each Member State will have to designate an independent authority responsible for handling complaints from journalists concerning the use of spyware against them. These independent authorities provide, within three months of the request, an opinion on compliance with the provisions of the law on media freedom.

Some governments in Europe have tried to interfere in the work of journalists recently which is a blatant demonstration of how far politicians can go against media using national security as an excuse. To avoid an erosion of trust, media service providers must be totally transparent about their ownership structures. That is why, in its final version (April 2024), the EMFA enhances transparency of media ownership, responding to rising concerns in the EU about this issue. The EMFA broadens the scope of the requirements of transparency, providing for rules guaranteeing the transparency of media ownership and preventing conflicts of interest (Article 6) as well as the creation of a coordination mechanism between national regulators in order to respond to propaganda from hostile countries outside the EU (Article 17).

To do that, there is a need to deepen safeguards to shield all media against economic capture by private owners to avoid media capture. It can be worse when no official intervention can mean non-transparent and selective support for pro-government media. As a matter of fact, it demonstrates that a combination of political pressure and corruption can be risky for the free press.

Secondly, the EMFA’s content moderation provisions could ruin public trust in media and endanger the integrity of information channels. Online platforms moderate illegal content online. Moderation provisions include: a solution-orientated conversation between the parties (VLOPs, the media and civil society) to avoid unjustified content removals; obligatory annual reporting (reports on content moderation which must include information about the moderation initiative, including information relating to illegal content, complaints received under complaints-handling systems, use of automated tools and training measures) by very large online platforms (VLOPs); any complaint lodged under complaints-handling systems by media service providers must be processed with priority; and additional protection against the unjustified removal by VLOPs of media content produced according to professional standards. These platforms will need to take every precaution to communicate the reasons for suspending content to media service providers before the suspension becomes effective. The process consists of a series of safeguards to ensure that this rapid alert procedure is consistent with the European Commissions’ priorities such as the fight against disinformation. In this regard, the Electronic Frontier Foundation states that « By creating a special class of privileged self-declared media providers whose content cannot be removed from big tech platforms, the law not only changes company policies but risks harming users in the EU and beyond ».

MEDIA COMPANIES AND PLATFORMS BARGAINING CONTENT

Yet the EMFA still does not deal with the complex issue of who would oversee controlling the self-declarations (Article 18(1) EMFA). More precisely, according to Article 18 EMFA “Providers of [VLOPs] shall provide a functionality allowing recipients of their services to declare” that they are media service providers. This self-declaration can be done, mainly, according to three criteria: if public service media providers fulfill the definition of Article 2 EMFA; if public service media providers “declare that they are editorially independent from Member States, political parties, third countries and entities owned or controlled by third countries”; and if public service media providers “declare that they are subject to regulatory requirements for the exercise of editorial responsibility in one or more Member States” or adhere “to a co-regulatory or self-regulatory mechanism governing editorial standards that is widely recognised and accepted in the relevant media sector in one or more Member States”. According to Article 18(4), when a VLOP decides to suspend its services regarding the content provided by a self-declared media service provider, “on the grounds that such content is incompatible with its terms and conditions”, it must “communicate to the media service provider concerned a statement of reasons” accompanying that decision “prior to such a decision to suspend or restrict visibility taking effect”.

Aside from that, Article 18 EMFA  splits the rules implemented by the Digital Services Act (DSA), a horizontal instrument that aims to create and ensure a more trustworthy online environment by putting in place a multilevel framework of responsibilities targeted at different types of services and by proposing a set of asymmetric obligations harmonized at EU level with the aim of ensuring regulatory oversight of the EU transparency, online space and accountability. Those rules covering all services and all types of illegal content, including goods or services are set by the DSA. This implies that media regulators will be enrolled in the cooperation mechanisms that will be set up for the aspects falling under their mandate. The inception of a specific “structured cooperation” mechanism is intended to contribute to strengthening robustness, legal certainty, and predictability of cross-border regulatory cooperation. This entails enhanced coordination and more precisely collective deliberation between national regulatory authorities (NRAs) which can bring significant added value to the application of the EMFA. This implies that media regulators will be involved in the cooperation mechanisms that will be set up for the aspects falling under their remit, even if it is still unclear how this will look in practice.

Above all, how will the new legislation be applied in practice and how will it work to ensure that it neither undermines the equality of speech and democratic debate nor endangers vulnerable groups? Excluding the fact that Article 18 of the EMFA incorporates safeguards about AI-generated content, details about which remain undisclosed as of now (see also Hajli et al on ‘Social Bots and the Spread of Disinformation in Social Media’ and Vaccari and Chadwick on ‘Deepfakes and Disinformation’), there is clearly reason to be concerned about the use of generative AI to promote disinformation and deep fakes. In an era where new technologies dominate, voluntary guidelines are not enough. Stronger measures are urgently needed to balance free speech and to have control over AI systems. It is admitted that while AI can be an excellent tool for journalists, it can also be used for bad purposes.

 

INEQUALITY BETWEEN MEDIA PROVIDERS: THE ATTRIBUTION OF A SPECIAL STATUS

In terms of platforms and media companies negotiating content, since not all media providers (media companies negotiating content) will receive a special status, it creates inequality. Platforms will have to guarantee that most of the reported information is publicly accessible. The main privilege resulting from this special status is that VLOP providers are more restricted in the way they moderate the content, but not in the sense of a ban on acting against this content but rather in the form of advanced transparency and information towards the information provider concerned. This effectively leads to an uncertain negotiation situation in which influential media and platforms negotiate over what content remains visible. This is especially true since the media have financial interests in seeking a rapid means of communication and in ensuring that their content remains visible even if it is at the expense of small providers.

CONCLUSION

As a conclusion, the risk to tamper with public opinion by disguising disinformation and propaganda as legitimate media content is still reflected in Article 18’s self-proclamation mechanism. In top of that, the risk of establishing two categories of freedom of speech arises from the fragmentation of legislation, not aligning with the DSA. Then, our capacity to create informed decisions could be undermined by Article 18 EMFA, an article that allows self-proclaimed media entities to operate with insufficient oversight. Furthermore, our democratic processes risk to be severely damaged by the unregulated spread of disinformation. Finally, the opacity of Article 18 in the determination of the authenticity of self-proclaimed media engenders problems of compliance enforcement.

The elements recalled here highlight the underside of the new legislation and corroborates that efforts must be made in the future to remedy the critical situation of press freedom within the EU.

 

The EU Commission’s proposal on Media Freedom Regulation

 

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.

European Democracy Action Plan – an Overview

 

 

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.

 The backdrop to EDAP is the importance of democracy as well as human rights and the rule of law, hot topics at the moments and ones on which there is now apparently no easy consensus to be had.  The Communication starts by recognising the challenges that the institutions of democracy have been under threat and that matters have been made worse by COVID-19.  It also notes the importance of trying to ensure that there is a coherent approach between internal activities and external actions in this context – although the Union’s competence varies in this regard. The UK will of course form part of the external environment.  EDAP provides a ‘reinforced EU policy framework’ which includes specific measures aimed at 

-          Promoting free and fair elections and strong democratic participation;

-          supporting free and independent media; and

-          countering disinformation.

 At the same time, the action plan relies heavily on ‘empowering citizens and civil society to counter the threats’. 

Democratic Participation

 There are four elements to this theme: 

-          transparency of political advertising and communication;

-          financing of European political parties;

-          cooperation to ensure free and fair elections; and

-          democratic engagement beyond elections.

 Political Advertising

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. 

Media Freedom 

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). 

Additional Support 

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. 

Countering Disinformation 

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: 

-          misinformation

-          disinformation

-          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:

-          capacity building;

-          obligations and accountability in re platforms; and

-          empowering citizens.

 Capacity Building

 This section notes the ease with which information may be weaponised by foreign actors, but also domestic actors. The first aspect of any response is to better understand the threat landscape and the Communication calls for closer cooperation internally as well as with relevant stakeholders in civil society, academia and private industry, and with international partners. Here the EDAP refers back to the EU Security Union Strategy (COM(2020)605 final) from July 2020. Within this, the Commission plans to develop a common framework and methodology for collecting systematic evidence on foreign interference. The existing Rapid Alert System, one of the four pillars of the  Action Plan against Disinformation from 2018 and run by the EEAS, will continue to function but the Communication envisages the possibility of extending the bodies it cooperates with (already including NATO and G7) to the EU Agency for Cybersecurity (ENISA), the European Digital Media Observatory (EDMO – established 2020) and even Europol.

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. 

Platform Accountability

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. 

Empowering Citizens

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’. 

Conclusion

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 Science