Lorna Woods, Professor of Internet Law, University of Essex
Photo credit: Bin im Garten, via Wikimedia Commons
In the 2021 State of the Union address, EU Commission President von der Leyen underscored the importance of media independence, stating that Europe needs a law to protect it. The proposed Media Freedom Act (MFA) aims to address this, building upon existing regulations like the Audiovisual Media Services Directive (AVMSD) and the Digital Services Act (DSA). This proposal signifies a significant step, as it shows concern not only for the media’s condition but also for public discourse. This begs the question: How does the Commission translate this high-level concern into concrete rules?
Structure of the Proposal
The MFA proposal consists of five key elements, reflecting the multifaceted nature of concerns around media freedom.
1. Media Freedoms
This element, also addressed in the accompanying Recommendation, focuses on safeguarding media freedom and editorial independence. It introduces rights and obligations for media service providers, including protection from undue interference by Member States. Public service media providers, given their societal role and vulnerability to interference, are subject to specific provisions, including an obligation to provide impartial and diverse information. Ownership transparency obligations are imposed on providers of news and current affairs content, requiring them to disclose ownership details and implement safeguards for editorial independence.
2. Very Large Online Platforms (VLOPs)
This element places obligations on VLOPs, in addition to those under the DSA, granting media service providers specific rights. VLOPs are mandated to provide mechanisms for handling media-related concerns, including adherence to requirements outlined in the Platform to Business Regulation.
3. Media Regulation and Institutions
This element addresses the structure of media regulation. The proposal expands the scope of the European Regulators Group for Audiovisual Media Services (ERGA), replacing it with the European Board for Media Services (EBMS). The EBMS, in collaboration with the European Commission, aims to ensure consistent implementation of the MFA and the EU media law framework, similar to the EDPB’s role in the GDPR context.
4. Media Markets
This element focuses on market dynamics, requiring Member States to establish regulations for evaluating media market concentrations. In addition to notification requirements for concentrations, Member States should establish criteria for assessing the impact on media pluralism and editorial independence, separate from competition law assessments.
5. Resources and Audience Measurement
This element addresses audience measurement and resource allocation criteria for media outlets. The proposal highlights concerns regarding opaque and unfair resource allocation, emphasizing the need for transparent, non-discriminatory, and objective measures.
Analysis
Competence
While the MFA proposal, grounded in the Commission’s Rule of Law Report 2020 and the European Democracy Action Plan, aims to protect media freedom, it frames the issue as media companies facing obstacles hindering their operation within the internal market. This framing, emphasizing the impact of disparate national rules on media undertakings, serves to justify the use of Article 114 TFEU as the legal basis, positioning the proposal as market regulation rather than media policy. This approach, pushing the boundaries of the EU’s harmonizing powers, may face legal challenges regarding its competence.
Place in the Digital Regulation Landscape
The MFA proposal acknowledges the existing digital regulation landscape, referencing and aligning with relevant measures such as the AVMSD, DSA, and P2B Regulation. It adapts definitions from existing regulations while expanding their scope. Notably, the proposal’s expansion of ERGA’s remit beyond audiovisual media services to encompass online platforms challenges the traditional distinction between broadcasting and print media regulation.
Media Independence
The proposal contains crucial provisions promoting media independence. It includes specific provisions on editorial independence and mandates Member States to ensure public service media providers have sufficient financial resources to fulfill their public service remit while preserving editorial independence. While this aligns with Council of Europe recommendations and EU state aid law, the practical implementation and assessment of sufficient funding remain unclear. Additionally, the proposal introduces obligations for transparent appointment procedures, term limits, and dismissal protection for senior management in public service media, mirroring safeguards commonly found in regulatory bodies.
Transparency
Addressing concerns over media ownership transparency, the MFA proposal requires entities providing news and current affairs content to publicly disclose ownership details. While a step towards transparency, the effectiveness of this provision in navigating complex corporate structures remains questionable. The limited scope of transparency obligations, focusing only on news and current affairs content, raises concerns about defining the scope and potential loopholes for other content providers.
Rules on VLOPs
The proposal’s added value regarding obligations on VLOPs, beyond those under the P2B Regulation, remains unclear. Concerns arise regarding the potential overlap and potential confusion between dispute resolution mechanisms under the DSA and the proposed mechanisms for media entities. The ability for media services to self-declare, similar to the rejected media exemption in the DSA, raises concerns about potential misuse by actors spreading disinformation.
Media Concentration
Acknowledging the risks posed by media market concentration, the proposal calls for national-level controls. However, the interplay between these provisions and the DMA’s regulations on platform dominance remains unclear. The national-level approach, while respecting competence divisions, raises concerns about inconsistent enforcement and potential gaps in addressing cross-media mergers.
Resources
The proposal addresses resource allocation by mandating transparent and non-discriminatory state advertising practices. It defines “state advertising” broadly, requiring reporting on advertising expenditures, although the monitoring body remains unspecified.
Enforcement
The proposal lacks a specific enforcement mechanism, seemingly relying on national mechanisms and courts. This raises concerns about the effectiveness of enforcement, particularly in cases involving spyware and potential biases within national systems. The precise role of the EBMS in ensuring consistent application remains unclear.
Conclusion
The MFA proposal signifies a significant shift in safeguarding media independence amidst growing threats. However, its expansive approach to EU competence and potential controversies surrounding specific measures, particularly regarding state control over media, may hinder its smooth implementation. Whether the proposal achieves its objectives remains to be seen.