The Democratic Fightback Has Begun: The European Commission’s New Media Freedom Law

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The European Commission will unveil a draft European law on freedom of the media today at a press conference. Damien Tambini writes that although there are battles ahead over its implementation, the new law represents a welcome boost for democracy across the EU.

The European Commission has published a draft EU Media Freedom Act (EMFA). If passed, this new law would represent a major change in EU media policy and a welcome boost for democracy across the Union. Freed from the Eurosceptic UK, during a perceived crisis of European democracy, there is broad support for proposals to uphold media freedom, and the media itself is likely to give them wholehearted support.

As is always the case with any legislative proposal, there are battles ahead. These will be particularly fought both because the reforms extend the Union’s legal competence and because they undermine authoritarian controls over the media. And success will bring dangers: enhanced privileges for “licensed” media could have chilling effects if not accompanied by appropriate safeguards.

In order to establish a legal basis for EU action, the Commission had to do some fancy work. Subsidiarity has traditionally maintained decision-making at Member State level in the sensitive area of ​​the media. The legal basis for EMFA can be found in the articles of the Treaty establishing the Single Market (in particular Article 114 of the TFEU).

Because of this limited media competence, the EU does not claim this as a set of measures with the explicit objective of protecting democracy. Instead, the Commission paper points out that media policy reforms are already underway in some member states, resulting in a patchwork of regulatory approaches across the EU that undermine the single market. They also point to a lack of transparency, good market information and effective harmonized regulation which creates barriers to trade within the EU.

The proposal is therefore to harmonize a series of rules and institutions across the EU. The instrument chosen is a regulation (which has direct effect) together with self-regulatory guidelines, aimed at harmonizing a new range of protections for media pluralism and media freedom.

Proposed reforms

Proposed reforms include a new European Board of Media Services (EBMS), to replace the European Regulators Group for Audiovisual Media Services (ERGA). Although it is not a European super regulator, it is a step in this direction, strongly linked to the Commission but independent of the States, justified by a perceived lack of coordination in the development of new standards on media pluralism and freedom in the EU.

The Commission also proposed legally enforceable protection against state interference in the editorial decisions of service providers and media personnel. The EBMS or another independent body will hear complaints about violations of media freedom.

Other proposals include transparency requirements on media ownership and ethical self-regulation; protection of public service media, such as new standards for senior appointments and job security; and new transparency, reporting and anti-discrimination rules on the allocation of state resources such as advertising, which have created dependencies and which have been used to subsidize and reward friendly media in the past .

The Commission proposal also recommends establishing new obligations on platforms. The Digital Services Act created the category of very large online platforms, called VLOP. The new legislation will require them to label media services and also protect their distribution, because by changing their recommendation systems, VLOPs can have a huge impact on media audiences.

Finally, there is a proposal to harmonize media ownership rules and procedures. EMFA obliges all EU states to develop limits, rules and procedures for media mergers that could impact media pluralism and freedom. This avoids locating media pluralism considerations in the EU Merger Regulation, preferring instead to set standards for Member State-administered regimes.

The measures, which are elegantly described in a relatively short instrument, should be read alongside the Digital Services Act and the Digital Markets Act, and in many cases (with regard to public service media for example) implement rules and standards long agreed by the Council of Europe. However, some of the proposals made earlier in the consultation process did not materialize. For example, the question of SLAPP wetsuits is not addressed by this legislation and may be the subject of a separate policy.

A welcome first step

Some extremely difficult issues underpin the new law, such as the definition of “media”. This is a notoriously difficult thing to define in law, especially if these immense privileges flow from such a definition. According to the legislation, a media service’s main object is “to provide press programs or publications to the general public, by any means, for the purpose of informing, entertaining or educating under the editorial responsibility of a media service provider”. This is very broad, but civil society must insert appropriate protections to ensure that not only mainstream mainstream media, but also local, civic and alternative media enjoy privileges under the new regime.

The danger of regulation is always that we are fighting the last war. This legislation does a good job of upsetting the playbook of authoritarian regimes that have controlled public service media, entered into reciprocal agreements with industrialists and media owners, and allocated state resources such as advertising and the spectrum with the effect of strengthening their own influence on the media and therefore on public opinion.

The next generation of regimes will develop a new playbook as there are many ways to bring the media into line. Thus, the strong support for monitoring, complaints and review of the proposed rules is welcome and perhaps should be strengthened. And the widespread support for regulatory independence as well as a new sensitivity to procedural independence of media governance will also protect the media from interference.

There is a long tradition of strong and positive support for the media in Europe. But some argue that any institutional support will inevitably lead to a slippery slope towards censorship. This is the traditional position of the Supreme Court of the United States, for example. But a growing movement of American constitutional scholars, the latest of which is Marthe Minow, a Harvard law professor, call for positive support for the media, also in the United States. Liberal democracies are clearly mobilizing for a new media agreement.


Note: This article gives the author’s point of view, not the position of EUROPP – European Politics and Policy or the London School of Economics. Featured image credit: © European Union, 2022


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