The EU’s Media Freedom Act – Bolstering Core Union Values through the Narrow Prism of the Internal Market?

When the European Commission announced its upcoming Media Freedom Act (MFA) last year, many were taken aback by what seemed a bold step into the Fourth Pillar of Democracy. Yet within months of its announcement, the indispensable nature of a pluralistic media would be brought to bear beyond the former Eastern Bloc as Russian citizens fail to recognise the atrocities their armed forces are committing in Ukraine due to the non-existence of independent Russian media. As media freedom is also contracting in Europe, Ruairí Harrison assesses the Commission’s proposed approach to both reimagine and reinforce media freedom in the EU-27.

Media Freedom – A Pressing Global Issue

When the European Commission announced its upcoming Media Freedom Act (MFA) in April 2021, many were taken aback by what seemed a bold step into the Fourth Pillar of Democracy and a subject primarily regulated at national level. Little could the Commission know that within months of its announcement, the indispensable nature of a free, pluralistic media would be brought to bear beyond the former Eastern Bloc. The Kremlin’s stranglehold over the Russian information and media space (accompanied by a steady stream of state disinformation) have prevented millions of Russian citizens from recognising the atrocities being committed upon their Ukrainian neighbours.

As this story unfolds in real time, it is important to reflect upon how the EU hopes to strengthen and bolster media freedom and pluralism in the MFA to step firmly away from overbearing public broadcasters whilst also ensuring newer forms of media (and the platforms hosting them) are held to rigorous standards such that the information space is protected – not polluted. Yet as will be seen, this will be no easy feat from either a constitutional or a practical standpoint given the limited EU competences in this area, the ever-evolving nature of ‘media’ and certain member states’ staunch protection of national media.

Media Regulation in Europe – Background

Before diving into what is expected from the MFA, it is useful to set the stage for media freedom in Europe. Media regulation is traditionally dealt with by national legislatures via national constitutional traditions across the Union leading to a fragmented EU media market. The EU does not have the competence to directly regulate in this area: media is inherently linked to culture, and Article 167 TFEU underlines the EU’s concerns to avoid compromising national cultural traditions. The Council of Europe (CoE) has been a far more active contributor regarding media freedom and pluralism, particularly through a rich body of ECtHR case law on Article 10 ECHR (freedom of expression [and the media]) most of which has filtered down into member states’ legal systems.

ECtHR jurisprudence has been accompanied by CoE Recommendations on topics such as ‘creating a favourable environment for quality journalism in the digital age’ (2022) and ‘media pluralism’ (2018). Of course, the EU Charter of Fundamental Rights (EUCFR) explicitly provides that the ‘freedom and pluralism of the media shall be respected’ (Article 11). However, as the Charter does not permit the EU to modify rules or extend existing competences (due to Article 51(2) EUCFR), Article 11 EUCFR alone cannot be used to build new EU rules on media freedom.

The MFA – What to Expect

Looking to the MFA itself, it is apparent that the necessity for this Act is borne out of a dual threat from tech giants and authoritarian governments. Firstly, the profit-driven rationale of tech platforms has eroded traditional media’s business model whilst failing to address the impact upon democracy which its opaque recommender systems have on the quality, variety and relevance of news across the internet. Secondly, state capture of the media in both Poland and Hungary has allowed these governments to deconstruct and reorganise the media to suit the preferences of those in power. These actions have, in the very least, side-lined independent media and inspired similar approaches in Slovenia and Bulgaria who both slid down the ‘Press Freedom’ rankings in 2021.

Thus, President Von Der Leyen’s 2021 State of the Union address highlighted the MFA as a means to ‘safeguard the pluralism and independence of the media in the EU internal market’, whilst Commission Vice-President Věra Jourová recently restated the necessity for the MFA considering that media is a ‘cracking pillar of democracy’. The Act is expected to be concluded in autumn 2022 and the Czech Republic has stated that media freedom will be a top priority for its upcoming Council Presidency.

As ever, the European Commission has remained tight-lipped on the substance of the MFA, yet the following four core areas can be distilled from statements thus far:

• Media Transparency and Independence
• Conditions for the Media’s Healthy Functioning (including exposure to a plurality of views)
• Fair allocation of State Resources for Media Services (including ensuring independence for public service media)
• Governance and Enforcement in the Act (including the possibility of extending ERGA powers)

Potential Roadblocks to an Effective MFA

Assessing this limited information in order to tease out potential stumbling blocks to an effective MFA, four issues present themselves.

i. Scope

Firstly, regarding the scope of the Act, the ‘media’ definition must not only provide sufficient flexibility for the ever-evolving nature of the media sector, but it may also need to acknowledge the various players across the sector and how their roles differ. Rules covering ‘public service media’ may have different motivations to those protecting critical independent journalism. Similarly, a choice may need to be made as to when mere users become ‘citizen journalists’ – or if this malleable area should be regulated at all.

ii. A Crowded Legislative Space?

Secondly, the MFA is only the latest in a series of laws tackling digital content and it appears some legislative cross-over with the Digital Services Act Package (DSA & DMA) and the Audiovisual Media Services Directive (AVMSD) is inevitable. Yet we await to see how the upcoming Code of Practice on Disinformation may be complimented by the MFA, considering all these measures fall under the EU’s 2020 Democracy Action Plan. Is there a coherent plan or has this regulatory space become too muddled? Furthermore, the issue of whether we should treat media entities differently to other users from the perspective of disinformation moderation caused problems in the DSA negotiations: MEPs accepted civil society concerns that a ‘media exemption’ would lead to media’s ‘editorial status’ creating an unjust, poorly delineated double standard.

iii. Internal EU Friction: Who Should Regulate the Media?

Thirdly, all EU rules are the product of considerable compromise in the lengthy legislative process. Yet the MFA may be a step too far for certain member states who could view the Act as a targeted response to their attempts to ‘repolonise’ their national media landscape. The most obvious example here is the Polish Lex TVN law attempting to prohibit non-EEA members from media ownership. This was put forth to drive out TVN, the US-owned TV station which frequently criticises the ruling PiS party. Although Polish President Andrzej Duda recently vetoed the law following international condemnation, it is nonetheless pragmatic to expect significant roadblocks from several Central and Eastern member states who will assert their own competence to oversee national media without any EU intervention.

iv. Competence, Competition Law & The Internal Market – The Economic Rationale?

Looking next to the most suitable means through which the EU could strengthen the EU media landscape, it is accepted that media undoubtedly has an economic perspective. As explained here, the EU holds exclusive competence to regulate competition law permitting the EU to address competition issues in media markets such as mergers, concentrations or state aid. Similarly, a fragmented EU media market creates economic barriers to internal market functioning which could justify the legislation (as in the AVMSD).

Despite this, should the Commission regulate media freedom in the EU from the narrow economic perspective of Article 114 TFEU?

This is the core question for academics, civil society and regulators. As succinctly stated elsewhere, ‘legislative interventions geared towards the economic role of media services may, however, not be optimally attuned to the fundamental rights dimension of the media’. Alongside this economic prism, media freedom must also be seen through the political prism of democratic participation and the societal prism of promoting tolerance and access to unbiased information of public interest. When media freedom undoubtedly has two other indispensable rationales, should we regulate that space from only one such perspective?

I have previously discussed the weaknesses of regulating free speech issues from the perspective of the internal market both here (disinformation) and here (hate speech). Yet it is submitted that in the context of media freedom, this is the most dubious instance yet of the Commission regulating issues impacting free speech, democracy and the rule of law exclusively from the internal market perspective. On top of this, the upcoming 2022 Rule of Law Report is expected to dedicate a specific section to ‘media freedom and pluralism’ demonstrating the critical importance of media freedom to the future of European democracy.

The MFA is an opportunity for the EU to do ‘what it says on the tin’ – bolster media freedom and independence to promote democracy and freedom of information in the digital space. It is difficult to see how the worrying increases in, for instance, physical violence towards journalists can be addressed from an economic perspective when it so evidently goes to the core of Article 2 TEU Union values. The same may be said about Strategic Litigation Against Public Participation (SLAPPs), which are initiated with the sole aim of intimidating critical voices into silence, or government statements dismissing pertinent criticism as being the product of ‘foreign agents’ or ‘fake news’ peddlers.

The Waiting Game

To conclude, it should be noted that the Commission has acknowledged the implications of its limited competence, but it is a pity that at this potential watershed moment for media freedom in the EU, its regulatory lens may be unduly narrowed by constitutional limitations. Of course, all we can do is await the MFA proposal with these thoughts in mind, most notably the relevance of CoE recommendations and Article 10 ECHR jurisprudence in drafting human rights-compliant standards.

In brief, the pace at which the media is being digitised and the increasing ‘chilling effect’ of physical violence, SLAPPs and state media capture appear to have led the Commission to put the ‘competence issue’ on the backburner as they seek to urgently protect the independence and pluralism of EU media. EU lawmakers evidently believe that the time is right to regulate media freedom in some form and it may be that the Ukrainian war serves to unite member states under the common interest of protecting democracy in the EU. This is certainly a topic to keep a close eye on as certain states may see it as a step beyond prescribed competences such that they pull up the drawbridge in order to protect their own national interests… only time will tell!