The media systems of Europe are facing challenges from multiple directions: business models are under economic pressure; journalists are increasingly subject to threats and intimidation; and the spread of disinformation is misleading parts of the public about matters of public interest.
Even though they were traditionally conceived as a matter of national domain and remit, media freedom and media pluralism have now gained some prominence on the European policy agenda, leading, inter alia, to the proposal of the European Media Freedom Act at European Union (EU) level – an unprecedented and bold measure, which, however, won’t miraculously solve all problems.
Freedom of expression, and the freedom and pluralism of the media are parts of the foundations of contemporary liberal democracies, and as such, key values of the EU, and of constitutional traditions of most European countries beyond the borders of the EU. They are protected, among others, by Article 11 of the Charter of Fundamental Rights of the European Union, by Article 10 of the European Convention on Human Rights, by the rulings of the Courts on Human Rights applying the Convention itself, and by the vast corpus of standards that the Council of Europe has been developing in order to recommend strong and independent media for a sound democratic discourse.
Governments not only need to respect freedom of expression and freedom of the media, but have to nurture their democratic public spheres, even if that means tolerating opinions that are critical of them and accepting that journalists will investigate possible wrongdoings of whoever is in power.
What exactly we mean by “media” has changed a lot in recent years – leading not just to definitional, but also economic, political, and societal challenges. While in the 20th century, citizens consumed their news overwhelmingly through the means of radio, television, and newspapers, the 21st century saw the spread of myriads of new formats – chiefly web news portals and social media platforms – to distribute news and information. These new formats also brought a change in the way information was produced, disseminated, and consumed. A number of new voices received a chance to be heard and audiences suddenly got unlimited options to choose their favoured source of information, as the established news outlets were complemented by bloggers, vloggers, and randomly posting social media users. If there are still gatekeepers (actors that decide what stories make it into the public sphere), those are not exclusively the news media editors anymore, but overwhelmingly the algorithms that run search engines, messaging platforms, and social media sites.
This new media environment comes with concrete risks. An incomplete list of today’s interconnected problems include that news media have lost significant chunks of their revenues – thus struggling to maintain the quality of their journalism; the spread of disinformation has led to concerns about the integrity of elections, among others in France and in Germany; minorities, public figures, and journalists are increasingly targeted by online threats and hate speech; algorithm-driven news intermediaries obscure the way in which news gets presented to audiences; and the public debate is turning increasingly polarised. These issues, if left unaddressed, can be devastating, not just for the public sphere, but for the very health of democracy.
Mapping the threats
The Centre for Media Pluralism and Media Freedom publishes a yearly assessment of the risks to media pluralism in the EU’s member states and candidate countries – titled the Media Pluralism Monitor (MPM). Looking at 200 legal, socio-political, and economic variables, the MPM’s 2022 edition (covering the previous year) has again shown that none of the countries covered are immune to the problems facing media spheres. Overall, the greatest risks were registered in the area of market plurality – the area that assesses the economic context in which media players operate. Even if the MPM registered a slight improvement in the overall score of market plurality from the years 2020 and 2021, as media markets were recovering from the economic shock caused by the COVID-19 pandemic, the area’s score is still very close to what is considered “high risk” in the MPM’s methodology. The assessment shows that online platforms have dominant market power, and, at the same time, the concentration of media markets has further increased, due to a growing tendency in the traditional media industry to merge and consolidate. Unsurprisingly, this has also led to an increased risk of owners influencing the production of journalistic content. Despite legislative initiatives in member states and the EU level, the transparency of ownership still causes concern. To this day, citizens are having a hard time accessing the names of ultimate and beneficial owners of media organisations operating in some of the member states.
In the political independence area, the MPM registered serious risks related to state advertising (which is often used as a form of covered subsidy by governments), the transparency and fairness of online political advertising (while its offline counterpart is usually well regulated), the editorial autonomy of newsrooms, and the independence of the public service media management. Especially in the EU’s newer member states, the MPM’s country experts reported indications of self-censorship among journalists. Concerning trends in the remaining areas include increased threats against (and even attacks on) journalists, the underrepresentation of women and minorities in both the journalistic profession and the viewpoints represented, as well as the spread of online hate speech and disinformation.
Some of the most tragic low points of the year 2021 included the murder of three journalists in the countries covered by the MPM: Turkish radio presenter, Hazım Özsu, the Greek journalist Giorgos Karaivaz, and the Dutch former crime reporter Peter R. de Vries. The number of strategic lawsuits against public participation (SLAPP) has further grown last year, due to a lack of sufficient anti-SLAPP frameworks; and as part one of last year’s biggest crossborder journalistic investigations, it was revealed that the Hungarian authorities used Pegasus spyware to hack into the phones of high-profile journalists.
In search for adequate measures
In the year 2022, Russia’s invasion of Ukraine and the ensuing disinformation campaign, has again reminded us of the severity of the threats to an open and democratic public sphere. To prevent the uncontrolled spread of Russian propaganda on broadcast and online channels, the EU’s sanctions packages included decisions to block a number of Russian-origin online outlets and to suspend their broadcasts. However, the measure wasn’t without controversies. It ignited an EU-wide debate about the limits of free speech, the tolerability of propaganda in a free and pluralistic society, the effectiveness of bans, and the competencies of EU institutions with regard to dealing with media and information. This again shows that a healthy public sphere is not just in need of protective measures from regulators and policymakers, but also that the steps taken need to be based on careful planning and discussion between policymakers, regulators, journalists, and other key stakeholders.
When looking at the wider challenges of media pluralism, it is increasingly evident that in order to deal with the threats to media freedom and media pluralism, we may need a deliberate framework of harmonised EU rules, and strong regulatory cooperation which addresses the market failures of the news media landscape, secures transparency and fair competition on the online market, and at the same time emphasises the protection of the rule of law.
It is welcome that the outlined problems are gaining relevance in public discussion and are therefore also high on the policy agenda. In the EU, a number of relevant developments have occurred in the last few years.
The EU spearheaded numerous new regulatory initiatives to improve rules governing media services and media markets in the Union, also as a response to the increasing role and power of global online platforms. As part of a major reform of the digital market policy, the Digital Services Act package aims to improve the safety of the digital space and contribute to a level playing field in the digital market. As one of its main features, the Digital Services Act requires, amongst many other elements, the timely and effective removal of illegal content online, seeks to give social media users tools with which to flag problematic content, and introduces transparency requirements for algorithms, as well as dissuasive financial sanctions for digital players, following serious breaches. A proposal on regulating online political advertising would deal with the targeting of ads, and the Code of Practice on Disinformation (in a new, strengthened form) created a self-regulatory framework involving online players like Google and Facebook, to boost the transparency of political advertising, to curb the automated spread of disinformation, and to make sure that spreading disinformation won’t be a lucrative business anymore.
When it comes to journalistic work, there is an increased amount of funding available by the EU to news media, an EU Anti-SLAPP Directive was proposed, and the rule of law conditionality mechanism makes it possible for the EU to withhold funds from those member states that disrespect the rule of law (including in relation to independent media and freedom of expression). In addition, what is probably the most relevant development for media pluralism, in September 2022, the European Commission presented its proposal for a European Media Freedom Act (EMFA) to the public.
The published text of the EMFA shows that the Commission took on a very bold initiative to help independent news producers, by creating a common framework for media in the context of the European single market – and at the same time reiterating that media freedom is among the fundamental pillars of European democracy. If passed, this regulation could become a game changer, paving the way for a number of important reforms in Europe’s media environment. As a key step, it would create the European Board for Media Services (EBMS) to help enforce the regulation, and the standards of media freedom and pluralism across the EU. Amongst many proposals in the draft, it is interesting that member states are asked to provide substantive and procedural rules to ensure an assessment of media market concentrations that could have a significant impact on media pluralism and editorial independence. In addition, the EMFA proposes rules to ensure more transparency and objectivity in allocating state advertising, as well as safeguards against the use of spyware against journalists and unjustified media content removal by online platforms. The text also provides a working definition of media services and thus attempts to clarify what forms of content production will be protected by the regulation, including the concept of “editorial responsibility” in the provision of media programmes.
Still, we shouldn’t forget about some of the shortcomings of the text. Critics, for example, see the previously mentioned description of media services as both too vague, thereby favouring large, established media outlets, and too broad, thus including services that are not media. There are no sanctions provided in the document, the scope of measures is at times inadequately designed (for example, the threshold of 1 million inhabitants when assessing the placement of advertisement by local authorities, or providing definitions for “spyware”), and many key issues (such as the transparency of media ownership) are mostly addressed in the recommendations, not in the regulation itself. To make sure that the possible problems are addressed, and the regulation is as effective as possible, the next months need to be characterised by lively debates between journalists, industry representatives, scholars, civil society, and policymakers. The initiative has both a high symbolic and normative value, but it needs more attention from those communities it aims to protect and empower. To make sure that the European Media Freedom Act contributes most effectively to our public sphere, we need to start the discussion now.