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European Media Regulation and State Sovereignty: The Tug-of-War Behind the European Media Freedom Act (Part I.)

In the latest chapter of the European Union’s regulatory endeavors, the Council has adopted the European Media Freedom Act (EMFA), a legislative act that ostensibly aims to enhance media freedom, ensure media pluralism, and uphold editorial independence across the EU’s internal market. While the legislation promises to protect journalists and media providers from political interference and facilitate their operations across Member States, it raises significant concerns regarding the potential erosion of national sovereignty in media regulation.

The introduction of the EMFA, with its noble intention to safeguard the rights of citizens to free and diverse information, ventures into a contentious territory by potentially diminishing the individual Member States’ authority to regulate their media landscapes. The act’s centralization of media oversight at the EU level, particularly through the establishment of a new European Board for Media Services, signals a shift away from localized governance and towards a more uniform regulatory framework. This shift could undermine the unique cultural, linguistic, and societal contexts that shape media regulation in each Member State. Critically, the EMFA’s response to the rising threats of politicization and lack of transparency in media ownership and state advertising might be perceived as an overreach into domains traditionally governed by national legislation. While the objective of combating political interference and ensuring journalistic integrity is commendable, the comprehensive scope of the EMFA raises questions about its compatibility with the principle of subsidiarity.

What is contained in the Regulation?

The Regulation provides, inter alia, a clear framework aimed at ensuring users have access to independent news content while outlining the rights and responsibilities of media service providers in the internal market. A significant aspect of the Regulation is its emphasis on transparency and accountability, requiring media entities to disclose critical information such as ownership details, contact information, and the identity of direct and beneficial owners who have the power to influence operational and strategic decisions. This provision is designed to safeguard the independence of public service media and promote an environment where media integrity is protected. The Regulation introduces mechanisms for regulatory cooperation and the maintenance of a competitive market for media services. It calls for the appointment of independent national authorities in member states, tasked with enforcing the Audiovisual Media Services Directive (AVMS Directive) and endowed with investigative powers to fulfill their roles effectively. A pivotal component of this regulatory framework is the establishment of the European Board for Media Services, which takes over from the European Regulators Group for Audiovisual Media Services (ERGA). This Board is structured to operate independently, with its composition, structure, and tasks clearly delineated. It is supported by a secretariat provided by the Commission to ensure it can perform its substantive duties efficiently.

An area of particular interest within the regulation is its focus on media services in the digital environment. It builds on existing legislation by introducing additional safeguards for the editorial integrity of online content provided by media service providers. This includes fostering a constructive dialogue between major digital platforms and media service providers, emphasizing the importance of allowing users to customize their audiovisual media experiences. Furthermore, the regulation mandates that device producers and developers enable such customization technically. Moreover, the Act outlines principles for national measures and administrative decisions that affect the functioning of media service providers, focusing on the assessment of media concentration and its impact on media pluralism and editorial independence. The Board is tasked with offering comments and opinions on national measures that could influence the internal market. The regulation also sets standards for audience measurement systems and methodologies, encouraging the development of codes of conduct and the exchange of best practices among relevant market players. Additionally, it addresses the allocation of public advertising expenditure and resources to media service providers, ensuring adherence to public procurement and state aid rules.

The EMFA includes provisions to prevent interference in media editorial decisions and espionage against journalists, to support independent and properly funded public service media, to increase transparency in media ownership, audience measurement systems, and the distribution of public advertising, and to better protect content uploaded by media service providers to online platforms. Through coordination at EU level, the Regulation aims to ensure that independent national authorities take a consistent approach to the concepts of media pluralism and media independence when assessing media market concentrations. It aims to protect EU citizens and businesses more effectively from illegal and harmful content from third-country services that do not comply with EU media standards and to promote the provision of quality media services by reducing the risk of public and private interference in editorial freedom. The proposal aims to promote the freedom of journalists and editors to work without interference, including in the protection of their sources.

The importance of the underlying ideas

First and foremost, it is vital to emphasize that the fundamental objectives and principles of freedom of expression carry intrinsic value and are universally commendable. These principles serve as the bedrock for democratic societies, ensuring that the essence of freedom of speech is not just protected but celebrated. A liberated and diverse media market plays a crucial role in this context, acting as a guarantor of these freedoms by enabling open dialogue, promoting societal progress, and ensuring transparency and accountability in governance. The importance of these principles transcends the specifics of any single regulation. They embody a universal commitment to safeguarding the free exchange of ideas and information, recognizing that a vibrant and independent media ecosystem is essential for the vitality of democratic values. Such an ecosystem empowers citizens to make informed decisions, participate actively in public life, and engage in meaningful discourse.

These principles acknowledge the media’s integral role as a watchdog, educator, and forum for debate, rooted in the belief that an informed public constitutes the foundation of democracy. Access to a variety of independent news and information sources is deemed crucial for the health and sustainability of democratic societies across the globe. However, alongside the recognition of these fundamental principles, there arise significant constitutional concerns regarding the Regulation. These concerns do not detract from the importance of the underlying principles of freedom of expression and media diversity. Instead, they spotlight specific issues related to the process and structure of European Union legislation. The apprehensions suggest that while the objectives of the Regulation align with essential democratic values, there might be procedural or legal intricacies within EU lawmaking mechanisms that need careful examination and potential rectification. These issues could pertain to the scope of authority exercised by EU bodies, the clarity and precision of legal texts, or the balance of power between the European Union and its member states, all of which are crucial for maintaining the integrity and functionality of the EU’s legal system while respecting the sovereignty and legal frameworks of individual member countries.

Centralized EU media regulation?

The legal foundation of the EMFA raises substantial questions, casting doubt on its appropriateness and scope. The regulation ambitiously seeks to cover a wide array of elements within the media sector, incorporating several regulatory components that are particularly contentious. These components (such as the mechanisms for controlling media concentration, the operational frameworks for public service media, the governance of public advertising, and the extension of powers to EU bodies) amount to what could be seen as direct interventions in the media landscapes of Member States. This approach sparks a debate about the extent to which the EU should involve itself in media regulation, a domain traditionally seen as the prerogative of individual Member States. The essence of developing a media system that is diverse and pluralistic, along with safeguarding media pluralism, has historically been under the jurisdiction of these states. It involves nuanced considerations that may carry significant economic consequences and are deeply entwined with national culture, political context, and social dynamics.

The argument against a sweeping extension of media regulation at the EU level hinges on these grounds. While the intent to harmonize standards across the EU and promote media freedom and pluralism is understandable, the intricacies of media regulation, given its impact on democracy and societal values, suggest that a more measured, localized approach might be necessary. This approach would respect the unique media ecosystems of Member States, ensuring that EU-wide legislation does not inadvertently erode national sovereignties or homogenize the media landscape in a way that diminishes its richness and diversity. In its present iteration, the regulation introduces facets of centralized media oversight into the framework of European Union law. This development assigns the European Commission and the newly established European Board for Media Services the authority to issue opinions, effectively granting EU institutions the capability to evaluate the media market within individual Member States. Such a centralized approach to regulation could be deemed appropriate and within bounds if it were strictly limited to addressing concerns about the concentration of power among media entities with a significant cross-border presence. The rationale here is straightforward: entities with the scale and scope to influence multiple EU markets might necessitate oversight at a supranational level to ensure fair competition and media plurality across the union.

However, the scope of the regulation extends beyond these transnational concerns to encompass the detailed assessment of the media landscapes internal to each Member State. This shift represents a significant expansion of EU oversight into areas traditionally governed by national legislation and regulatory frameworks, raising questions about the balance between EU-wide objectives and the sovereignty of Member States in regulating their domestic media sectors.

The implications of such a move are manifold. On one hand, it underscores a concerted effort to uphold media freedom and plurality across the EU by applying a uniform standard of scrutiny. On the other, it introduces a layer of complexity regarding the autonomy of Member States to design and enforce media regulations that reflect their unique societal, cultural, and political contexts. The challenge, therefore, lies in navigating the fine line between fostering a cohesive approach to media regulation across the EU and respecting the diverse media ecosystems that exist within its member countries. This tension highlights the need for a nuanced approach that acknowledges the distinct characteristics of national media markets while striving for the overarching goals of media freedom and plurality at the EU level.

In the next installment of our deep dive into the European Media Freedom Act EMFA, we will tackle the intricacies of its legal foundation, particularly the reliance on Article 114 of the TFEU as the act’s bedrock. This choice, while aimed at harmonizing the EU’s internal market, raises significant concerns about overstepping the traditional regulatory powers of Member States in the media sector. We’ll explore the delicate balance the EMFA seeks to strike between ensuring EU-wide media standards and respecting the sovereignty of Member States, highlighting the critical debates around the principles of subsidiarity and proportionality. Additionally, we’ll scrutinize the EMFA’s approach to regulating very large online platforms (VLOPs) and its implications for traditional media content in the digital arena. Through this analysis, we aim to uncover whether the EMFA represents a progressive step towards safeguarding media pluralism and independence, or if it risks undermining the diverse and nuanced media landscape of the EU.

János Tamás Papp JD, PhD is an assistant professor at Pázmány Péter Catholic University, Hungary, and a legal expert at the Department of Online Platforms of the National Media and Infocommunications Authority of Hungary. He has taught civil and constitutional law since 2015 and became a founding member of the Media Law Research Group of the Department of Private Law. He earned his JD and PhD in Law at the Faculty of Law and Political Sciences of the Pázmány Péter Catholic University. His main research fields are freedom of speech, media law, and issues related to freedom of expression on online platforms. He has a number of publications regarding social media and the law, including a book titled „Regulation of Social Media Platforms in Protection of Democratic Discourses

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