In the first part of our blog post, we explored the European Media Freedom Act (EMFA) and its intent to promote media freedom and pluralism across the EU. Despite its commendable goals, we examined concerns that the EMFA may infringe on Member States’ sovereignty in media regulation. The act’s potential for centralizing media oversight and its broad scope raises questions about its fit with the principle of subsidiarity and the diverse media landscapes of the Union. In this installment, we delve into the legal basis of the Regulation, and the concerns it raises about encroaching on Member States’ media regulatory authority. We’ll examine its attempt to balance EU-wide media standards with national sovereignty and its impact on regulating large online platforms, assessing whether it advances or hinders media pluralism and independence in the EU.

Questionable legal grounds

From the EU’s standpoint, the EMFA is anchored in Article 114 of the Treaty on the Functioning of the European Union (TFEU), representing a critical endeavor to balance the roles and responsibilities between the European Union and its Member States, guided by the principles of subsidiarity and proportionality. While this basis is rational, especially in the face of digital expansion and the cross-border nature of media, it also invites skepticism regarding the extent and necessity of EU intervention in areas traditionally managed at national and local levels. The argument for EU-level regulation gains traction with the increasing influence of global platforms and cross-border media ventures, suggesting a need for uniformity across the internal market. Yet, this viewpoint raises questions about the potential for over-centralization and the risks of diminishing national sovereignty in media governance. Regarding proportionality, the EMFA endeavors to fill gaps where national efforts prove inadequate, proposing a collective approach grounded in shared principles. However, the preference for a regulation over a directive, under Article 114 TFEU, might not be without its complications. While stakeholders support this for its promise of swift implementation and regulatory consistency, it also sparks concerns about the potential for excessive uniformity that may not account for the nuanced realities of the EU’s diverse media landscapes.

While the rationale behind opting for a regulation over a directive might seem well-intentioned, several contra-arguments challenge its appropriateness and effectiveness. One of the primary concerns is the potential overreach of the EU into the domain of national media regulation, which could infringe upon the cultural and legal sovereignty of Member States.

Firstly, the principle of subsidiarity is a cornerstone of the EU’s operating principles, intended to ensure that decisions are made as closely as possible to the citizens and that constant checks are made to verify actions at the EU level are justified in light of the possibilities available at the national, regional, or local levels. By implementing a uniform regulation such as the EMFA, there’s a risk of undermining this principle by assuming a one-size-fits-all approach to media regulation. Media markets and the challenges they face are often deeply intertwined with specific cultural, linguistic, and societal contexts that a centralized EU regulation might not fully accommodate or understand.

Secondly, the principle of proportionality is intended to limit EU action to what is necessary to achieve its objectives. However, the broad and prescriptive nature of a regulation like the EMFA could impose undue restrictions on Member States, limiting their ability to tailor media laws to their unique circumstances. This is particularly relevant in the realm of media freedom and pluralism, areas that are deeply influenced by national historical, cultural, and political nuances. A regulation, by its very nature, allows for less flexibility than a directive, which could be transposed into national law in a way that respects these nuances.

Additionally, the reliance on Article 114 TFEU as a legal basis for harmonizing regulations across the EU’s internal market might not be entirely appropriate when applied to the media sector. The media is not just another economic service; it plays a critical role in democracy, shaping public opinion, and reflecting societal values. The economic arguments for standardization and market harmonization may not adequately capture the complex role media plays within different Member States.

Moreover, the preference for a regulation for the sake of regulatory consistency and timing efficiency might overlook the importance of democratic deliberation and adaptation processes at the national level. While regulations can be implemented more quickly than directives, this speed comes at the cost of reduced national parliamentary scrutiny and public debate, which are crucial for the legitimacy of media regulation.

Substantial progress in a particular area

Nevertheless, amidst these critiques, I also find aspects of the Regulation that I welcome. The EMFA introduces Articles 17 and 18 as pioneering steps in the evolving landscape of media regulation, aiming to harmonize the relationship between traditional media content providers and very large online platforms (VLOPs), as defined by the DSA. These articles are a welcomed development in media regulation, addressing the long-standing challenge of ensuring that traditional media’s integrity and freedom are maintained in the online realm.

Article 17 outlines a comprehensive framework whereby VLOPs are required to implement mechanisms allowing media service providers to declare their compliance with regulatory standards, editorial independence, and adherence to recognized editorial standards. This framework not only facilitates the identification and recognition of legitimate media providers on these platforms but also sets the stage for enhancing the visibility and accessibility of quality media content online. By necessitating VLOPs to prioritize and expedite complaints from media service providers and engage in meaningful dialogues to resolve disputes, Article 17 ensures that traditional media voices are not unjustly silenced or marginalized in the digital space.

Moreover, Article 18 introduces a structured dialogue between VLOPs, media service providers, and civil society representatives. This dialogue is designed to share best practices, enhance the diversity of independent media offerings on VLOPs, and monitor adherence to initiatives protecting society from harmful content. By fostering an environment of cooperation and mutual understanding, this structured dialogue aims to balance the operational needs of VLOPs with the societal imperative to protect media pluralism and independence.

The inclusion of these articles in the EMFA is particularly significant given the unique position of VLOPs as gatekeepers of information. Traditional regulatory approaches at the national level have proven inadequate in addressing the complexities of regulating these global digital platforms. Thus, the EU Regulation provides a harmonized and hopefully effective approach to ensuring that VLOPs contribute positively to the media ecosystem, respecting the fundamental values of media freedom and pluralism. These provisions underscore the importance of safeguarding traditional media content in the online space, ensuring that the democratic functions of media can thrive even in the face of the disruptive influence of VLOPs.

As the EMFA moves towards implementation, the balance between fostering an integrated media market and respecting Member States’ sovereignty in media regulation remains a contentious issue. The Act’s broad scope and centralized mechanisms of oversight prompt a critical examination of its implications for national sovereignty and the autonomy of Member States to tailor media regulations in accordance with their unique societal needs and values.

Conclusion

While the intentions behind the European Media Freedom Act to enhance journalistic integrity and promote a media environment rich in diversity and transparency are indeed praiseworthy, the legislation inadvertently impinges on the autonomy of Member States to govern their media landscapes. The shift towards centralized media oversight under the EMFA, particularly through the creation of the European Board for Media Services, significantly encroaches upon national sovereignty. This centralization ignites critical concerns regarding each Member State’s capacity to preserve a media ecosystem that genuinely mirrors its distinct cultural, linguistic, and societal fabric. This overarching approach risks diluting the rich tapestry of the European media landscape, potentially leading to a homogenization that could stifle the unique voices and perspectives essential to a vibrant democracy.

Nevertheless, in the face of increasing digitization and the cross-border nature of media content, the regulation represents a necessary evolution of media governance structures to address the realities of the modern media landscape. The provisions aimed at VLOPs are particularly noteworthy, recognizing the critical role these platforms play in content dissemination and the unique challenges they pose to media pluralism. By mandating a structured dialogue between VLOPs, media service providers, and civil society, the EMFA facilitates a collaborative approach to enhancing media diversity and combating harmful content online.

As the EMFA begins to take effect, the need for a rigorous and critical examination of its impact on national sovereignty and the diversity of the European media sphere cannot be overstated. It is imperative that a vigilant dialogue is maintained with all stakeholders to scrutinize the regulation’s real-world implications. This scrutiny is essential to ensure that in its bid to modernize media regulation, the EMFA does not inadvertently undermine the very foundations of media diversity and independence that are crucial for sustaining democratic discourse across the European Union.

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