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RECOMMENDATIONSFOR THE UPCOMINGEUROPEAN MEDIAFREEDOM ACTMarch 18, 2022
Recommendations for the UpcomingEuropean Media Freedom ActPublisherCivil Liberties Union for Europe e.V.Ringbahnstraße 16-18-2012099 Berlin, Germanywww.liberties.euAuthorsJudit BayerSenior Research FellowUniversity of Münsterbayerj@uni-muenster.deEva SimonSenior Advocacy OfficerCivil Liberties Union for Europeeva.simon@liberties.eu
Recommendations for the UpcomingEuropean Media Freedom ActTable of contentsExecutive SummaryKey findingsIntroductionMedia freedom and pluralism as pillars for democracySupporting and empowering media to foster free and pluralistic democratic debateThe role of the public service mediaIndependence of National Media Regulatory AuthoritiesEnsuring media pluralism and sustainable financingMedia ownershipThe structure of media financingFinancing Public Service MediaSafe and enabling environment for journalists and mediaProtection of journalistsMonitoring challenges and taking actionRecommendationsSupporting and empowering media to foster free and pluralistic democratic debateEnsuring media pluralism and viabilitySafe and enabling environment for journalists and mediaMonitoring challenges and taking action to timely address them44577810111111141616181919202323
Recommendations for the UpcomingEuropean Media Freedom ActA free and plural media requires not only amedia market that is free from state interference and measures to prevent concentrationof ownership (such as transparency of beneficial ownership), but also the independence ofnational media regulators.Executive SummaryLiberties’ policy paper on European media legislation focuses on the problems of the European media sector and offers recommendationson how to address them.The distribution and financial resources of themedia industry have significantly changed inthe last decade. Therefore, policymakers haveto rethink the economic structure of the mediaand the proportionate intervention needed,with a particular focus on public service media,the advertising industry, and state aid.The paper outlines the various legal bases andtools available to the EU to safeguard mediafreedom and pluralism. These include theCommission’s annual Rule of Law Report,the Audiovisual Media Services Directive, thedraft Digital Services Act package, the Recommendation on the protection, safety, andempowerment of journalists and the initiativeto protect journalists and rights defenders fromabusive litigation (SLAPPs). We also list theneed for EU-level regulation, the EuropeanMedia Freedom Act, to ensure proper functioning media systems across Europe.To facilitate the implementation of standards toprotect media pluralism, the EU should requireMember States to periodically report on stateaid and subsidies granted to the media sectorto the Board of Media Freedom. In addition,media pluralism and freedom should be part ofthe Commission’s annual Rule of Law Report,with precisely defined benchmarks.The EU is committed to the values of the ruleof law, democracy and fundamental rightsas enshrined in the Charter of FundamentalRights. A free and plural media system is integral to implementing these values. A properlyfunctioning democracy relies on balanced andwell-informed public debate, which is in turnmade possible through a free and plural media.The media make use of, but also help to fulfil for the general public, the right to accessinformation and freely exchange opinions andinformation. It is through healthy public debatethat citizens can exercise their right to vote in ameaningful manner and exercise other rights,such as freedom of expression, association andassembly in order, to participate in democraticlife.Key findings 4The EU should use all possible meansto strengthen and improve media freedom and pluralism across the EU, asthey are the cornerstones of democracy.These means are: creating new pieces oflegislation; urging the implementation ofexisting recommendations; and workingclosely with all stakeholders in the mediaindustry, including civil society, to support self- and co-regulation in the field.
Recommendations for the UpcomingEuropean Media Freedom Act The Media Freedom Act (MFA) shouldlay out minimum standards for publicservice media’s organisational principlesand requirements for providing statefunding to public service media. The MFA should explicitly define thebasic principles under which governments may grant state aid and subsidiesto media companies. These principlesshould include political impartiality,transparency of the funding, accountability, eligibility, and feasibility. such as the protection of persons whoreport breaches of Union law (Whistleblowing Directive), in close consultationand cooperation with civil society andmedia representatives. New measures toprotect journalists from strategic lawsuitsagainst public participation (SLAPPs)should be adopted as a matter of urgency.The Commission should explore flexibledigital payment solutions to encouragecontent distributions and provide incometo media outlets, such as micro-payments,metered paywalls, partial subscriptionsand journal malls.The MFA should require that theappointment mechanism of members ofnational media regulators be democratic,ensure their independence from governments, political parties and market players, and be transparent. The MFA shouldset out basic principles as the criteria forselection. The MFA should require a transparentEuropean database that includes information about the entire beneficial ownership chain of media outlets. The EU should ensure the proper implementation of the Recommendation onthe protection, safety, and empowermentof journalists and related EU legislation, The MFA needs to regulate consistentenforcement mechanisms at national andEU levels. We recommend full-scale,Commission-led enforcement mechanisms of overarching qualities of mediafreedom and pluralism. Annual monitoring of the status of mediafreedom and pluralism in the MemberStates, which includes the aspects ofmedia freedom mentioned in this paper,should become part of the Commission’sannual Rule of Law Report. The benchmarks used by the Commission in its annual Rule of Law Reportregarding media freedom should be madeclearer and more precise.IntroductionMedia law is a field that spans several areasof law: it carries elements of both private andpublic law. Constitutional law, competitionlaw, telecommunication law, advertising law,state aid, administrative law, platform, and AIregulation are among the many fields of lawthat affect the operation of the media industry.5
Recommendations for the UpcomingEuropean Media Freedom ActThe media is a pillar of democracy in thatit facilitates public discussion and politicaldiscourses. It is a cornerstone of democraticsystems and serves the realisation of the rightto freedom of expression and access to information. Disproportionate limitations on thesefreedoms are regarded as a sign of rule of lawbacksliding: suppressing public criticism andlimiting access to public information are clearindications of a government’s murky intentions. At the same time, the media is a significant economic branch that creates productsand provides services across borders.decision-making process. In short, free andindependent media is the precondition to exercise the right to vote, which is ensured in Article 20 TFEU and Article 39 of the Charter.Furthermore, it is also a logical necessity.1Without an independent and well-financedmedia system, problems like bad governanceand corruption would remain hidden, and citizens could be deprived of their right to accessinformation to make an informed decisionduring the elections. The Charter also ensuresfreedom of expression. Therefore, fundamentalrights connected to media freedom should berelied on more forcefully.2The Charter of Fundamental Rights is a binding part of European Union law. The Charterensures the right to vote in democratic elections to the European Parliament in any Member State. Free and fair elections are based onthe presumption that voters get easy access toreliable information that enables their participation in democratic discourses, enablingthem to form opinions on political issues andengage them to participate in the democraticEuropean democracy is key to Europe’s political stability. The current geopolitical processesand the war against Ukraine have demonstrated how longstanding foreign interferenceand disinformation permeate the media andinformation systems and are often disguised asuser content. Free and democratic media systems enable the European Union to fulfil its1 Kochenov, D., Augmenting the Charter’s Role in the Fight for the Rule of Law in the European Union: The Casesof Judicial Independence and Party Financing, University of Groningen Faculty of Law Research Paper,October11, 2020. “If the worry in Hungary and Poland is with the capture of the media, and if one agrees that even themost timid definition of EU citizens’ active right to vote for European Parliament and local elections (Article 17(2)(b) TFEU, and Articles 11 and 39(1) CFR) will logically necessitate free and independent media at Member Statelevel in the same way that independent and impartial courts at Member State level are required in a liberal democ-racy, it is quite clear that there are many more Union law areas than just Article 19 TEU that could be ‘weaponized’to defend the rule of law in tandem with applying the Charter.”2 Kochenov, D., and Morijn, J., Strengthening the Charter’s Role in the Fight for the Rule of Law in the EU:The Cases of Judicial Independence and Party Financing, University of Groningen Faculty of Law ResearchPaper, https://ssrn.com/abstract 3973096, November 28, 2021. Further reading: JAKAB, A., ‘The EU Charterof Fundamental Rights as the Most Promising Way of Enforcing the Rule of Law against EU Member States’ inClosa, C., and Kochenova D., (eds), Reinforcing Rule of Law Oversight in the European Union, pp 26, October2016.6
Recommendations for the UpcomingEuropean Media Freedom Actgoal formulated in Article 3 of TEU. It is alsonecessary for the EU to defend itself againsthybrid threats and interference through onlinecommunicative actions from outside and withinthe borders of the EU. Intervention on behalfof the European legislative branch is neededto ensure that reliable information sources areavailable for the general public across Europe.as a key driver for the well-being of EU citizens, businesses and society as a whole. Themedia industry’s distribution structure offinancial resources has been in continuouschange throughout the past decades. Financialresources have shifted away from media outlets that report the news and towards Big Techcompanies that merely collect and host thenews. The economic model of media companies has altered; the advertisement market hastransformed as Big Tech companies have captured the advertising industry while subscribershave vanished. Consequently, the free marketcan no longer sustain good quality journalism.Therefore, there is an urgent need to rethinkhow to ensure the financial independence ofthe media, as it is the prerequisite for professional, high-quality, impartial journalism.Media freedom andpluralism as pillarsfor democracyA free and diverse media system is an indispensable prerequisite for a properly functioning democracy, as well as for the rule of lawand for safeguarding and allowing the exerciseof fundamental rights in general. To protectthe European values articulated in Article 2of TEU, the European Union should set legalstandards on the media industry.Supporting andempowering mediato foster freeand pluralisticdemocratic debateMoreover, the promotion and protection ofdemocracy and values set out in the TFEUincludes rules that aim to prevent restrictions on and distortions of competition in theinternal market. The purpose of the economicobjective of media legislation is to enable theproper functioning of the EU’s internal marketThe European Union common market is basedon four freedoms.3 The media is an importanteconomic branch, representing itself both in3 The principles of subsidiarity and proportionality govern the exercise of the EU’s competences. In areas in whichthe EU does not have exclusive competence, the principle of subsidiarity seeks to safeguard the ability of theMember States to take decisions and action and authorises intervention by the Union when the objectives of anaction cannot be sufficiently achieved by the Member States, but can be better achieved at Union level, ‘by reasonof the scale and effects of the proposed action’. See Fact Sheets of the European Union, 2021.7
Recommendations for the UpcomingEuropean Media Freedom Actthe services and products market. The transborder nature of this market is increasing dueto globalisation, which also has an impact onEuropean integration.encompasses the right to receive accurate information. As such, measures to protect mediafreedom and pluralism should include measures to address the business model of spreading disinformation, as the latter is designed todistort and manipulate public debate.4 Eventssuch as the Brexit vote and Russia’s invasionof Ukraine highlight how disinformation hasbeen weaponized to weaken cohesion andsecurity between EU governments. Thus,a free, plural, and diverse media sphere areimportant to nurture European cohesion andfortify European security.However, the EU is more than an economicentity intended to stimulate commerce. Itis also an organisation that guarantees thewell-being of citizens by promoting respectfor fundamental rights, democracy, the rule oflaw, and the other values listed in Article 2 ofthe TEU and the European Union Charter ofFundamental Rights. Media freedom and pluralism are key to the realisation of these values.The role of the publicservice mediaAside from promoting and protecting a freeand plural media at national level to guarantee democracy inside individual MemberStates, media at the European level shouldalso be free and plural so it can foster a European public discourse and serve people allover Europe to become well-informed incommon European matters. Furthermore,it is a precondition for free and fair electionsto the European Parliament, according toArticle 20 TFEU. The same level of mediafreedom must be ensured across Europe toguarantee the right to free movement of services (Articles 49 and 56 TFEU) and the rightto vote in European Parliamentary electionsand national elections in the Member States.The democratic mission of public servicemedia (PSM)PSM fulfil their mission by working as pillarsof trust and promoting social cohesion whilefulfilling the traditional public service remit.Beyond providing information – in formsaccessible to various segments of vast audiences, including children – they also need torepresent cultural attitudes and values to fosterand promote European values as enshrined inthe Treaty and cultural heritage.The right to freedom of expression, ofwhich media freedom is one manifestation,4 Khan, I., A/HRC/47/25. Disinformation and freedom of opinion and expression : report of the Special Rapporteuron the Promotion and Protection of the Right to Freedom of Opinion and Expression, 085/64/PDF/G2108564.pdf?OpenElement, April 13, 2021.8
Recommendations for the UpcomingEuropean Media Freedom Actonline depends mainly on social media platforms’ recommending systems. Moreover, theEU should support and encourage initiativesto create a European PSM platform. Suchinitiatives should also include interoperabilityrequirements to allow easy connection betweenthe PSM platform and the social media platforms. An accessible European PSM wouldhelp citizens access reliable information evenin those EU countries where PSM is biassedand captured by the national government. Aspart of this comprehensive set of advantages, itwould enable the distribution of public servicecontent and quality journalism products toeveryone with a smartphone.6 The Europeancommon market will immensely benefit fromthe services and security provided by such aplatform as it serves to protect against foreigninterference. In addition, the platform willenhance the efficiency of sharing media content, including but not limited to news andaudiovisual cultural content.European public service mediaThe European Union may fully realise itsvalues and freedoms, namely the free flow ofservices and persons, and function as an area ofdemocracy only if all citizens can have accessto information. Public service media plays anessential role in this. Further, free and fairEuropean Parliamentary elections also presuppose that all citizens in each Member State areinformed about public matters across Europe.Informed voting and exercising full rights ofEuropean citizenship, set out in Article 20TFEU, requires that citizens have access togood quality content. Such a common European public media needs to serve as a referencepoint, but also as a forum for public debate.Therefore, we warmly welcome the EuropeanNewsroom project.5 However, getting accessto it requires a degree of media literacy that islikely to be lacking among parts of the population. Consequently, the Commission shouldfund projects to boost media literacy acrosssociety, from children to older persons.Public service platformInformation consumption is overwhelminglytaking place through social media platforms.Big Tech companies have become gatekeepers,as addressed in the Digital Markets Act. Thesuccess of distributing public service content5 European Commission, Commission announces European Newsroom project at the European News MediaForum, November 29, 2021.6 As an example of such an initiative, see: Kagermann, H. and Wilhelm, U. (eds), European Public Sphere: TowardsDigital Sovereignty for Europe, Acatech: National Academy for Science and Engineering, July 15, 2020.9
Recommendations for the UpcomingEuropean Media Freedom ActAll responsible decision-makers in the relevant authorities, including the Digital ServicesCoordinators, should be required to haveproven expertise in their fields, as prescribedby the Council of Europe’s Recommendation2000(23) on the independence of regulatoryauthorities to the broadcasting sector.10 Member States follow various traditions in the selection and appointment mechanisms of theirauthority members. In all cases, this appointment should take place democratically andtransparently, ensuring that all members ofthe authority remain free from the influenceof political power. The criteria set by Article30 of the Audiovisual Media Services Directive should also be fully respected. It is crucialto ensure that NRMAs are well-financed andwell-staffed to ensure independence and highexpertise.Independence ofNational MediaRegulatoryAuthoritiesThe MFA should contain requirements toguarantee the independence of National MediaRegulatory Authorities (NMRA)7 from thegovernment, political parties and industry,8reviving the idea of the dropped amendingproposals to Article 30 and the new 30a of theAudiovisual Media Services Directive.9Independent NMRAs should have anenhanced role in the new media environment.They may need to supervise some of the onlineplatforms if the Digital Services Coordinators defined by the draft Digital Services Actwill be connected to media authorities, eventhough the Member States may choose different authorities, such as those responsible fortelecommunications or competition.7 See more on independence of regulatory authorities, among others, in: Irion, K. et al., The independence of regulatory authorities in Europe, 2019.8 Valcke, P., AVMS Review and Media Regulator’s Independence: The Dancing Procession of Echternach.9 Directive (EU) 2018/1808 of the European Parliament and of the Council amending Directive 2010/13/EU on thecoordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing ntent/EN/TXT/HTML/?uri CELEX:32018L1808&from EN,November 14, 2018.10 Council Of Europe, Recommendations Rec(2000)23 of the Committee of Ministers to Member States on theindependence and functions of regulatory authorities for the broadcasting sector, December 20, 2000.10
Recommendations for the UpcomingEuropean Media Freedom Actnon-media owners may carry the potential ofnegatively influencing independent reporting.Transparency of ownership is also crucial toallow market analysis and competition-relateddecisions.Ensuring mediapluralism andsustainable financingMarket dominance, concentration, andmerger conditionality should be calculatedin national, regional, and European economies with a special focus on small linguisticmarkets.Media ownership11Pluralism, both external and internal, is animportant part of media freedom. It has manyfaces and preconditions, as the various indicators applied by the Media Pluralism Monitor12project show. However, media ownership hasbeen constantly one of the indicators. Understanding ownership concentration and theextent of genuine competition are crucial tomeasuring pluralism in traditional and onlinemedia.13Media companies in dominant positions shouldbe more closely monitored to ensure rigorouscompliance with rules relating to consumerprotection, fundamental rights and ethical andprofessional standards.15The structure of mediafinancingTransparency of beneficial ownership, accessible to the public, is crucial for the regulatorand the audience to inform themselves aboutpotential biases that might influence mediacontent. For this reason, it is necessary tomaintain a publicly available database aboutboth the vertical and horizontal chain ofbeneficial ownership14 in media companies, including non-media owners, such asinfrastructure providers. The influence ofThe European media financing structures needto be recalibrated to the online ecosystem,which significantly altered television, radio,and print financing. Therefore, alternativefunding sources, with consideration to retaining inclusiveness, spontaneity, and flexibilityof access to content, such as micro-payments,cross-medium reader-passes, and other innovative solutions, should be encouraged.11 Legal basis: Article 106 TFEU, Article 114 -118 TFEU, Article 6 TEU.12 European Centre For Media Pluralism And Media Freedom, MPM2021 Results, 2021. Starting with 6 indicatorsin 2014, the MpM now uses 4 indicators.13 OECD, Competition issues in News Media and Digital Platforms, December 2021 .14 Full transparency would be desirable, even though some media companies may have a long list of shareholders.However, an online database would be capable of dealing with even long lists.15 Medvegy, G., Orban’s Media Empire Unlawfully Given Green Light, January 30,2020.11
Recommendations for the UpcomingEuropean Media Freedom ActWe can detect two main fields where regulatory intervention is needed: state aid and subsidies, and advertising.AdvertisingState aid and subsidies16Following the decline in advertising in traditional media, online media is also losingadvertising on platforms18 because socialmedia took the dominant share of the advertising budget. The principle of curating contentfollows the method: content “serves” to sell thead space, and users’ attention is the commoditymarketed to advertisers. Moreover, the available online tools to measure the audience areincomparably more sophisticated. The dataharvesting business model leaves users exposedto attention harvesting.19 We strongly believethat regulatory intervention in advertisingpractices is necessary, with a particular focuson protecting the personal data of the usersand introducing strict limitations on the dataharvesting business model and online targeting techniques. Targeting advertising, especially political advertising, can also be usedto mislead, manipulate, discriminate againstor demobilise voters. Targeting techniquescan be used to say different things to differentpeople. It creates echo chambers and increasesAddressing the data harvesting businessmodelEU Member States differ according to theirpopulation, GDP, the size of their media market, and the cultural background for consumingand financing. In some countries, advertising,donations, and subscriptions would finance themedia market insufficiently. In these countries,it is beneficial to provide state subsidies, especially to media outlets of merit that are lessviable commercially. However, the grounds forallocating subsidies and the decision-makingprocess should be transparent, inclusive andnon-discriminatory to ensure diversity andmedia pluralism.Information about state aid should bereported to the Commission and examinedfor compliance with the Treaty, focusing onpractices that conceal state aid as paymentfor advertisements made by state-ownedcompanies.1716 Legal basis: Article 109 TFEU (ref. Articles 107-108), Articles 114-118 TFEU.17 Shinar, A., Democratic Backsliding, Subsidised Speech, and the New Majoritarian Entrenchment, AmericanJournal of Comparative Law, April 11, 2021. see also: MŪHELY, M., State advertising spending in Hungary anunlawful form of state aid, spending-in-hungary-an-unlawfulform-of-state-aid/; nts/, January 29, 2019.18 See figure: Estimated advertising and circulation revenue of the newspaper industry, in Pew Research Center,‘Newspapers Fact Sheet’, July 9, 2019.19 Van Dijck, J., Poell, T., and De Waal, M., The Platform Society, October 2018.12
Recommendations for the UpcomingEuropean Media Freedom Actpolarisation, instead of enriching politicaldebate.20Demonetising disinformationThe attention-driven advertising model plays arole in spreading disinformation and aggravating the post-truth nature of public discourse.Sensational content receives more attention anda higher click rate. Disinformation campaignsare partially driven by economic interests.Depriving disinformation of advertisementrevenues would disempower disinformationand contribute to ‘cleaning’ the ecosystemfrom the harmful effects of targeted advertising. This would require that all actors acrossthe value chain of advertising carry responsibility to refrain from participating in spreading or promoting disinformation. Advertisingretailers should refrain from sponsoring disinformation and hate speech. At the same time,creative agencies should reject participationin such advertising, and media outlets shouldreject advertisements and sponsorship thatwould carry disinformation or discriminatorycontent. Even though disinformation is notillegal per se, the principle and professionalstandard should be declared in a self-regulatorySolidarity tax or quotaThe primary aim of advertising regulation isto protect consumers.21 However, recognisingadvertisement income as a key resource forsustaining online media justifies regulatoryintervention to allocate or redistribute advertisement revenues among players in the onlineecosystem, namely big platforms and onlinemedia. In other words, regulatory intervention should divert a part of the advertisingrevenues that shifted from media companiesto platforms. Such redistribution could takeplace either in the form of a media quota22 forlarge advertisers or a platform “solidarity tax”23that allows central redistribution in forms ofnon-discriminatory subsidies. All methodsneed careful consideration of possible negativeside effects. Regulating the business model ofplatforms could also improve the possibilitythat media have access to advertising revenue.20 Galaski, J., Simon, E., Solutions for Regulation Targeted Political Advertising on Online Platforms, Civil Liberties21Union for Europe, November 2, 2021. Directive 2010/13/EU of the European Parliament and of the Council on the coordination of certain provisionslaid down by law, regulation or administrative action in Member States concerning the provision of audiovisualservices, March 10, 2010. Directive 2006/114/EC of the European Parliament and of the Council on misleadingand comparative advertising, 2006. Directive 2005/29/EC of the European Parliament and of the Council con-cerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Counciland Regulation (EC) No 2006/2004 of the European Parliament and of the Council, May 11, 2005.22 Bayer, J., et al. Disinformation in the light of freedom of expression, in The fight against disinformation and theright to freedom of expression, July, 2021, pp. 81, 88-89.23 BBC, Australia news code: What’s this row with Facebook and Google all about?, February 18, 2020.13
Recommendations for the UpcomingEuropean Media Freedom Actcode of conduct. Furthermore, DSA Article24 offers the possibility to limit the targetingmethods that online platforms make availableto advertisers. Targeting people according totheir sensitive data and using inferred data- assumptions that algorithms make aboutusers’ preferences based on their onlineactivity - should be prohibited by the DSA.24action should be encouraged and financed inthis direction.Financing Public ServiceMedia27Human attention has become a scarce resourcein the media system, where we all face information overload.28 As a result, trust in themedia has declined, and people are more vulnerable to extensive and technology-supporteddisinformation campaigns. As a result, publicservice media has gained a new importance andrelevance in this information environment. Wediscuss PSM in two different sections, bothunder economic and democratic objectives.Subscription/crowdfundingSeveral online newspapers have attracted astable subscriber base and flourished.25 However, putting all quali
the advertising industry, and state aid. To facilitate the implementation of standards to protect media pluralism, the EU should require Member States to periodically report on state aid and subsidies granted to the media sector to the Board of Media Freedom. In addition, media pluralism and freedom should be part of
