The European Media Freedom Act: background, transatlantic asymmetries and early appraisal

The digital platform-based economy has reshaped how content is created, distributed and consumed. Consequently, the media landscape has shifted dramatically over the last twenty years. For instance, millions of Europeans now watch content online on different mobile devices rather than sitting in front of the family TV. It would not be hasty to acknowledge that social media platforms have transformed into the new public town square.

Initially, the European intervention in the media field was confined to the audiovisual sector, dating to 2010 with the enactment of the Audiovisual Media Service Directive (‘AVMSD’). In the meantime, the e-Commerce Directive, adopted in 2000, limited liability for intermediary service providers, allowing public discourse over the Internet to flourish without any major boundaries.

However, the fast-evolving changes arising from the digital technologies led the European Commission (‘EC’) to propose a revision of the AVMSD (‘revised AVMSD’), which was approved by the European Parliament and the Council in 2018.

In recent years, the sector-specific intervention has been replaced by a more horizontal and direct approach to media issues. This has been addressed by soft law acts, including the EP resolution on media pluralism and media freedom in the European Union, the recommendation of the Council of Europe on media pluralism and transparency of media ownership, the EU Code of Practice on Disinformation, the EC Communication on the European democracy action plan, and the EC Communication on Europe’s Media in the Digital Decade.

In addition to direct measures, European institutions have indirectly addressed media issues through collateral regulation such as the Copyright Directive and the DSA package.

The regulation of the media industry is similarly at the epicentre of a vigorous debate in the U.S. Since 1996, Section 230 of the Communications Decency Act has allowed almost absolute freedom of online speech, shaping the Internet as we got to know it. According to the provision, “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”.

While the Democrats have increasingly been challenging Section 230, asking for more regulatory tools to fight disinformation and illegal and harmful speech, the Republicans have frequently criticised deplatforming and content moderation as censure mechanisms.

In 2021, Florida and Texas, both ruled by Republican governors, passed two acts imposing content moderation restrictions and disclosure requirements on social media platforms. These laws have been challenged as violating the First Amendment on the grounds that they hinder the platforms’ ability to speak through content moderation. In this respect, the U.S. Courts of Appeals have recently taken different positions. On the one hand, the Eleventh Circuit largely upheld a preliminary injunction ruling on the Florida Senate Bill as likely to be unconstitutional, preventing the law from taking effect. On the other hand, the Fifth Circuit rejected this challenge regarding the similar Texas law. The two decisions have been referred to the U.S. Supreme Court.

Moreover, the U.S. Supreme Court has been called on to solve other pivotal cases within the social media acquis (Reynaldo Gonzalez v. Google LLC and Twitter Inc. v. Taamneh).

While in the US, it’s the judiciary to hold at the moment the upper hand, on the other side of the Atlantic, on 16 September 2022, the European Commission presented the proposal for a regulation establishing a common framework for media services in the internal market (European Media Freedom Act or EMFA). The proposal is aimed at achieving balanced and impartial media coverage, based on transparency, deeper regulatory convergence and cooperation between Member States, and an enabling environment for innovative media. The need for specific treatment of media companies arises from their crucial role in effectively ensuring democracy across European Member States by providing access to a plurality of views and reliable sources of information to citizens and businesses alike.

The urge to preserve media companies’ independence and transparency has gained momentum in order to fight against the erosion of fundamental rights, namely freedom of expression and information, as well as media freedom and pluralism. Indeed, these rights, even if expressly set out by Art. 11 of the European Charter of Fundamental Rights, are currently under threat due to the fragmented responses across European Member States.

The EMFA covers several key aspects for the preservation and promotion of media industries, dealing with (i) safeguards for the independent and transparent functioning of public service media providers; (ii) the role played by the European Board for Media Services; (iii) provisions directed only to providers of very large online platforms; (iv) right of customisation of audiovisual media offer; (v) assessment of media market concentrations.

As much as the new legal framework may be welcomed, there are a number of questions to be settled. Two stand out as more general issues.

First, it can be argued that the EMFA fails to offer a strong supervision on how existing and newly established media rules will be enforced. The Commission has for years declined to launch investigations against the Member States, such as Hungary or Poland, where free media is under threat. Thus, the EMFA should contain more detailed enforcement measures, especially considering those Member States where systemic attacks to democracy are perpetrated.

Moreover, as already said, this proposal follows many other regulations, including the DSA and DMA, the revised AVMSD and the EU Code of Practice on Disinformation. Therefore, it should be clearly stated if and how EMFA touches upon these recently added regulatory tools, still to be implemented in some cases, trying to avoid possible conflicts or ambiguity.

These are also more technical but still important issues, such as the determination of the threshold of influence above which an online platform can also be considered as a media service provider. It is not clear how to identify the specific sections over which the provider exercises an editorial power. This would involve a disclosure obligation on how the content is to be organised. But what if the content organisation is delegated to algorithms, especially those equipped with AI?

A possible option could be to pretend that the service provider would disclose the algorithm to the media authority in order to allow an independent expert to assess the extent to which the computer programme can influence the organisation of content.

On the other hand, the EMFA should not determine a reversal in the fight against misinformation. Art. 17 contains guarantees that very large online platforms must take a set of standardised and timely procedures before deplatforming content provided by media service providers. However, this approach should not be widened into an outright “media exemption” – granting special privileges or immunity to media outlets, possibly reversing recent trends to fight disinformation. Where this is concerned, that fear was precisely the main reason why a “media exemption” was dismissed, after being considered, during the DSA negotiations.

Finally, the EMFA represents an important milestone to protect the rule of law for the preservation and promotion of quality media services by strengthening the free and pluralistic media system across Europe.

Apart from requiring considerable coordination with the existing EU acquis, which is made up of a patchwork of direct and indirect measures in the media sector, there is still room for debate over the most suitable policy tools to address media issues, together with its enforcement and potential unintended consequences to skirt.

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