Information Crisis and the Role of National Regulators

By Ľuboš Kukliš
Chair of ERGA and chief executive at the Council for Broadcasting and Retransmission of Slovakia

Twitter: @LubosKuklis

 

Rules covering news, current affairs programmes and the framework for ensuring citizens are adequately informed during electoral campaigns constitute a significant part of electronic media regulation in many EU countries. So much so that, in some countries, the application of these rules comprises the majority of regulators’ daily workload. Despite this, it may be the most under-explored area of all media regulation, at least from an international comparative perspective.

The main reason for this is likely that these
rules are also those least harmonised. While there is some basic background for them in the Council of
Europe legislation (European Convention on Transfrontier Television[1]),
the EU regulatory framework is not concerned with this type of regulation, and
there is generally a considerable variety among national rules.  Furthermore, as these rules apply to
so-called traditional media (predominately radio and TV), and as their
application usually deals with domestic policy priorities in the relevant
country, their international impact is fairly
limited. It is therefore not surprising that these rules have yet to attract
widespread attention (scholarly or otherwise) at the European level.

The current media situation may change this.
The ever-increasing number of sources of media content, the degree of their
relevance in the eyes of recipients, combined with the subsequent proliferation
of dis/misinformation and outright hoaxes, provide a strong impetus for a wide
range of players to seek solutions. And if there is a relevant legal framework
that connects past and present regulatory experience to the current information
crisis, it lies precisely in this area.

This is why the European Regulatory Group for Audiovisual Media Services (ERGA), a group of media regulators from all EU countries that serves i.a., as an advisory body to the European Commission, decided to create a Subgroup that would gather the data on the rules in the EU member states (and other countries participating in ERGA) alongside the practical experiences of national media regulators (NRAs) in this field. And the first report of the ERGA Subgroup on the Media Plurality has been published and is available here.

The
ERGA Report

The vibrant patchwork of standards, regulations
and legal provisions set out in the Report called ‘Internal Media Plurality in
Audiovisual Media Services in the EU: Rules & Practices’ will not fit the
new situation seamlessly, but there is much to learn from these frameworks and
from the experience of the NRAs in applying them. For that reason, it seems
that the time has come to bring national internal plurality frameworks (as they
are referred to in the report) to the
debate.

The report is
divided into four major areas. The
first two chapters set the conceptual
framework
by explaining why it was important to write the report in the first place and is also establishing its scope and basic working
definitions.

The second part considers the current state of
regulation of internal media plurality in
general
and then, separately, in connection to elections in all countries participating in ERGA (EU members plus
FYROM, Norway and Serbia). In addition to providing a detailed catalogue of
available measures, this also grants a unique picture of their application from
the perspective of regulators.

To cover all areas, the third section considers changes in the
media landscape and their impact on the existing rules. This includes not only the general challenges created and
encountered by the evolving media landscape from the perspective of regulators, but also the specific issue of disinformation, where it provides a
preliminary snapshot of the existing and planned initiatives.

In its final part, the report offers a look at
media plurality from a cross-border
perspective.

What is and is not covered

As the outcome of the first part of ERGA’s work on media plurality, this report focuses on the theme of internal plurality with an emphasis on information flow in the media environment. External plurality measures, such as transparency of media ownership, rules on media concentration, must carry and must offer are not covered, as these will be the focus of the Subgroup in 2019. The main emphasis in this report therefore is on:

  • regulation of and ethical
    standards applying to media content such as news or current affairs programming
    (editorial independence, objectivity, impartiality, accuracy, veracity,
    transparency); “general rules”,
  • and regulation of and ethical
    standards applying to media coverage of elections (the extent, scheduling and
    the balance of the programmes, moratorium, opinion polls, political advertising,);
    “election period rules”.

The report gathers input on all the
measures (available or planned) in this area, comparing the practice on
internal pluralism in the respective countries, including frameworks and
standards that extend beyond those within the purview of the individual NRAs.
Thus, the report provides information on non-statutory rules and standards
concerning internal media plurality found in a
number of EU member states, including in sub-legal frameworks set up by
professional organisations, broadcasting and media organisations themselves or,
in some cases, with the involvement of national regulators and supervisory
bodies.

General rules

All NRAs have some measures aimed
at protecting these aspects of internal media plurality. Of course, not all
categories of measures are available in
all countries as can be seen in the table which follows. It does seem, however,
that these measures are widespread in every category assessed, ranging from
those available to almost all NRAs (editorial independence, impartiality and
right to reply), to those available to most NRAs (accuracy, veracity and
light-touch approaches) and finally concluding with widespread measures in the
area of transparency. Some NRAs
pointed out that many of these existing media plurality measures could also
indirectly but effectively cover disinformation.

Election period rules

Due to their potential influence,
broadcast media have traditionally been subject to detailed
and rigorous regulation during election periods. This was to ensure the effectiveness of the protection of the
pluralism of all “political representatives” participating in the
political-institutional debate and, therefore, requiring access to the media in order to inform the public of their
positions. In fact, almost all countries
have specific regulations regarding the electoral campaign aimed at traditional
broadcasters. At the same time, some NRAs have the role of drafting the rules
for the electoral campaigns.

Specific measures for public service media and specific genres

Most countries have additional measures
for internal plurality applied to public
service broadcasters
(both general and election period specific) as can be
seen in the graph below. These findings, and additional indicators explored in
the report, reveal the importance of the
role PSBs play in earning the public’s trust in news and in acting as a common reference for public discourse. In half
of the jurisdictions covered by the report,
existing measures of media plurality only apply to specific genres of programmes, mainly news,
political, and current affairs programmes as specific
genres, as well as programmes broadcast by public service media.

Current challenges

The current challenges
faced by the NRAs were also examined
closely. It is clear that most NRAs agree on the insufficiency of evidence to properly assess the need for regulatory
intervention to secure internal plurality against changes to the media
landscape and call for more research on this phenomenon. It also seems that
there are discussions and calls for change
at the national level and indeed concrete proposals are already being made in
this regard in some countries. Insofar as proposed interventions might involve
the wider application of the current
internal plurality framework analysed in this report, the trends in the media
landscape described below could offer some helpful direction.

The following general trends in the changing media landscape have been
observed in the report:

  • the internet reduces barriers to entry into the market for news,
    leading to an abundance of news services available to citizens online;
  • most people accessing news online do so indirectly instead of
    going through news websites or applications;
  • the news is increasingly viewed on smartphones in the
    form of ‘news feeds’;
  • content discovery online is fragmented;
  • in the absence of editorial curation, the news is now sorted into
    ‘news feeds’ by a combination of algorithms and personalisation by users;
  • for most users of social media, the route of content discovery is
    guided by endorsements and recommendations by friends, with news items
    discovered in this way less likely to be challenged;
  • news content which particularly resonates with members of a social
    network can go viral, intensifying its effect.

Disinformation

A part of the report also focuses
on the phenomenon of disinformation.
Where online consumption of news occurs
in a largely unregulated space, this could potentially risk undermining the
policy objective of internal plurality as an aid to democratic public
discourse. It seems that the growing importance of the phenomenon of
disinformation is undeniable. Although current concerns stem mostly from the
specific ways that the internet and new technologies profoundly affect the
dissemination of information, disinformation also exists in the linear and
traditional world of media. The approach to intervention in this field is a
sensitive topic, especially considering the rights and principles at stake (in
particular the freedom of expression and the freedom of information).

In a word, the responses
of NRAs on disinformation convey
that:

  • NRAs have not identified radical changes that relate to disinformation
    but that the regulators and the public are fully aware of this phenomenon;
  • NRAs have recently been expanding research in this field;
  • Disinformation can have important
    consequences on political debate and on
    decision-making processes;
  • Most countries have no measures in place tackling the issue of
    disinformation per se, and those that
    do almost never employ legislative measures;
  • The vast majority of NRAs
    consider that there is not enough evidence to assess the need for regulatory
    intervention in this field. However, the number of proposals to tackle the
    problem of disinformation is growing;
  • The vast majority of member states and NRAs favour self-regulation
    to address this issue; More and more actors (states,
    NRAs, market players etc.) are working to
    address this phenomenon. There is
    recognition that achieving plurality depends on series
    of measures.
  • There are some published and other planned initiatives at the
    national, European and international level.

Cross-border dimension

The cross-border dimensions of internal plurality were also examined. Cross-border cases
involving traditional (audiovisual) media and media plurality are rare and,
when they arise, cooperation between NRAs can offer solutions. A question has
also been raised regarding the possible
challenges posed by new services (Video Sharing Platforms/social media) in the
context of internal plurality. Cooperation between NRAs is strong, but
most NRAs believe that more would be
beneficial and stressed the added
value of ERGA. Most see ERGA as a medium for the exchange of information and
best practices (also as a discussion forum on the matter). Some regulators
believe that ERGA should play a role in cross-border issues, and potentially
act as a voice for regulators in discussions with global players over new
services.

Next
steps

This report should provide a unique NRA
perspective on the discussed topics that had previously been missing and will
hopefully contribute to debates about the
broader question of media plurality in society. True, the internal plurality is just a small part of the whole
complex issue. But it is also the one most underexplored so far, and one that deals with topics closest to those
the current so-called information crisis
is about.

In 2019 ERGA will, therefore, continue
exploring these topics, attempting to answer some of the questions raised in this report – with the
problem of disinformation standing out most prominently, while also focusing on
the regulatory aspects of external media plurality.


Find the full report here.

For more information see the ERGA website here.

[1]Article 7 (3), 10bis, European Convention on
Transfrontier Television, ETS No.132, https://www.coe.int/en/web/conventions/full-list/-/conventions/rms/090000168007b0d8