By Ottavio Grandinetti, Professor of Information Law at the University of Naples Suor Orsola Benincasa.

In the European Media Freedom Act (EMFA) (2024/1083), the European legislator directly addresses the issue of media pluralism in an unprecedented way. This legislative text raises several considerations, both general and specific. From a broader perspective —as explored in greater detail in my article, “What Notion of Pluralism in the EMFA?” published in the Rivista Italiana di Informatica e Diritto, no. 2/2024—the concept of pluralism is, for the first time, regulated through “cross-cutting” provisions applicable to all media providers, including the press. This marks a departure from past approaches, which focused primarily on audiovisual media providers, as seen in interventions ranging from the 1989 Television Without Frontiers Directive to Directive (EU) 2018/1808.

This choice is particularly significant given that, as a matter of long-standing regulatory tradition, many Member States and courts —not only European ones— have consistently recognised the more immediate and powerful impact of audiovisual media compared to the press. Consequently, regulatory interference with the written press has often been more limited, frequently justified in the name of safeguarding pluralism. For example, the European Court of Human Rights has addressed this distinction in cases such as Jersild v. Denmark (23 September 1994, § 35, Series A no. 298) and NIT S.R.L. v. Republic of Moldova [GC] (judgment of 5 April 2022, application no. 24870).

Once it was opted for this cross-cutting approach in the EMFA —distinguishing not between types of media, but rather between the obligations of public service and non-public service media providers—provisions, for example, imposing internal pluralism obligations on publishers of printed media, would have been difficult to envisage. Nonetheless, the assimilation of written and audiovisual media providers for the purpose of defining their rights and obligations creates an objectively problematic relationship with the long-standing regulatory distinction between the two types of media, particularly regarding the safeguarding of pluralism.

Another problematic general aspect is the European legislator’s decision to allow Member States to adopt “more detailed or stricter rules” in certain areas, including the rights and obligations of media service providers and recipients of media services, as well as rules concerning concentration analyses and measures impacting the activities of media service providers. In this respect, it is well-known that the principle of the highest standard of fundamental rights protection is often not resolutive, given the inherently “relational” nature of fundamental rights (especially in cases where they conflict with one another).

Moving on to more specific topics, it is first worth asking which notion of pluralism —and possibly which of its various forms EMFA has adopted and, if so, whether these notions can be “derogated from” by Member States.

Concerning the first aspect, in the light of the relevant articles of EMFA, it can be said that, for media service providers other than public service providers, the European legislator has opted for the notion of “external pluralism”, namely how plural the structure of the media market is. Indeed, the EMFA obliges the Member States to respect the “effective editorial freedom and independence” of non-public media service providers and significantly excludes the possibility that not only States, but also “national regulatory bodies (…) shall not interfere in or try to influence the editorial policies and editorial decisions of media service providers.” (Art. 4).

Conversely, in the case of media service providers of the public service media, the EMFA opts for the notion of “internal pluralism”, namely the plurality of content and viewpoints that are provided by a single media company, requiring Member States to ensure that these media “provide in an impartial manner a plurality of information and opinions to their audiences,” (Art. 5.1), to ensure “a diverse content offering, including quality information and impartial and balanced media coverage” (Recital 27), at the same time imposing the obligation to “enabling people to seek and receive diverse information, and in promoting the values of democracy, cultural diversity, and social cohesion” (Ibid).

Moreover, it is not only allowed but even required that Member States establish “one or more independent authorities or bodies, or … mechanisms free from political influence by governments, to monitor the application of paragraphs 1, 2 and 3” (Art. 5.4).

At this point, however, it is necessary to question the scope of the provision contained in the above-mentioned Article 1.3, according to which Member States may adopt “more detailed or stricter rules” in certain areas, including the rights and obligations of media service providers and the right of recipients of these services. This leads to a specific question: can a national provision that, for example, imposes internal pluralism obligations on non-public media service providers, ostensibly to protect the rights of media service recipients, can be said to be compatible with the EMFA?

The positive answer seems more likely for those who consider that, despite its nature as a regulation, the EMFA is more akin to a minimum harmonization directive (Cole and Etteldorf, p.20, 2023)) or that it contains “principles” whose concrete application would be left to the Member States, which would inevitably apply them in accordance with their traditions of media regulation, with the result that the EMFA would have little impact on the legal systems of the Member States, especially those more “advanced” in the protection of pluralism (Brogi et Al., p.39, 2023). According to a less “restrictive” reading of the scope of the EMFA, it would be difficult to admit that the rights granted at the EU level to non-public media service providers (editorial freedom and independence) should “give way” to national legislation, at least whenever these rights are significantly challenged by “more detailed or stricter” national rules (O. Grandinetti, op. cit.).

Of course, an answer to these questions will have to await the decisions of the EU institutions, first and foremost the Court of Justice of the European Union (CJEU). However, it can already be said that if the first interpretation prevails, the ambitions for harmonising media regulation—particularly regarding pluralism—will need to be significantly scaled back, despite the intentions declared in the EMFA preamble.

References 

Brogi, E., Borges, D., Carlini, R., Nenadic, I., Bleyer-Simon, K., Kermer, J. E., … & Verza, S. (2023). The European Media Freedom Act: Media Freedom, Freedom of Expression and Pluralism. Policy Department for Citizens’ Rights and Constitutional Affairs.

Cole M. and Etteldorf C., Research for CULT Committee – European Media Freedom Act – Background Analysis, 2023

Grandinetti, O. (2024). Quale nozione di pluralismo nell’EMFA?. Rivista italiana di informatica e diritto, 6(2), 143-158.