By Matteo Monti, Postdoctoral Researcher, Bocconi University

Introduction: the advent of social media and the EU attempt to defend the public discourse

The platformisation of the public sphere[1] has undoubtedly transformed the structure of the public discourse[2]. At the same time, it has resulted in ‘professional journalism and traditional mass media […] [being] increasingly bypassed as gatekeepers of public communication flows with the help of digital and social media’.[3]

While optimistic internet activists have welcomed the end of the journalistic monopoly on news distribution in the online world, this paradigm shift has also produced a dark side of misinformation and disinformation, often promoted by digital populism[4]. For some, this shift has even marked the ‘death of expertise.’[5]

Article 18 of the European Media Freedom Act (EMFA) aims to re-establish a space for traditional media in the online world by providing specific guarantees for media content on digital platforms. While the previous Digital Services Act (DSA) did not provide any such guarantees, the EMFA completes the EU’s approach to digital content governance.

In a nutshell, Article 18 EMFA sets a special regime for media in content moderation procedures. Under Article 18, recognised media have the right to receive reasons for the removal of their content before it takes place, allowing them to reply within 24 hours. They also have the right to have their complaints prioritised and can engage in direct dialogue with platforms if they believe they have been unfairly censored.

Article 18 represents a clear revision of some principles established in the DSA, creating a privileged status for traditional media. By requiring platforms to inform traditional media entities of the reasons for content removal before taking action and providing a fast-track redress mechanism, Article 18 of the EMFA introduces a clear exception to Article 17 of the DSA. By prioritising traditional media’s appeals over those of regular users, Article 18 also creates an exception to Article 20 of the DSA, which governs the internal appeal process for content moderation decisions on digital platforms. Furthermore, Article 18(5) of the EMFA effectively provides the possibility for traditional media to participate in the internal complaints handling system, establishing another exception to Article 20 of the DSA. The creation of a direct communication channel with platforms further solidifies this privileged status of traditional media, which is also reinforced by the Board’s role under Article 19 of the EMFA.

In summary, these provisions aim to protect media content from unjust censorship in the online public sphere. Why? Because ‘Media service providers that exercise editorial responsibility over their content play a key role in the distribution of information and in the exercise of the right to receive and impart information online’ (Recital 50). This perfectly represents the underlying rationale of this EU policy.

However, the EU attempt to establish media privilege for traditional media has faced two main criticisms:

a. This media privilege risks favouring disinformation actors and undermining efforts to combat disinformation;
b. A media privilege creates an unsustainable unequal treatment of different internet users.

Point a): The risk of favouring disinformation actors

In my paper[6] on the EMFA for the special issue of Rivista Italiana di Informatica e Diritto, edited by Elda Brogi, I discuss how safeguards have been strengthened to ensure that the media privilege under Article 18 EMFA is not granted to disinformation actors.

For a start, compared to Article 17 of the draft regulation, Article 18 adds new requirements to benefit from this privilege, including being independent from entities linked to third states and political parties. Furthermore, media entities claiming this privilege must be subject to regulatory or co-regulatory authorities or bodies, with the possibility for Very Large Online Platforms (VLOPs) to contact such authorities, adding an additional safeguard in granting media privileges. In short, Article 18 seems to provide sufficient tools to ensure that traditional media claiming this privileged status adhere to journalistic standards. Limiting media privilege to actors subject to regulatory or co-regulatory mechanisms mitigates the risk of disinformation actors gaining this privilege.

In attempting to avoid giving privilege to disinformation actors, however, the regulation ends up excluding the new ‘watchdogs of democracy’ recognised by the European Court of Human rights, such as citizen journalism or NGOs. In other words, it heavily relies on traditional media organisations. Nonetheless, as Nenadić and Brogi note, ‘media organisations still provide the key infrastructure for journalism to operate in a professional way.’[7] The EU’s approach is thus cautious, aiming to restrict this privilege to entities that surely adhere to professional journalism standards.

Admittedly, given the democratic backsliding and the rule of law crises in some EU Member States, relying on national regulatory authorities could risk protecting media entities that have abandoned journalistic standards. Examples such as Fox News or FranceSoir – which have become agents of populist disinformation or conspiracy theories[8] – show how media can serve political agendas rather than a professional and fact-checked distribution of news. In this context, the oversight of national regulatory authorities alone could result in giving privileged status to media acting as propaganda tools for authoritarian governments in certain EU Member States. However, this issue is not something that Article 18 of the EMFA can address; rather, it falls under the broader provisions of the EMFA.

Finally, it is important to remember that Article 18 does not apply to systemic risks like disinformation. Media privilege does not affect content moderation by VLOPs in compliance with ‘obligations pursuant to Articles 28, 34 and 35 of Regulation (EU) 2022/2065 and Article 28b of Directive 2010/13/EU or with their obligations relating to illegal content pursuant to Union law’ (Art. 18(4) EMFA). Additionally, the transparency provisions of Articles 18 and 19 EMFA enable researchers and civil society members to monitor whether media privileges are being granted to deserving actors or whether the provisions are being “abused”.

In summary, the risks and benefits seem to be carefully balanced. While relying on oversight by national regulatory authorities and limiting media privilege to traditional media may seem conservative, this prudential approach ensures to grant this privileged status to actors adhering to ethical and professional journalism standards.

Point b): Media privilege as an unequal treatment of users?

This second critique of media privilege under Article 18 EMFA raises more complex, constitutional questions. Why should media enjoy a privileged status in the public sphere? This question is particularly relevant to the U.S. approach to free speech, in which the First Amendment prohibits distinctions between speakers, making media privileges constitutionally unacceptable.[9]

Europe, however, has traditionally embraced a different approach, granting special privileges to traditional media. As noted, ‘The U.S. Supreme Court has tended to resist special institutional protection for journalism or the media, but in Europe, the role of the press in a democracy justifies such support, including through positive interventions by the state’.[10] In Europe, traditional media are regarded as ‘watchdogs of democracy’, contributing to the accountability of political power and the accurate transmission of information to citizens. Thus, they are deemed worthy of special protection in regulating public discourse.[11] This is particularly true for the EU legislation, where various directives and regulations provided for media privileges (e.g., art. 85 of the GDPR, Art. 15 of the Directive (EU) 2019/790, Recital 12 of the Regulation (EU) 2021/784).

In other words, given the media’s role in informing the public opinion, media privilege is a cornerstone of media freedom within European human rights and fundamental rights systems. Though media privileges differ across European legal systems, they share a common goal: to protect media freedom robustly and ensure the media’s role in the public sphere.[12]

Some final considerations

The European regulation established by Article 18 EMFA aims to respond to the challenges of online disintermediation by ensuring that journalism adhering to professional standards has a protected space in the platformised public sphere. While Article 18 makes difficult decisions, such as limiting privileges to traditional media, it aligns with the European traditional constitutional approach to safeguarding media freedom. In analysing the criticisms represented by point a), compared to Article 17 of the Proposal for a Regulation, Article 18 has strengthened the regulatory tools to support both media freedom and, indirectly, the fight against disinformation.

Considering the criticism outlined in point (b), I argue that Article 18 reflects the constitutional identity of the EU and its Member States. While the regulation’s effectiveness and implementation will need to be assessed through future studies, from a theoretical standpoint, Article 18 EMFA does offer the tools to bolster journalism in the online world and supports the broader effort to combat disinformation by promoting a correctly informed public opinion.

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[1] Poell, T.; Nieborg, D.; Van Dijck, J. Platformisation. Internet Policy Review 2019, 8 (4). https://doi.org/10.14763/2019.4.1425.

[2] Habermas, J. A New Structural Transformation of the Public Sphere and Deliberative Politics, 1. edizione.; Cronin, C., Translator; Polity Pr: Medford, 2023.

[3] Seeliger, M.; Sevignani, S. A New Structural Transformation of the Public Sphere? An Introduction. Theory, Culture & Society 2022, 39 (4), 3–16.

[4] Martinico, G.; Monti, M. Online Disinformation and Populist Approaches to Freedom of Expression: Between Confrontation and Mimetism. Liverpool Law Rev 2024, 45 (1), 143–169. https://doi.org/10.1007/s10991-023-09343-9.

[5] Nichols, T. The Death of Expertise: The Campaign Against Established Knowledge and Why it Matters; Oxford: New York, NY, 2017.

[6] Monti, M. The Missing Piece in the DSA Puzzle? Article 18 of the EMFA and the Media Privilege. Rivista italiana di informatica e diritto 2024, 6 (2), 18. https://doi.org/10.32091/RIID0173.

[7] Nenadić, I.; Brogi, E. Why news media need article 17 of the European Media Freedom Act. Centre for Media Pluralism and Freedom. https://cmpf.eui.eu/why-news-media-need-article-17-of-the-european-media-freedom-act/ (accessed 2024-03-15).

[8] Cesarini, P.; De Gregorio, G.; Pollicino, O. The Media Privilege in the European Media Freedom Act. MediaLaws 2023.

[9] West, S. R. Press Exceptionalism. Harvard Law Review 2014, 127 (8), 2434–2463.

[10] Tambini, D. What Is Journalism? The Paradox of Media Privilege. European Human Rights Law Review 2021, No. 5, 523–539.

[11] Cappello, M. Journalism and Media Privilege; European Audiovisual Observatory; IRIS Special; Strasbourg, 2017.

[12] Oster, J. Media Freedom as a Fundamental Right, 1st ed.; Cambridge University Press, 2015. https://doi.org/10.1017/CBO9781316162736.