The EU is taking practical measures to protect media freedom. Now we need theory.

Written by Damian Tambini, Distinguished Policy Fellow at LSE

The EU Media Freedom Act, currently debated at the European Parliament, is based on the observation that attempts by autocratic governments to manipulate the media also undermine legal certainty, the single market and the flow of media investment in the EU. With the stated aim of preventing the resulting market fragmentation and uncertainty the new legislation attempts to create a new set of media privileges and protections not only against manipulation by authoritarian governments, but against arbitrary treatment by tech platforms.

At a recent EUI workshop the EU official leading the drafting process described the legislation as the last piece of a jigsaw puzzle of new EU regulation that includes the Digital Services Act and the Digital Markets Act. The aim of this final piece is to protect democratic media in the new environment. After years of getting pushed around by dominant platforms and now facing the danger of being caught in the crossfire of new forms of platform regulation under the DSA, the media have negotiated a set of privileges, exemptions and rights in the form of the Media Freedom Act. These include the right to ‘self-declare’ that they are media services and covered by an ethics code, exemption from platform moderation guidelines and special protections against having content removed or downgraded, as well as priority complaints handling systems and light touch arbitration between platforms and publishers when services are suspended. These new privileges are part of a wider attempt to – somewhat belatedly – strike a new deal to ensure that democracy-supporting media are sustainable and autonomous in the age of big tech.

Policymakers have to tread carefully, because granting special rights to the media leads to what I call the paradox of privilege. Any law that grants special protections for the media requires definition of who are the media, and therefore creates a potential for media control. This is why the US Supreme Court tends to be against special rights for the media. If special protections such as source protection or specific exemptions in copyright or competition law are granted, the danger is a drift towards a system of ‘approved’ official media with privileged status. 

Policymakers should be mindful of this danger, which has long ago been noticed by theorists of media policy. The mitigation provided by Karol Jakubowicz and the Council of Europe is to decentralise and proceduralise the award of privileges and responsibilities and ensure transparency, checks and balances. We should read EMFA as part of a wider redefinition of what is media first predicted by Jacubowicz and the Council of Europe in its definition of a New Notion of Media back in 2011. Though it was not named as such, the drafters of the recommendation were aware of the paradox of privilege and stressed the importance of a decentralised and function-based definition of media. This approach was expanded in last year’s Council of Europe recommendation on media governance

Why does it matter?  Media service providers defined as such will benefit from privileges under the Act that are potentially hugely valuable and will be important in structuring future European media systems. The current draft is worded in a way that is biased towards big professional media and against amateurs. Article 2(2) refers to a media service provider as “a natural or legal person whose professional activity is to provide a media service and who has editorial responsibility…” It may be the case that ‘professional’ is intended to mean subject to an ethics code, but on the face of it professional is likely to be understood to mean those working for payment, particularly as these definitions will be interpreted in the first instance by platforms who will look for a simple and easily automatable definition.

The danger to avoid is a 2-tier system: the ‘approved professional media’ who will be protected from takedown and filtering, versus the amateurs which the platforms can block and filter at will, and potentially at the behest of others. In this context it is important to remember the underlying objective of the legislation, which is to avoid a situation in which media that are subject to ethical self-regulation such as journalism codes are also subject to moderation guidelines of platforms. There does not seem to be a justification to include in the new law professionalism defined purely in the sense of paid-for activities. Being professional as in paid is not a guarantee of being ethical. Far from it, the more we understand about the new advertising model the clearer it is that economic incentives support content that is the opposite of the ethical, informative, truth-seeking content that is supported by traditional ethical codes such as those of journalism associations, or of newer ones such as the EU endorsed Journalism Trust Initiative (JTI) or NewsGuard.

The acid test for the legislation is that it should follow the 2011 recommendation and therefore protect both profit making media that commit to ethical codes, and also the blogger or hyperlocal site that is amateur but self-declares and commits to a standards code such as JTI or a voluntary ethics code.

So when redrafting these provisions, officials should have in mind these theoretical points: not only the paradox, but the key idea that definitions that determine access to these privileges should be decentralised, as well as transparent and accountable.

There is another danger in legislating for media freedom, and that is of fighting the last war. The legislation has detailed provisions on media mergers, ownership, state advertising, and relationships with platforms – essentially focusing on issues that have arisen in the last decade and dealing with the existing media control playbook of countries with autocratic tendencies such as Poland and Hungary. The problem with this approach is that those in power may seek new ways of controlling the media if this enables them to influence public opinion. The use of AI will upend media industries in the next decade, and with this disruption will come a new menu of media control measures through for example controlling use of data.

How, in this context, to ensure that media autonomy can be protected from new control measures? Section 5 contains what I would call the ‘Constitutional’ measures which set out (at 20.1) that “any legislative, regulatory or administrative measure taken by a Member State that is liable to affect the operation of media service providers in the internal market shall be duly justified and proportionate. Such measures shall be reasoned, transparent, objective and non-discriminatory”.  This is a sweeping protection against the future playbook of media control. EMFA sets out the need for media to access an independent appellate body when they feel these procedural guarantees have been breached. This makes it all the more important that it is not restricted to some big media but becomes a privilege that incentivises a new market for ethics as media providers engage in a debate about their own ethical self-regulation. What is needed is a common underlying theory. I argued in my recent book that policymaking in this sector is hindered by deep and enduring confusion about the basic objectives. The most basic is who are ‘the media’. Let’s not leave it to Big Media lobbyists to decide.

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