Why news media need article 17 of the European Media Freedom Act

Iva Nenadić & Elda Brogi

In this blog post we discuss the proposal for a so called “media privilege” in the provision of content on very large online platforms and very large online search engines. We do that by considering the changing news and information environment and the interplay between the proposed European Media Freedom Act, the Digital Services Act, and the Code of Practice on Disinformation.

Research continuously shows that citizens and especially youth increasingly rely on online platforms as their primary gateways to news. Platforms could thus be seen as the key infrastructure where journalism and citizens meet. According to Eurobarometer’s Media and News Survey (2022), social media platforms are used more frequently than printed newspapers for accessing news. The emergence of new patterns in interacting with news and media content is particularly noticeable among young people in Europe (age 15-24) who access news based on what appears on the online platforms they use, rather than going directly to news websites. These young people are developing habits that in the longer term may affect levels and formats of informed citizenship and democracy.

Traditionally, media have functioned as two-sided markets: providing (or selling) information to citizens and selling the citizens’ attention to advertisers. They are specific markets as the media business is not just any business. It delicately wraps both economic and democratic values. Both these values – economic and democratic – have been disrupted by digital transformation and the rapid rise and spread of online platforms. The leading online platforms are now stabilising as key intermediaries between the media and their audiences and advertisers. With their content policies, platforms decide the visibility of news and media content and thus its potential for monetization by advertisers. This way platforms benefit from but also compete with the media content providers in the online advertising market. It is a battle in which the platforms significantly lead due to the huge amounts of data they collect, and which help them to know and target their users making the offer more attractive to advertisers.

News media organisations adjust to the ‘platforms logic’, changing their practices, values, and organisational structures to better adapt to technologies, content policies, and business models of these powerful intermediaries. News media organisations grew into significant dependency on platforms for distribution, for reaching and interacting with audiences and thus also for attracting advertisers. This dependence has perforated into both the democratic and economic role of the media. In contrast to the traditional media system, where news was an integral part of a media outlet and its editorial processes, in an online environment and through platform distribution and individual users sharing, news increasingly becomes disconnected from the media and “lives a life of its own”. To be more specific, the news on platform services lives a life shaped by the algorithmic process relieved of editorial responsibility. Platforms’ terms of services, and policies on content moderation have significant impact on findability of the media content and thus also on the media business model. Ultimately, also on the public’s access to information.

The powerlessness and subordinate position of the media in relation to large technology companies has been visible for years. The European Media Industry Outlook clearly illustrates the shift that occurred over the past 20 years. In 2000 just 1% of the advertising went online and 91% in the news media sectors (radio, TV, newspapers and magazines, including outlets’ digital versions). By 2021, 43% of all advertising spending went online, against 51% spent in the news media sectors in the EU. Advertising is still the most important source of revenue for the news media, but it is on decline, especially in the print news sector, which lost around 30% of advertising revenues in only five years (2016-2021). At the same time, online platforms such as Facebook or Google have managed to capture major shares of digital advertising revenues, especially in the case of programmatic advertising. By 2021 they are also positioned as the key external sources of traffic to digital publishers. This creates a pathologic relationship where the media depend on platforms for reach but also compete with them for revenue.

‘Media privilege’ is protecting media freedom

The European Media Freedom Act (EMFA) is an important step towards improving the functioning of the internal media market and European democracies by harmonising rules and introducing a European protection of media transparency, independence and pluralism, and of editorial autonomy. The legal basis of the EMFA proposal is economic: freedom of establishment and well-functioning of the internal market. Nevertheless, it is very clear from the proposal itself, and the main trigger of an EU intervention in the media regulation, that the media have a dual role: not only as an important and dynamic economic sector, but also as essential conditions for a healthy civic sphere, education, cultural development, social inclusiveness, and protection of fundamental rights such as freedom of expression and access to information. When acting in an independent and plural manner media and journalism are key to informed citizenship, which is a prerequisite for the functioning of both democracy and the economy.

While the general idea of EMFA was widely welcomed and supported, some of its parts have been in heated debate from the first day the proposal was presented, more than a year ago. The one that caused the stormiest reactions and criticism on the ground that it may undermine the fight against disinformation is Article 17 of EMFA on Content of media service providers on very large online platforms. Article 17, often described as ‘media privilege’, aspired to recognise the value of professional journalism within the subjects who bear editorial responsibility for the contents they select, produce, and disseminate. The basic idea contained in the European Commission’s proposal was that very large online platforms, largely recognized as intermediaries without editorial responsibility, should not be allowed to suspend or remove content provided by traditional (news) media providers that abide by relevant laws and journalistic standards and principles, prior to informing the media service providers themselves, and when the content disseminated is against platforms’ terms and conditions. In a way, this article stood up as the only attempt at the EU level to explicitly promote the principle that media and journalism, as key democratic institutions, should not be limited by technology companies, which, to date, have little accountability and democratic oversight.

The main opposition to this provision comes from those actively involved in the area of tackling disinformation. Concerns are largely related to the mechanism of identification of news media service providers (MSP) through self-declaration. It is feared that this mechanism may be misused by bad actors, state controlled or propagandistic outlets, to disseminate disinformation, misinformation, and propaganda more easily and with less oversight, and therefore also undermine the implementation of the Digital Services Act in disinformation risk assessment and mitigation. This is a reasonable and justified concern that should be addressed in negotiations and towards adopting good safeguards in the final text. However, the fight against disinformation should not completely overshadow the fact that the media found themselves in a worryingly subordinate position in relation to VLOPs and that Article 17 of the EMFA is the only mechanism that seeks to promote the principle that technology companies with little or no editorial responsibility should not censor journalism. Moreover, as journalism is increasingly consumed through their services. The threat that some bad actors, who should not be called media in the first place, will abuse the provision should not override the necessity to protect fundamental value of media freedom in the environment mediated by VLOPs and VLOSEs.

‘Media privilege’ faces the challenge of defining media today

Media and journalism are not always the same thing, nor are they always on the same side. As shown by the Media Pluralism Monitor, editorial autonomy is often challenged by the commercial and political interests of the media owners. However, the media organisations still provide the key infrastructure for journalism to operate in a professional way. The main source of conflict around Article 17 reflects the inability (both for policy and for academia) to clearly define the media today and to separate the media from bad actors and propagandistic outlets who disguise and self-present as media. This is not an easy task as any such attempt of setting boundaries may have unwanted consequences for freedom of expression. The situation is further complicated with the fact that news media are rarely just news media and many of them operate as hybrid outlets that combine news and current affairs reporting with more commercial content of trivia, showbusiness, entertainment, etc. The struggle for survival, and especially in the digital world and in the attention economy, pushed the media to click-bait, sensationalism, and other practices that short-term may bring some economic release but harm professional standards and long-term damage public perception and support to journalism.

All this leads to the media having a dual and conflicting role with regards to disinformation. They can be both part of the problem of disinformation and among the key solutions to addressing it. The decline in professionalism, sensationalism, lack of verification in trying to be first on the cost of being correct, etc., which has been aggravated by economic difficulties (not that it should be an excuse), lead to the media easily sharing unverified, oversimplified and disinformation narratives, which makes them part of the problem. However, when sustainable, independent, and trusted, media are best positioned to break, dismantle, and debunk disinformation narratives by providing accurate and complete information to citizens. This is why it is surprising that the media and journalism are not at the core of the EU policy to tackle disinformation. In fact, they are not even present in the key instrument of the relevant policy – the Code of Practice on Disinformation.

EU policy instrument to tackle disinformation

The Code of Practice on Disinformation was reviewed following its first iteration in 2018, and a new version adopted in 2022 detailing the concepts and commitments, including key performance indicators, and widening the array of signatories. New signatories included civil society and fact-checking organisations, but no media. Considering that the media play a dual role in the problem of disinformation: aggravating or mitigating it, it is unclear why the media are not part of the Code’s process where the measures adopted and implemented affect media as well. There is a considerable media freedom dimension to such framing and implementation of this policy instrument to tackle disinformation. For instance, under the Code’s pillars to Demonetise Disinformation and Empower Users, relevant signatories commit to provide options to integrate, when commercially viable, “indicators of trustworthiness” to help inform decisions on ad placement by ad buyers and to “recognise the importance of diluting the visibility and permeation of Disinformation by continuing to improve the findability of trustworthy content”. Users may be offered an option of having signals relating to the trustworthiness of media sources into their recommender systems. While certain general criteria for transparency and public oversight are mentioned in relation to these measures, they were agreed upon without direct exchange with the media, who are not among the signatories of the Code.

Another commitment in the Code, of relevance to the media, aims at giving prominence and leading users through various features (e.g. information panels, banners, pop-ups, maps and prompts, trustworthiness indicators) to “authoritative sources on topics of particular public and societal interest or in crisis situations”. It leaves it unclear who and based on which criteria will decide an “authoritative source” among all the “trustworthy” ones, and who and how gets to decide on “topics of particular public and societal interest or in crisis situations”, in all the countries and regions where platforms-signatories of the Code operate.

Disinformation as a systemic risk under the Digital Services Act

Under the Digital Services Act the Code of Practice on Disinformation should become a Code of Conduct and an instrument of fulfilling the legal obligation to mitigate the systemic risks related to disinformation. Article 34 of the DSA requires VLOPs and VLOSEs to “diligently identify, analyse and assess any systemic risks in the Union stemming from the design or functioning of their service and its related systems, including algorithmic systems, or from the use made of their services”. There are different categories of systemic risks foreseen by the DSA, including the impact of a platform infrastructure and the way it is being used on the exercise of fundamental rights, such as, but not limited to freedom of expression and of information, also encompassing media freedom and pluralism, effects on civic discourse and electoral processes. When conducting risk assessments, VLOPs and VLOSEs must consider, in particular, whether and how, among others, the design of their recommender systems and other relevant algorithmic systems, and their content moderation influence any of the systemic risks.

There are certain oversight mechanisms foreseen in relation to a risk assessment and mitigation conducted by platforms. However, the mechanisms to ensure that platforms adequately interpret and operationalise complex concepts of media freedom and pluralism, that they adequately consider them in their risk assessments and mitigation efforts, appear to be overly general and generic. Moreover, to a large part their activation requires justified suspicion, which presupposes a detailed insight into the operation of various platforms that fall under the category of VLOPs and VLOSEs. Platforms are known for their frequent changes of content and other policies, which may arise from external, including legal requirements, but seek to align their internal economic considerations. On top of that, there is a clear and deep information asymmetry between online platforms and most other relevant stakeholders, including the media, regulators, and policymakers that will be difficult to tackle even with mechanisms provided by DSA.

As it stands now, the DSA may strengthen the supervision of platforms over the media content, media freedom and pluralism, especially if strong and systematic public oversight is not ensured. The DSA, together with the Code of Practice on Disinformation, significantly entrusts very large online platforms, largely born and bred in a non-European context, to define and assess the key concept of European media policy – media freedom and pluralism. At the moment, Article 17 of EMFA is the only attempt at the EU level to recognise media and journalism as key democratic institutions that should not be censored by technology companies, which have so far shown little understanding and respect to key principles upon which the EU is built. While Article 17 cannot and is not aimed at addressing all the challenges related to enormous power imbalance between the platforms and the media, it can serve as a principle promoting the notion that the media is not and cannot be seen as any other business or platform user, and as such deserve a special treatment on platform services, considering that these are positioning as a key infrastructure for citizens to access news.

Evolution of Article 17: transparency as safeguard

Article 17 has significantly evolved and changed remarkably since the first version presented by the European Commission in September 2022. The self-declaration mechanism has been under particular scrutiny in the policy debate of relevant parliamentary committees, which reflects in the changes suggested by the Council, and in the amendments adopted in the European Parliament in early October 2023.

In the Commission’s proposal, Article 17 was stipulating that VLOPs shall provide a functionality allowing media service providers to declare themselves as such, editorially independent from Member States and third countries, and editorially responsible to national regulatory requirements or adhering to a widely recognised and co-regulatory or self-regulatory mechanism governing editorial standards. Simply said, platforms should allow media to self-declare as such in order to benefit from special treatment. This special treatment, in the Commission’s proposal, was limited to preventing VLOPs from suspending media content on their services prior to communicating the statement of reasons to the media concerned. Any media complaint to the VLOPs decision and a statement of reasons should be decided upon with priority and without undue delay, albeit not specifying the timeframes. VLOPs should respect this procedure only in cases where the suspension is not related to a systemic risk referred to in Article 34 of the Digital Services Act. Disinformation is one such systemic risk. So are the negative effects for the exercise of fundamental rights, including the freedom and pluralism of the media.

Important to note here, according to the DSA Article 34, it is the very large online platforms and very large online search engines themselves who should “diligently identify, analyse and assess any systemic risks in the Union stemming from the design or functioning of their service and its related systems” and mitigate such risk. The oversight over how they conduct this risk assessment vis-à-vis different categories of risk and how they operationalise complex concepts such as disinformation or media pluralism, may be done by the Commission or the Digital Services Coordinator of establishment, as also mentioned in Article 34. It may but, at the moment, lacks more systematic and defined approach to it. Independent audits are also foreseen by the DSA (Article 37) to be carried out at least once a year, but this mechanism also needs to be clarified further. The Commission’s proposal for Article 17 EMFA entails the mediation process by the European Board for Media Services[1] between the platforms and media service providers in case of frequent restrictions and suspensions, and it foresees annual reporting by platforms on the number and grounds for restrictions or suspensions. The Council of the EU introduced several changes to Article 17 aiming to strengthen the aspects of media ownership transparency, by explicitly linking the privilege and self-declaration process with Article 6 of the EMFA proposal.

The Council further strengthened the mediation element, reporting requirement, and the aspect of commitment to self-regulation. However, it also introduced the confirmation of the media compliance with regulatory, co-regulatory or self-regulatory mechanisms by the national regulatory authority or the relevant co- or self-regulatory body. In countries in which relevant regulatory authorities are not politically independent this may present a problem. As regards the self-declaration mechanism, the Council has expanded the part concerning the possibility for the Commission to issue guidelines on the implementation of the functionality, by considering also “involvement of civil society organisations and, where relevant, national regulatory authorities or bodies in the review of the declarations”. Perhaps the most significant change introduced by the Council was broadening the definition of content moderation: from just suspensions to restriction of the visibility of the content provided by the media.

The amendments adopted in the Parliament retained this broad definition of content moderation and the link with Article 6 (ownership transparency), significantly detailing Article 17 and adding a number of new dimensions to it. One of the significant novelties is the addition of transparency requirements for the media benefiting from the special treatment envisioned under the Article 17. The mechanism of self-declaration and acceptance of that declaration is especially detailed to involve the competent national regulatory authority or the representative of the co- regulatory or self-regulatory body in validation and mediation when there are disputes between the media and VLOPs. The timeframe for the media to respond to the announcement of suspension or restriction is set to 24 hours. Furthermore, a certified out-of-court dispute settlement is introduced for cases where no amicable solution between the media and VLOPs can be found. The implementation of Article 17 continues to be closely linked with and without prejudice to the mitigating measures in relation to a systemic risk referred to in Article 34 of the Digital Services Act.

As the European Media Freedom Act has moved to the trilogue negotiations on the final shape of the law, Article 17 faces further scrutiny. Its final version will affect the success of its implementation. An overly broad definition of content moderation could significantly complicate the applicability of the provision, but if the EP amendment on transparency of the media service provides is adopted, together with the Council’s suggestion for the involvement of civil society organisations in the review of declarations, key concerns voiced by those actively working on tackling disinformation may be relieved. To say that platforms should not decide on the media, at least as a normative principle of the European Media Freedom Act, should remain.

[1] The collective body of independent media regulators, replacing and succeeding the European Regulators Group for Audiovisual Media Services (ERGA)