It is more than welcome that the European Union has introduced legislation to protect the freedom of the media. In a time when these watchdogs of democracy suffer from declining revenues and increased pressure from authoritarian governments, the European Media Freedom Act can make a difference on issues such as editorial independence, the concentration of ownership, the surveillance of journalists, the misuse of state advertising, and the disproportionate market power of digital intermediaries. But it is questionable whether it can undo all the damage caused by illiberal governments in some member states.
July 6, 2023
The European Media Freedom Act (EMFA) is a long-overdue piece of legislation to support independent media landscapes across the European Union. It recognizes that the understanding of news media as for-profit enterprises acting in a market in which the provision of valuable information can be considered a viable business model is not in line with reality anymore. While it might have been true in the Western Europe of the second half of the 20th century that privately operated entities made profits by creating public-value journalism, thanks to the so-called “two-sided” market driven by advertisers and the paying public, in the 21st century, even the richest countries saw some of their prominent news media businesses failing. The problem was aggravated by the rise of politically biased outlets and the rapid spread of disinformation in social media, which made it hard for people to find information they could trust.
The situation is even worse in the newer EU member states, whose news media landscapes barely had a chance to develop sustainable business models outside of the embrace of the state or vested interests in the 1990s. Therefore, media capture became the norm in many member states in recent years. This is the phenomenon in which news media are independent in theory but in practice their content is influenced, or even prescribed, by powerful vested interests. Hungary’s media landscape, where the publishers of hundreds of news outlets take direct orders from ministries is probably the best-known example of this.
The EMFA is the first EU legislation focusing on news media markets. It aims to address the problems affecting independent news media by requiring guarantees (and some responsibilities) for outlets and their journalists. Transparency is at the heart of its approach to fighting media capture. Governments, for example, should not funnel taxpayers’ money to those who report in a way they find favorable about issues they deem relevant, social media should not remove news content without proper justification, and news media owners should not hide behind shell companies but disclose to the public who they are and what interests they might have.
Media Pluralism in Jeopardy
While the EMFA is the first EU legislation focusing on media freedom, plans to put the issue on the political agenda have been developed for almost four decades. Just to highlight two of the early measures, after years of discussions, the Television Without Frontiers Directive was enacted in 1989 and in 1992 the European Commission published a Green Paper on media pluralism and concentration. The Rule of Law Reports that the European Commission has published since 2020 regularly assess to what extent people in member states have access to information relevant for them to make informed decisions and hold their governments to account. For the last ten years, the Media Pluralism Monitor has conducted holistic analyses of European media landscapes, and it has highlighted many of the problems the EMFA aims to address. Overall, there has been growing media concentration combined with limited transparency about ownership. Digital news intermediaries such as Facebook and Google have a dominant position when it comes to reaching audiences. There are serious risks in relation to the allocation of state advertising. In some member states media regulators and public-service media are insufficiently independent, or journalists are under surveillance.
In combination with other key EU-level efforts—such as the Digital Services Act, the Code of Practice on Disinformation, and the proposed anti-SLAPP directive—the EMFA aims to foster an environment in which journalists and news media can operate more safely and more independently, while people have access to news providers they can trust.
Challenges to Be Addressed
Since the EMFA proposal was published in September 2022, its strengths and weaknesses have been widely discussed. While it has been seen as an important step focusing on many relevant topics, criticism has been directed at the difficulties of enforcing it, its too narrow definition of media service providers, possible problems with giving news media (or those who claim to be news media) a free pass to evade online platform moderation, the difficulties of keeping the newly established European Board for Media Services safe from excessive influence by the European Commission or politically controlled media regulators, and the difficulties of conducting a Media Pluralism Test that not only takes into consideration issues related to market competition but also properly assesses the ability of people to access news from a wide range of diverse sources.
One can argue that the EMFA comes too late for countries that have experienced significant democratic backsliding, as it might have prevented many of the developments that led to the deterioration of their media landscapes.
While many of these problems can be addressed, there are additional challenges in some newer member states—chiefly Hungary and Poland whose illiberal governments have a strong grip on power. One can argue that the EMFA comes too late for countries that have experienced significant democratic backsliding, as it might have prevented many of the developments that led to the deterioration of their media landscapes but may not be able to restore them now that the damage had been done. News media that were closed under pressure will not reopen miraculously, conglomerates like the Central European Press and Media Foundation (KESMA) in Hungary will not break up into independent entities, and outlets that are stuffed with political loyalists will not start producing groundbreaking investigations or unbiased reporting even if the act manages to guarantee editorial autonomy.
Unwillingness to Cooperate?
As many of the measures in the EMFA are considered by critics as too soft for an EU regulation, another key problem is the possible lack of willingness of some governments to cooperate. Even if some measures manage to uphold or even restore some level of media freedom and pluralism in the most affected member states—for example, by improving the appointment processes of public-service media—we should not underestimate the resourcefulness of the EU’s new authoritarians. One area where the EMFA’s impact might be limited is the requirement of a fair and transparent allocation of state advertising, which is misused as a disguised subsidy in some member states). If, for example, Hungary’s government were to be mandated to include critical news outlets in state advertising spending plans, it might do so in a way that is unacceptable for those outlets. Given that many state ads in Hungary contain propaganda in favor of the government or smear messages against its opponents, critical news outlets would have to choose between running ads that contradict their values and foregoing state advertising revenues. If they chose the latter, the government would then be able to claim that it is not its fault that those media do not receive such revenues.
Another issue that needs to be considered is how durable or future-proof the EMFA’s measures are. Many could become obsolete in a fast-changing media environment. An independent and high-quality public-service media, for example, may turn out to be useless if no one turns to it. A lot of the information that people consume today comes from actors not considered in the EMFA—be it content published on the websites or social media accounts of experts and citizen journalists, or channels operated by think tanks and public authorities. Therefore, the question of concentration or the fair allocation of resources might also need to be reevaluated with time. Just to stay with the example of state advertising: in Hungary there are already signs that government support for partisan outlets with limited reach may lose its appeal when money can be better spent on social media.
Proper Subsidies Are Badly Needed
One key factor is not properly addressed in the EMFA. Given the market failures plaguing independent media, financial support for news producers is crucial if EU citizens are to have access to high-quality information that helps them make informed decisions. However, state subsidies are not mentioned in the EMFA; rather, transparency and fairness in the allocation of state advertisement is requested. This misses the point as, while state ads are used indirectly and covertly to support favored news media, they should not be embraced as a subsidy, even if fairly allocated. Instead, there should be an EU-level grant scheme alongside a multitude of national media support schemes that are available indiscriminately to media outlets that produce original news content. The EMFA may not be the channel for establishing such a proper subsidy regime, but the issue needs to be addressed.
Still, despite the concerns highlighted, the EMFA is an important piece of legislation that can strengthen the understanding of independent news as a precondition of a strong democracy and that can contribute to the health of the European media landscape. It is not a silver bullet, but it is an important new tool to strengthen independent news media and to protect democracy.
Konrad Bleyer-Simon is a research associate at the Centre for Media Pluralism and Media Freedom (European University Institute, Florence).
Check out also our panel discussion “What Role for the European Media Freedom Act in Central Europe?” recorded on May 15, 2023, with Konrad Bleyer-Simon (Center for Media Pluralism and Media Freedom, European University Institute), Boryana Dzhambazova (Association of European Journalists Bulgaria) and Anna Wójcik (Polish Academy of Sciences).
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