By Maria Luisa Stasi (Article 19)
The ‘media pluralism test’ in the recently enacted European Media Freedom Act (EMFA) can be seen as the EU institutions’ key regulatory response to the need to protect media pluralism across the EU. Much has been already said about media pluralism as a key pillar of democracy and about the various EU institutions’ attempts to address the issue of concentration of media ownership. In the turbulent times we are going through, the ever increasing and dangerous overlap of power on the information ecosystem and political power is shaking the backbone of many democracies. If anything, this adds importance, attention and expectations to tools and measures set to guarantee media freedom and pluralism.
Hence, there is little doubt that the media pluralism test is a needed and welcome step. Yet, as noted by experts, it is an ‘easy’ measure: it will intervene in future mergers while leaving the existing media concentration problem unaddressed, which, admittedly, is a much harder sell.
But let’s stay on the positive. As known, the core of the media plurality assessment will develop around 3 criteria:
- The impact on media pluralism and, importantly, on the ‘formation of public opinion’, which reveals a holistic and remarkably pro-democracy approach;
- The impact on editorial independence, including on the measures taken by media service providers to guarantee it (some welcomed the introduction of this semi-structural remedy);
- The economic sustainability of the merging parties absent the concentration.
A variety of distinguished voices have already commented on this new test introduced by Article 22 of the EMFA. While mostly praising it, experts have warned about a variety of enforcement challenges ahead. Some have noted that it’s ‘a lot to chew’, raising concerns about possible fragmentation in the interpretative effort, which is needed to operationalize the criteria, and especially those of pluralism and independence.
Among others, Manganelli and Marinelli discuss the pluralism criterion, and the concrete consequences of linking pluralism and independence in the new test. They also explain that the explicit reference to the ‘online environment’ calls for an assessment of exposure diversity, and of the internal dimension of plurality from the demand side.
The assessment of the ‘effects on the formation of the public opinion’ might be one of the most problematic. One can wonder how to measure this effect in a world of hyperpersonalisation and audience of one where, among others, there is a tremendous variation between diversity of supply and diversity of consumption. Article 24 of the EMFA might be of help with this exercise which several national regulators are already undertaking/considering.
Always on plurality, another risk has been flagged: allowing for another risk assessment self-performed by platforms, like the one imposed by Articles 34 and 35 of the Digital Services Act. The exercise to define what media pluralism is – and when it’s enough, should in no case be left to the VLOPs or large players.
Regarding economic sustainability, the debate focused on the dependency of the media players on a few gatekeepers in distribution, i.e. the main social media platforms, and on the need for the former to concentrate to remain economically viable. The disruptive impact of social media platforms on the media sector is well documented, and there is widespread awareness of the need to re-balance the relationship between these players. The EMFA solution to this issue, which we argue falls short on addressing the core of the problem, seems to be mainly Article 18, with its ‘special treatment’ for the moderation of content coming from media service providers. However, the fact that online platforms are included in the scope of application of Article 22 might play a role on the re-balancing exercise, too, although for the future only, while present issues will remain unaddressed.
Doubts can be raised about what kind of economic dependencies can be considered under Article 22. One, as mentioned, concerns the algorithmic systems intermediaries use to recommend content. But it could be argued that the media sector is crossed by additional structural dependencies at different layers of the value chain, which should become relevant in the assessment. For example, media players might increasingly rely on cloud providers to create and deploy applications for several tasks. This deep integration leads to significant dependency, as migrating away from these platforms would require not only transferring data but also rebuilding the core architecture of applications.
Moving to the assessment exercise, Parcu and Carlini note that Article 22 does not explicitly face the possible contrast between its new test and the probably looser competition evaluation of a media merger. They wonder what would happen in those cases and if the interest of preserving pluralism will always prevail, as it seems implicit in the spirit of the law. They also propose a possible interpretation to address this problem: the use of safeguards to editorial independence’s structural remedy to allow the merger.
Another legitimate question would be to ask what would happen in case of conflicts among the three criteria, and if one can only be guaranteed at the expense of the other(s). Here, para 3 of Article 22 comes into play establishing that the Commission, assisted by the European Board, shall issue guidelines on the three criteria.
Guidelines are a typical soft law instrument, which the Commission has widely used for harmonization purposes. Their use in this instance is thus consistent with the overall aim of the EMFA, and to avoid yet another layer of fragmentation across Member States.
One of the main difficulties lies in the fact that pluralism and the ‘formation of public opinion’, as well as editorial independence, are complex concepts and heavily dependent on the political, economic and social context. Thus, there might be a tension between the need to assess mergers in a similar fashion across member states, and the need to adapt these concepts to the specific features of each national context. It can be argued that this is the reason why the original text of the EMFA was amended to introduce a more relevant role for the Board in issuing the guidelines.
The guidelines should also shed some light on how to perform the balancing exercise mentioned above and provide directions on policy priorities. While useful in terms of harmonization, this exercise needs to be considered carefully as it can have a significant impact on the development of the media sector both from a substantive and a structural perspective. Indeed, it has happened in the past that guidelines fixing policy priorities have acted as game changer in the enforcement and contributed to the shaping of markets, industries and sectors. For example, the Commission guidelines on the implementation of Article 102 TFUE issued in 2008, with their focus on exclusionary abuses, have strongly contributed to a consistent lack of enforcement of the rules on exploitation, with relevant consequences on both the market structures and consumer rights in the years since. Any guidance given with regards to the balancing on the three criteria in the new test needs to be strongly linked to the main goal of the rule, and its impact towards the achievement of that goal should be adequately and frequently re-assessed.
The post Media pluralism test: lights, camara, action! appeared first on Centre for Media Pluralism and Freedom.