Interaction Without Affection?

The EU’s legislative activity in the area of media and platform regulation is currently unfolding at an unprecedented pace. The thematically broad EMFA builds in many places on recently adopted legal acts whose interpretation is still unclear. This leads to parallelisms and overlaps as well as unclear and convoluted references, which can only be briefly outlined here and should be clarified in the trilogue negotiations.

A New European Legal Universe

Technological convergence and the platformisation of media services inflate the number of EU legal acts that look at information services from different perspectives. Although – or rather because – the EU lacks an explicit competence title to regulate European media law, the growing nomenclature of relevant legal texts appears increasingly complex.

At the turn of the millennium, European secondary law in this area still had a comparatively clear structure, consisting of the Television without Frontiers Directive (TVWF Directive), Copyright and Information Society Directive (InfoSec Directive), Electronic Commerce Directive (E-Commerce Directive) and a number of directives in telecommunications law, which largely corresponded to the usual national division of legal regimes. While the Audiovisual and Media Services Directive (AVMSD), according to its Art. 34, repealed and replaced the previous TVWFD, there are now several generations of EU legislation with overlapping scope and regulatory objectives: The Commission’s proposal for a “European Media Freedom Act” (referred to as EMFA here), now joins the AVMSD, the Digital Services Act (DSA) joins the E-Commerce Directive, there are special laws such as the Regulation on platform-to-business relations (P2B Regulation), the Regulation on preventing the dissemination of terrorist content online (TCO Regulation) and the currently planned Regulation on transparency and targeting of political advertising (COM(2021) 731 final; PA Regulation), not to forget that data law is differentiated in numerous acts. They are based on diverse legal bases and yet build on each other. Some of them use old legal definitions, others create new ones, and they all form a complex patchwork that is difficult to keep track of.

Therefore, the question of how these European norms relate to each other is just as relevant as the question of the displacement of pre-existing national law. The latter is much more pronounced in the case of the EMFA, which encounters diverse national media laws, than in the case of the largely unprecedented legal acts of platform regulation. Here, I will try to shed some light on the lines of conflict and unresolved legal issues of the interaction of the EMFA with other secondary legislation.

EMFA’s references to other secondary legislation

The EMFA contains a mixed bag of provisions relevant to media services in both the offline and online world. Most of them aim to protect media services from undue influence and disadvantages. This leads to overlaps with numerous EU acts. The relationship with these is not simply resolved in the abstract by rules such as lex superior and lex specialis. Instead, the legislator of the EMFA indicates in an updated democratic will how it wants the relationship of its most recent legal act to be understood in relation to pre-existing law.

According to the EMFA’s explanatory memorandum, it would build on the revised AVMSD and be in line with existing rules for media and online services. Consequently, Art. 1(2) determines that the EMFA “shall not affect” the provisions laid down in six acts: the E-Commerce Directive, the DSM Directive, the P2B Regulation, the DSA, the DMA, and the currently planned PA Regulation. The introductory remarks on pages four and five of the Commission proposal clarify these aspects. The EMFA is “complementary” and “consistent” with the legal acts mentioned. In other words, the EMFA and the above-mentioned acts are intended to operate in parallel. The relationship to other legal acts is therefore not as differentiated described in the EMFA as in the DSA in Art. 2(3)(4), recitals 9-11 (see on the DSA Raue, ZUM 2023, 160).

What initially reads rather intuitive is in fact anything but simple. Let us have a look at the ESMA’s relationship with the AVMSD, the P2B Regulation, the DSA, the DMA, and the PA Regulation.

EMFA and AVMSD

The EMFA builds on the AVMSD and updates its norm regime. This is already clear from the fact that Art. 8(1) EMFA establishes a European Board for Media Services, which replaces the European Regulators Group for Audiovisual Media Services (ERGA) of the AVMSD (Art. 8(2), Art. 27 No. 3 EMFA). However, such replacements are not usually conflictual. On the other hand, conflicts over norms are provoked when regimes operate in parallel. This is also the case here, because the scope of the EMFA covers and exceeds that of the AVMSD.

The term media service according to Art. 2 No. 1 EMFA covers the provision of programmes or press publications to the general public, by any means, to inform, entertain or educate, under the editorial responsibility of a media service provider. The media covered is considerably broader than that of the AVMSD, which limits the concept of audiovisual media service according to Art. 1(1) lit. a sublit. i AVMSD to television broadcast and on-demand audiovisual media distributed via electronic communications networks. The audiovisual media services of the AVMSD will also be media services of the EMFA. They will have to comply with both laws.

Measures taken by Member States required under the AVMSD to protect minors, persons with disabilities and recipients in general from unfair advertising (Art. 6-9 AVMSD) could now be subject to the general requirements of Art. 20 EMFA. This new catalogue of requirements for state measures does not differentiate according to whether these measures are intended to meet the requirements of the AVMSD, but covers „[a]ny 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”. The only explicit requirements in the AVMSD of appropriateness and proportionality (Art. 6(2), 7a, 7b(1) AVMSD) would be embedded into general requirements of sufficient justification, proportionality, non-discrimination (Art. 20(1) EMFA) and the procedural element of an out-of-court complaint procedure (Art. 20(3) EMFA).

Another point of intersection between the two pieces of legislation is the term “video sharing platform service”, which is taken over from the AVMSD in the EMFA. However, these may be subject to both the P2B Regulation and the DSA at the same time (see below). In cases where the video-sharing platform services are also very large online platforms, Art. 28b AVMSD could now be affected by Art. 17 EMFA, which privileges editorially independent media service providers in content moderation on very large online platforms. Art. 28b AVMSD obliges video-sharing platform providers to take measures against content that is harmful to minors, incites violence and hatred or constitutes a criminal offence. Such content may also constitute broadcasts or other content of media service providers within the meaning of the EMFA, so that the privilege of media service providers under Art. 17(2) EMFA may apply in the event of deletion – an interesting conflict between the effective protection of recipients and persons affected on the one hand and the procedural protection of the media on the other.

EMFA and P2B Regulation

The P2B Regulation is not only generally referred to in Art. 1(2) EMFA, but also explicitly modified by Art. 17 EMFA. Media services within the meaning of the EMFA can be business users within the meaning of the P2B Regulation when they offer services through online intermediation services (Art. 1(2) lit. c EMFA). The broad and technologically open P2B definition of online intermediation services can in turn include a wide range of platforms, social networks and video sharing services.

Art. 17 EMFA contains privileges for media service providers that have declared their editorial independence in accordance with Art. 17(1) EMFA compared to the general rules for content moderation under the P2B Regulation. Contrary to the regular procedure of Art. 4(1) P2B Regulation (“prior to or at the time of the restriction or suspension taking effect”), the media service providers must be informed before the suspension. This enables them to react preventively. From a legal policy perspective, however, it is questionable why the cases of mere restriction according to Art. 4(1) P2B Regulation are not covered by Art. 17(1) EMFA.

Another modification concerns the internal complaint management of Art. 11 P2B Regulation. For this, Art. 17(3) EMFA prescribes that complaints concerning media service providers (“decided upon with priority and without undue delay” (EMFA) should be prioritized instead of decided “within a reasonable time frame” (P2B Regulation). This breaks the principle of equal treatment under Art. 11(2) sentence 2 of the P2B Regulation.

EMFA and DSA

The relationship between AVMSD, DSA, and P2B Regulation raises unresolved questions. Unclear and convoluted relevancies result especially from the fact that EFMA does not refer to the DSA at the crucial points. First of all, Art. 2 No. 10 EMFA adopts the DSA concept of “providers of a very large online platform”. However, in its provisions of Art. 17 EMFA, which is directed at the platform economy, the EMFA then explicitly refers only to the P2B Regulation but not the DSA. The Commission seems to assume that the P2B Regulation, and not the DSA, is applicable to possible disputes concerning media services. However, it is completely unclear whether the DSA’s scope of application follows or precedes that of the P2B Regulation. According to recital 10 and Art. 2(2) lit. e DSA, the P2B Regulation remains “unaffected” by the DSA. Nevertheless, Art. 30(4) DSA orders the application of the DSA’s own complaint management system and not that of the P2B Regulation, at least for some measures against companies under Art. 30(1)(3) DSA. The fear of a “splitting up” of the complaint channels, which has already been put forward in favour of a precedence of the P2B Regulation, rather speaks in favour of a precedence of the DSA because of Art. 30 DSA (Fertmann in Mast et al., DSA/DMA, Art. 20 DSA [forthcoming]; dissenting Holznagel CR 2022, 594 (596); Busch, P2B-VO, Art. 11 para 2).

The question now arises whether the privileged treatment of media service providers under Art. 17 EMFA also applies to content moderation under the DSA. Whether, according to Art. 17(2) EMFA, the time of justification also shifted forward compared to Art. 17(2) sentence 2 DSA and whether complaints of media services according to Art. 17(3) EMFA are privileged compared to the otherwise applicable Art. 20(4) sentence 1 DSA. This is likely to be difficult, as there is no classic editorial error (in German: Redaktionsversehen), where the true intention of the legislator is known and contradicts the text of the EMFA, so that the wording could be neglected and an extensive interpretation attempted. Instead, there is simply a highly questionable legislative assumption about the legal situation. The trilogue would do well to address the respective parallel provisions in the DSA and the P2B Regulation in the EMFA in equal measure and to leave the question of application to jurisdiction and jurisprudence.

At first glance, there could be a further overlap between the right of customisation of audiovisual media offer regarding “any device or user interface” in Art. 19 EMFA and the requirements for online interfaces and recommendation systems for online platforms in Art. 25, 27 DSA. However, Art. 19 EMFA is not likely to be applicable to such online interfaces. Indeed Art. 19 EMFA is systematically located in Section 4 (“Provision of media services in a digital environment”). But the fact that the EMFA includes both the terms “online interface” (recital 33) and “interface” but uses the latter in Art. 19 speaks against an application to online platforms. As examples of “interface”, recital 37 does not mention online platforms, but only connected televisions.

EMFA and DMA

With regard to the DMA, there could also be overlaps with Art. 19(1) EMFA. According to this provision, users have the right to easily change the default settings of any device or user interface controlling or managing access to and use of audiovisual media services in order to customise the audiovisual media offer according to their interests or preferences.

Should the user interfaces of the EMFA be applicable to the core platform services of a gatekeeper pursuant to Art. 2 No. 2 DMA, there would be overlaps with the gatekeeper obligations under Art. 6(3)(4) DMA. The user modification options required by the DMA would be specified in a media-specific manner. The prohibition of preferential treatment under Art. 6(5) DMA and the prohibition of restrictions under Art. 6(6) DMA could then also become relevant for the EMFA. Basically, the same questions of interpretation arise here as with regard to Art. 25, 27 DSA.

EMFA and Political Advertisement Regulation

The relationship between the EMFA and the PA Regulation should be comparatively conflict-free. However, it is true that the areas of application of the regulations overlap. The EMFA regulates “state advertising” (Art. 2 No. 15 EMFA). At least the Commission’s proposal for the PA Regulation defines “political advertising” in Art. 2 No. 2 extremely broadly, understanding not only messages of political actors as such but alternatively such messages that are liable to influence the outcome of an election or referendum, a legislative or regulatory process or voting behaviour („or“; see Holznagel 2023). This includes many forms of state advertising and public relations. However, the EMFA addresses state advertising in line with its general objective of protecting the media themselves from discrimination and state interference (Art. 24, recital 48 EMFA). This does not conflict with the requirements of the PA Regulation for advertisers to be transparent about political advertising and not to use targeting or amplification techniques for such communications.

Years of the Smoking Gun

The twenties will probably be remembered as the years in which the EU was shaken up, the years in which it tried very quickly to counter all the daunting scenarios of an increasingly digitized world. With DMA and DSA in particular, the EU proved – at the cost of an enormous number of legal technical errors and translation mistakes – that its institutions are capable of creating law much more quickly than in the case of the GDPR. In general, however, it is not a wise legal policy to water down a new generation of platform regulation with ever more regulations as long as both their substantive content and especially their relationships amongst each other are not clarified.

Observers of the EU know that Thierry Breton, the EU Commissioner for the Internal Market, likes to speak in images and film quotations. Here, the image of the EU that comes to mind, is that of a Western hero, firing bullet after bullet from his revolver before the smoke from the previous shots has cleared and the accuracy of the bullets used can be assessed. This tactic may be understandable in cases where the Western hero believes there are enemies in every direction, but it is not a way to achieve fine calibration. Jurisprudence must strive to peer quickly through the haze to offer saving advice before the next hail of bullets begins.