‘Democracies Die in Silence’
On Recent Challenges to Media Freedom and Pluralism
What is ‘media’ in a digitalized society where boundaries between news, commercial and social content are increasingly blurred? What is the role of the media? What do we really mean by ‘media pluralism’? How can we safeguard media pluralism against powerful state actors as well as powerful tech companies? These are all key questions liberal democracies in Europe and beyond need answers to, given both political challenges and the rise of market power and Big Tech companies whose actions affect media markets. One of the most recent examples resulting from an imbalance of power with tech companies is the lawsuit of 32 European media groups against Google. While the law will not solve all of the problems associated with these developments, it can help in imposing limits on the way in which political and market power is used. This necessitates a sustained and informed debate as to what the existing legal framework offers and what additional legal responses are necessary.
The blogposts in this Symposium aim to address some of these questions. Pauline Phoa and Anna Gerbrandy discuss the role of digital technologies and the powerful positions acquired by Big Tech companies in the media landscape and their influence on narratives, while Jan Polanski problematises private power over speech and Baskaran Balansingham, Malgorzata Kozak and focus on the need of new regulatory measures facing an imbalance of power in news markets. Katarzyna Klafkowska-Waśniowska queries the coherence of the EU‘s legal framework governing media while Marta Sznajder considers the implications and limits of the media pluralism test introduced by the European Media Freedom Act, and Dionysios Pelekis and Małgorzata Kozak the challenges related to the assessment of the public value test in the case of EU state aid control in media markets. Together, the blogs aim to stimulate the discussion initiated in 2023 during the conference Power, media pluralism, and democracy. Regulatory, legal, or extra-legal responses which was co-organised by the University of Warsaw’s Centre for Antitrust and Regulatory Studies and Utrecht University’s Modern Bigness research project in cooperation with Article 19. During this conference several themes have emerged.
First, there are divergent national perspectives on some of these questions. For example, the German experience suggests that the accumulation of ownership in traditional media in one (or one family’s) hands should not be used to justify the creation of countervailing market power for ‘major US tech groups. By contrast, Italy’s experience shows the challenges raised by a regulatory focus on the external dimension of pluralism (i.e. linked to plurality in ownership) rather than internal dimensions (i.e. linked to plurality in content). As illustrated by the Vivendi/Mediaset case, the Italian system is based on competition law definitions and concepts of dominance. This leads to questions about the possibility of creating strong national or regional companies that could successfully compete with new media.
A second theme pertained to the abuse of political power by the ruling government and firms connected with ruling politicians. This is related to the rise of populist governments in several European countries, including Hungary, Serbia and Slovakia, which have sought to limit media freedom and any criticism their actions may face. An example of such abuses of power are Strategic Lawsuits Against Public Participation (SLAPPs), which are legal actions by private parties to intimidate journalistic and NGOs activities. In Central-Eastern Europe most SLAPP cases were brought by those affiliated with ruling parties.
Poland’s experience suggests that a potentially powerful self-defense tool against such abuses and democratic backsliding more generally might be judges’ presence in traditional and social media. This can serve as a way to inform society about the risks of reforms that aim to undermine judicial independence. While judges traditionally do and ought to avoid politics, declining trust in the judiciary and the rule of law crisis has led some in Poland to speak in the media to counteract political narratives. A key challenge, however, is for judges to speak in plain language that society understands.
A third issue turns on the ways in which the digital environment affects user perception and access to information due to the structure of algorithms and digital platforms. For instance, recommender systems affect what type of content users can access in light of the information overload characterizing digital societies, and are thus presumed to increase welfare. Against this background, there might be a need for diverse datasets as a condition for the development of diversity-aware recommender systems. However, recommender systems should not be rejected as such as they help in managing online information overload and can enhance consumer welfare by aligning with user preferences. Still, the question remains as to how to better empower users in a world of automatized recommendations.
This leads to questions of coherence and effectiveness of regulatory answers to existing challenges. For example, with respect to the coherence of online content regulation, there are inconsistencies as to who is the addressee of the laws in place, including the Digital Service Act (DSA) and the European Media Freedom Act (EMFA), and which content is subject to regulatory duties. In terms of effectiveness, there are questions regarding the countervailing power of news aggregators vis-à-vis news creators. At the moment, competition and copyright law do not seem to provide adequate answers. The DSA’s Crisis Response Mechanism could be an alternative regulatory approach, resulting in treating social media networks as Essential Facilities. The State Aid framework also needs to be improved. The combined application of state aid compatibility principles with a more robust ‘public value test’ is needed. However, there is a broader question whether EU law can provide an adequate answer to diverse challenges that different Member States face. For example, the media mergers review system introduced by the EMFA, which is based on a media pluralism test, may not prove sufficient with respect to the EU countries which already face limited media plurality and which regulators are not de facto independent.
Underpinning these questions is a clear, common theme: the fragility of the media environment and of democracy itself, illustrated by recent examples of states (both within and outside of the EU) where either populist governments succeeded in damaging media freedom and independence, or where foreign states interfered in politics by spreading fake news, disinformation and hate speech. By contrast, the role of digital technologies and platforms seems to be more ambiguous: on the one hand, it has become easier to form new media platforms and find new audiences, but on the other hand there is a growing concern about the structural and discursive power of large tech platforms themselves.