Taking Extra Care of the Media?

The adoption of the European Media Freedom Act broke new ground in the EU’s approach to media law. The EMFA is both horizontal, applicable to all media and not only audiovisual media services, and general, addressing various media related issues. It is a game-changer in our thinking of the EU’s competence to legislate in the area of media activities. The EMFA regulates media with editorial responsibility over content  across sectors. Online platforms that disseminate content to the public are, by contrast, subject to general regulation in the Digital Services Act ( DSA). At the intersection of the two acts, the EMFA addresses the risk of restricting media content on online platforms by envisaging the special, privileged, treatment of media service providers in the area of content moderation.  Standard procedural safeguards for service recipients and business users are provided in art. 14 and 17 DSA in the area of content moderation and art.  4 of the P2B Regulation, in cases of termination or suspension of platform services. Article 18 of the EMFA offers an enhanced regime when business users are independent media service providers and their activity on platforms is restricted. Special obligations imposed on online platforms address actions taken prior to the decision restricting the visibility of content (or suspending a service) and prioritize the complaints submitted by media service providers.

These so called “media privilege” or “media exemptions” provided for in art. 18 have been extensively debated since the legislative works on the DSA. Questions pertained as to how to understand the nature of media service providers; assess their independence; whether the provision is really needed with the DSA in place; or whether there is a danger for indirect regulation of the press sector. The EMFA refers expressly to some provisions of the DSA and introduces similar yet advanced, procedural safeguards. However, it undermines the principle of equal treatment of platform service recipients enshrined in the DSA. Finally, the fact the additional safeguards are needed highlights the weakness of an individual user in relation with  very large online platforms (VLOPS).

Both the Council and the European Parliament proposed a substantial number of amendments to the Commission’s initial proposal.  The co-legislators attempted to clarify the procedural questions and to specify the actions expected on both sides (media service providers and online platforms). This post discusses the extent of the privilege granted to media service providers and the relationship between the EMFA and the DSA.

Article 18’s Importance for Media Pluralism

The  broadly drafted goals of the EMFA include freedom to provide media services in general, and safeguarding the independence and pluralism of media services (art.1 (1)). These goals, clarified in the compromised text, go hand in hand with the principle  of protecting media pluralism and freedom as encompassed by art. 11 of the Charter of Fundamental Rights. The EMFA proposal aimed at imposing a number of obligations on Member States and service providers that sought to further media pluralism and  freedom of expression. The link between art. 18 and media pluralism can be inferred from the definition proposed by the European Parliament but not included in the final text

‘media pluralism’ means a variety of voices, analyses and opinions in public discourse, including minority positions and opinions, disseminated in an unimpeded way by media service providers which are in the hands of many different owners, each independent from one another, across different media channels and media genres and the recognition of the co-existence of private commercial media service providers and public service media providers;

The goal is to ensure “unimpeded” dissemination of media service providers’ content that links  art. 18 to the concept of media pluralism. The obstacles in the free provision of  media services may be created by powerful private operators – Very Large Online Platforms (VLOPs). The solution from art. 18 comes on top of other EMFA provisions that are intended to ensure the independence of media service providers and the quality of their services.

Who is Who in the Digital Environment?

The discussions during the legislative process addressed the relationship between media service providers who offer programs and press publications to the public as part of their professional activities and under their editorial responsibility and platforms, and VLOPs. VLOPs such as Facebook or Instagram are important channels to communicate to the public, as became evident in Canada last year. They are identified based on certain criteria and according to procedures developed in the DSA. The EMFA uses a persuasive rhetoric on who is who in the digital environment. It posits that “media services are the main pillar for democracy and the rule of law ( rec. 2) and should be  “trustworthy sources of information”(rec.13), while “…global online platforms act as gateways to media content, with business models that tend to disintermediate access to media services and amplify polarising content and disinformation. (rec.4).

The problem the EU legislator tried to solve in art. 18 is to ensure that “trustful” media content stays online and is not overly moderated by platforms. The EMFA’s procedural safeguards apply when VLOPS suspend the provision of a service with respect to content of the media service provider or restrict the visibility of such content, based on its own terms of service and platform policy. While these commonly ban illegal content, they may go further and curb the availability of content that is shocking, disturbing or controversial. Platforms sometimes also restrict the activities of providers facing charges  in criminal proceedings. The EMFA’s provisions refer only to selected aspects of content moderation, the concept defined in the DSA. Different measures may amount to the restrictions of visibility of content, and potentially include the demotion, demonetization, disabling of access or removal of content. The autonomous approach accepted in the EMFA  focuses on specific measures that prevent access to or downgrade “media” content, and not on the vast array of measures aiming at detecting unwanted content.

Despite the ambitious goal of the DSA to make platforms responsible and accountable, there is clearly the need to counter too much encouragement for content moderation. The EMFA can also be considered as remedying overeagerness to provide only “proper” content, in order to sustain public debate on matters that are both important and difficult. Shocking, or disturbing content may be important  if prepared according to editorial standards and covered by freedom of expression.

DSA and EMFA – Procedural Synergies?

What does the EMFA add to the obligations platforms already have in relations to all users? In a nutshell, online platforms’ obligations under the DSA include:

1. Explaining the content moderation policy in Term of Service (art. 14);
2. Providing the statement of reasons for content moderation decisions, including indicating the contractual basis for such a decision (art. 17);
3. Providing an internal complaint handling mechanism, and handling the complaints “in a timely, non-discriminatory, diligent and non-arbitrary manner”.(art. 20);
4. An indirect obligation to engage in good faith in the out-of -court redress mechanism (art. 21)

Under the EMFA in relation to media service providers that submitted the declaration  under art. 18 (1), VLOPS are obliged to:

1. communicate to the media service provider concerned the statement of reasons for its envisaged decision; in line with the obligations under  article 17 DSA and art.4 of Regulation (EU) 2019/1150;
2. not to enforce a restriction for 24 hours since a statement of reasons and give the media service provider the opportunity to reply to that statement within 24 hours or shorter timeframe if a crisis and a serious threat to public security or public health occurs;
3. process the complaint under art. 20  DSA with priority, and without undue delay;
4. engage in meaningful and effective dialogue consultation at the request of media service providers, but only if the media service provider considers that VLOP repeatedly imposes the restrictions without sufficient ground; in case no amicable solution is found, the media service provider may resort to an out-of-court mechanism under art. 21 DSA;
5. report specifically about the numbers of decisions concerning the content of media service providers who submitted the declaration under art. 17, and on the grounds of taking decisions moderating such content.

The essence of the privileged treatment of media service providers thus lies in keeping content online for 24 hours ( or shorter in  critical cases) before it is removed or otherwise restricted, and prioritizing their complaints. In the final text, the clarification was added that these obligations do not apply in case VLOP providers impose restrictions resulting from their obligations under art. 28, 34 and 35 DSA and art. 28b AVMSD, or in cases where restrictions are applied to illegal content. This helps to clarify the relations with the DSA, yet incites further discussion on when and which restrictions are actually required, particularly under art. 35 DSA or 28b AVMSD.

These safeguards apply only if  the media provider successfully declared its independence and the sufficient degree of control over its editorial standards.

The declaration under art. 18 (1) includes a statement about the compliance with other EMFA provisions, and being subject to adequate oversight as to the exercise of editorial responsibility.  The situation is relatively clear in the case of harmonized audiovisual services subject to control of audiovisual regulatory authorities. However, the proposal for the EMFA includes other, unharmonized media sectors such as press or radio.

In many Member States, radio – because of spectrum scarcity –  may be regulated by the same regulatory authority as the audiovisual sector (e.g. Poland) but the press sector is often subject to self-regulation and general liability rules. Therefore, the EMFA includes a reference to a co-regulatory or self-regulatory mechanism governing editorial standards that is transparent, legally recognized and widely accepted. The “legal recognition” of such mechanisms raises vital questions for the press sector. The EP proposal pointed to the Journalism Trust Initiative  and certification of ISO standards for professional and ethical journalism as relevant mechanisms. Reasonable doubts concern  the criterion of being “widely accepted” in the reality of each of 27 Member States. In Poland, for example the only party to the Journalism Trust Initiative is an online portal Wirtualna Polska.

Conclusion

The DSA and the EMFA pursue similar goals: a single market for services and effective protection of fundamental rights but for different sectors relevant to information flows: media and platforms.  There was no time yet to render the complex regulatory framework for VLOPs  under the DSA workable. The objectives of addressing systemic risks include the risks to media pluralism [art. 34 sec. 1 b) DSA]. The same can be said about the long term goals of making platforms responsible and accountable. What is clear, however, is the weak position of a platform user in pursuing individual claims.  Here is where the EU decided to improve media service provider’s position, alongside the call for lawful content to stay online. With this provision in place, our focus shifts to the long list of questions on the privileged status  of media service providers and its recognition by an online platform. The concept of “editorial responsibility” guarantees only the control over selection of content in broadcasting,  VOD and  now radio or press services, but, despite the common understanding, does not refer directly to the quality of that content. As a result, the governance of editorial standards becomes a new area of interest, with the consequent need to build trust in independent media, National Regulatory Authorities and test the co-regulatory mechanisms for press.