Drunen, Max van

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The platform-media relationship in theEuropean Media Freedom ActMax van Drunen 2023-02-13T10:29:34The European Media Freedom Act (EMFA) proposal takes aim at very large onlineplatforms’ (platforms) gatekeeping power over access to media content. It focuseson two issues with platforms’ gatekeeping power in particular. One, it arguesplatforms limit users’ access to trustworthy content when they apply their termsand conditions to media organisations that exercise editorial responsibility andproduce news in line with journalistic standards. And two, it argues that qualitymedia may serve as an “antidote” to the disinformation and other polarising contentthat platforms amplify. To address these issues, the EMFA aims to reshape therelationship between media and platforms. Media organisations will be affordedspecial transparency and contestation rights on platforms (Article 17 EMFA),and engage in a structured dialogue with platforms on issues such as access todisinformation versus quality content (Article 18 EMFA).By providing media organisations a special position on platforms, the EMFA riskschanging the media’s role and relationships with other actors in ways that runcounter to its overall objective to secure media freedom. This danger is mostapparent in three dimensions, which we explore in turn: the media’s dependence onpublic authorities; the media’s role in addressing disinformation; and platforms’ rolein fundamental rights governance, which we explore in turn. First, however, we willbriefly explain how the EMFA regulates relationship between platforms and mediaorganisations.Regulation of the platform/media relationship in theEMFAA key question, explored in more detail by Joan Barata, is which media organisationswill qualify for the privileges afforded by the EMFA. The EMFA defines mediaservices as those where the principal purpose of the service or a dissociable sectionthereof consists in providing programmes or press publications to the generalpublic, in order to inform, entertain or educate, under the editorial responsibilityof a media service provider.  Article 17 EMFA furthermore only applies to mediaorganisations that have declared to a platform that they are independent and subjectto (self-)regulation. As Barata argues, the media definition under EMFA is an overly“limited” definition, which is not “aligned” with international and European humanrights standards, and “discriminatory”, as it excludes “certain forms of media andjournalistic activity”.Transparency- 1 -Article 17 EMFA requires platforms to annually publish information on the groundsfor and number of times they suspended or restricted access to the content of mediaorganizations in its scope. It also requires platforms that suspend content of suchmedia organisations to take “all possible measures” to inform the organisation ofthe facts and grounds that led to the suspension before it takes effect. An early draftof the EMFA leaked by Contexte also required platforms to “include meaningfulinformation on the impact of that decision on freedom of expression, including fromthe perspective of media pluralism”. This language was removed from the final text.The added value of these transparency provisions is limited compared to the rightsthe Digital Services Act (DSA) affords all platform users. The DSA requires anextensive statement of reasons  is provided when platforms restrict access tocontent (including information on the facts and grounds of the decision as well asinformation on the use of algorithms to detect violative content). These statementsmust continuously be added to a database of moderation decisions operated by theCommission. The EMFA’s added value from a transparency perspective, then, isthat media organizations must (if possible) be given limited information before theircontent is removed, and platforms’ decisions to remove or restrict access to mediacontent must annually be aggregated in one transparency report.DialogueUnder article 17 EMFA platforms must also ensure complaints submitted by mediaorganizations regarding, among others, moderation decisions and technical issues,are processed with priority and without undue delay. Media providers that believe alarge platform frequently takes restriction or suspension decisions without sufficientgrounds can require the platform to “engage in a meaningful and effective dialoguewith the media service provider, upon its request, in good faith with a view to findingan amicable solution for terminating unjustified restrictions or suspensions andavoiding them in the future”. The media provider may notify the European Boardfor Media Services (the Board) of the outcome. The Board consists of the differentEU media authorities and, among other things, has the task of supporting theCommission to ensure the correct and consistent application of the EMFA.Article 18 EMFA requires the Board to organize a dialogue between platforms, mediaservice providers, and civil society. Note that Article 18 EMFA applies to mediaservice providers, not only those that fall under Article 17. The dialogue shouldcover experiences with and best practices for applying Article 17, fostering accessto diverse offers of independent media, and adherence to self-regulation coveringharmful content such as disinformation. The outcome of the dialogues must bereported to the Commission. Article 18, in short, goes beyond regulating platforms’moderation of media content. It covers the availability of objectionable and diversecontent on platforms more broadly, by addressing the way platforms expose users todisinformation and diverse content.- 2 -The media’s dependence on regulatory authoritiesAt first glance, the EMFA’s efforts to reset the platform-media relationship may seemto not amount to much. The EMFA forces platforms into various dialogues withmedia, but a lack of dialogue was not the issue in this relationship – the imbalanceof power was. Articles 17 and 18 EMFA themselves do not impose substantiveobligations on platforms that change this power dynamic. Instead, they rely on softregulatory power by having the outcomes of formal dialogues reported to the Board(Article 17) and the Commission (Article 18). The scrutiny of these institutions, and inparticular the threat of future more stringent regulation or enforcement guidelines, iswhat strengthens the media’s position in these dialogues.The DSA adds weight to the threat of more stringent enforcement, as it empowersthe Commission to impose substantive obligations (backed up by the threat of heavyfines) regarding the way platforms moderate content. Most notably, the systemic riskprovisions require platforms to take measures (such as adapting their moderationand recommender systems) to safeguard against systemic risks, including risks tomedia freedom and civic discourse. Article 14 DSA, furthermore, requires platformsto have “due regard” for the ”freedom and pluralism of the media” (among otherrights and interests) when enforcing their terms and conditions. As Quintais,Appelman, and Ó Fathaigh have argued, this provision can be used to requireplatforms to take the fundamental rights, including media freedom, into accountwhen applying their terms of service.The EMFA itself says very little about the ways in which the Commission and theBoard should use their regulatory power in the context of the envisioned dialogues.For example, there does not seem to be an accountability mechanism for decisionsby the Board about which media qualify for the Article 18 structured dialogue.There is also no explicit procedure or process set out in the EMFA for what theBoard must do if a media organisation reports a conflict under Article 17. This limitsaccountability and oversight over the ways in which regulatory authorities intervenein the relationship between media and platforms. It also makes media’s privilegeson platforms fully dependent on the way in which regulatory authorities decide toexercise their discretion. The freedom of choice this affords regulatory authorities,in particular by determining which media’s position on platforms is strengthened inpractice, poses serious risks regarding their involvement in the way expression isgoverned on platforms.“Structured dialogue” and the media’s role indisinformation governanceThe EMFA may also affect the relationship between the media and variousregulatory authorities by involving media in the governance of specific issues,most notably disinformation. Article 18 requires the Board to organise a “structureddialogue” between invited media and platforms, to “monitor adherence” to self-regulatory initiatives aimed at “protecting society from harmful content, includingdisinformation and foreign information manipulation and interference”. There is- 3 -potential for this provision to be quite problematic, if the EMFA and regulatoryauthorities have grounds to view disinformation as not just a platform problem, butalso a distinct media problem. This is especially the case, given that media in theEU are already being targeted under member state disinformation laws. Even theCommission’s 2022 Rule of Law report contains “serious concerns” on Greece’scriminal law on “false news”, designed to prevent the spread of disinformation andthe risks it poses for journalists. It is quite significant, then, that for the first time inEU legislation, media will be explicitly associated with disinformation and foreigninterference, and it is especially disappointing in a piece of legislation supposedlyon “media freedom”. The media have never been part of the EU Code of Practice onDisinformation. Similarly, none of the obligations the Digital Services Act  imposes onplatforms explicitly mention disinformation or foreign interference. Indeed, the EMFAwill be the first piece of EU legislation containing a specific provision on these twoconcerns.Recital 36 EMFA explicitly envisages the Article 18 mechanism to build upon theBoard’s role in “monitoring compliance” with the Code of Practice on Disinformation.As such, it needs to be carefully ensured that the Article 18 mechanism does notmorph into something akin to the Code, with binding obligations and oversight fornot only platforms, but also the media. As documented by both international andEuropean human rights bodies, disinformation and fake news laws are being usedto target media outlets in Europe. Three Dutch media outlets were famously forcedto initiate legal proceedings to be taken off a list labelling them as “disinformationoutlets”. As such, it is essential that the Article 18 dialogue, which will involverepresentatives of regulatory authorities from all EU member states, never veerstowards viewing disinformation as a media problem, and maintains the view,recommended under human rights standards, that promoting freedom of the mediais a “key means” to address disinformation.The privatisation of fundamental rights governanceMore generally, both the EMFA and DSA signal quite an astounding shift in theoperationalisation and governance of fundamental rights. A key concern around(automated) content moderation are the possible implications this can have forthe democratic role of the media, the functioning of the public sphere, and thefundamental rights to freedom of expression for platforms, media and citizens.Maybe what Articles 17 and 18 really are is a glimpse into a future, where monitoringpotential interference with fundamental rights is no longer a matter for courts andregulatory authorities in the first place, but rather for platforms. This is a trend thathas started with the systemic risk provisions in the DSA, according to which it isplatforms’ task to identify and mitigate “any actual or foreseeable negative effectsfor the exercise of fundamental rights” (Art. 34 (1) DSA). In so doing, the DSA givesplatforms considerable discretion (subject to external audits) in determining whenexactly conflicts with fundamental rights are at stake, and whether to revisit thedesign of the service, the terms of use, advertising practices or internal monitoringprocedures in response (Art. 35 DSA).- 4 -The EMFA, arguably, takes this discretion further. Safeguarding the interest ofmedia freedom and other fundamental rights is essentially turned into a matter ofVIP customer management. On the one hand, Article 17 does acknowledge thepivotal role of the media in democratic societies (on the questionable and potentiallydiscriminatory definition of the media, see this blog by Barata). On the other hand,the proposed solution boils down to transparency, a “meaningful and effectivedialogue” and “finding an amicable solution”. The rule of law and procedural rightsare replaced by a “meaningful and effective dialogue”. In case an interference withfundamental rights is found, an authoritative declaration of its impermissibility isturned into “finding an amicable solution.” What is missing are any more concreterequirements regarding measures to be taken (like in Art. 35 of the DSA) and acritical discussion to what extent fundamental rights and public interests should atall be subject to negotiation. Needless to add that the amicability of any solution willvery much depend on how equal the negotiation power at the table is, and how deepthe structural dependencies are.ConclusionThe EMFA’s focus on transparency and dialogue should not draw attention awayfrom its serious implications for the media’s dependence on supervisory authorities,the media’s role in disinformation governance, and platforms’ role in fundamentalrights governance. These issues are particularly important given that in the contextof the other main piece of EU media law, the Audiovisual Media Service Directive,light-touch regulatory approaches have regularly been strengthened in laterrevisions. Under the current approach, the way the EMFA reshapes the platform-media relationship runs counter to its stated goal of securing media freedom.- 5 -

The platform-media relationship in the European Media Freedom Act

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The platform-media relationship in the European Media Freedom Act

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