Lennartz, Jannis

English

<intR>²Dok

“A Bit of Fun. A Bit of Truth.”Jannis Lennartz 2023-06-14T08:30:27The intersection of media, politics and power has its normative problems andtoday again they are strongly felt, although the reactions are different: The UnitedStates got “Succession” from HBO, Europe got a proposal from the EuropeanCommission – the European Media Freedom Act (EMFA). This is no coincidencebut an expression of a different approach to the relationship of media and the state.The extent of (private) media regulation depends on the willingness to trade privatefor public power. The following therefore takes the Commission’s proposal as anopportunity to question the assumptions about media, markets, and politics behindit. It finds that the Commission’s approach treats private like public media: First, itfunctionalizes the fundamental rights of private individuals and companies in terms oftheir public benefit; second, it imagines the conditions of qualitative journalistic workas those of civil servants.Media between function and expression“Succession” is a TV show about a billionaire family modelled on the Murdoch’sthat centres on the human consequences of concentrations of wealth and power.Logan Roy, media mogul and pater familias, describes his TV channel offering as“A bit of fun. A bit of truth“ – probably not the societal most beneficial way to run amedia company. The show’s unspoken background assumption is the fact that suchpolicies and the decision upon them by very few people are undesirable but alsoto be accepted. The same could be said about Europe: It is fairly easy to identifydisreputable as well as venerable media products that have existed for a long time,thereby increasing the social as well as political importance of their owners. Someuse their influence, some don’t (think of Agnelli and Berlusconi, Springer and Burda).Is Media just a product, sold on free markets?The Commission, albeit acting on its go-to internal market competence, portraysmedia as serving a higher purpose. The press release and the explanatorymemorandum are full of praise for the sector, which in the memorandum is deemed“essential for a healthy civic sphere and for economic freedoms and fundamentalrights, including equality.” A vision board for an optimal media landscape wouldprobably contain a lot of the things the Commission envisions as its aims. Free andhigh-quality media are, of course, vital for the function of European democracies.But this aspect must not obscure the fact that the use of freedoms does not needto serve any beneficial function. Media freedom also exists for bad journalists,moreover for editors and owners – even if they want to please the government.Furthermore, it is questionable whether the instruments which the Commissionintends to apply will really help to achieve the objectives it has in mind.The Commission’s approach is in part strongly reminiscent of the German one,where the constitutionally guaranteed freedom of broadcasting is called a “serving- 1 -freedom” (“dienende Freiheit”) – thereby entailing the risk that the attributed socialbenefit consumes the freedom itself (see Hartmann, JZ 2016, 18 for a critique). InGermany, this questionable description is limited to broadcasting, in whose originallimitation to a few frequencies the doctrine finds its reason, and balanced by aregulatory framework that emphasizes broadcaster’s self-control and distance frompolitics and state influence (“Staatsferne”). Both restrictions are missing from theCommission’s proposal. The Commission seems to generalize a public broadcastingmodel for media in general and follows a pattern reminiscent of public institutionsin the design of media companies and their supervision. But private media neitherexists to better the citizens nor to further democracy. It exists as an expression offreedom, and its degrees of freedom depend on the proximity to the maxim “Fromeach as they choose, to each as they are chosen” (Nozick, Anarchy, State andUtopia, 2008, S. 180). A liberal society has to be taken as it is, although one canalways hope for better days. But only seldom is social hope furthered by supervisorybodies.The Commission’s approach gains its significance from the fact that media regulationis taking place in the shadow of digitization, which puts parts of the industry understrong pressure. It therefore coincides with a demand for economic support on thepart of the media, which the Commission meets, for example, through the relatedright for press publishers (Art. 15 DSM Directive). The EMFA also serves in part tostrengthen the European media against American platforms (the proposed Art. 17).Combined with concerns about political interference by foreign powers this leadsto a surprising cosiness between European politics and European media. From aliberal perspective, one would like to see more distance in both directions. After all,the reason for financial problems of European media is that European citizens do notvalue the traditional media services offered by both private and public broadcastersas highly as people in media would like them to.Media between private and public mastersMedia, private as well as public, is conceived as an important public good.Therefore, in the Commission’s perspective, its virtue has to be protected –apparently also against the free market, where private media compete. In the faceof American superiority in digital technology and the production of mass culture,state support for private media is becoming more and more viable in Europe. Itis striking that the Commission, which claims to further the internal market, doesnot really believe in this market as media’s modus operandi. To quote the pressrelease: “The proposal aims at strengthening editorial independence of mediaservice providers. In parallel, financial sustainability is a key element for protectingeditorial independence from external and market pressures. (…) Consequently, themedia sector has been increasingly turning to the EU for financial support, in viewof the fact that the Commission has for long co-financed the independent mediacoverage of European affairs to foster a European public sphere.” In his soundbite,Thierry Breton, Commissioner for the Internal Market, stated: „The European MediaFreedom Act provides common safeguards at EU level to guarantee a plurality ofvoices and that our media are able to operate without any interference, be it privateor public.“ Market scepticism affects not only the Commission’s view on competition- 2 -but also its ideas about the internal organization of media companies and editorialindependence: it should not only be secured against the market but also against theirowner.In the Commission’s view, the socially important contribution of high-quality mediadepends on journalists being able to do their work, qualified, undisturbed andwell paid. The Commission’s proposal thereby treats journalists like bureaucratsand media companies like European agencies: if they are well funded and free ofinfluence, they will do ‘a good job’. But this mode of task completion only worksfor situations in which the goals are clear and the success can be measured. Theonly measurable success factor for journalism is its ability to generate profits. Evensurpassed by tech, press and TV still have enviable gross margins thanks to theirscalability. But the properties which benefit the public discourse referenced in theproposal’s Art. 3 are in the eye of the beholder. And rightly so: good journalismshould not be defined by politicians or bureaucrats. Nor can it be deduced from Art. 2TEU.Journalists are no less political than their private or public backers. Even the qualitypress does not report entirely sine ira et studio, but typically has a certain politicalbaseline – which is often enough the reason for buying a newspaper, more than thepen of the individual journalist. The idea that quality journalism is achieved throughextensive independence is doubtful. Diversity lives from the plurality of voices,guaranteed by a market in which supply depends on demand. Political interference isextremely harmful to democracy, but extremely difficult to prevent through Europeanlegislation. Media freedom depends on living norms more than on external rules. Butthese can only be created and maintained within an existing context. For the timebeing, this context is mainly a national one.The institutional component of the EMFA raises further doubts. It consists primarilyin the establishment of a “European Board for Media Services” (Art. 8 (1) EMFA)which is composed of independent national regulators on the one hand and theCommission as a manifestly political institution on the other. In the Commission’sdesign, national regulators should be isolated from their democratically electedgovernments, but interact with the Commission at the European level – an institutionwith a muscular record in regard to its behavior in regard to such bodies (see CJEU,C#632/20 P). The proposed europeanization of media supervision is a high price tobe paid by states with functioning media regulation for a little promising attempt atsafeguarding threatened media freedom in others. A liberal approach, on the otherhand, trusts that in the end the market will serve the demand of citizens who willbalance truth and fun in a way not ordained by supervisory bodies.- 3 -

“A Bit of Fun. A Bit of Truth.”

https://intr2dok.vifa-recht.de/servlets/MCRFileNodeServlet/mir_derivate_00015421/A_Bit_of_Fun_A_Bit_of_Truth.pdf

“A Bit of Fun. A Bit of Truth.”

Abstract

Similar works

Full text

Available Versions

<intR>²Dok