The European Commission’s proposal for the new European Media Freedom Act (EMFA) is a welcome and ambitious attempt to regulate and protect the media sector across the European Union. Yet, some of its provisions raise challenges. One of them is Article 17 – which establishes a ‘media privilege’ when it comes to how content coming from media service providers (journalists and media outlets) – is moderated on very large online platforms (VLOPs). Its vague wording means little or nothing in practice, and is unlikely to fix the imbalance of power between VLOPs and the vast majority of media service providers across the EU. EU legislators should look for alternative solutions to solve this key problem.
Background
In the EU, journalists and the media have been under a constant threats in recent years – from physical and legal attacks, spyware surveillance, growing political interference in editorial independence to a dangerous concentration of media ownership. The media’s financial sustainability has been also under threat due to digitalisation, which dramatically changed the media’s traditional business model. Many studies show that a handful of very large digital companies – such as Meta and Google – control the digital ad market, and their power is growing.
Powerful large digital companies holds the upper hand, and this goes beyond simply attracting money from advertisers. These companies also use automated systems to curate, rank, promote or demote media content, having unprecedented power over what news content users see. For example, as 72% of people across the EU consume news on social media, this imbalance of power has become too large to ignore.
What does Article 17 of the EMFA propose?
The European Commission’s proposal for the EMFA), a new regulatory framework for media markets across the EU, attempts to address also some of these problems. In particular, Article 17 of the EMFA focuses on the relationship between big platforms like Meta or Google (the ‘very large online platforms’, or VLOPs, as defined under the Digital Services Act, or DSA) and media service providers.
In its current form, Article 17 establishes that media service providers can, based on a self-declaration, request from VLOPs special treatment with regards to the way their content is moderated on those platforms. Such special treatment includes platforms communicating the reason why content will be suspended – prior to the suspension – and the guarantee that their complaints will be ‘processed and decided upon with priority and without undue delay’. If a media service provider believes that its content is has been removed or suspended ‘frequently’ and without undue reason provided by a VLOP, Article 17 calls for a ‘meaningful and effective dialogue’ among the parties, to be conducted ‘in good faith’ and with the view to reach an ‘amicable solution’.
ARTICLE 19’s position on Article 17 of the EMFA
ARTICLE 19 believes that in order for the proposal as set out in EMFA’s Article 17 to become a useful tool, the first key question is: which problem is it aiming to address?
Due to the vague formulation of the provision, it is possible to look at the proposal in at least two ways:
- On the one hand, it can be interpreted as a content moderation rule. Under this lens, the goal would be to avoid a situation in which content produced by a media service provider is removed or suspended by VLOPs, because such content is important for public debate and because its removal or suspension could hamper media plurality online.
- On the other hand, it can be seen as a means to reduce the structural dependency media service providers have on the VLOPs. In fact, VLOPs use automated systems to curate, rank and recommend content to users. As such, they play a key role in the distribution and visibility of media service providers’ content, which, in turn, makes the latter’s sustainability dependent on VLOPs. Under this lens, Article 17’s role should then be to help make the economic relationship between media outlets and VLOPs more even, and fair.
These two different goals, although interlinked, require different solutions. Article 17, as currently drafted, achieves none of them.
ARTICLE 19 notes that a similar content moderation challenge was discussed during the DSA negotiations, but eventually rejected – and rightly so. From a freedom of expression perspective it is problematic to afford special treatment to certain media actors and to moderate the content they publish differently than content published by other users. As a matter of principle, speech by some actors should not be valued more simply by virtue of who they are rather than by what they say. In the end, the DSA adopted a more promising solution to media actors’ content moderation challenges. Articles 34 and 35 impose due diligence obligations on VLOPs, which, among others, require the latter to assess systemic risks stemming from their services in relation to issues such as the dissemination of illegal content; the protection of fundamental rights, and – importantly – ‘freedom and pluralism of the media’. More specifically, VLOPs have the obligation to assess how their content moderation and recommendation systems affect media pluralism, for example by shaping the diversity of content users are exposed to, and to adopt mitigation measures to limit any negative impact.
It remains to be seen how VLOPs will implement these obligations in practice, but before doubling down with a new – and more problematic – obligation to address the content moderation challenge in the EMFA, it makes sense to see how the DSA solution pans out.
However, what remains unaddressed in the DSA is the structural dependency of media service providers on VLOPs. The EMFA provides the opportunity to change this, and the opportunity should not be missed.
ARTICLE 19 recalls that the structural dependency at stake is exacerbated by the concentration of massive power consolidated in a handful of platforms, which, with their automated systems of content recommendation, have a huge impact on the distribution and visibility of online content, and thus constitute an unavoidable bottleneck for media service providers. Distributing and decentralising the power currently held by those few platforms, as we repeatedly suggested in our unbundling proposal would go a long way in rebalancing this relationship. ARTICLE 19 has argued that pro-competitive remedies could be imposed to lower the barriers to entry in the market for recommender systems and to stimulate the conditions for a variety of recommender systems to be available for users.
The unbundling alternative would provide a number of benefits:
- First, it could level the negotiation powers between VLOPs and media service providers. In fact, the presence of more recommender systems on the market would make media less dependent on any of them, as users would have more channels to access media content.
- Second, it could create competition in a market where there is currently little or none, and this competitive pressure could lead to both the improvement in quality and to the diversification in the recommender systems available on the market.
- Finally, it would empower users, giving them choices and more autonomy when deciding on their information choices.
The key relevance of empowering users has already been spotted by the European Commission, which has used Article 19 of the EMFA to suggest the recognition of the users’ right to customise the audiovisual media offer to which they are exposed. EU legislators should go a step further in this direction, and include recommender systems in the scope of application of this right. As such, Article 17 should be amended in a way that hints to and complements the provision under Article 19.
Last but not least, although the EMFA proposal is limited to the EU, similar discussions and proposals are being contemplated in other countries, including in the Global South, where digitalisation of the media has had even more of a devastating impact on the media than in Europe. Governments and regulators from a number of jurisdictions have proposed solutions to these problems that vary from imposing an obligation on large platforms to share revenues, implementing a licensing or copyright model, or even tax-based solutions. They present different opportunities and challenges. ARTICLE 19 will continue to monitor these developments and ensure that regulatory solutions respond to media’s current challenges, while at the same time adequately protecting freedom of expression online.