Media concentration continues to grow in Europe. Pressure from the European Parliament and NGOs prompted the European Commission to establish a High Level Group, which reported on media pluralism in early 2013. The Commission’s DG Connect then responded to the Group’s report with its own proposals. University of Exeter’s Alison Harcourt, a member of our media power and plurality research advisory board, points out the problems with these proposals and suggests the Commission focus rather on using soft policy initiatives to encourage transparency and co-ordination among existing stakeholders. This post originally appeared on the LSE Media Policy Project Blog and is reproduced here with thanks. 

Media concentration is recognised as a threat to democracy, freedom of speech and pluralist representation. However, media ownership restrictions have been replaced in EU states with competition law due to market pressure.

Pluralism remains a key consideration, as evidenced in competition decisions taken on the 2005 proposed takeover of ProSiebenSat by Axel Springer in Germany; the 2007 17.9% stake in ITV by BSkyB in the UK; the 2009 26% Communicorp stake in INM; and the 2011 proposed acquisition of BSkyB by News Corporation.

Interest groups, including some from the UK, are calling for EU action. A 2013 European Initiative for Media Pluralism, by over 100 civil society groups, called upon the EU for “legislative actions to stop big media and protect media pluralism in Europe”.

The arguments focus on: why continued statutory restrictions should remain in place to ensure pluralism of opinion, adequate political representation, and a citizen’s participation in a democratic society; why market forces alone cannot be trusted to deliver these democratic goals; and how increased technological delivery of media content is leading to the establishment of gateway monopolies.

But what form can EU action take? Article 151(4) of the Treaty is a weak instrument on which to base a Directive as its link to media pluralism is tenuous and it requires unanimity decision-making in the Council of Ministers. Article 11 of the Charter of Fundamental Rights of the European Union, which states that “The freedom and pluralism of the media shall be respected”, needs only to be respected under EU law and cannot be utilised as a basis for a Directive.

The European Commission’s proposals

In May 2013, the European Commission (EC) made 30 recommendations in response to the report of the High Level Group on Media Freedom and Pluralism on “A free and pluralistic media to sustain European democracy” and following a public consultation.

Condensed into 9 main categories these are to:

1) fund a European fundamental rights agency (EFRA) or independent monitoring centre to monitor the role of media freedom and pluralism;

2) set up a national audiovisual regulatory authority (NRA) network based upon the IRG to report directly to the European Commission;

3) recommend EU‐wide standards for media councils, journalistic practise and media literacy;

4) subsidise media content, in particular “increasing national coverage of EU affairs”, journalism scholarships, academic research, cross national media networks, and open access policies;

5) revise EU legislation on privacy and introduce libel restrictions at the EU (which would also cover the internet);

6) include media pluralism under competition rules at the EU level;

7) make a pluralist media environment a pre‐condition for EU membership and receipt of EU aid;

8) promote net neutrality;

9) mandate opt-outs to third party data transfer.

The problems with the EC’s proposals

Why are these proposals problematic? Rather than addressing media plurality, the proposals seek to support and promote the existing agenda of the European Commission:

1) an EU monitoring centre could repeat work of other organisations;

2) an NRA network would flank existing efforts by EPRA on best practise and information exchange but such a fora should not set the agenda;

3) there is no EU legal competence for media councils/journalistic practise. Media literacy is already funded under the EU’s lifelong learning programme;

4) promoting EU media coverage does not address problems of media concentration;

5) the 2012 proposed General Data Protection Regulation covers privacy and data protection; libel is protected by subsidiarity;

6) Article 21 (4) under the Merger Regulation protecting national media pluralism rules should not be transferred to the EU level but remain protected under subsidiarity;

7) market liberalisation in third countries does not address existing EU ownership problems;

8) net neutrality is covered under the EU Regulatory Framework;

9) third party data is being discussed under the Transatlantic Trade and Investment Partnership (TTIP) and does not address media ownership.

Transparency and soft policy co-ordination

What should the EC be doing? 1) it should identify and extend existing provisions protected under subsidiarity to cross-border broadcasting 2) it should increase requirements on transparency of media company reports and activities via application of existing EU company law 3) enable public availability of media monitoring via existing EU transparency provisions 4) establish soft policy coordination for safeguarding editorial independence and freedom of expression in collaboration with interest groups.

Specifically, the EU should build upon best practise and policy learning under stakeholder governance. Soft policies can and should be initiated under the “media pluralism” clause of the 2008 Audiovisual Services Directive to be implemented by the Contact Committee in cooperation with EPRA and third sector groups.

Ownership monitoring and recommendations on editorial independence and freedom of expression can be made in conjunction with third sector actors without the need for the establishment of an EFRA. Information should be exchanged amongst the EC, NRAs and the third sector.

Provision of a publically accessible database for monitoring media ownership can be made available through third sector groups listed in the EU’s joint Transparency registry. Resources should be pooled and links made between existing databases such as the KEK’s database on German companies (e.g. detailing ProSiebenSat1′s ownership in the Cayman Islands) and OpenCorporate’s online database and made available in French and English.

Finally the EC could co-ordinate the identification of national best practices, such as the non-media-specific transparency requirements under the UK 2006 Companies Act (Section 854) and the Austria’s Open Government Data Portal, for application on a European-wide basis under the EU’s 2004 Transparency Directive and 2007 Transparency Recommendations.