Among the research tasks to be carried out under Work Package 1 “Europeanisation: Lessons from Media History”, there is an analysis of EU legislation, with a focus on its effects in terms of Europeanisation of media markets.

The result is the report on “European Media Legislation: Overview. Milestones in European Media policies and legislation, 1990-2020“ (D1.4).

Dr. Volker Grassmuck from the Leibniz Institute for Media Research | Hans-Bredow-Institut shares the some insights about European media law and policies.

Insights

In the period from 1990 to 2020, the focus of European media law transitioned from audiovisual to platform services. The Treaties give the Union only a limited competence in media which remain the prerogative of the member states. The primary goal of the EU project was to establish the Common and now the Single Market – the area without internal frontiers ensuring the free movement of citizens, goods, services and capital.

Early on, television was seen as a service for securing the support of the citizens for the European idea. The Council of Europe adopted a first agreement in 1958 to address copyright obstacles to pan-European distribution. In light of emerging TV satellite technology, the European Parliament called for framework rules for broadcasting in 1982. This led to the Green Paper “Television without Frontiers” (1984) and a directive under the same name (1989). This first iteration of the TV directive, the centrepiece of European audiovisual media legislation, focussed on rules on advertising and on the protection of public order and of personal rights (protection of minors and the right to reply). It also introduced a quota, requiring broadcasters to devote the majority of their transmission time to European works in order to counter the ‘invasion’ of US-American content. In parallel, MEDIA, a support programme to nurture the European film production and distribution industries, was launched in 1991.

Copyright was also identified as requiring Community intervention, but was branched off from the TV directive into a television-specific copyright instrument, the Satellite and Cable Directive (1993). On public service media (PSM), a protocol to the Amsterdam Treaty (1997) introduced an exception to the general prohibition of state aid, allowing member states to fund their PSM by means of the public broadcast fee. The protocol acknowledges that PSM are “directly related to the democratic, social and cultural needs of each society and to the need to preserve media pluralism”. Yet, no measures were taken to create a European PSM system that serves the needs of the European society. While the Union was growing together, PSM remained inherently restricted to the member states. Neither are there specific EU rules on concentrations in the media sector as also the protection of pluralism is seen as a matter for the member states.

Digitalisation entered EU law in the 1990s under the heading of the ‘information society’ and with a focus on fully liberalising the telecommunications sector. The first pillars of European platform law were the InfoSoc Directive (2001) which introduced the making available right and the eCommerce Directive (2000) which exempted hosting providers from liability for their users making available their own works and those of others.

Both indicate a novel underlying dynamic: the user enters the arena of public expression. Where before, particularly copyright law only concerned professional authors and performers and their collective organisations as well as publishers, record labels, broadcasters and other business entities, the Internet now allows individuals to express themselves publicly and globally. After another iteration, the TV directive first came to address digital video on demand services and was renamed into the Audiovisual Media Services Directive (AVMSD) in 2007. What ‘users’ do in contrast to professionals came to be called ‘sharing’, as in “video-sharing platforms” in the AVMSD of 2018 and “online content-sharing service providers” in the Copyright in the Digital Single Market Directive of 2019.

The rights of commercial users are addressed in the Platform-to-Business Regulation (2019). The General Data Protection Regulation (2016) is the piece of EU law with the strongest effects on platforms and international repercussions. Based on it, the CJEU prohibited EU-US flows of data and services because the US does not adhere to EU standards. Data protection made in the EU is a manifestation of European values. But does it create a common sense of belonging to a community of values? Do cookie banners make people feel a sense of Europeanness?

AV Law was limited in scope but very detailed, proscribing the permitted minutes of ads per broadcast hour and the time of the day when programmes which might harm minors may be broadcast. In the platform age, regulation is an arm’s length removed from the regulated and mostly procedural, requiring that providers make their ‘house rules’ transparent in their terms and conditions, take predominantly technical measures to enforce them to address harm and provide notice-and-action, complaint-handling and dispute resolution mechanisms. It also incentivises self-regulation in the form of codes of conduct. The same approach is pursued in the most recent legislative measures like the Digital Services Act and the Artificial Intelligence Act. At the same time, we see a shift from directives, which member states have to transpose into national law, to regulations, i.e. directly applicable EU law.

A diverse, accessible, values-based European digital media sphere is a necessary complement to the process of European integration. Yet the lack of EU competence and the prerogative of the member states for PSM limit their remits to national boundaries. This vacuum was ‘organically’ filled over the last 15 years by the mega-platforms which came to dominate the digital public sphere. By now, their negative effects of disinformation, polarisation and hate speech have become evident. The EU’s response is primarily to regulate against harm.

At the same time there is a rising sense of urgency to facilitate alternatives. These are expressed in measures for the protection of journalists in the planned Media Freedom Act, in the European Democracy Action Plan and in the funding of the development and maintenance of technical infrastructure in the Horizon research and CEF programmes. There also have been a number of calls for developing platform prototypes with the aim to network existing media in Europe and overcome the language barrier.

With the Charter of Fundamental Rights (2000) and the European Constitution (2007) the last building blocks came in place for the EU to attain statehood. What is lacking is the fourth power to inform about and critically check the other three. There is hope that this design flaw of the Union can be fixed in the platform age.

The momentum is there to bring the different strands of EU media policy together and create a truly distributed, diverse European digital public sphere which will provide quality journalistic editorial content, public value essential for cohesion and democracy and diverse opinions from all corners of the continent as well as a participatory spaces for individual and collective opinion-forming that enables community and identification through participation.

Download the Deliverable 1.4 “European Media Legislation: Overview”