7.1 Introduction
The European Union (EU) is undertaking an unprecedented series of legal initiatives aimed at navigating the challenges of the digital communication landscape. These efforts are aimed at safeguarding a secure and sustainable environment that supports the exercise of freedom of expression and media freedom, and what is particularly novel (and intriguing given the past attempts) also media pluralism, as the pillars of democracy. The Digital Services Act (DSA),Footnote 1 a risk-based regulation of online platforms, fully entered into force in February 2024 after a phased coming into effect following its adoption in October 2022. The EU has made other efforts to protect free speech, public service media, independent journalism, and media pluralism and to prevent manipulation of content, including deepfakes, amidst increasing disinformation, hostile propaganda, political harassment of journalists, and concerns about media sustainability. These include the Anti-SLAPP Directive,Footnote 2 the European Media Freedom Act (EMFA),Footnote 3 and the Artificial Intelligence Act,Footnote 4 all of which were adopted in 2024. Just a few months ahead of the 2024 European Parliament elections, another highly anticipated piece of EU legislation was passed: the Regulation on the Transparency and Targeting of Political Advertising,Footnote 5 which aims to bring more transparency to the increasingly cross-border field of political advertising.
At the international level, developing common policies is far more challenging than at the national level – particularly within the media landscape, given its complex interplay of social and industry relationships.Footnote 6 On top of that, in the EU these challenges are compounded by the need to reconcile supranational ambitions with the diverse priorities of individual Member States. On the one hand, the EU envisions a united Europe driven by economic integration and a shared European identity, while on the other, it must work with Member States’ desire to preserve their social and cultural differences.Footnote 7 At the EU level, for each media policy field a compromise is sought between harmonisation and subsidiarity.Footnote 8 The EU’s harmonisation efforts, previously typical of the audiovisual sector and the digital market, are now spreading to all media including the press and radio, which were previously the exclusive domain of self-regulation or Member States. Pitfalls of the EU audiovisual framework regarding the interests of small countries, citizens, public welfare, and cultural goals, which were detected by older critical discussions,Footnote 9 remain relevant in the context of the current reform. We can once again ask how EU media policies take care of reconciling economic integration and democratic legitimacy.
In the EU regulations that apply to television services, the Audiovisual Media Services Directive (AVMSD)Footnote 10 and its predecessor the Television without Frontiers Directive,Footnote 11 the country-of-origin principle frequently stirred the tension between the ideals of an unrestricted and unified European television market and the interests related to Member States’ television sectors. Efforts to safeguard national media frameworks, along with the principles of national sovereignty and integrity, are also present in instances dealing with content from non-EU countries. Given the utilisation of media services as instruments of political influence in certain parts of Europe, the significance of the country-of-origin principle has escalated in geopolitical terms.Footnote 12
The focus on market integration is being balanced with the EU’s increasing dedication to upholding fundamental rights, as enshrined in the Charter of Fundamental Rights of the European Union.Footnote 13 The package of instruments introduced under the 2019–2024 European Commission represents a shift in the EU’s engagement in media-related rights, following a period when such intervention in the media market was lacking. The use of Article 114 of the Treaty on the Functioning of the European Union (TFEU)Footnote 14 as a legal basis for regulation promoting media freedom and pluralism – as in the case of the EMFA – is supported by some academics.Footnote 15 It is also affirmed by caselaw of the Court of Justice of the European Union (CJEU), which recognises in Article 114 TFEU its applicability to ‘non-market’ objectives when the required legal conditions are met.Footnote 16
This presupposes that such measures adhere to the principles of subsidiarity and proportionality, since the CJEU has consistently held that regulation based on this legal ground is warranted only if there is a significant distortion of the internal market, not merely abstract risks. Thus any intervention must demonstrably prevent potential trade barriers and address competitive imbalances.Footnote 17 Before introducing the EMFA, the European Commission, in its call for evidence for the impact assessment, identified the following key issues impacting the internal media market: varied national media pluralism rules; lack of cooperation frameworks among media regulators; private and public interference in media ownership; and absence of media pluralism safeguards, including in digital environments.Footnote 18
The adopted text of the EMFA seems to acknowledge the complexities inherent in modern media landscapes. However, while its governance model is put into practice in the months and years following its entry into force,Footnote 19 many questions are still to be answered. This chapter next addresses the current media and journalism challenges that the EMFA aims to tackle. It then explores the dynamics between key stakeholders within this framework, detailing the responsibilities and interactions of national regulatory authorities among themselves and in relation with their new supranational body – the European Board for Media Services, established by the EMFA – in enforcing the legislation. The discussion concludes by pointing to issues of democratic legitimacy and implications for Europe’s public(s).
7.2 Media, Journalism, and Regulation
The dissemination of audiovisual content through various media such as broadcasting, and electronic communication networks, including telecommunications, satellites, and the internet, have been subject to regulations due to their significant potential impacts on the economy, society, and democracy.Footnote 20 The role of journalism has also long been an interest of media policies as much more than just a source of information,Footnote 21 but rather a distinct (and public) ‘form of knowledge’,Footnote 22 although it has not necessarily been directly regulated.
The media occupy an important position in a market economy, acting as intermediaries between producers and consumers and as a crucial element in democratic processes. In the Althusserian perspective, they are an important ideological apparatus,Footnote 23 while through the lens of Foucault’s ideas they are seen to dictate what is perceived as truth in our societies and what constitutes deviation from what is deemed normal.Footnote 24 Curran compares the media’s power and role in social integration to that of the Catholic Church in medieval Europe: they control not only the means of communication but also the institutions of mental production, that is, culture, education, rituals, and even magic.Footnote 25 As such, the media are too important for states to leave their regulation to other actors, yet the EU also seeks to assert authority in media policy. With globalisation, both the EU and the Member States have found arguments (or excuses) for media policy revisions in line with their own priorities. In the case of the Member States, these can be strengthening the media industry and creating national champions.Footnote 26 But there has also been a rise in authoritarian views of the media – as seen in Hungary, Poland, and other Member States, often cited as catalysts for the European Commission’s push for the EMFA.Footnote 27
In today’s digital communications environment, faced with always-on, omnipresent, and multi-epistemic social communication,Footnote 28 journalism has reshaped its knowledge-based practices, integrating social media as part of its resource pool. News has shifted from the domain (and control) of professional journalism. This shift contributes to the ‘erosion of shared understandings of reality’Footnote 29 seen across other institutions and deepens the problems of contemporary journalism.Footnote 30 As a cornerstone of democratic public discourse and an essential institution of democratic public spheres,Footnote 31 the media not only experience this broad epistemic turmoil but also contribute to the diminishing trust in other critical democratic institutions. In the asymmetric and propaganda-laden online media landscape, the pursuit of truth in fields such as medicine, law, science, academia, and education (and journalism) is challenged by a host of players: from those generating clickbait to extremist websites, social media algorithm manipulations, and even conventional ad-reliant media outlets.Footnote 32 This has far-reaching implications, from denying the climate emergency to societal radicalisation. With the continued expansion and wide availability of generative AI apps and deepfake software, democratic elections at Member State and EU levels face new threats, as pointed out by the European Union Agency for Cybersecurity (ENISA) in its 2023 Threat Landscape Report.Footnote 33
7.2.1 Regulation in Transition
In the EU, the regulatory landscape for media is characterised by the different legal and cultural traditions of its Member States. The AVMSD, which regulates television, has been revised twice in order to also cover video-on-demand services and video-sharing platforms.Footnote 34 EU Member States have tasked national regulatory authorities (NRAs), which are typically equipped with a degree of formal and de facto independence, with the supervision and enforcement of the AVMSD. As regards news production, regulations have always been stricter for broadcast journalism than for print journalism, which has largely been left to self-regulation.
Amidst global technological, market, and social transformations, national communication systems – once hierarchical and dominated by mass media and professional journalism – are becoming increasingly integrated into a globalised communication network. This network connects individuals, corporations, and states, marking a significant shift from the traditional structures of national publics. The ability of states to ‘substantially control and direct media and communications internally’Footnote 35 is significantly affected, and international standards (and mechanisms) have long failed to address the problems of the global communication environment. Implementation challenges, some practical, have contributed to assigning regulatory-like responsibilities, ideally suited for independent, democratically governed structures, to privately-owned digital platforms and have left the governance of digital platforms fragmented between their managers, individuals, and states.Footnote 36 The limited effectiveness of national regulatory frameworks in tackling media and communication issues in the globalised digital landscape has led to a decentralised governance model.
The EU’s recent legislative initiatives have transformed the regulatory landscape. They have shifted from a predominantly top-down approach in certain areas, such as audiovisual media, and a lack of regulation in others, such as digital services and the press, to a more comprehensive model of accountability. Regulators are now expected to enhance their consultative capacities in areas where they had not had regulatory powers before and to adopt co-regulatory responsibilities over an expanding range of communication services. The new digital governance model is multi-tiered and includes transnational cooperation, first following the revisions of the AVMSD in 2018 and subsequently with the adoption of the DSA in 2022 and the EMFA in 2024. It integrates a variety of stakeholders, including media organisations and other content providers, digital intermediaries, self-regulatory bodies, regulators and regulatory networks, civil society organisations, governmental and EU bodies, and the public. This integration demonstrates the complexity and collaborative nature of contemporary media regulation in the EU, which is still in a rather early phase of practical implementation.
7.2.2 Political Interference
In several EU Member States, most notably in Hungary and until recently Poland, governments have practised discriminatory media policies, misuse of state funds, and takeovers of independent media, leading to the establishment of pro-government media empires. Despite widespread civil society protests and EU warnings, and regardless of the requirements to guarantee the independence of regulators and the transparency of media ownership introduced by the last revision of the AVMSD, no significant improvements in media freedom and independence have been achieved.
Similar patterns emerged in Slovenia, attracting international attention for creating a hostile environment towards journalists and proposing laws that would significantly affect public and private media funding and independence. The unfinished Slovenian media law makeover, hastily planned in 2020 for a brief public discussion, signalled intentions towards dismantling rather than supporting the media pillars of the country. As is often the case, the focus of political action was directed first at the national public service media but also at the national regulatory authority, which was planned to be merged with some other public agencies into a ‘super regulator’ responsible for such diverse areas as energy, competition, traffic safety, civil aviation, railways, postal services, telecommunications – and the media.Footnote 37 Due to the fragility of the governing coalition at the time, the process of subordinating the national media regulator was unsuccessful, but the pressures on RTV Slovenia had a lasting effect on the national public service broadcaster. Despite the subsequent government’s campaign promises of de-politicisation and strengthening of public service media, the national broadcaster, already deeply fragmented internally, continues to struggle for its existence. The new governance structure introduced by the current government offers little relief.
On the other hand, as seen in the widely discussed Hungarian case, it was not difficult for the Hungarian media regulator to comply with the formal requirements of independence as stipulated by the AVMSD. As a matter of fact, Hungarian law already had provisions that formally met the Directive’s criteria, enabling compliance without any subsequent changes to media legislation.Footnote 38 Thus far, the European Commission has not taken effective action against EU Member States even when they have openly challenged the independence of media and media regulatory bodies. It is yet to be determined if mechanisms introduced by the EMFA will make a considerable difference.
7.2.3 The EMFA as a Remedy
The EMFA’s recitals contain several references to these challenges to media freedom,Footnote 39 which explain the political rationale behind it. They point to the interconnectedness of the digital environment where the reach of media content extends far beyond national borders, inviting audiences to engage with an abundance of audiovisual, radio, and online news services via smart devices. The recitals highlight the factors impacting the EU’s media sector, including market fragmentation, national legislative discrepancies, and a lack of coordination among Member States. It is stressed that while the internet enhances cross-border interactions by dissolving linguistic barriers with automated translation tools and merging different media forms into cohesive offerings, the internal market for media services remains insufficiently integrated. The recitals underline the digital transformation’s role in intensifying market failures and indicate that online platforms, by serving as primary channels for accessing media content, often bypass traditional media gatekeepers, potentially fostering content polarisation and spreading disinformation including harmful interference by third countries. Furthermore, the dominance of these platforms in the online advertising sphere is noted as a critical factor that shifts vital financial resources away from media services. This reallocation is recognised as detrimental to the sector’s economic viability and the content diversity it can offer.
While advocating the necessity for European media services to achieve sufficient scale in the internal market, the EMFA seeks to protect media pluralism and fundamental rights. There are references to media pluralism in the recitals of AVMSD as well, but apart from provisions on media ownership transparency, the Directive lacks specific regulatory mechanisms to address it.
The proposed framework under the EMFA indicates the EU’s declared commitment to maintaining a media environment in which fundamental rights, the functioning of the internal market, and the democratic integrity of Member States are safeguarded. Yet this evokes mixed reactions and a certain scepticism among civil society organisations. While many welcome the EMFA’s adoption as an important step towards protecting and promoting media freedom and pluralism in the EU,Footnote 40 some view it as a missed opportunity,Footnote 41 and others emphasise that its success will largely depend on its implementation.Footnote 42
7.3 The Roles of the EU and Member States
It was not until the 2018 revision of the AVMSD, after years of debate and some Member States’ reluctance to find common ground, that a clear and binding mandate was established for setting up independent national authorities to regulate audiovisual media services, along with specific requirements for their independence. In 2024, the EU’s media law framework was further expanded to explicitly address a few other areas that have historically been debated due to Member States’ primacy over media laws and policies and to reliance on self-regulation. It addresses a broad and ambitious selection of topics, such as the protection of editorial independence;Footnote 43 the protection of journalistic sources;Footnote 44 transparency of media ownership;Footnote 45 prohibiting the use of spyware against media, journalists, and their families;Footnote 46 the independence of public service media and their stable funding;Footnote 47 media pluralism tests and media market concentrations;Footnote 48 transparency of state advertising;Footnote 49 and objectivity of audience measurement systems.Footnote 50 It also seeks to provide safeguards against the unjustified removal of media content online and introduces a (new) right of customisation of the media offer on devices and interfaces.
7.3.1 National Regulators
The evolution of media regulation in the EU reflects a series of ideological shifts, with the EMFA as an important milestone. Driven by social transformations in the 1980s and 1990s and the deregulation of state monopolies, the concept emerged of independent regulators to mediate public and private sector relations and ensure fair competition.Footnote 51 In electronic communications, personal data protection, energy, and postal and railway services, independent regulators were imposed by EU law as a tool in the liberalisation of economic public services.Footnote 52 In the media sector, the path to providing legal safeguards for regulators’ independence at the EU level was longer. Despite early support from various sectors and explicit recommendations from the Council of Europe,Footnote 53 it was fraught with debate and resistance from EU Member States, reflecting various national traditions and political histories.Footnote 54 The European Commission’s efforts in the 2007 revision of the AVMSD aimed to legally back the independence of national regulatory authorities, demanding impartiality, transparency, and autonomy of regulators from governmental and media service providers’ influence. However, this was met with strong opposition, particularly from Germany and Spain, leading to a watered-down compromise that merely hinted at the importance of regulator independence without binding legal force.Footnote 55
This compromise, while appearing to concede to Member States’ desires to maintain control over their regulators, nevertheless subtly laid foundations for a more integrated European media policy framework. By mandating cooperation among Member States and with the Commission, especially in implementing the Directive’s principles of country-of-origin and mutual recognition, the 2007 AVMSD took a small but significant step towards pan-European governance in the media sector, potentially paving the way for more unified commercial activities across television and non-linear service providers.Footnote 56 In 2018, the revised AVMSD introduced a more detailed framework for independence and cooperation through its Articles 30, 30a, and 30b. These provisions laid the groundwork for the governance model proposed by the EMFA, which further elaborates on the EU-governance networks.
The emergence of independent regulators can be analysed through the lens of the neoliberal paradigm and the ideology underpinning European regulatory agencies. While such regulators can prevent direct state intervention in the media, delegating regulatory authority to experts outside direct democratic control raises concerns about their democratic legitimacy and the potential for elite influence over regulatory decisions.Footnote 57 As Jakubowicz has noted, European regulatory agencies in broadcasting were ‘the result of the ideological shift from social-democratic systems in Western Europe, and from communist regimes in Central and Eastern Europe, to free-market, neoliberal social arrangements which involved the deregulation of many areas of the economy, and society in general’.Footnote 58 As a product of such ideology, these agencies could be considered in terms of their contribution to either strengthening or weakening democracy. On the one hand, it is believed that their independence enables the prevention of direct state interventions in the media and allows the complete transfer of regulation to highly specialised expert bodies, supposedly less discretional and more professional. On the other hand, questions arise about the democratic legitimacy of their decisions, as they are not subject to direct public oversight or democratic contestation.Footnote 59 In an arena that appears depoliticised and stripped of ideology, this creates a potential back door for elites to sway regulatory decisions, sidelining democratic participation.
7.3.2 The European Board for Media Services
Article 7 of the EMFA builds upon the 2018 AVMSD, emphasising the autonomy of national regulatory authorities and ensuring that they are equipped with sufficient financial, human, and technological resources to fulfil their duties. This provision also introduces the requirement for these authorities to have appropriate investigative capabilities. The EMFA, in Articles 8 to 16, establishes the European Board for Media Services (the Board), granting it a broader set of competences than its predecessor, the European Regulators Group for Audiovisual Media Services (ERGA). The aim is to foster a stronger cooperative framework among NRAs and ensure a harmonised approach to media regulation. However, concerns have been raised about the Board’s independence from the European Commission and also from the national regulatory authorities, especially since these might not be entirely independent from political interests.Footnote 60
This new European watchdog for media freedom,Footnote 61 as labelled by the European Commission, is composed of national regulatory authorities based on the principle of ‘one regulator per Member State even if there are more than one’.Footnote 62 The Board is tasked with ensuring that the EU’s media law framework is applied effectively and uniformly, notably by supporting the European Commission in creating media regulation guidelines. Its competences include providing technical expertise, promoting cooperation and exchange, and advising the European Commission. The Board’s opinions are non-binding and largely depend on the European Commission’s requests. Nevertheless, the Board has the authority to provide feedback on national actions and rulings that impact media markets and their concentration. Furthermore, the Board will oversee national regulatory actions concerning non-EU media that pose public security risks, ensuring that they comply with EU regulations. Additionally, the Board will facilitate ongoing discussions between major online platforms and the media industry to encourage access to varied media content and oversee the platforms’ adherence to voluntary standards, such as the EU Strengthened Code of Practice on Disinformation.Footnote 63
In advance of the trilogue negotiations, in its official position,Footnote 64 the ERGA expressed its support for the EMFA and advocated for the fundamental independence of NRAs and the Board replacing the ERGA. It called on the EU’s co-legislators to enhance the proposed legislation. A significant point for the ERGA was governance structure and regulatory cooperation under the EMFA, highlighting the necessity for NRAs’ operational independence and adequate resources to embrace new mandates introduced by the EMFA. Furthermore, the establishment of the Board as a body with legal personality, independent of the European Commission, was deemed essential for maintaining an autonomous regulatory environment beneficial to media pluralism and freedom. The ERGA proposed modifications to ensure the independence of the Board’s secretariat, and a robust appointment mechanism for its leadership. Concerning regulatory cooperation, the ERGA accentuated the importance of procedural autonomy and mutual assistance frameworks that respect regulatory sovereignty while fostering cohesive policy implementation across Member States.
Among the numerous amendments adopted by the European Parliament in the first reading were proposals to enhance the autonomy of the Board by reducing the influence of the European Commission.Footnote 65 These efforts were reflected in the final version of the EMFA, which introduced subtle changes to improve the perception of the secretariat’s independence and the Board’s autonomy from the European Commission. Additionally, the adopted text incorporates a mention of the European Parliament, specifically allowing for the presentation of the Board’s annual report to the European Parliament if the chair of the Board is requested to do so.Footnote 66 Given the Board’s extensive responsibilities, which include areas previously managed solely at the national level or left unregulated, crucial elements are its decision-making processes, relationship with the European Commission, and interactions with Member States and other stakeholders. It is also important to keep in mind that the Board’s independence is directly tied to the autonomy of the national regulators that form it.Footnote 67 These aspects are fundamental to understanding how the Board will navigate its role and authority within the framework established by the EMFA, ensuring transparency, accountability, and effective regulation in the evolving media landscape.
7.4 Enforcement and Compliance
The implementation of the EMFA across EU Member States could face challenges due to discrepancies in the resources of NRAs. The INDIREG study, unprecedented in its scope, not only identified the key characteristics constituting an independent regulatory body in the light of the AVMSD and introduced a ranking tool of independence, but also offered extensive data illustrating the fragmentation of the audiovisual regulatory landscape.Footnote 68 More recent data, extracted from the online database of the European Platform of Regulatory Authorities (EPRA),Footnote 69 reveals continuing diversification across the EU as regards the staffing levels of NRAs for media, but also differences in regulatory approaches, sources of funding, and the scope of responsibilities assigned to these bodies. This puts the coherent enforcement of the EMFA across Member States at risk and may require addressing key differences in national regulatory capacities and approaches.
The EMFA mandates that countries provide their regulators with the necessary resources – staffing, expertise, financial means, and technical tools, including digital resources – to fulfil their responsibilities.Footnote 70 It stresses that this support is also essential for their participation in the Board. However, similarly to the situation with the independence of regulators required by the AVMSD, without effective enforcement this requirement may remain merely declaratory.
7.4.1 Different Levels of Resources
According to profiles of regulatory authorities published (and continuously updated) by the EPRA,Footnote 71 the structures and capacities of media regulators across the EU vary significantly, reflecting the diverse political, administrative, and cultural contexts of Member States. While some regulators operate with lean structures, others have extensive resources and larger administrative set-ups. For example, in the group of smaller regulators Estonia has one of the leanest set-ups, with a Director General and just a handful of staff members dedicated to media regulation within a larger agency of around 120 employees. In Austria, Croatia, Latvia, Luxembourg, and Malta media regulators have board structures with five to seven members, supported by around twenty to thirty staff. The Dutch, Irish, and Slovak regulators have around forty staff members and three-, nine-, and seven-member boards. The most sizeable regulators are in Hungary, with 600 staff supporting a five-member board; France, with 355 staff and nine board members; and Italy, with 260 staff and five board members.
These examples highlight the high level of variety in staffing. However, staffing size alone does not necessarily indicate capacity or effectiveness. While well-resourced NRAs may have better capabilities to enforce compliance and address digital challenges, a larger workforce could also reflect more administrative complexity or a more controlling regulatory approach rather than expertise or independence. The variability is present also in remits, organisational structure, and financial resources. Some states have multiple regulators, reflecting the autonomy of their (language) communities or regions: for example, Belgium and Spain. Germany exemplifies a federal model with fourteen regional regulators collaborating through the Direktorenkonferenz der Landesmedienanstalten (Conference of Directors of the Media Authorities). This overall heterogeneity raises questions about the consistent application of the EMFA. The potential for harmonised enforcement depends on addressing these disparities, ideally ensuring that all regulators – regardless of size – can operate with autonomy, professionalism, and sufficient expertise.
7.4.2 Divergent Interpretations
There is significant variation in the media policy influence of Member States, supranational entities such as the European Commission and Parliament, and rulings by the CJEU.Footnote 72 Member States also hold divergent opinions on specific aspects of EU media policy. This diversity has been evident both in the lengthy negotiations over proposals for the revision of the AVMSD concluded in 2007 and 2018 and in the discussions surrounding the adoption of the EMFA. A coherent approach to media regulation under the EMFA framework will therefore most likely be challenged by differences in interpretations of supranational rules among regulators from different jurisdictions. NRAs are expected to jointly ensure the correct implementation of the EMFA throughout the EU. Their regulatory interventions will need to reflect the EU’s objectives while remaining sensitive to their own contexts, related to their country (in the majority of cases) and in some cases their language communities or political units (as for Belgium, Germany, and Spain). The fragmented regulatory landscapes of Member States with more than one media regulator represents an additional level of complexity.
Media pluralism is acknowledged as a fundamental value in democratic societies; it is widely accepted, although vaguely defined, and rarely problematised.Footnote 73 Despite the lack of consensus on its modalities, it is used as a legitimate basis for a range of regulatory measures. The EMFA understands media pluralism as ‘the possibility to have access to a variety of media services and media content which reflect diverse opinions, voices and analyses’.Footnote 74 Under its framework, Member States are expected to assess the impact of media market concentrations on media pluralism autonomously, although guided by a yet-to-be-developed set of EU standards. This will require a certain recalibration of national institutional frameworks. At the moment they differ significantly, as in some Member States only competition assessment applies to media concentrations, while in others the scrutiny of market transactions for media pluralism purposes is carried out independently either by the media regulator or by another authority (e.g., a competition regulator) with the involvement of the media regulator. Under the EMFA, NRAs are also required to contribute to the approval of market concentrations in other Member States through their participation in the Board, particularly in instances where these may affect the functioning of the internal media market.Footnote 75
This is a complex regulatory challenge for both Member States and the European Commission, regardless of the strengthened and more structured cooperation between the national regulators as envisaged by the EMFA. The approach calls for a sound methodology based on common benchmarks with a capacity for adjustment across Member States with diverse political, cultural, linguistic, and economic circumstances. The adaptation of national institutional frameworks along this matrix may also be difficult to achieve due to the absence of specialised expertise, particularly in smaller countries such as Slovenia. There, limited regulatory expertise stems from the fact that regulation of media concentration was until September 2025 the responsibility of the ministry of culture, while the media law from 2001 was outdated to the degree that it could not be practically implemented.Footnote 76 Additionally, Slovenia’s national regulator – despite being a convergent one – is among the smallest in the EU, with only twelve employees dedicated to media regulation out of a total staff of 100, the majority of whom regulate electronic communications, infrastructures, digital services, postal services, and railway services. In light of this, the research community might be invited to support regulators with methods and data. This would be in the spirit of the EMFA, which emphasises that the Board should have the capacity to seek advice from academia, especially on topics that extend beyond the audiovisual media sector.Footnote 77
7.5 Discussion of Democratic Legitimacy and Conclusion
In democratic political regimes, the state holds the public mandate to regulate the media sector, which places it at the centre of struggles over underlying concepts and meanings. Yet in an era increasingly characterised by dispersed and transnational forms of governance, attributing media policies to a single actor or regulatory instrument becomes impossible as the ever-growing array of actors now includes major global players.Footnote 78
Decades ago, when public or state broadcasters predominantly controlled the media landscapes of Member States, the state had free rein and the final say in shaping their operation. The strengthening of the EU’s powers, first – and for a long time only – in the television sector, has occurred alongside the liberalisation and commercialisation of the television market.Footnote 79 Today, the most prominent providers of media content are not content creators, news agencies, or film companies but digital platforms who integrate numerous media usage streams into practical ‘wholes’.Footnote 80
The main three social categories in media policies – the state, the economy, and civil society – remain unchanged, but the circle has expanded from national to global and has brought in numerous other categories, as ‘the complexity of the public sphere in terms of arenas, styles, genres and themes has exploded’Footnote 81 and became ‘multi-layered, multi-spatial, multi-dimensional’.Footnote 82 While transnational governance matters, the national context still plays a significant role in shaping regulation, influenced by the political, administrative, and legal traditions of each state.Footnote 83 Even in democratic countries, media policies are not implemented in a purely technical manner, by anonymous public servants, entirely based on the advice of experts and scientists, in the interest of the public, and at the initiative of a responsible government.Footnote 84 Regardless of whether regulation is carried out by formally and de facto independent regulators, it is impossible to separate technical tasks from political decisions, as technical assessments and political choices are deeply intertwined.Footnote 85 According to Freedman, media policy is always a site of ideological struggle and power dynamics; instead of being carried out by disinterested parties, it is deeply influenced by political, economic, and social forces.Footnote 86
Drawing from Habermas’s theoretical framework,Footnote 87 discussing the concept of the public sphere within the realm of the EMFA would allow us to evaluate how emerging EU law is impacting on democratic discourse and public dialogue in the digital era. The transition to a more EU-centric regulatory framework raises another level of concern about democratic legitimacy, especially when compared to regulation that exists within national public spheres. In transnational public spheres, mechanisms for translating public sentiment into political action are even less clear and functioning than in national spheres. On top of this, the enhanced role of powerful corporate entities in generating or mediating aspects of both public and private life has led to a regulated formation of will – with what Splichal calls the ‘contractual public’ being the main actor.Footnote 88 According to him, the current prevalence of online contractual relationships substantially impedes the capacity of the public to generate public opinion as an expression of the general will.Footnote 89 More in-depth discussion, which this topic certainly deserves, would go beyond the scope of this chapter; this calls for further scholarly exploration into how the EMFA can align with or challenge the notions of democratic legitimacy within the EU’s diverse public spheres. Despite key social processes transcending national borders and regardless of the existence of transnational bodies for regulation, democratic participation still largely occurs within states.Footnote 90
Influencing the implementation of media policies in individual countries through peer pressure from the Board can circumvent democratic processes, which suggests that other states or the Commission may have a ‘more correct’ or better understanding of issues. It is important to note that decisions are made by a two-thirds majority vote, where each Member State has an equal vote. This opens the door for strategic interest-based coalitions among countries and even allows for decisions to be made by overpowering minority positions. Such a voting mechanism, while designed for consensus-building, raises concerns about the democratic legitimacy of such influence. Although it provides only non-binding opinions that can be taken into account by the European Commission or courts, this set-up has the power to sideline national autonomy, public discourse perspectives, and the interests of EU Member States in favour of a presumed superior understanding at the supranational level.
In the new EU model of media regulation where more polices are being implemented on the transnational level, states paradoxically remain the main translator of EU interests to media providers and to national publics. This makes them both weak and strong: it deprives them of some of their powers, but in a globalised situation it allows them influence in a different way. States (or often their industries) also have their own interests, which they may try to transfer to the entire EU through the EU’s governance models and common institutions. Moreover, in the context of ‘contractual publics’, states may possess sufficient empowerment to advocate for public interests against corporations.
In the enforcement of the EMFA, the balance struck between regulatory authority and democratic accountability will not only shape the media landscape but also reflect the EU’s capacity to foster a pluralistic, informed, and engaged public sphere in the digital era.
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