8.1 Introduction
The blueprint for capturing the media is from Hungary. After Fidesz, the political party led by Viktor Orbán, won two-thirds of the seats in the Hungarian parliament back in 2010, his most pressing priority was to address what he criticised as left-wing bias in the media.Footnote 1 Within a decade, the Fidesz government had cemented its control over media regulation, public media outlets, and a raft of the country’s privately owned media. Orbán’s mission was accomplished: not only was the left-wing bias wrung out from the Hungarian media, but independent, critical journalism was also hampered and pushed to the fringes.
Media capture has undermined free media and editorial independence in several European countries during the past decade. European media have been facing a series of threats for a longer time, including concentration of ownership, politicisation of public service media, controlled media regulation, and collusion between political power and businesses. Media capture, however, poses a much larger threat as it involves the systematic takeover of a significant portion of a country’s media system by a coalition of interests that includes the ruling political party and affiliated businesses. As such, media capture significantly reduces the space for independent journalism, hurting the financial viability of independent media outlets.
Building on the results of empirical research carried out over the past twenty years, Marius Dragomir’s media capture matrix identifies four key elements of media capture: 1) control of national media regulators; 2) government control and political influence in public service media; 3) channelling of public funds to government-friendly, privately owned media (i.e., through state advertising); and 4) control of ownership of private media by state-owned companies or businesses directly or indirectly associated with the government or the political party holding power.Footnote 2
Several countries across Europe have faced growing levels of media capture, especially in Central and Eastern Europe. Among them, Hungary is a textbook case of media capture, as the government of the Fidesz party has since 2020 managed to achieve control in all four areas described here. Poland, under the PiS government, followed in Hungary’s steps, rolling out a strategy aimed at the ‘repolonization’Footnote 3 of the media by pushing out foreign owners of media assets and taking them over through businesses connected with the state. Only the 2023 change of government put a halt to these efforts. Tendencies of media capture have been documented in several other countries, including Czechia, Slovakia, and Bulgaria.Footnote 4
Yet the media capture phenomenon is not confined to Central and Eastern European countries. At times, public service media in various EU Member States in Western Europe have come under attack by governments.Footnote 5 Although the media systems in these nations are more resilient to capture than their Central and East European counterparts, mostly due to stronger journalistic communities or a longer tradition of independent journalism, the threat of capture looms large.
The literature on media capture has grown in recent years. Most of the work on this topic has thus far focused on defining the phenomenonFootnote 6 and studying its manifestation in various countries.Footnote 7 In contrast, the assessment of the impact of capture has received less attention.Footnote 8 Similarly, the role of the EU in preventing or combating media capture has been less analysed. This chapter aims to fill the gap in the literature by examining the role and impact of EU legal provisions in fighting capture, namely the EU-level interventions that have addressed the four elements of media capture described here.
The chapter aims to shed light on what the EU could have done differently to more effectively prevent media capture from taking root across various countries in Europe. Media regulation is the responsibility of national governments, with the EU having little room to intervene in national media-related affairs. Yet the EU should have recognised the indispensability of independent media for the functioning of democracy in Europe, especially after the two waves of EU enlargement that allowed several Eastern European nations with poor track records in media freedom to join the Union. The EU acted more forcefully to protect media freedom, using existing tools or designing new ones. Some countries lacking a healthy and independent media sector have experienced significant democratic backsliding in the past decade, which endangers European unity and also harms public accountability, especially around the spending of EU funds. Hence, the analysis in this chapter can also serve as a resource for identifying regulatory measures that could be more effective in staving off media capture in the future.
8.2 The Unbearable Lightness of Criticising the EU
Traditionally, the European Union has only limited power to regulate media. Article 6(1) of the Treaty on European Union (TEU)Footnote 9 incorporates the Charter of Fundamental Rights of the European Union (CFREU),Footnote 10 which requires that the freedom and pluralism of the media be respected, along with the right to freedom of expression. This right includes the freedom to hold opinions and to receive and impart information and ideas without interference by public authority, regardless of frontiers.Footnote 11 According to the European Commission, media pluralism covers not only the variety of sources of information and the range of content available, but also the diversity of ownership.Footnote 12
However, the CFREU applies to EU institutions and Member States only if they implement EU law. Article 6(1) of the TEU determines that the endorsement of the Charter shall not extend, in any way, the competences of the Union as enshrined in its treaties. Moreover, a significant part of the media ecology is not covered at all by EU legislation. The detailed regulations accepted by the EU to cover specific areas of the internal market cover only audiovisual media services, but not online and print media, which are essential players in the overall media system.Footnote 13 Therefore, the EU does not have sufficient competence to regulate media pluralism and freedom in EU Member States.Footnote 14 The onus is on the authorities and courts in each EU country to protect these rights.
Because of the EU’s limited competences in relation to media, the European Commission can only criticise legal developments in Member States that are found to be in contradiction with EU law. Therefore, when the Hungarian government adopted a rather controversial new media law and media constitution in 2010,Footnote 15 even though the two acts empowered the government to greatly distort the Hungarian media system and the European Parliament had voted for a stricter resolution on the Hungarian case,Footnote 16 all that the European Commission could do was to criticise four provisions put forward by those acts that affected the internal market of audiovisual media services. Those issues included the disproportionate application of rules on balanced information, the application of fines to broadcasters legally established and authorised in other Member States, rules on the registration and authorisation of media service providers, and rules against offending individuals, minorities, or majorities.Footnote 17
The limited power of the EU in media-related matters has been exploited by various European governments in their meddling with the media. In 2011, despite requirement from the EU to adopt a series of amendments to the Hungarian Media Law and Media Constitution, the government in Budapest ignored the requests and adopted those two controversial Hungarian laws. But this was not the first time an attempt by the EU to intervene in media-related issues had not generated results.Footnote 18 Two years earlier, the European Parliament had aimed to take action against the media empire controlled by the then prime minister of Italy, Silvio Berlusconi. However, the proposals put forth in the European Parliament by various groups of MEPs did not receive enough votes to pass.Footnote 19
Notwithstanding its limited power to regulate media-related matters within EU Member States, the EU does possess the authority to enforce compliance with specific standards and regulations in countries that aspire to accede to the EU. According to the Copenhagen Criteria, the EU can require stability of institutions that ensure democracy, the rule of law, and human rights from countries seeking to join the EU.Footnote 20 This is a major opportunity for the EU to push EU aspirants to comply with a set of rules that can positively influence their long-term track record in protecting media freedom.
The limitations faced by the EU in regulating the media have been criticised by media freedom NGOs across Europe. This is especially true in the context of the expansion of the media capture phenomenon, which leads to serious power imbalances in the communications and media ecosystem, ultimately harming the quality and diversity of content and media pluralism.
With media capture spreading across Europe, calls for the recalibration of the EU regulatory framework have intensified in recent years. The crises unleashed by the COVID-19 pandemic and the Russian invasion of Ukraine have deepened the vulnerabilities and structural challenges faced by the media, adding to the pressures that prompted the EU to put forward the European Media Freedom Act (EMFA), a law that was supposed to address threats to media freedom in Europe.Footnote 21 The preparation of the EMFA was part of a more extensive lawmaking process that comprises several major regulations that the EU has put in motion in recent years, including the revision of the Audiovisual Media Services Directive (AVMSD),Footnote 22 the renewal of the copyright directive,Footnote 23 and more recently the Digital Services ActFootnote 24 and the Digital Markets Act.Footnote 25 Of those, the AVMSD (Article 30) is relevant to media capture.
Yet the effectiveness of these new regulations in combating media capture is questionable. Ensuring that national governments will comply with the EMFA’s provisions will depend on the mechanisms that are introduced to achieve that.
8.3 EU Media Policy: The Weakest Link
This section presents an analysis of what the European institutions have done, are doing, and plan to do in each of the four areas of media capture and assesses the EU’s effectiveness in combating media capture.
8.3.1 Conformity of Independent Media Regulatory Authorities with EU Law
In many European countries, media regulatory authorities are supposed to act independently, as mandated by national legislation. However, in some European countries that can hardly be the case considering that the process of appointment and dismissal of the decision-making members of the media regulatory authorities in those countries.Footnote 26 The exact appointment formulas differ among European countries, but it is often the parliament that appoints the members of the board. This is how political parties can have ‘a degree of political influence’ to leverage ‘their’ candidates to the boards of media regulatory authorities.Footnote 27 Appointed members are then in a position to decide about licensing media outlets, fine them for breach of local laws, and revoke their licences when they violate legal provisions.
Based on its competence to harmonise legislation for the internal market, the EU governs the provision of audiovisual media services in the Union with the AVMSD.Footnote 28 Before 2018, Article 30 of the Directive only emphasised the importance of competent independent regulatory bodies in the media sphere. Since its revision in 2018, the AVMSD has reinforced the EU’s legal requirements for the independence and functioning of national regulatory authorities, which Member States have designated for implementing the AVMSD.
This was achieved through the modification of Article 30, which outlined a series of more tangible requirements than previously. They include the requirement that media regulators are legally distinct from, and functionally independent of, the government or other public and private bodies, and that they do not take instructions from any institution when carrying out their tasks. Article 30 AVMSD also calls on Member States to ensure that regulators have ‘adequate financial and human resources’, as well as sufficient enforcement powers, to effectively carry out their functions.
Additionally, the Directive addresses the sensitive issue of appointing and dismissing members of the regulators’ boards. It does not prescribe who should nominate and appoint the members of the decision-making body, as this is the prerogative of the Member States. Article 30(5) AVMSD provides that
Member States shall lay down in their national law the conditions and the procedures for the appointment and dismissal of the heads of national regulatory authorities and bodies or the members of the collegiate body fulfilling that function, including the duration of the mandate. The procedures shall be transparent, non-discriminatory and guarantee the requisite degree of independence. The head of a national regulatory authority or body or the members of the collegiate body fulfilling that function within a national regulatory authority or body may be dismissed if they no longer fulfil the conditions required for the performance of their duties which are laid down in advance at national level. A dismissal decision shall be duly justified, subject to prior notification and made available to the public.Footnote 29
When it comes to key aspects of media regulators’ work, such as their competences, powers, and mechanisms for accountability, the Directive does not put explicit obligations on Member States to provide guarantees of the independence of the regulators. Article 30(2) AVMSD states that ‘Member States shall ensure that national regulatory authorities or bodies exercise their powers impartially and transparently and in accordance with the objectives of this Directive, in particular media pluralism, cultural and linguistic diversity, consumer protection, accessibility, nondiscrimination, the proper functioning of the internal market and the promotion of fair competition.’Footnote 30
It is thus not clear whether this article imposes an obligation on Member States to provide further guarantees in addition to the legislative obligations stipulated in the article.Footnote 31 That can create room for governments to be weak in enforcing EU legislation. The EU could play a more proactive role by more strictly monitoring compliance with the AVMSD articles addressing regulators’ independence (Article 30 and Article 30a).
In conclusion, the AVMSD has not much changed the way media regulatory authorities are created at national level. In countries with a tradition of independent regulation, mostly in the West, the EU’s legal provisions were in many respects redundant. By contrast, in countries with a tradition of politicised institutions and a lack of respect or, worse, a contempt for independent regulation, they were poorly implemented.
That points to the crux of the problem related to Member States’ compliance with EU law, especially in countries with a poor track record in media freedom: the tension between formal and substantive guarantees. The 2011 INDIREG report distinguished between formal and de facto (often also referred to as ‘operational’, ‘informal’, or ‘real’) independence of media regulators. It defined independence as the situation in which a regulator’s ‘governance structure ensures that its decision-making processes meet the normative requirements for which the independence of the regulator is necessary’.Footnote 32
Polyák distinguishes between formal and substantive guarantees of independence.Footnote 33 He explains that formal guarantees are reflected in the rules governing the organisation and financing of the regulatory body, including the nomination, election, status, and financial situation of the regulator’s members. Substantive guarantees, by contrast, are directly reflected in the regulator’s decision-making body. In countries experiencing media capture, formal guarantees alone are not sufficient to ensure the independence of media regulators. For example, the formal provisions of Article 30 of the AVMSD directive were integrated into Hungarian law before the directive’s amendment in 2018. However, the independence of the Hungarian Media Council, Hungary’s media regulator, has remained questionable as council members are appointed by the parliament with a two-thirds majority, and the ruling party, Fidesz, refused to consider any member of the opposition.Footnote 34 That happened because Hungarian law lacked substantive guarantees for the regulator’s independence, containing only vague provisions without explanation or legally binding interpretation.
The European Commission can monitor the activities of the regulatory authority and intervene in cases where it finds that the independence of the regulators is compromised. In fact, the European Commission has the duty to investigate breaches of EU law by Member States. The so-called infringement procedure enables the European Commission to assess and take legal action when a Member State fails to implement EU law correctly.Footnote 35 The European Commission can require the Member State to remedy the situation; if those negotiations fail it can refer the matter to the Court of Justice of the European Union (CJEU), which can fine Member States found to have breached EU law after a procedure that includes a ruling by the CJEU and a request for national authorities to remedy the situation to comply with the court judgement.
If the European Commission does nothing in relation to a Member State’s competent national authority tasked with the implementation of the AVMSD, then the concerned Member State can assume that its regulatory body is considered ‘independent’ pursuant to Article 30 of the AVMSD. According to Polyák, by letting a Member State ‘get away’ with a violation of EU law regarding the independence of its national regulatory authority, the European Commission tacitly ‘legitimises the operation of the regulatory body’.Footnote 36
So far, the European Commission has not launched any infringement procedures relating to the independence of national media regulators of EU Member States.Footnote 37 In its 2023 Rule of Law Report, the European Commission explicitly expressed again its concern about the independence of the Hungarian Media Council. It emphasised that there has been no progress in strengthening the functional independence of the Hungarian media regulator, as the rules regarding the nomination of members to serve on the Council’s decision-making body have resulted in the governing party nominating all the members.Footnote 38 In the 2021 Rule of Law Report, the Commission stated that certain decisions made by the Hungarian Media Council raised concerns regarding its effective independence. The European Commission also expressed concerns in the 2021 Rule of Law Report about the functional independence of regulators in countries including Romania, Spain, and Slovenia and the lack of safeguards against political interference in Croatia, Malta, Slovakia, and Hungary.Footnote 39
In summary, despite the incorporation of EU legal provisions designed to safeguard the autonomy of national media regulators into the legal frameworks of various European nations, media regulation remains a contentious and politically charged process in many countries, enabling governments to bolster their influence over the media landscape. While the EU’s influence in this area is constrained, increased interventions such as infringement procedures and stricter monitoring could potentially enhance compliance with regulatory standards.
8.3.2 Control of Public Service Media
Regulations aiming to ensure the independence of public service media from the government encompass both institutional and financial aspects. In terms of institutional independence, the EU has not introduced any specific, legally binding requests to ensure the institutional independence of public service media, one reason being that, according to the Amsterdam Protocol, the EU has no competence in the organisation of public service media.Footnote 40 In 2018, the European Parliament criticised, among other things, practices that amount to ‘hijacking the public service media to serve partisan interests’,Footnote 41 urging EU Member States to adhere to the recommendations regarding public service media issued by the Council of Europe.Footnote 42 The 2024 EMFA is the first attempt in EU law to safeguard the independence of public service media providers. In Article 5, the EMFA introduced a series of provisions related to the appointment and dismissal of public service media board members and the funding procedures at these organisations, which aim to protect their independence.Footnote 43
When it comes to financial aspects, the EU acknowledged within the Amsterdam Protocol the importance of public service broadcasting in meeting the democratic, social, and cultural requirements of European societies, as well as protecting media pluralism. The EU recognised the authority of Member States to allocate funds to their public service media, on the condition that such financing does not distort trading conditions or competition within the Union.Footnote 44 The EU regulates the financial aspects of public service media through its state aid rules adopted in 2001 and revised in 2009,Footnote 45 which are anchored in the TEU and the Treaty on the Functioning of the European Union (TFEU).Footnote 46 The main act regulating media in the EU, the AVMSD, refers only vaguely to public service media, stating that benefiting from ‘technological progress’ is necessary for the fulfilment of the mission of public service broadcasting.Footnote 47
During the period 2012–2022, the latest for which data are publicly available, the Commission made only four decisions in cases of state aidFootnote 48 for public service media.Footnote 49 In three of them, the Commission decided not to raise objections, concluding that the aid is compatible with the common market. In one case, the Commission proposed appropriate measures to clarify the definition and scope of public service media.Footnote 50 Civil society advocates and academics criticised the European Commission for not being more vigilant about public funding to public service media organisations that in some European countries are government mouthpieces.Footnote 51
When the Commission has been called upon to intervene, often at the request of local NGOs and activists, the investigations have not led to findings of an infringement.Footnote 52 In September 2020, a spate of media freedom NGOs called on the Comission’s Vice President Margrethe Vestager to handle a complaint that the Hungarian government had violated EU state aid rules.Footnote 53 After six years of proceedings, the European Commission’s inquiry remained unresolved. This comes after the Commission, in its initial assessment letter, accepted a dubious argument made by the Hungarian government regarding the historical roots of the system of financing the country’s public service media. Specifically, the Hungarian government argued that the current system is a direct successor to an earlier model that dates back to 1957 and is tied to ownership of television sets. By endorsing this argument, the European Commission dismissed the NGOs’ complaints.Footnote 54 According to some proponents,Footnote 55 this was a missed opportunity on the part of the European Commission to enforce state aid rules more vigilantly in Hungary, especially considering that since 2012 the Hungarian government has paid its contribution to the public service media directly from the state budget.
8.3.3 Use of State Funds as a Media Control Instrument
Besides state funding for public service media, EU Member States have been supporting private media by awarding them subsidies from state budgets or as payments for public advertising campaigns. Tracking state advertising spending has been especially problematic due to the opacity of funding mechanisms and of the criteria for awarding state advertising contracts. As a result, ‘state advertising is arguably the least transparent and most problematic’ method that EU Member States have to reward or punish media organisations.Footnote 56 Governments often misuse state advertising to support media outlets that are loyal to their authorities and cronies, while sidelining those media outlets that criticise them.Footnote 57
State advertising is regulated by the EU under competition regulations that target state aid, similarly to the financing of public service broadcasting.Footnote 58 According to a count made by the authors of this chapter, from 2018 to May 2024 the European Commission handled thirty-three cases of state aid for media in eleven EU Member States, three of which are Eastern European countries. The cases concerned issues such as tax credits for the media, support for media in minority languages, funds for improved distribution of print media, and support for media affected by the economic crisis triggered by the COVID-19 pandemic.Footnote 59 The European Commission has not raised objections in any of these investigations, nor has it so far investigated any application concerning the unfair distribution of state advertising.Footnote 60
In 2019, several applicants jointly lodged a complaint with the European Commission describing how Hungarian authorities unlawfully used state resources to support a string of media outlets in the country, all known to be pro-government.Footnote 61 The complaint referred to seven advertising campaigns paid for by the Hungarian government, including ‘Let’s stop Brussels’ and ‘Stop Soros’, which were aimed at bolstering the Hungarian government’s political capital by blaming the EU and Hungarian-born businessman George Soros for the ills that Hungary has faced in recent years. Through these campaigns, the Hungarian government funded a range of government-friendly media outlets.
The Commission rejected the complaint, arguing that state advertising spending does not qualify as an ‘advantage’ under Article 107 TFEU. Furthermore, the Commission accepted the explanation of the Hungarian government that the advertising contracts were awarded to ‘sales houses’ through public procurement procedures. It is worth noting that public procurement in Hungary has been connected to significant corruption cases.Footnote 62 Despite this, the complainants have requested that the Commission keep the procedure open, meaning that the complaint was still awaiting resolution at the time of writing.
While there is no irrefutable legal argument that under the existing regulations the European Commission wrongfully did not enforce state aid rules, there is a compelling case for the Commission to have taken action in instances of egregious misuse of state funds, resulting in significant market distortions and financial impropriety that detrimentally impacted the media market, especially as such cases have been brought to its attention by civil society organisations.
8.3.4 Takeover of Private Media by Businesses Close to the Government
The fourth element of media capture is the takeover of privately owned media by companies with close ties to the government. In two of the elements of media capture we have described, the government can intervene directly by appointing loyalists to staff the decision-making bodies of media regulatory authorities and the governing structures of public service media. They can also use public funds strategically, as we have explained.
However, without also gaining control over private sector media outlets, the capture would not be complete. The takeover of privately run media companies is typically executed through businesses that are known to be supportive of the government. These businesses are either controlled by cronies who support the authorities or indebted to the government for receiving preferential treatment in obtaining public procurement contracts.Footnote 63 In many cases, the companies that buy media outlets are owned by the same people who control industrial holdings that win public tenders.
This type of media capture proceeds as follows: businesses are awarded lucrative public tenders, enabling them to thrive commercially. They then use their corporate structures to acquire media outlets whose editorial orientation is aligned to supporting the ruling political parties, and they thereby secure uninterrupted access to the public resources of the business owners of the media outlet. In certain instances, they may also obtain preferential loans from government-affiliated banks to facilitate the purchase of media outlets.Footnote 64
Devising regulations to prevent or reverse the financial engineering concocted to maintain the flow of funds into a large privately-run media capture market is undeniably a complex task. The EU currently lacks a mechanism capable of effectively regulating these types of indirect control. The main tool that the EU uses for merger and acquisition activities is the EC Merger Regulation.Footnote 65 Article 1 of this Regulation establishes the thresholds for combined turnover resulting from a merger that, if exceeded, necessitate the intervention and evaluation of the European Commission. Although the European Commission has the power to control mergers, not many cases have thus far reached the limits imposed by the Merger Regulation. One reason for this is the very high thresholds set by EU law. For instance, the European Commission must intervene only in cases where both of the following situations occur: the combined value of all the corporate undertakings exceeds €5bn and the total turnover of at least two of the undertakings is over €250m.
The available data indicates that the European Commission has tended to be lenient and approve mergers in the media. Between 1990 and 2011, the Commission blocked twenty-one mergers of broadcast operations, which represented only a quarter of all the merger cases in the broadcast market assessed during that period.Footnote 66 All the blocked transactions were registered between 1994 and 1998, a period when the European Commission was trying to protect competition between different media platforms at any cost.
Although the debate surrounding the need for the EU to uphold competition regulations while also promoting public interest goals has not led to any palpable results,Footnote 67 the significant impact of the European Commission’s decisions to permit media consolidation cases that detrimentally affect media diversity cannot be overlooked. Between 1998 and 2013, the Commission gave the green light to all mergers in the broadcast industry that it considered.Footnote 68 Many of those mergers were problematic for media pluralism. The concentration of NewsCorp/BSkyB in the UK, for example, was allowed by the Commission in 2011 on the grounds that it would not affect the price of services. Yet the Commission completely ignored the implications for media pluralism, helping to strengthen the Rupert Murdoch media empire in the UK, with negative consequences for independent journalism and media plurality in the country.Footnote 69
In recent years, no cases of takeover of media companies that led to capture in Eastern Europe have been regulated by the Commission, mostly because none of them were anywhere close to the ceilings imposed through the Merger Regulation. But even if they had been, the main problem with the takeover of media companies in captured environments is the corrupt funnelling of state funds to captured media outlets via corporations run by businessmen close to authorities. No EU regulation can get to the bottom of that – which, however, is not an excuse for a lack of action.
8.4 A Better Future for Independent Media in Europe: What the EU Can Still Do
The rise of media capture over the last decade has presented significant obstacles to media freedom and independent journalism in Europe. When the Media Constitution was adopted in Hungary in 2010, experts warned that it could have serious long-term consequences for the country’s media and journalism due to the threats it posed to the independence of media regulation and media freedom.Footnote 70 Their warnings now appear almost prophetic. The legislation adopted at that time was only the first in a series of measures implemented by the Hungarian government that led to growing control over significant portions of the country’s media.
More than a decade later, as media capture began to spread across many European countries, the erosion of media freedom started to raise major concerns among EU institutions, prompting them to take action. EMFA,Footnote 71 accepted in April 2024, was created to address many of the threats posed by capture. Civil society organisations, experts, and journalists put much hope in this new law, calling on EU institutions to include strong legal provisions that could tackle the most serious threats to media freedom.Footnote 72 But how effective will the EMFA be in dismantling existing instances of media capture and preventing new ones?
First, the EMFA addresses the topic of independence of the national regulatory authorities,Footnote 73 but it does so by merely reiterating the requirements for ‘adequate’ financial and human resources and appropriate competence that were already put forward by Article 30 of the AVMSD. In fact, the AVMSD has more provisions aimed at ensuring the independence of national regulatory authorities than the EMFA.
Secondly, as regards public service media, the EMFA introduces institutional guarantees for the independent functioning of public service media providers. These guarantees are focused on the appointment and dismissal of the management and governing boards of these organisations.Footnote 74 However, despite the good intentions behind these provisions, there is no mechanism in place to assess whether the already appointed or future heads and boards of public service media organisations in certain countries not only formally meet those requirements but also genuinely act independently.
Thirdly, the EMFA tackles the problem of undue influence on the media by addressing the preferential use of state advertising. It mandates that state advertising budgets should be allocated based on transparent, objective, proportionate, and non-discriminatory criteria, as well as open, proportionate, and non-discriminatory procedures.Footnote 75 However, where current state aid rules are not effectively implemented, as has been the case in various instances so far, there are low expectations that the new provisions will be more strictly enforced.
Finally, the EMFA addresses the issue of undue influence in the media through its provisions on market concentration and ownership transparency, specifically their impact on both media pluralism and editorial independence.Footnote 76 The assessment of this impact must cover the ‘effects on the formation of public opinion and on the diversity of media players in the market, taking into account the online environment and the interests, links, or activities of the parties in other media or non-media businesses’.Footnote 77
The EMFA is undoubtedly the EU’s boldest attempt at media regulation to date. While its provisions on the independence of media regulationFootnote 78 and public service mediaFootnote 79 are somewhat vague, reflecting provisions in existing EU law, the EMFA goes as far as any EU law can in addressing state fundingFootnote 80 and market interference,Footnote 81 which are two key components of media capture. However, it appears that this will not be sufficient, as strong enforcement mechanisms are still lacking.
As Bayer and Cseres write, ‘the proposal for EMFA is currently based on the assumption that each Member State has a fully independent NRA [national regulatory authority] capable of effectively enforcing media law, including the EMFA’.Footnote 82 One might expect the new pan-European regulatory body created by the EMFA, the European Board for Media Services,Footnote 83 to play that role. However, it does not. The Board is tasked with drawing up opinions that assess the impact of nationally adopted decisions on media pluralism and editorial independence in cases of media market concentration. An opinion of the Board may serve as the basis for another opinion that the Commission ‘may issue’.Footnote 84 Yet the Board cannot impose any obligations on national regulators or Member States’ governments. ‘Its function merely involves consultation and cooperation, and its most concrete actions are the issuing of opinions’, write Bayer and Cseres.Footnote 85
Moreover, with the role afforded to it by the EMFA, the European Commission is completely toothless: all it can do is issue opinions, organise dialogues, and conduct regular monitoring activities. ‘These proposed tools do not have the potential to make the already existing enforcement tools of EU law more effective, credible, or deterrent’, conclude Bayer and Cseres. In summary, the main problem at the heart of the EMFA is that it fails to provide ‘sufficient guidance on how, or by whom, decisions should be made’.Footnote 86
8.5 Conclusions
Despite the EU’s reputation as a leading authority in shaping policies for the digital age, its regulations have not been effective in fighting or preventing media capture; they have not provided sufficient protection for media freedom and independent journalism. This is partly because the EU was not originally designed to serve as a second line of defence against the erosion of media freedom in Member States, hence its limited ability to compel national governments to uphold these principles. Nevertheless, the European Union possesses the necessary mechanisms, notably the rule of law, and has had the capacity to develop additional measures in order to more efficiently intervene in preventing national governments from seizing control of media outlets and misappropriating EU subsidies. Furthermore, the EU could have assumed a more stringent oversight role in monitoring instances of capture throughout Europe. That the EU has not done this is arguably because of a confluence of factors, including excessive bureaucratic procedures needed to take action against governments and internal political dynamics. That discussion is beyond the scope of this chapter; the reasons why the EU has not intervened when it could do so require further investigation.
The latest legal initiatives at EU level, particularly the EMFA, serve as a clear indication of the mounting concern among EU institutions regarding media freedom in Europe. While the provisions within the EMFA address all problematic areas that contribute to media capture, some of them could benefit from improved precision. Moreover, the responsibility for implementing those provisions is solely entrusted to national regulatory authorities, which, unfortunately, are often subject to political interference themselves and are thus used to promote the government’s interests in the media. The establishment of a pan-European body, as envisioned by the EMFA, does not guarantee the effective enforcement of any EU law at the national level.
In conclusion, the argument for implementing regulations that seek to dismantle such forms of capture, in order to foster an environment for independent and diverse media to thrive, is more compelling than ever. The EU has made little progress in addressing this issue, despite clear indications of a severe decline in media freedom within its borders. In spite of the visibly good intentions behind its latest legal initiatives, there are no indications that this situation will improve much in the foreseeable future. The EU should take bolder and more effective action by monitoring, as recommended in this chapter, the activities of the regulatory authorities and intervening in cases where it finds that their independence is compromised.
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