1.4.1 Evolving Trends in Media Regulation

Media and media regulation have traditionally been conceptualized as roughly bifurcating between print media and broadcasting. The latter branches out into radio and television (audiovisual) regulation. Until the turn of the century, much of the academic and policy attention for media regulation tended to focus on broadcast and audiovisual media. There are several explanations for this. First, broadcasting has traditionally been subject to more detailed regulation than the printed press and it is still subject to more specific regulation than online information and communication activities. Second, broadcasting has long been the dominant form of mass media and existing theoretical and regulatory approaches have remained stable, even if they have undergone considerable adaptation in keeping with technological and societal developments. Since the turn of the century, as internet use has become inexorably pervasive around the world, the focuses of academic and policy attention have evolved and are now better described as media-relevant rather than media-specific. Recent and current scholarship repositions media regulation in the context of the multimedia ecosystem,Footnote ²⁹ and/or emphasizes the growing importance of new forms of media.Footnote ³⁰

1.4.2 Selected Rationales for Media Regulation

There is a broad congruence in the leading academic works on broadcasting law, at least in respect of the rationales for regulating the (broadcast) media.Footnote ³¹ This allows us to distill a number of recurrent rationales. In light of the analysis in the previous section, it is somewhat surprising that the rationales we will discuss here are more concerned with the regulation of media freedom than regulation for media freedom.

1.4.3 Revisiting Rationales for Media Regulation

It is necessary to revisit these rationales for media regulation in light of the changed realities of the contemporary multimedia ecosystem. It is pertinent to enquire whether and/or to what extent these rationales for media regulation are still relevant today and will continue to be relevant in the future. The age-old fear of the media’s power and their ability to influence public opinion and political moods is evergreen;Footnote ⁴⁷ illiberal and autocratic regimes are quick and arrant in their attempts to muzzle public watchdogs.

The historical/technological argument derived from spectrum scarcity has waned steadily. Digital broadcasting is still very important in the present communications cornucopia. The internet may well be home to a plethora of information sources and communications opportunities, but (commercial, community and other types of) broadcasting licences are still much sought-after as they facilitate privileged access to the public.

The rationale based on the impact/influence of the media has also been affected by the availability of abundant content from other (online) actors and sources. The public’s ability to find and access media content is increasingly determined not only by the distribution strategies of the media themselves, but also by the amplification, selection and recommendation systems of non-media actors, the various and often very powerful online gatekeepers.

Governmental information and communication interests concerning the media have arguably remained constant; governments need the mainstream mass media to reach the public, but public communication strategies have been modernized and diversified. Public communication is now also pursued through a wide range of non-media actors and channels.

But if we look beyond the individual rationales for media regulation and focus, as we have done here, on how these rationales together are more than the sum of their parts and how they coalesce around the need to serve the public interest, we can see familiar concerns in less familiar technological circumstances. We can see major shifts in communication power and opinion power in the online environment, particularly from traditional media to (large) online platforms.

These tectonic shifts call for further reflection on the distinctive functions and features of the new non-media actors and consideration of whether and how they should be regulated. In the multimedia ecosystem we have already seen a shift in regulatory emphasis from structural and behavioural regulation of the media to distributive regulation. In other words, there is increased emphasis on how media content is disseminated and amplified, and the impact of new modes of dissemination and (de-)amplification on how users, individually and collectively, access, select and receive media content. This also entails a shift of emphasis from the media to other actors, in particular platforms, which play the role of online gatekeepers.

Given the prevalence of personalized and AI-generated or -promoted content in the multimedia ecosystem, there is in any case a greater need for transparency and accountability for content. Individuals, whether as citizens or consumers or users of online services, should be able to easily identify the origin and nature of content so that they can make informed decisions about whether and how to use it. This is likely to lead to a new regulatory emphasis on modalities for the verification and validation of content. In Section 1.5, we will examine how media regulation is operationalized at the European level; how structural, behavioural and distributive types of regulation are shaped by fundamental rights frameworks; and what room there is for a new generation of regulation to allow for greater verification and validation of content.

1.5.1 Regulatory Mapping and ZoningFootnote ⁴⁸

The multimedia ecosystem is formally governed by a range of treaties, regulatory and policy instruments and self- and/or co-regulatory mechanisms. In addition, the influence of private ordering measures or governance actions by private actors, such as the media and especially online platforms and other actors, is also significant. It is important to differentiate between these instruments, mechanisms and measures. Some carry greater legal weight than others, and some are more media-centric than others. The interplay between them is often complex and always dynamic.

This set of formal rules and informal norms is known as media and communication governance. According to the Council of Europe’s Committee of Ministers,

The approach taken here endorses this expansive and nuanced understanding of media and communication governance, and building on it, proposes a multizonal model. The diagram in Figure 1.1 seeks to capture the different zones of media regulation, policy, self- and co-regulation and governance. The lines demarcating the different zones are deliberately porous, denoting the possibility to move from one zone to another and to combine instruments and mechanisms located in different zones. For instance, binding regulation that focuses on principles and goals may leave room for actors in a given sector to collectively develop detailed self-regulatory measures to operationalize those principles and achieve those goals. Similarly, media policy recommendations may encourage states to go beyond their legal obligations set out in international treaties.

Figure 1.1

Zones of media and communication governance in the matrix of human rights.

Figure 1.1 Long description

Diagram captures the different zones of media regulation, policy, self-regulation, and co-regulation, as well as governance. The lines demarcating the different zones are deliberately porous, denoting the possibility to move from one zone to another; to combine instruments and mechanisms located in different zones. For instance, binding regulation that focuses on principles and goals may leave room for actors in a given sector to collectively develop detailed self-regulatory measures to operationalize those principles and achieve those goals. Similarly, media policy recommendations may encourage states to go beyond their legal obligations set out in international treaties.

All zones of media and communication governance, both media-specific and media-relevant, are subject to European and international legal frameworks for the protection of human rights.

The following overview provides illustrative examples of the different types of regulation, policy and other measures.

• Human/fundamental rights: European Convention on Human Rights, EU Charter of Fundamental Rights, International Covenant on Civil and Political Rights, Convention on the Rights of the Child, Convention on the Rights of Persons with Disabilities

• Media-specific regulation: European Convention on Transfrontier Television, Audiovisual Media Services Directive, European Media Freedom Act, Treaty on the Functioning of the European Union Protocol (no. 29) on the system of public broadcasting in the Member States

• Media-relevant regulation: Digital Services Act, Digital Markets Act, General Data Protection Regulation, Unfair Commercial Practices Directive, Platform to Business Relations Regulation, AI Act, Regulation on the transparency and targeting of political advertising, Satellite and Cable II Directive, Directive on copyright and related rights in the Digital Single Market, Council of Europe Framework Convention on the Protection of National Minorities, European Charter of Regional or Minority Languages

• Media-relevant self- and co-regulation: Code of Conduct on Disinformation, Code of Conduct on countering illegal hate speech online +, International Federation of Journalists’ Global Charter of Ethics for Journalists, European Advertising Standards Alliance Charter

• Media policy: declarations and recommendations of the Council of Europe’s Committee of Ministers, recommendations by the European Commission

• Governance/private ordering: Private law terms of use/service, content moderation, technical measures, educational initiatives, and so on.

These instruments vary in terms of how specific their focus on the media is and in how much detail they regulate the media. The also vary in terms of their status; they include legally binding instruments, political recommendations, self- and co-regulatory codes and private ordering measures. This means that from a legal perspective, their importance varies.

International and European conventions and treaties set out obligations that are legally binding on all contracting State parties. Designated judicial or supervisory bodies oversee treaty implementation through case-law and/or a system of reporting by state parties.

Within the European Union, we can distinguish between different types of regulatory instruments: primary legislation such as treaties and secondary legislation. The latter takes different forms, as set out in Article 288 of the Treaty on the Functioning of the European Union:Footnote ⁵⁰ regulations,Footnote ⁵¹ directives,Footnote ⁵² decisions,Footnote ⁵³ recommendations and opinions.Footnote ⁵⁴

In the Council of Europe system, declarations and recommendations adopted by the Committee of Ministers are political standard-setting instruments that address given themes. Recommendations are addressed to the forty-six Member States of the Council of Europe and offer detailed guidance on how to develop national approaches to the given themes. They are not legally binding, but they are politically influential.

Self-regulatory instruments are not typically legally binding; they are usually a set of professional rules governing a given sector that signatories are expected to abide by. Co-regulatory instruments are likely to have superior legal status to self-regulatory instruments, but that will depend on how they have been designed and the broader context in which they apply. Governance/private ordering relies on private law terms of use/service that are contractually binding on users and to which they have agreed.

A final observation in relation to the multizonal model concerns the processes and practices that inform regulation and policy governing the media. In recent years we have witnessed a growth in (specialized) monitoring and reporting that contribute to evidence-based law- and policy-making in the multimedia ecosystem. Leading examples at the European level include the Platform to promote the protection of journalism and safety of journalists, the Media Pluralism Monitor, the European Commission’s Rule of Law reporting, the Media Freedom Rapid Response Monitor, the Euromedia Ownership Monitor, Digital News Reporting and the World Press Freedom Index.

These initiatives cannot easily be situated in any of the identified zones of regulation and policy. As they gain increased recognition as reliable sources of information and analysis, they are being increasingly used to shape regulation and policy at European and national levels. This is a valuable contribution to the quality of media-specific and media-relevant regulation and policy. Before examining each of these regulatory and policy areas in turn, we will first turn our attention to the broader regulatory matrix of European and international human rights.

1.5.2 The Matrix of European and International Human Rights Law

1.5.3 Media-Specific Regulation

While their freedom is shaped in the first place by fundamental rights frameworks, the media and platforms are also subject to comprehensive and detailed specific regulation at the EU level. Within EU regulatory frameworks, human rights values and objectives are an important thematic focus, but they are by no means the only thematic focus. Two key pieces of EU media-specific regulation are the Audiovisual Media Services Directive and the European Media Freedom Act, each of which will now be considered, in turn, from the perspective of its contribution to freedom of expression and/or media freedom, including in the online context.

1.5.4 Media-Relevant Regulation

Moving beyond media-specific regulation, other regulation can also be relevant for the media, for example if it provides for access to the media for specific groups in society; prescribes or promotes particular types of (public interest) content; or influences the dissemination of media content. Media-relevant regulation can thus be relevant in structural, behavioural or distributive terms. In this section, three regulatory instruments will be used to develop this point. The first focus will be a brace of Council of Europe treaties dealing with minority/linguistic rights, with relevant provisions for the media. The second focus will be on the EU’s Digital Services Act (DSA),Footnote ¹⁰⁶ the primary regulation for online platforms. The interplay between the DSA and the EMFA is important inter alia due to the media’s growing reliance on VLOPs to ensure the widest possible dissemination of their content.

In addition to the ECHR, the Council of Europe has a number of treaties whose core focus is not media-specific but which nevertheless contain important media-specific provisions, in particular the Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages. The most important provisions in both treaties as well as their implementation are often wrongly overlooked in law and policy discussions on the media.

1.5.5 Self- and Co-regulatory Codes

Various self- and co-regulatory instruments and mechanisms operate in the penumbra of legally binding frameworks. Increased reliance on such instruments and mechanisms can be seen as one of the main ongoing shifts in the geometry of European regulation.Footnote ¹¹⁴

Self-regulation is a system of governance within a given sector in which the actors in the sector collectively draw up and oversee the implementation of professional or ethical rules for the sector. The state is not involved in any capacity. Self-regulatory rules often take the form of codes of ethics, conduct or practice and they are typically not legally binding. They are specific to the sector but subject to general law. Sectors that have extensive experience with self-regulation and that are also relevant to the media include journalismFootnote ¹¹⁵ and the advertising industry.Footnote ¹¹⁶

In the early 2000s, various forms of co-regulation (or regulated self-regulation) began to emerge. This was part of a wider trend towards so-called lighter touch regulation, which meant that states would be less hands-on in their approach to regulation. In practice, this means that states exercise their regulatory responsibilities jointly with actors from the sector. The collaboration between the state and sectoral actors is the distinctive feature of co-regulation.

Self- and co-regulation, with the flexibility they offer, are seen as suitable means of regulating certain aspects of media, internet and mobile technologies, for instance in Article 4(7) AVMSD. In the context of the DSA, voluntary codes of conduct at EU level are seen as a way of contributing to the application of the Regulation, particularly when it comes to ‘the specific challenges of tackling different types of illegal content and systemic risks’ (Article 45(1)). Such codes of conduct can provide detailed guidance on the rather open-ended provisions on limiting systemic risks by providers of VLOPs and VLOSEs. ‘In the case of systematic failure to comply with the codes of conduct, the Commission and the Board may invite the signatories to the codes of conduct to take the necessary action’, as stipulated in Article 45(4). These explicit and formal references to codes of conduct – such as the codes on hate speech and disinformation, which are also mentioned in Recital 106 – reinforce or, rather, enhance their (legal) status.Footnote ¹¹⁷

The Code of Conduct on Countering Illegal Hate Speech Online + and the Code of Conduct on Disinformation are most relevant; both reference and follow European human rights law.Footnote ¹¹⁸ The Code on hate speech was initially developed in 2016 under the auspices of the European Commission and signed by leading tech companies. It was revamped as the Code + in January 2025. The Code on disinformation was developed in a similar fashion in 2018 as the Code of Practice on Disinformation and was revamped as the Strengthened Code of Practice in 2022. Both Codes comprise extensive lists of commitments for signatories, designed to effectively counter illegal online hate speech and disinformation, respectively. The Code on hate speech was integrated into the DSA regulatory framework in January 2025; the Strengthened Code on disinformation in February 2025 (at which point it became the Code of Conduct on Disinformation). This means that, among other things, adherence to the codes may be considered as an appropriate risk mitigation measure for signatories that have been designated as VLOPs or VLOSEs under the DSA.

The aim of these self- and/or co-regulatory codes is to close the sectoral responsibility gap that was opened by the erstwhile prioritization of market growth over fundamental rights protection in the early years of the internet. They contain detailed provisions that address pressing aspects of illegal and harmful content online. One of the advantages of these codes is that they reflect good insights from signatories. They also have nominal buy-in from Big Tech, which is crucial to the success of the venture, even if participation appears to have been due to political pressure rather than intrinsic motivation and altruism. Without uptake by leading industry players, the codes would be dead letters.

Nevertheless, critical questions need to be asked about the effectiveness of the monitoring mechanisms and their actual impact. The codes are surely contributing to detailed engagement by online platforms with recognized problems, but voluntary commitments are usually much more palatable to multinational corporations than hard legal obligations with (hefty) financial sanctions for non-compliance. As long as the commitments are voluntary, the nature and extent of Big Tech’s engagement remain largely on their own terms. While it is important to make these critical remarks, it is also important to acknowledge the function that these codes fulfil in the broader regulatory and policy system.

1.5.6 Media Policy

1.5.7 Governance and Private Ordering

As discussed in Section 1.2, platforms and other online actors are typically private or commercial entities with their own business models. They are, in principle, free to establish their own terms of use and implement their own content moderation practices (private ordering). These practices include blocking, removing, promoting, recommending, downranking and shadow-banning content.Footnote ¹³³ Platforms and other online actors can also determine in their terms of use what may and may not be said and what content may or may not be distributed within their services. Users must consent to such conditions in order to access the platform or services. Indeed, users have little choice in this matter: acquiescence with terms of use is required if they wish to effectively participate in public debate, which is increasingly conducted via the quasi-public forums controlled by dominant online platforms. Platforms must, however, always respect human rights and fulfill their corporate social responsibility with due diligence.Footnote ¹³⁴

Content moderation, shaped by platforms’ terms of use, is an increasingly important form of governance in the multimedia ecosystem.Footnote ¹³⁵ A useful distinction can be made between ‘governance by platforms’ (e.g. through content moderation) and ‘governance of platforms’ (e.g. in the sense of formal regulation such as the DSA).Footnote ¹³⁶

2.2.1 Council of Europe

The CoE’s decision-making body, the Committee of Ministers (CM), has responded to the last decade’s developments in the media ecosystem by applying its fundamental rights approach to these new developments. It has done so by adopting a package of recommendations establishing or updating principles for combating hate speech, promoting media pluralism and quality journalism, conducting electoral campaigning online, and enacting media governance in the platformised world.Footnote ¹² Recommendation CM/Rec(2022)16 on combating hate speech, building on the European Court of Human Rights (ECtHR) case law, maps out a comprehensive legal and policy framework for dealing with different categories of hate speech, depending on their severity. It focuses on the online dimension of hate speech and, among other things, provides guidance to states for putting in place proportionate obligations on online platforms. It also provides guidance to platforms for implementing human rights-compliant content moderation policies. Recommendation CM/Rec(2022)12 on electoral communication and media coverage of election campaigns addresses concerns about the fairness and legitimacy of electoral processes related to the new formats and digital techniques of online campaigning, including disinformation campaigns and abuse of microtargeting. Finally, Recommendation CM/Rec(2022)11 on principles for media and communication governance establishes a comprehensive checklist detailing how to develop and enforce governance instruments and which contemporary challenges should be addressed by them. Its aim is to prevent states and other powerful actors from abusing their powers to restrict freedom of expression and media independence.

These recommendations provide guidance to Member States and other stakeholders, regulatory authorities, platforms and media, and offer a broad framework with a range of implementation options to accommodate different legal systems. However, in the current context of democratic backsliding – where politicians increasingly come to power through democratic means only to undermine democratic institutions and dismantle channels of accountability – freedom of expression is increasingly under threat from political authorities, including in some European countries.Footnote ¹³ Successive annual reports by the CoE Secretary General on the State of Democracy, Human Rights and the Rule of Law, based on a number of sources but primarily ECtHR case law, and alerts on serious threats to media freedom posted on the CoE Platform for the Safety of Journalists,Footnote ¹⁴ highlight a rise in harassment, online hate speech, violence targeting media professionals, restrictive legislation, large-scale website blocking, and the misuse of laws, such as strategic lawsuits against public participation (SLAPPs), to stifle critical voices.Footnote ¹⁵ While the CoE does not carry out systematic monitoring of the state of freedom of expression, making a reliable assessment of the implementation of each standard challenging, it is reasonable to assume that soft-law standards are poorly implemented in countries where democratic norms and institutions are under strain. Nevertheless, there are also positive developments. A qualitative analysis of the implementation of Recommendation CM/Rec(2022)16 on combating hate speech (2024) shows that Member States have made progress in aligning national legislation with the recommendation, inter alia by introducing remedies for both offline and online hate speech that ‘offer proportionate redress while upholding freedom of expression through nuanced approaches and effective safeguards’.Footnote ¹⁶

2.2.2 European Union

The EU, which has traditionally focused on the economic aspects of the media, has in recent years explicitly aimed to address threats to freedom of expression and to the media’s democratic function that have traditionally been the CoE’s domain. The European Media Freedom Act (EMFA) and the anti-SLAPP Directive address threats to media freedom by introducing measures aimed at protecting the media and journalists from interference by political and other powerful actors.Footnote ¹⁷ The EMFA Explanatory Memorandum evokes the role of information as a public good, acknowledges that media companies cannot be treated in the same way as other businesses, and emphasises that their independence must be protected at the EU level.Footnote ¹⁸ The Regulation on the Targeting and Transparency of Political Advertising additionally aims to strengthen the role that journalists and other societal watchdogs play in the media system by increasing their access to information on the way political advertisements are prepared and distributed.Footnote ¹⁹ Finally, although the Digital Services Act (DSA) is a horizontal piece of legislation (and as such arguably does treat the media like any other business), it too requires very large online platforms to assess and mitigate risks that their services pose to ‘freedom of expression and information, including the freedom and pluralism of the media’.Footnote ²⁰

The EU continues to emphasise the economic nature of the media as well. In part this is because it is legally required to do so. The EU lacks a legal basis for regulating the media to safeguard freedom of expression, and most of its new laws are therefore based on its competence to regulate the internal market.Footnote ²¹ This requires the EU to argue that it regulates media freedom, platforms, and political advertising at least in part to facilitate the provision of cross-border services.Footnote ²² Establishing a minimum level of responsibility is also necessary to prevent the fragmentation of the internal market that would occur if Member States individually addressed the challenges posed by platformisation and digitisation. The increased responsibilities that have been (mainly) imposed on platforms require EU law to engage with new freedom of expression issues where access to legal content is restricted.Footnote ²³ For example, the Copyright Directive in effect requires platforms to filter the content their users upload to prevent the unauthorised distribution of copyrighted material.Footnote ²⁴ The regulations on both terrorist content and political advertising impose obligations to remove content within a certain time after a notification has been received.Footnote ²⁵ Finally, the revised AVMSD and DSA impose open-ended obligations on platforms to address both illegal and harmful content.Footnote ²⁶ The DSA in particular requires very large online platforms to assess and mitigate a wide range of systemic risks. These risks cover, in brief, the dissemination of illegal content as well as (foreseeable) effects on fundamental rights, the democratic system, and health. The DSA lists eleven examples of how platforms may mitigate these risks, including by adapting their moderation, recommender, and advertising systems.Footnote ²⁷

2.3.1 Consistency

The 1990s saw the geographic enlargement of both the CoE and the EU, as well as treaty reforms that extended EU competences to the area of human rights protection, resulting in a dual system of rights, actors, and legal instruments. Subsequently, particularly in the light of the Charter of Fundamental Rights of the European Union (CFREU or Charter), calls were made for ensuring maximum consistency of fundamental rights standards across EuropeFootnote ²⁸ to prevent fragmentation and conflicts between the two systems that might weaken overall protection and undermine legal certainty in this field.Footnote ²⁹

An initial period of uneasy relations and competition between the organisations following the EU’s venture into the area of fundamental rights was overcome with the conclusion of a Memorandum of Understanding (MoU) in 2007,Footnote ³⁰ acknowledging and also furthering the strategic partnership between the organisations. Although the MoU is not a legally binding agreement, it constitutes a framework for political dialogue and cooperation including in the area of freedom of expression and information, which has since been consistently identified as a priority area of cooperation between the two organisations.Footnote ³¹ The MoU recognises the CoE as the Europe-wide reference point for human rights and specifies that its norms would be cited as a reference in EU documents.Footnote ³² It further states that coherence between EU law and the relevant CoE conventions will be ensured, specifying that accession of the EU to the ECHR ‘would greatly contribute to coherence in the field of human rights in Europe’. The MoU does not, however, provide any details on accession such as deadlines or procedures.Footnote ³³

The Court of Justice of the European Union (CJEU) has twice blocked EU accession to the ECHR.Footnote ³⁴ Moreover, despite strengthening their relationship through the MoU, the EU is not a party to the CoE. This being the case, CoE standards do not (in general)Footnote ³⁵ require that EU law is consistent with these standards, as they do not apply to the EU.Footnote ³⁶ That does not mean, however, that the EU is free to disregard the standards set by the CoE. After all, CoE standards do apply to the member states that co-legislate and apply EU law. EU law that conflicts with CoE standards would therefore force Member States to choose between their obligations under EU and CoE law.Footnote ³⁷ This tension, scholars argue, is one of the reasons the CJEU first introduced fundamental rights into the EU legal order.Footnote ³⁸ By recognising fundamental rights that result from international agreements and national constitutional traditions as general principles of EU law, the CJEU could avoid putting Member States in a situation in which they might disregard EU law to comply with their other human rights obligations. Note that this logic holds only for CoE standards that are binding on Member States, most importantly the ECHR. Recommendations of the Committee of Ministers (unless made legally binding by having been incorporated in ECtHR case law) do not trigger the legal conflict described here.

EU legislators have since formalised the link between EU law and the ECHR in treaties.Footnote ³⁹ Article 52(3) of the Charter establishes that Charter rights that correspond to rights under the ECHR (which the articles governing freedom of expression do) shall have the same meaning and scope. Crucially, the CJEU has held that the right to freedom of expression in the Charter has the same meaning and scope as article 10 as interpreted by the ECtHR.Footnote ⁴⁰ This is key, as much of the value of Article 10 ECHR lies in the extensive body of case law that concretises what its broad principles mean in practice. Moreover, any other interpretation would leave unresolved the underlying danger that EU law and the ECHR impose diverging obligations on Member States, as EU law could still conflict with binding ECtHR judgements.

Secondary EU law can strengthen links to CoE standards, for example by noting in the recitals that the directive or regulation at issue is based on CoE standards (in which case these standards arguably carry stronger interpretative value).Footnote ⁴¹ The EU laws discussed in this chapter do not establish such direct links, with an exception for the Political Advertising Regulation.Footnote ⁴² As a result, the obligation to ensure consistency between EU secondary law and CoE standards results only from the general requirement that EU secondary law is interpreted in conformity with the Charter and, by extension, Article 10 ECHR, ECtHR case law, and any CoE recommendations that the ECtHR has incorporated into its case law.Footnote ⁴³ This case law is especially relevant for the many open norms that impact fundamental rights and that courts and regulatory authorities will have to concretise. Examples are the obligation that the DSA imposes on platforms to assess and mitigate systemic risks to fundamental rights, and the conditions under which spyware may be used against the media under the EMFA.Footnote ⁴⁴

2.3.2 Normative Guidance

A closer relationship between the EU and the CoE can also provide the EU with important normative guidance on the freedom of expression issues raised by its increasing regulation of (online) speech. The EU has historically been a primarily economic organisation.Footnote ⁴⁵ The economic power that the EU has accumulated over the decades is arguably what now positions it to tackle the challenges to the democratic system posed by large US tech companies, cross-border technology, and Member States dependent on EU subsidies.Footnote ⁴⁶ But the EU’s economic focus has also meant its institutions and policy framework have not been developed to engage with the freedom of expression implications involved in regulating online speech. By contrast, ECtHR case law provides extensive guidance on this issue. It is moreover complemented by reports and recommendations of the Committee of Ministers that analyse how freedom of expression principles can be safeguarded in relation to contemporary topics such as the roles of platforms and algorithms. To be able to provide this guidance, the CoE has built up both strong internal expertise on freedom of expression and a wide network of academic, governmental, and civil society experts.Footnote ⁴⁷

Drawing on the CoE’s long-standing work on freedom of expression offers the EU ready-made, expert, and relatively detailed guidance about what the most important technological challenges to freedom of expression are and how they should be navigated. The new EU legal framework is in sore need of such guidance.Footnote ⁴⁸ Although the basic rules about how freedom of expression should be safeguarded have now been laid down, these rules contain many open norms that courts and public authorities will have to operationalise. One example is the obligation the DSA imposes on large platforms to assess and mitigate the effects of their services on media pluralism. For example, the CoE’s recommendations on media pluralism and the financial sustainability of quality journalism address the ways in which platforms’ recommender systems potentially limit users’ access to diverse and high-quality information, and suggest a number of ways in which this impact could be addressed.Footnote ⁴⁹

CoE standards can also offer increased legitimacy to the operationalizing of EU law that impacts freedom of expression. Many of the EU laws at issue offer considerable space for public authorities and courts to determine how freedom of expression is safeguarded in practice. Drawing on the framework established by the CoE can ensure that EU law is operationalised in a way that fits with long-standing freedom of expression principles. Furthermore, the recommendations of the Committee of Ministers have been drafted by experts on the specific freedom of expression topics that they cover and reflect a consensus among the Member States of the CoE on how contemporary challenges in this field should be addressed.

The way the CoE’s normative guidance can be incorporated into EU standards depends on the availability and flexibility of EU law and CoE standards on a specific issue. In some cases, EU law contains (very) open norms that CoE guidelines can be used to concretise. For example, the DSA requires platforms to assess and mitigate a wide variety of systemic risks without specifying what measures are appropriate in any given case. CoE recommendations provide such guidance with regard to a number of issues either explicitly or implicitly covered by the DSA’s systemic risk provisions, such as media pluralism, hate speech, and children’s rights.Footnote ⁵⁰ Similarly, ECtHR case law and CoE recommendations could provide guidance about what the concept of ‘editorial independence’, in Article 17 of the EMFA proposal, requires in practice.Footnote ⁵¹ In other cases, the extent to which the CoE’s normative guidance can be incorporated into EU law is limited. For example, the CoE has provided extensive guidance on the way media should be defined, emphasising the contribution to the public interest over profit motives or association with a professional news organisation. Providing a professional and commercial service is however a key part of the way the EMFA defines media.Footnote ⁵²

CoE recommendations can also perform an agenda-setting function. The CoE can indicate which freedom of expression issues are particularly pressing and what measures are needed by highlighting them as (sub-)themes of its recommendations and reports. In doing so, the CoE is moreover able to take a broader view than the institutions applying or designing EU law. In contrast to those institutions, the CoE is not restricted by the EU’s limited competences in the area of freedom of expression or by the lack of a specific legal provision to apply. This allows the CoE to indicate where other measures than the ones provided by the EU legal framework might be more appropriate, or what responsibilities other actors such as Member States bear. This in turn enables the EU to assess how its actions fit into the broader human rights framework, or alternatively when EU action may be particularly important because other actors fail to exercise responsibility.

For example, one of the main ways in which the EMFA and the Digital Markets Act strengthen media organisations’ position vis-à-vis platforms is by giving them increased access to data on the way advertising and audience measurement systems perform.Footnote ⁵³ This is expected to strengthen the media’s financial position by allowing them to evaluate the performance of their content and the share of advertising revenue they are paid.Footnote ⁵⁴ The CoE has similarly called for such transparency as part of a broader analysis of the financial sustainability of quality journalism that also covers other aspects of the platform–press relationship (such as prioritisation of media content, non-discrimination, and the money that platforms voluntarily provide to media organisations) as well as the responsibilities of Member States.Footnote ⁵⁵ This makes it clear how the increased transparency of audience measurement systems can fit into a broader strategy to strengthen the financial sustainability of the media. It also raises questions about the limits of an approach that provides the media with more information but that does not fundamentally alter the balance of power between the media and platforms. One consequence may be that media simply become more attuned to platforms’ recommender and advertising systems, as they have better insight into the ways they can create content that succeeds on these systems but lack the power to change or reject them.

2.3.3 Implementation

Where CoE standards can offer normative guidance to the EU, this raises an interesting possibility of their incidental implementation through EU instruments. The CoE’s comprehensive soft-law framework for the protection of freedom of expression and media is of particular interest in this regard. On the one hand, more than a hundred recommendations and declarations have been produced over five decades, making a significant contribution to European media policy. On the other hand, the implementation of those texts depends on the positive disposition of states.Footnote ⁵⁶

Opting for soft law in the area of media regulation has its advantages; timely responses to quick-paced changes can be better achieved through more expedient and inclusive yet less formal procedures than those used in treaty negotiations. Soft-law norms can result in more ambitious texts, providing significant levels of detail or guidance on emerging issues not yet addressed by the ECtHR. However, ensuring compliance with these standards is a thornier issue, even though their adoption by consensus shows a willingness to be bound by them, and their wording, calling for effective implementation, leaves no doubt about their intended impact. At present, the influence of soft-law instruments is primarily enhanced through the ECtHR, which regularly refers to them in its case law and has also clarified their status as interpretative tools in a case pertaining to states’ obligations vis-à-vis public service media (PSM).Footnote ⁵⁷ However, as already stated, there is no systematic monitoring of the state of freedom of expression at the CoE level, which limits ‘soft enforcement’ to self-assessment questionnaires, thematic discussions, and exchanges of experience within the Committee of Ministers and sectoral intergovernmental committees.

The notable increase of EU regulatory activity in the area of freedom of expression invites a brief comment on how CoE standards might be reflected in the EU legal order. In this connection, international courts are regularly confronted with cases involving the relationship between their own and other legal regimes, requiring that they interpret and apply norms generated by other regimes as well as engage in an incidental review of those norms.Footnote ⁵⁸ The CJEU often relies on the ECtHR’s case law in interpreting the scope and content of fundamental rights.Footnote ⁵⁹ Though it has started to rely relatively more on the Charter since its entry into force, ECtHR case law is still quite prominent when it comes to new issues with no precedent, such as the relationship between academic freedom and freedom of expression.Footnote ⁶⁰

The CJEU has long dealt with the role and impact of EU soft law on the legal framework, to the point of recognising legally binding effects of several such standards.Footnote ⁶¹ This is not the case for CoE recommendations and other soft instruments, which instead appear as occasional references to define individual concepts,Footnote ⁶² clarify the scope of a right,Footnote ⁶³ or provide guidance on relevant standards in a particular field,Footnote ⁶⁴ more or less clearly intended to fill the gaps in hard law. CoE soft-law instruments are more often cited by advocates general, and one opinion in particular provides some insight into the role of CoE soft law in the EU legal order, indicating that the Committee of Ministers’ ‘Twenty Guidelines on Forced Return’ are considered of relevance in interpreting Directive 2008/115, along with the ECtHR case law on the right to liberty, because they are referred to in a recital to the Directive.Footnote ⁶⁵

It would be difficult to draw any general conclusions from this one opinion. Nevertheless, together with the references in the CJEU judgements, it shows that CoE soft-law instruments can be, and are, used as interpretive tools for further development of individual EU law provisions. The scarcity of such references suggests that the CoE instruments are likely cited because they represent the most practical or appropriate source available, rather than as the result of a deliberate focus on CoE standards. Nevertheless, these references contribute to the consistent implementation of law in areas of institutional overlap and, even if not by design, strengthen the impact of CoE soft law. In that sense, the benefits that a closer relationship in the area of media policy offers the CoE and the EU are arguably intertwined: by incorporating the normative guidance offered by CoE standards, the EU ensures that its policy is grounded in established fundamental rights principles and in turn strengthens the practical relevance of those standards.

The EMFA serves as a concrete example of how EU law can facilitate compliance with some of the CoE’s soft-law instruments. It refers in its Explanatory Memorandum to CoE recommendations on media pluralism and PSM governance,Footnote ⁶⁶ stating that the proposal ‘builds on’ them. Indeed, the EMFA includes several provisions that are similar or equivalent to those included in CoE recommendations, for example Article 5 on PSM, which was previously only subject to EU state aid rules, and the provisions on public funding in the Protocol to the Amsterdam Treaty on the system of public broadcasting in the Member States. This provision acknowledges the special public service mission of PSM characterised by plurality of content, independent governance and oversight, stable financing, and so on, which in substance corresponds to CoE standards on the guarantee of PSM independence, remit and governance, and media pluralism.Footnote ⁶⁷ The EMFA therefore promises not only to reverse the trend of deteriorating media freedom in the EU but also to transform CoE soft-law standards into binding provisions of law, applicable to EU Member States but also to candidate countries, all of which are also CoE members.

2.4.1 Legal Ties

The previous sections show that the increasing overlap between EU and CoE policy-making in the field of freedom of expression and media freedom creates opportunities, if not requirements, for the organisations to strengthen their relationship and ensure the consistency of their respective standards relating to the protection of freedom of expression. The current EU legal framework already includes several safeguards to prevent conflict between the two systems of human rights protection. Notably, ECHR rights are connected to Charter rights and given effect as general principles of EU law, in an effort to limit the risks that might arise from two largely overlapping, and potentially conflicting, catalogues of fundamental rights. Indeed, the double protection through distinct, if related, systems that are enforced by two supreme jurisdictions may lead to diverging standards,Footnote ⁶⁸ underlining the importance of the EU’s accession to the ECHR,Footnote ⁶⁹ which is seen as leading to a coherent framework of fundamental rights protection throughout Europe.Footnote ⁷⁰

Regarding the protection of freedom of expression, the Explanatory Memorandum to the EMFA proposal reiterates that Article 11 of the CFREU corresponds to Article 10 of the ECHR, meaning that its scope of protection should at a minimum be the same. However, the same proposal has been criticised for not meeting ECHR standards on the prohibition of surveillance of journalists and the protection of their sources.Footnote ⁷¹ That said, divergent approaches on individual questions are by no means indicative of an overall lack of coherence between the CoE and EU systems, nor are they necessarily a matter of principle or political choice; they can also result from differing interpretations of standards or the omission of certain nuances. In general, the process of rapprochement between the two systems, though consistent, could benefit from a commitment to more concrete forms of cooperation, which we will discuss in what follows. We argue that the closer the legal and organisational ties between organisations, the more likely they are to lead to consistent protection of fundamental rights across Europe.

Legal ties, as mentioned, have been strengthened with the 2007 MoU, which led to ‘an unprecedented qualitative change in mutual relations’Footnote ⁷² resulting in a strategic partnership in the areas of political dialogue, legal cooperation, and joint cooperation activities supporting legal reform and capacity-building mainly in the countries of EU neighbourhood and enlargement. Aside from the EU’s accession to the ECHR, the MoU has been impactfulFootnote ⁷³ but has become somewhat outdated as it does not take account of the EU competences gained on the basis of the Lisbon Treaty, in particular the legally binding status given to the Charter, or indeed the EU’s recent shift to fundamental-rights-oriented media policy. Recently, the European Parliament (EP) called on the European Commission to initiate a revision of the 2007 MoU to take account of these new competences and formalise the strategic partnership of cooperation between the organisations.Footnote ⁷⁴ The EP has also proposed complementing a MoU with additional agreements for joint action on specific issues, and indicated media freedom, countering hate speech, disinformation, and electoral interference as areas where continued cooperation between the organisations is desirable.

In this connection, the EU, represented by the Commission, enjoys the status of a participant in the CoE’s intergovernmental committee that develops standards on media and digital governance,Footnote ⁷⁵ meaning it can take part in its meetings and the meetings of its subordinate bodies and also make drafting proposals. It is even conceivable, especially if the EU accedes to the ECHR, that the rules governing the work of intergovernmental committees might be amended to grant the EU the right to vote in areas of its internal competences and thus directly influence the development of CoE standards.Footnote ⁷⁶ This would be of particular relevance in developing soft-law instruments mostly for use in regulating freedom of expression since, in contrast to many CoE treaties open to EU accession, they cannot acquire legitimacy for the EU system through the process of signature and ratification. As for the EU’s own regulation in this area, where, as already mentioned, CoE standards can serve to operationalise EU law or even be incorporated in it, a new MoU or another sectoral arrangement could provide for concrete guidance on how this is to be reflected in the EU acts. For example, relevant CoE standards could be cited as references in recitals to the EU legislation, thereby indicating their relevance in the interpretation of individual EU acts.Footnote ⁷⁷ Alternatively, specific provisions of relevant CoE standards could also be mentioned in the normative parts of EU acts, although this would likely require a clear legal basis and, therefore, a legally binding instrument between the two organisations to underpin such an arrangement.

2.4.2 Organisational Ties

A complementary relationship between the CoE and the EU in media regulation is not only a matter of linking the two legal frameworks. The practical effect of this relationship also depends on organisational ties between the two institutions as they develop, apply, and give guidance on media regulation and governance.Footnote ⁷⁸ Consider, for example, the challenge faced by the Commission’s enforcement team at DG Connect if they analyse whether TikTok has sufficiently mitigated systemic risks to freedom of expression on its platform to comply with the DSA. Carrying out this analysis in line with the CoE’s freedom of expression standards requires considerable knowledge of the existence, rationale, and substance of these standards.

Knowledge of the CoE’s standards is not a given for the actors that will be applying EU law that impacts freedom of expression. While such knowledge is likely developed most strongly among national media authorities, even these authorities are confronted with a significant Europeanisation and accompanying increase in European standards that makes it difficult to maintain a comprehensive overview.Footnote ⁷⁹ Furthermore, the new EU legal framework will be applied not only by media authorities but also by the Commission and by national data protection, consumer, and competition authorities.Footnote ⁸⁰ These actors have generally not had to build the internal institutional capacity or the external network of freedom of expression experts that are necessary to address the freedom of expression issues raised by the application of the new EU legal framework. Stronger organisational ties to the CoE institutions that have navigated freedom of expression issues for decades can alleviate these issues.

Much has already been written about this relationship at the highest levels at which EU and CoE law is applied, namely the interaction between the CJEU and the ECtHR.Footnote ⁸¹ Despite the CJEU blocking EU accession to the ECHR, informal dialogue has so far successfully prevented major inconsistencies between the two fundamental rights frameworks. Where freedom of expression is concerned, the CJEU has additionally drawn significant inspiration from the ECtHR’s relatively extensive case law on this topic.Footnote ⁸² Our analysis does not provide fundamental new insights into this relationship. However, two points are worth mentioning. First, interpreting the new EU legal framework may require the CJEU to address a wide range of digital freedom of expression issues that have not yet come before the ECtHR (given the comparatively long time required to obtain such judgements).Footnote ⁸³ In these cases, it may become more important for the CJEU also to draw on CoE recommendations. And second, it becomes important to ensure a similarly strong relationship between the ECtHR and the General Court, as the latter will initially review Commission decisions that enforce the DSA for large platforms.

Many of the concrete decisions about the way freedom of expression is safeguarded in the online environment in practice will not be taken by the CJEU and the ECtHR but rather by those applying EU law. In particular, we argue, organisational links should be established in three places where EU law governing online expression is operationalised.

The first is the regulatory authorities that apply EU law. It may be particularly important to establish closer organisational ties between the CoE and the Commission’s DG Connect, which enforces the DSA with regard to very large online platforms. Relevant provisions of the DSA are, due to their broad scope and the scale of the platforms involved, potentially some of the most impactful parts of the new EU legal framework for freedom of expression.Footnote ⁸⁴ Yet because the DSA is a horizontal regulation, freedom of expression is only one of the many issues for which DG Connect build capacity. Indeed, the DSA itself emphasises the need for the Commission to build up capacity and expertise and suggests that it may collaborate with a wide group of actors to do so.Footnote ⁸⁵ In the area of freedom of expression, organisational ties between the CoE and DG Connect could allow the latter to draw on the deep expertise and network that the CoE has built, ensuring that the enforcement of EU law is grounded in freedom of expression principles and gives practical effect to the guidance of the CoE. Such ties could, for example, involve the secondment of CoE employees or inviting the CoE’s input on guidelines adopted under the EMFA or DSA. Organisational ties between the CoE and national authorities that enforce EU law could fulfil a similar function. However, the number of authorities involved in the application of EU law may make such organisational ties difficult to operationalise in practice. Organisational ties may be more efficiently fostered in the bodies in which national regulators convene to coordinate and provide overarching regulatory guidance.

Secondly, therefore, organisational ties can be established between the CoE and the regulatory bodies established in the new legal framework, such as the European Board for Digital Services (for the DSA), the European Board for Media Services (for the EMFA), and the European Regulators Group for Audiovisual Media Services (for the AVMSD). In some cases the Commission is also empowered to provide its own regulatory guidance or to draft binding delegated acts specifying EU legal norms.Footnote ⁸⁶ If grounded in the CoE’s freedom of expression principles, the guidance created by these actors could fulfil an important signalling function to national authorities and provide guidance to actors on which freedom of expression issues should be prioritised and on how freedom of expression principles should be operationalised in specific contexts. They could also provide a forum in which the CoE and EU actors involved in freedom of expression governance can convene and establish closer connections that allow them to collaborate on a case-by-case basis. To that end, regulatory bodies could for example grant the CoE observer status in its meetings, provide the CoE access to its internal documents, and commission CoE studies into specific issues.Footnote ⁸⁷

Finally, private actors such as platforms and standardisation bodies play an important role in determining how the new body of EU law is to be applied. For example, the EMFA proposes to require platforms to assess the editorial independence of media organisations; similarly, the DSA requires that the Commission supports standardisation bodies in setting standards on, among other things, the way platforms are audited and the way individuals can exercise control over recommender systems.Footnote ⁸⁸ These decisions involve highly nuanced normative considerations regarding the freedom of expression principles at stake.Footnote ⁸⁹ There is significant concern in the legal literature regarding the role these actors assume in fundamental rights governance by taking such decisions.Footnote ⁹⁰ However, if freedom of expression principles are to be given practical effect in the digital economy, the role of private actors in setting standards to outline how the norms in the EU legal framework should be complied with cannot be ignored.

It is unrealistic to expect CoE involvement in this process to fundamentally change the underlying issues involved in privatised fundamental rights governance. In large part, the concerns are with the legitimacy of private companies making fundamental rights decisions and the misaligned profit incentives that prevent them from doing so in line with freedom of expression principles. However, the CoE can play a role in providing expertise on the way freedom of expression is impacted by private companies’ practices and on what considerations should guide their decision-making and voluntary codes of conduct. If done publicly, this may also create accountability by setting a more concrete standard against which private actors’ performance can be judged. However, for private actors to be open to CoE input, it is important that failing to respond to their collaboration will raise the threat of EU regulatory action when companies fail to comply with EU law that incorporates CoE standards.

3.3.1 Digital Constitutionalism as a Context-Specific Framework

The theoretical framework that allows the construction of arguments to support a media-friendly copyright framework can be found in the emerging field of digital constitutionalism. Important contributions have been made to defining this emerging field theoretically.Footnote ¹⁸ In addition, concrete contributions have been made to explore the effects of digital constitutionalism on areas such as online copyright enforcementFootnote ¹⁹ and the conceptualisation of a right to research.Footnote ²⁰ In particular, the latter exploration provides a methodological blueprint to argue for an inclusion of copyright aspects into the EMFA or into a more systematic approach within existing copyright codifications.Footnote ²¹ It also allows the development of a conceptual framework for rethinking existing copyright rules to enable and encourage journalistic activity in digital contexts and with enhanced digital tools.

Digital constitutionalism is a reaction to the liberal approach of early regulation of the internal market and of the digital spaces of the internal market in particular.Footnote ²² The concept can be seen as an act of defiance against the excesses of private actors, which have filled a constitutional vacuum with private norms that govern private relationships in asymmetrical digital marketplaces.Footnote ²³ Less ideologically phrased, digital constitutionalism ‘shares the foundational values and the overall aims of contemporary constitutionalism, but focuses on the specific context affected by the advent of digital technology’.Footnote ²⁴ The application of fundamental rights in these contexts is specific, since they are held as constitutional shields against the acts of private service providers (online platforms and other information society service providers) and not as defensive rights against incursions of the state into the rights and freedoms of individuals. Larger online platforms and digital service providers have been the subject of what has been referred to as a ‘new phase of European constitutionalism’.Footnote ²⁵ Their trans-border nature and their enormous economic power, which penetrates many spheres of human activity, have exposed weaknesses of constitutional protection for the rights of individuals. In these spheres, these service providers have de facto assumed public tasks, in particular in relation to rights enforcement.Footnote ²⁶

Copyright has been a battleground on which constitutional arguments have been employed for mainly two purposes. First, the rules on copyright enforcement, particularly in a digital environment, have been shaped significantly through fundamental rights. In a line of case law in relation to online copyright enforcement through privately operated service providers, the CJEU, in a dialogue with national courts, has laid the foundation for a sectoral development of digital constitutionalism. But what is referred to as the ‘constitutionalisation of copyright’ (or intellectual property more generallyFootnote ²⁷) has also radiated into copyright’s substantive norms. As a result, and second, the scope of exclusive rights and the scope of exceptions and limitations have been considered through the lens of fundamental rights.Footnote ²⁸ Constitutional considerations have, for example, led to crucial distinctions in the application of the right of communication to the public to enable users to set hyperlinks without incurring liability.Footnote ²⁹ Specific uses permitted by exceptions have been shaped with arguments based on fundamental rights.Footnote ³⁰

The arguments developed in this process will be useful and necessary in reassessing copyright’s impact on the media. The same can be said about the methodological approach of examining specific aspects of copyright against a fundamental rights background, taking into consideration the specific threats to individual rights posed by digital technologies. The concept of digital constitutionalism therefore serves to better expose those threats and argue for a constitutionally sound design of copyright as a sectoral regulator of journalistic activities.

3.3.2 Constitutional Imperatives for the Media

The media are of pivotal importance for the working of European democracies. In their function of imparting information and ideas to inform the public, they play the role of a public watchdog.Footnote ³¹ Moreover, any reflection on copyright and the media must consider their crucial and essential role for constitutional democracies. In particular, the European Court of Human Rights (ECtHR) has consistently stressed the privileged position of the media and journalists in its case law on the right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). However, on the interplay between the media and copyright, only the CJEU has, so far, had the opportunity to explore in depth this complicated relationship in the context of copyright exceptions and limitations,Footnote ³² even though important guidelines had already been set out by the ECtHR when approaching copyright issues.Footnote ³³

In addition to the importance of the media in a pluralistic democracy, it is crucial to consider the role of the media in a cross-border digital single market, where they face unique challenges.Footnote ³⁴ These two roles – in European democracies and in the EU’s digital single market – have become intrinsically linked. The economic viability of media in the broader sense is essential for its role as a public watchdog.Footnote ³⁵ And while the economic viability of the media sector can provide powerful arguments, it is the watchdog function that helps to develop the constitutional imperatives necessary to shape a copyright law fit for the media.

The ability of the media to fulfil this function is highly dependent on its ability to collect, scour for and use information. The effects of copyright law on the functioning of the media are manifold. For the purpose of the argument developed here, it is sufficient to highlight the restrictive effects copyright laws can have on the proper function of the media. First, the exclusive rights granted in copyright law allow rightholders to prevent the use of information that is contained in works or other subject-matter protected by copyright. Second, copyright exceptions and limitations, while designed to enable users to perform certain socially desirable acts in relation to protected subject-matter, must be available and formulated in a clear and understandable way. Using constitutional arguments to remedy specific shortcomings in existing copyright rules should therefore enable the media to seek information, analyse it and inform the public by communicating the results of its research.Footnote ³⁶

To fortify this argument, it is necessary to note that the media are a subject that enjoys fundamental rights protection while simultaneously serving an important intermediary function to enable other subjects to enjoy their rights. For example, the media creates and provides the information that others seek in order to participate in informed democratic discourses.Footnote ³⁷ The constitutional imperatives grow out of the fundamental rights that govern this triangular relationship between rightholders, the public and the media. The role of media actors as active enablers and passive recipients of fundamental rights protection is unique and deserves special protection, which must also be reflected in copyright law.

Of course, other fundamental rights must be considered as well. In particular, the right to privacy and data protection gives rise to concerns when raising arguments on access to, and dissemination of, information. The role of the media has, to this effect, been moderated in particular by the ECtHR. The Strasbourg Court has frequently underlined that certain types of reporting, namely reporting that contributes to debates in a democratic society, enjoy a higher level of protection as opposed to reporting that fails to perform this function.Footnote ³⁸ Fortunately, even these distinctions can be internalised into copyright law through careful drafting of relevant exceptions and limitations.

The CJEU has subjected the balance between copyright and freedom of expression to a case-specific examination. However, in none of the relevant cases did the Court find that protected works could not be used or published for journalistic purposes. It was rather the concrete way or form in which the works were made available in the course of journalistic reporting that the Court assessed within the scope of existing exceptions. While in Spiegel Online online copyright exceptions permitted the use of a book chapter only in the way (with a disclaimer) that the author had consented to the publication, in Funke Medien the CJEU suggested allowing the publication of unpublished leaked military reports under Article 5(3)(c) ISD.

Exceptions for journalistic purposes can also be found in other specific legal frameworks. The European General Data Protection RegulationFootnote ³⁹ obliges EU Member States in Article 85 to foresee in their national laws an exception for ‘processing carried out for journalistic purposes or the purpose of academic artistic or literary expression’. This exception is designed to reconcile the right to the protection of personal data with the right to freedom of expression. The CJEU has, for this purpose, interpreted journalistic purposes broadly,Footnote ⁴⁰ and also prima facie non-journalistic activities, to potentially contribute to the purpose supported by Article 85.Footnote ⁴¹ However, it tends to determine the concrete balance between the competing rights on a case-by-case basis. This is certainly appropriate for a personal and individual right such as the right to privacy. This approach would not seem appropriate in a copyright context, however, given the different nature of the more economic rights granted under copyright law as expressions of the fundamental right to property.Footnote ⁴²

Albeit with a limited scope, EU law provides protection for individuals who disclose secret information by establishing a regime for whistleblowers who report certain breaches of EU law. This special regime, established by the Whistleblower Directive, expressly recognises the chilling effects potentially created by using proceedings ‘related to defamation, breach of copyright, trade secrets, confidentiality and personal data protection’ to deter whistleblowers.Footnote ⁴³ Furthermore, the Directive highlights the importance of whistleblowers as ‘important sources for investigative journalists’ who are ‘crucial for safeguarding the “watchdog” role of investigative journalism in democratic societies’.Footnote ⁴⁴ A similar exception is contained in Article 5(a) of the Trade Secrets Directive,Footnote ⁴⁵ which permits exceptions to the protective regime pertaining to information qualifying as a trade secret for ‘exercising the right to freedom of expression and information as set out in the Charter, including respect for the freedom and pluralism of the media’.

Punishing the relevant actors through copyright law, for example for the unauthorised processing (by means of reproduction) of protected subject-matter, would hamper the media in fulfilling its essential constitutional function. For collisions with other fundamental rights, as we have briefly described, other regimes are in place, but even those legal frameworks provide for generous exceptions for journalists.

Given the crucial role of the media as an enabler of the exercise of the right to freedom of expression in democratic systems, copyright should not work to the effect that it creates chilling effects on journalistic activities. Therefore, as a constitutional imperative, the relevant copyright rules must pe permissive in the sense that they enable journalistic research and investigation and the publication of the results of these activities. Most importantly, these rules cannot have a preventive character that would deter journalists from engaging with data and information that is directly or incidentally protected by copyright. An express exception to the general rule of preventive control under copyright law would also have a signal function for journalistic actors and would therefore have to be formulated broadly and in an unambiguous manner.

These imperatives are rooted directly in the right to freedom of expression, including the right to receive and impart information. Especially for institutionalised media, other fundamental rights, such as the freedom to conduct a business (Article 16 EU Charter), also support a broader framing of journalistic exceptions to copyright’s exclusive rights. Especially considering the privileges afforded to journalists under EU rules on data protection and whistleblowing, copyright should not be instrumentalised to neutralise the privileges afforded to journalists and the media because of their crucial role within a democratic society.

In brief, a right to access information and to use this information to gain new insights, or to illustrate arguments in the context of a public debate, lie at the heart of Europe’s constitutional traditions. These imperatives for access to, and use of, information for purposes that lie at the core of the right to freedom of expression – in all its dimensions – are not unique to copyright or the media.Footnote ⁴⁶ But digital technology and online environments have changed the way media is produced and used or consumed. This digital transformation creates unique opportunities for journalistic work while, at the same time, posing context-specific challenges to the use and dissemination of information. Digital constitutionalism, as a conceptual framework, helps to identify and, to a certain extent, shape the rules of copyright law that are essential to enable the media to fulfil their constitutional function.

3.4.1 Access and Processing of Information through Copyright Limitations and Exceptions: User Rights Are Media Rights

As already discussed, copyright impacts access to, and use of, information in two ways. First, it erects barriers in the form of exclusive rights, which by their extent and nature prevent the use of works (and other subject-matter) that contain information. Access to this information, especially large quantities of documents and other forms of collated information, requires the ability to perform automated analysis or at least computational searches. Changing the scope of protection for copyright subject-matter would be one starting point.

A rather radical but efficient method would be to work on exclusions from copyright protection, which could be envisaged for works containing essential public information,Footnote ⁴⁷ in analogy to categories such as official documents and official texts that are explicitly excluded from copyright protection in certain countries. The Berne Convention expressly provides for this possibility.Footnote ⁴⁸ For example, a military report, weather reports or documents including important environmental data could be excluded from copyright protection. For documents produced by certain public bodies, copyright could be excluded ab initio, or enforcement could be generally excluded. In this spirit, the CJEU in Funke Medien openly questioned the protectability of military status reports and underlined potential problematic consequences for the freedom of the press,Footnote ⁴⁹ but eventually deferred the issue to national courts for a case-by-case assessment. To ensure legal certainty, it would thus be worth considering excluding certain categories of works containing information in the public interest from the scope of copyright protection.Footnote ⁵⁰

However, this approach is arguably not easy to implement and might face strong opposition from rightholders. It could also be challenging to draw the line on what work to protect and what to exclude.Footnote ⁵¹ Therefore, from a policy perspective, it might be easier to work on copyright limitations and exceptions as the second impact factor on access to information. In fact, the absence of clearly applicable exceptions leaves the media and journalists in particular with legal uncertainty as their activities make them potential infringers. While in the US, the sharing and use of information for media-related purposes are likely to be covered by the fair use defence,Footnote ⁵² the legal situation in the EU is less clear and does not live up to the challenges of a true information society.Footnote ⁵³ Not only does a restrictive and uncertain legal framework create potential chilling effects on the media, it also puts European media at a competitive disadvantage compared to its counterparts in other regions of the world that operate under more favourable and flexible legal frameworks.

More concretely, it seems particularly important to discuss an extension of the scope of existing TDM exceptions to journalists as personal beneficiaries, as well as a general revision of applicable exceptions for the press such as the exceptions for quotation, news reporting and to a certain extent parody (when caricatures are the vehicle of criticism and reflect current debates).Footnote ⁵⁴ These exceptions are currently not tailored to uses made by the media. For example, the exception for the reporting of current events is limited to illustrative uses, although unpublished (and potentially unlawfully obtained) works are covered by this specific exception.Footnote ⁵⁵ The TDM exceptions in Articles 3 and 4 CDSMD are either limited in scope to ‘research organisations and cultural heritage institutions’Footnote ⁵⁶ or available without institutional restrictions but potentially subject to a reservation by the relevant rightholder.Footnote ⁵⁷ Both exceptions are subject to the condition that the user has lawful access to the works or other subject-matter in relation to which TDM is performed.

Addressing these shortcomings to enable journalistic activities is essential to ensure the functioning of the media as a public watchdog in pluralistic democracies. And these shortcomings could be easily addressed. Ideally, a broad exception for journalistic purposes would include, by means of an open formulation, a variety of acts that journalists can perform in relation to protected works and other subject-matter. Modelled on the existing exception for the reporting of current events, an exception de lege ferenda would apply to acts of reproduction for journalistic purposes including a qualified right to communicate to the public or make available works or other subject-matter ‘in accordance with fair practice, and to the extent required by the specific purpose’. Such a broad approach would not necessitate any further intervention in relation to the more specific TDM exceptions and would potentially also cover other expressive uses such as parody with a specific media-related balancing approach.Footnote ⁵⁸

A broader approach that is phrased in technology-neutral terms would reflect the important role of the media and give it broader freedoms in relation to other privileged actors (such as research organisations and cultural heritage institutions). This seems appropriate considering the essential role the media play in sustaining freedom of expression and information in liberal democracies.

3.4.2 Dissemination via Platforms

A report commissioned by the Reuters Institute for the Study of Journalism at Oxford University demonstrated that younger people tend not to access news directly via traditional media.Footnote ⁵⁹ Instead, they experience news through other channels used for enjoyment end entertainment, largely through social media.Footnote ⁶⁰ In copyright terms, the sources from which young people consume news can be classified as platforms or, more specifically, online content-sharing service providers (OCSSPs).Footnote ⁶¹

When online platforms become the vehicle for accessing media for large parts of the population, it is essential that these platforms are regulated to allow for unhindered access to journalistic content. Copyright’s enforcement regime was recently updated by the CDSMDFootnote ⁶² and the Digital Services Act (DSA).Footnote ⁶³ Safeguarding essential user freedoms (of access to information) is not ingrained into the current enforcement regime, partly because that regime was designed to first ensure ample protection for rightholders by strengthening the rules on enforcement. While safeguards to ensure the exercise of freedom of expression are contained in the new rules, certainly in a more pronounced way in the DSA,Footnote ⁶⁴ there is no particular regard to access to news or other journalistic productions. One glaring example is the omission of an exception for news reporting or, as we have suggested, a broad journalistic exception, in Article 17(7) CDSMD.

The new regime for copyright enforcement on certain online platforms, many of which will be those that younger generations use to access news content, therefore requires careful calibration – also in its interplay with the supplementary rules of the DSA. The inherent conflict between online copyright enforcement through automated, algorithm-driven monitoring and filtering tools and the right to freedom of expression and information must be resolved with regard for the role of the media in democratic societies. Especially in a digital context, which is doubtless the context in which significant numbers of Europeans access news content, the specific vulnerabilities of online content imposed by private enforcement frameworks must be considered through the lens of digital constitutionalism.

Therefore, an appropriate mechanism will have to be implemented to safeguard journalistic user rights and ensure that content moderation processes will be monitored independently in order to guarantee media freedom and the right to impart information. Oversight by public authorities and related questions of institutional design should therefore be an essential part of the discussion on media freedom and platform responsibility and liability.Footnote ⁶⁵ Moreover, discussions on the impact of copyright on the media should not be restricted to copyright exceptions as a reaction to the broad scope of exclusive rights; rather, proactive steps should be taken to improve the position of journalists in terms of access to information as well as the financial stability of media companies and individual journalists. This will also require addressing remuneration issues, in particular the potential creation of new statutory remuneration rights for journalists. Ironically, proper remuneration for certain rightholders, or the closing of the value gap, has played a pivotal role in the design of Article 17 CDSMD. It is conceivable that this coincidence – the fact that both user rights and value gaps formed the background to Article 17 – provides a good opportunity to address both problems, unfettered access to information and an economically sustainable media landscape, together when revisiting the Article 17 regime in the light of these insights from digital constitutionalism.

3.4.3 Combining Access to Information with the Remuneration Interest of Journalists: Towards New Limitation-Based Remuneration Rights?

An additional aspect not directly related to the generation of quality news and journalism, which however relates to the viability and sustainability of journalistic activities, is the remuneration due to journalists and creators in general.Footnote ⁶⁶ This can only be indirectly addressed through copyright law. Remuneration – in other words a reliable and stable income for journalists – is vital for the provision of quality reporting and analysis. For that purpose, journalistic actors must benefit from the exploitation of their works. One way to address this would be through remunerated exceptions that provide journalists directly with remuneration for uses that are made of their works on the basis of statutory use permissions (through a so-called limitation-based remuneration right).Footnote ⁶⁷ Of particular importance here could be an exception for the use of journalistic material in commercial online contexts, for example when journalists’ works are used by news aggregators, by professional commercial TDM brokers or for training AI systems to generate automated outputs.Footnote ⁶⁸ The construction would be different depending on what regulatory mechanism is chosen. For example, the opt-out option of Article 4(3) CDSMD allows rightholders to reserve the rights relating to the use of their works for TDM purposes. This opt-out mechanism could be replaced by a remuneration right to the benefit of journalists in the case of commercial uses of their works (e.g. in the context of TDM activities for commercial purposes).Footnote ⁶⁹ A specific remuneration right linked to an exception to allow TDM for machine learning could also be created given the potential competition and thus lack of income that journalists could face from generative AI systems trained on their articles.Footnote ⁷⁰ An important discussion is ongoing about whether such activities can fall under the existing exceptions framework. In the US, this discussion focuses on the fair use doctrine. In the EU, Article 4 CDSMD occupies centre stage.Footnote ⁷¹ In order not to inhibit the development of AI systems that need to be trained with complete sets of data to ensure adequate information standards but at the same time to secure the remuneration interests of individual creators (in this case journalists), it would be worth exploring the creation of a limitation-based remuneration right replacing the opt-out option of Article 4(3) CDSMD.Footnote ⁷²

4.4.1 Propaganda or Propaganda for War?

The definition of ‘propaganda’ is ambiguous:Footnote ³² propaganda might be false or true, and it may pursue a variety of purposes and be driven by different motives. Despite the lack of conceptual consensus, some characteristics have been identified over the past century. The aim of influencing people’s opinion is essential to an understanding of propaganda.Footnote ³³ In one of its recent opinions, the Venice Commission of the Council of Europe stated that the notion ‘propaganda’ usually ‘makes reference to an activity aimed at proselytising people to certain ideas and opinions’.Footnote ³⁴ Sinha, in a legal article aimed at defining propaganda, points to a general consensus that the notion includes an element of manipulation or distortion of the rational will of a person, and that it must also have both persuasive power and persuasive effect.Footnote ³⁵ In this context it is important to recall that in the early days of the UN, the General Assembly pointed out that propagandistic activity goes hand in hand with the media being controlled and/or deprived of its freedom to report on relevant events and dissenting opinions.Footnote ³⁶ Likewise, Lumley – one of the first scholars to comprehensively address the phenomenon of propaganda – described the set of propaganda techniques as a combination of ‘suppression, distortion, diversion and fabrication’.Footnote ³⁷

Emphasising its versatile character, McGonagle notes that ‘propaganda’ covers ‘a range of different types of expression which vary in terms of the harmfulness of their content, the sophistication of their presentation and strategies of dissemination and the gravity of their effects’.Footnote ³⁸ Indeed, there is a need to distinguish – at the level of law and policy – two sorts of propaganda. The first covers illegal forms of speech, including propaganda for war, as well as expressions of national, racial, or religious hatred that constitute incitement to discrimination or violence, as defined in international and national law. It demands judicial action with the appropriate measures in line with international human rights law (IHRL) standards. The second type of propaganda includes all the rest, popularly characterised as ‘awful but lawful’; it may be inappropriate and contemptible activity, it may damage the profession of journalism, but it does not necessarily call for legal action.

Unlike ‘propaganda’ in general, ‘war propaganda’ has more solid features,Footnote ³⁹ even though the UN Special Rapporteur on Freedom of Expression recently observed a ‘confusion among some States and companies about [the] scope [of propaganda for war]’ and underlined the need for its further clarification.Footnote ⁴⁰ This was an unsurprising conclusion since the notion (re)entered international debate only after it was brought back from near-oblivion following the start of the military conflict in Ukraine in 2014.

Historically, in 1947, the UN General Assembly (UNGA) gave a rather distinct definition of war propaganda by saying that it may represent any form of propaganda ‘which is either designed or likely to provoke or encourage any threat to the peace, breach of the peace, or act of aggression’.Footnote ⁴¹ It thus gave an intent or a threat of hostilities as the criterion for the illegal act. At about the same time, the UNGA further elaborated on the definition of propaganda for war by stating that it also includes ‘propaganda against peace’: that is, ‘measures tending to isolate the peoples from any contact with the outside world, by preventing the Press, radio and other media of communication from reporting international events, and thus hindering mutual comprehension and understanding between peoples’.Footnote ⁴² Thus an intrinsic element of such propaganda became activities by governments ‘tending to silence or distort the activities of United Nations in favour of peace or to prevent their peoples from knowing the views of other States Members’.Footnote ⁴³

Following the entry into force of the obligation to prohibit propaganda for war by national law in Article 20(1) of the International Covenant on Civil and Political Rights (ICCPR),Footnote ⁴⁴ any distinct formula of such propaganda will also take into account its scope as suggested by the UN Human Rights Committee (UNHRC). This entails that such prohibitions would need to extend to all forms of propaganda threatening or resulting in an act of aggression or breach of the peace contrary to the Charter of the United Nations and aimed at both the internal and the external public to the state concerned.Footnote ⁴⁵

While the UNHRC refers to all forms of propaganda for war, it makes an important exclusion from the scope of the crime by saying that ‘[t]he provisions of article 20, paragraph 1, do not prohibit advocacy of the sovereign right of self-defence or the right of peoples to self-determination and independence in accordance with the Charter of the United Nations’.Footnote ⁴⁶ By self-defence, the Charter means exclusively measures taken by a member of the United Nations ‘if an armed attack occurs against’ it.Footnote ⁴⁷ Other forms of propaganda inciting to such manifestations of violence as civil war or rebellion against the government are treated under either Article 20(2) or Article 19(3) of the ICCPR in the context of the Preamble of the Universal Declaration of Human Rights.Footnote ⁴⁸ In the current situation in Europe, it is important to watch attempts to include, within the meaning of ‘propaganda for war’, propaganda for and conduct of an ‘ideological war’, ‘information warfare’, or a ‘hybrid war’.Footnote ⁴⁹

In upholding the 2022 EU sanctions, the CJEU referred to Article 20(1) of the ICCPR and interpreted it by saying that propaganda for war includes:

1. (1) propaganda ‘in favour of the military aggression against Ukraine targeted at civil society in the [European] Union and neighbouring countries’,

2. (2) broadly understood propaganda at war, described as propaganda being ‘part of the context of an ongoing war’, started by an aggressor state, ‘in breach of the prohibition on the use of force’, and

3. (3) ‘not only incitement to a future war, but also continuous, repeated and concerted statements in support of an ongoing war’, unleashed contrary to international law, ‘especially where those statements come from a media outlet under the direct or indirect control of the aggressor State’.

Importantly, this statement observed that ‘maintaining peace and international security’ outweighs ‘significantly’ the negative effect on/for the freedom of the sanctioned Russian media outlet in Europe.Footnote ⁵⁰

Some experts criticise the court’s argumentation for the fact that, although Article 20(1) ICCPR indeed imposes an obligation upon states to prohibit propaganda for war, it has been a dormant provision for decades and continues to suffer from considerable conceptual ambiguity. In addition, critics argue that by no means does its norm indicate that a ban on media outlets for broadcasting propaganda for or at war by an executive authority, without an order from a court, would comply with international law.Footnote ⁵¹ In addition, the legal distinction between propaganda for war and other forms of propaganda or disinformation is blurred.

Recently, doubts have also been voiced as to whether a prohibition of propaganda for war can be applied during an armed conflict or whether it is appropriate only in times of peace.Footnote ⁵² Perhaps the latter understanding is rooted in the misconception that during war the rules of international humanitarian law (IHL) prevail,Footnote ⁵³ while IHRL goes into the shadows. On the other hand, it is broadly recognised today that both IHL and IHRL apply during armed conflicts and that they provide complementary and mutually reinforcing protection.Footnote ⁵⁴ This means that while the emergence of an armed conflict triggers the applicability of IHL, it does not suspend the applicability of IHRL.Footnote ⁵⁵ Such a position was also confirmed by the CJEU, which noted that propaganda for war should be stopped even after a war has started.Footnote ⁵⁶

4.4.2 Information or Disinformation?

The notion of disinformation possibly faces even more controversy, in part due to its conceptual overlap with other, similar terms. We acknowledge the existence and use of such terminology by, inter alia, Wardle and Derakhshan, who draw a distinction between disinformation, misinformation, and malinformation based on the harm, the intent, and the level of facticity.Footnote ⁵⁷ We suggest, though, sticking to ‘disinformation’ as exactly this tactic is used in propaganda; it is also a less politicised term; and it reflects both the 2021 EU regulations and some national laws in Europe.Footnote ⁵⁸

The ordinary meaning of ‘disinformation’ ranges from ‘false information deliberately and often covertly spread (as by the planting of rumours) in order to influence public opinion or obscure the truth’ (Merriam-Webster), and ‘false information spread in order to deceive people’ (Cambridge Dictionary), to ‘false information which is intended to mislead, especially propaganda issued by a government organization to a rival power or the media’ (Oxford English Dictionary). Spreading outright false content is, however, only one technique used in disinformation; others include distortion of information, as well as misleading the audience and manipulative tactics such as fake profiles and false engagement to artificially amplify narratives on, inter alia, specific political issues and to exploit existing divisions in society.Footnote ⁵⁹

The European Commission (EC) provides a relevant practical definition of disinformation as ‘verifiably false or misleading information that, cumulatively, is created, presented and disseminated for economic gain or to intentionally deceive the public and that may cause public harm’.Footnote ⁶⁰ Public harm includes threats to democratic processes as well as to public goods such as EU citizens’ health, environment, or security. The EC concludes that disinformation does not include misleading advertising, reporting errors, satire and parody, or clearly identified partisan news and commentary.Footnote ⁶¹

A further analysis of international documents and commentaries has brought us towards a differentiation between the following three types of political lies: (1) illegal disinformation, (2) legal disinformation that ‘may cause public harm’, and (3) legal and harmless disinformation.Footnote ⁶²

Under international law, (dis)information is illegal if it serves propaganda for war or aggression or the advocacy of national, racial, or religious hatred that constitutes incitement to discrimination or violence (Article 20 ICCPR). It may also be subject to certain restrictions if it violates the rights of others or national security, public order, public health, or morals (Article 19 ICCPR). But with certain exceptions, it remains generally irrelevant, whether such illegal information is false or truthful. In fact, the European Court of Human Rights (ECtHR) and other intergovernmental institutions underline that disinformation should not be prohibited merely on the grounds of falsity.Footnote ⁶³ Moreover, scholars agree that ‘[l]imiting news output to “true” – essentially state-sanctioned – information could pose an even greater threat to democracy than disinformation itself’.Footnote ⁶⁴

Harmful but legal disinformation consists of threats to democratic processes as well as to public goods, which include health, the environment, and security.Footnote ⁶⁵ Again, such threats typically come from the propaganda campaigns rather than disinformation for the sake of lying, although we admit that falsities may be used just to spread panic and test the integrity of public order or national security. At least on the EU level, they are countered with

1. (1) improving the capabilities of EU institutions to detect, analyse, and expose disinformation;

2. (2) strengthening coordinated and joint responses of the states to disinformation;

3. (3) mobilising the private sector to tackle disinformation through co-regulation and self-regulation; and

4. (4) raising awareness and improving societal resilience.Footnote ⁶⁶

All other falsities should remain legal and exist without governmental or intergovernmental interference; this category may include, in particular, satire and parody, as well as clearly identifiable partisan news and voices.

Within our categorisation, disinformation is a subset, a means of propaganda, while the ends or goals are generally determined by the broader propagandist’s aims. Unfortunately, certain intergovernmental institutions and scholars use the two terms interchangeably or exclusively focus on disinformation as the public evil in itself.Footnote ⁶⁷ The terminological debate remains far from settled and is becoming increasingly polarised. Legal prohibition or restriction of any disinformation or all propaganda, including through sanctions, should therefore be approached with restraint and great caution. With this in mind and to more effectively achieve the objectives of the EU’s restrictive measures, we propose a model that limits the qualification as ‘propaganda’ or ‘disinformation’ to when the content of the messages falls within the internationally recognised scope of forms of illegal speech.

4.5.1 Behaviour and Content

Disseminating illegal content or engaging in non-authentic behaviour, through, inter alia, the use of fake accounts, automated bots, or algorithmic amplification of content, is irreconcilable with any standard for quality journalism and independent media. Nevertheless, as explained in Section 4.4, it is only where messages or statements characterised as ‘propaganda’ or ‘disinformation’ effectively, substantially, and systematically overlap with illegal forms of speech (such as incitement to terrorism, ‘hate speech’, propaganda for war, etc.) that there is a convincing legal justification for restricting free speech, including through sanctions. The only content-based restriction in European jurisprudence without regard to the context and the effect is the public denial of the Holocaust.Footnote ⁶⁸ Many occurrences of disinformation or propaganda, including those named in the EU’s restrictive measures, do not fall into this category. This does not make their content irrelevant, but it makes it insufficient to uphold such interference with fundamental rights. In light of the present confusion about the precise meaning and scope of ‘propaganda for war’, a modern UNHRC General Comment on that matter, taking on board the views and practice that have emerged over the last forty years, would be a very welcome and much-needed development.

When the illegality of content is disputed, the behaviour surrounding the dissemination of the messages could justify a legal response. The authenticity of the actors active on or within media outlets is directly connected to a democratic understanding of media freedom; automated content and the use of artificial personas and bots indicates a lack of transparency and lack of dedication by the media actors to contributing to democratic public debate.

4.5.2 Media Essence

Centralising the characterisation of the media entity as such, different indicators could be taken into consideration to differentiate independent news media from (state) propagandists, including by focusing on indicators that reflect the core of independent media and quality journalism.Footnote ⁶⁹ Such indicators include the adherence to and actual use of editorial guidelines, journalistic professional standards, self-regulation mechanisms, and broad public control and/or transparency of media’s business side. These indicators are by no means exhaustive but help to gauge the level of opaqueness that is irreconcilable with the parameters of said standards.Footnote ⁷⁰

4.5.3 Control by an ‘Aggressor State’

A more general indicator of the threefold approach to restrictive measures includes the state of origin rather than the media outlet itself. Intrinsically linked to the previously discussed indicators, it is the overt or covert involvement and influence of an aggressor state that ultimately makes the problem for the international community.

An example can be found in part of Ukraine’s sanction model. Following the Ukrainian Parliament’s declaration of Russia as an ‘aggressor state’ in 2015, a blanket ban on ownership or participation in television or radio entities that are registered in countries formally recognised as aggressor states was introduced, along with other restrictions.Footnote ⁹⁴ Similarly, in the United States, there have been calls to impose the same label upon Russia, enabling maximum ‘diplomatic and economic tools’ and aiming to ‘create a blueprint for coordination with partners’.Footnote ⁹⁵

Several neighbouring countries and the European Parliament have declared Russia a ‘state sponsor of terrorism’, another label instrumental in the country-of-origin considerations of media restrictions.Footnote ⁹⁶ Outlets that are under the permanent direct or indirect control of such a state lose their claim of qualifying as independent media and cannot present their output as quality journalism. How and under whose authority such declarations or labels come into being, and which procedural safeguards are in place to prevent their arbitrary and abusive application, remain points of contention that warrant close scrutiny.