10.1 Introduction

The EU’s Audiovisual Media Services Directive (AVMSD) has been the main piece of EU media law for decades.Footnote ¹ Since its beginnings as the Television without Frontiers Directive (TWFD),Footnote ² the Directive has eliminated barriers to free trade in audiovisual media services, mixing this market liberalisation with industrial policy and a dose of cultural protectionism.Footnote ³ When the AVMSD was revised in 2018,Footnote ⁴ its scope was changed to reflect the fact that audiovisual media services were no longer the only ones delivering audiovisual content. By the end of 2022, the body of EU media law had expanded considerably in response to the well-documented spread of services that disseminate content and compete in the same attention markets as broadcasters and publishers.Footnote ⁵ The Terrorist Content Online Regulation (TERREG) was adopted in 2021 and the wide-reaching Digital Services Act (DSA) followed in October 2022.Footnote ⁶ The European Media Freedom Act (EMFA) was adopted in April 2024.Footnote ⁷

The DSA is horizontal law that aims to ensure ‘a safe, predictable and trustworthy online environment’ for the exercise of fundamental rights.Footnote ⁸ All hosting services that disseminate content are within the scope of the DSA, including intermediary services and online platforms such as social media and those for disseminating user-generated content. It contains due diligence provisions for very large online platforms and search engines. Though the DSA does not institute a duty of care per se, it does take a risk management approach of the kind called for by Woods and Perrin and by Ullrich.Footnote ⁹ Very large online platforms and search engines are required to assess the systemic risk of the dissemination of illegal content and ‘negative effects’ in three broad areas. These areas include not only ones in which the negative effects, or harm, might be directly experienced by individual users, such as to their exercise of fundamental rights or personal well-being, but also ones in which there are risks of negative effects on collective or societal functions, such as electoral processes, media freedom and pluralism, or public health. Several of the expected mitigation measures mirror those in the AVMSD.

The EMFA’s purpose stems from the recognition that media freedom and pluralism are not only ‘two of the main pillars of democracy and of the rule of law’ but also essential to a well-functioning internal market.Footnote ¹⁰ It aims to correct three ‘market failures’, the first of which is a basket of negative consequences from the gatekeeping role of online platforms. The second is variation in the level of independence afforded to Member State media and regulatory authorities. The third market failure addressed by the EMFA is the disruption of the media services market by bad-actor media services engaged in disinformation and manipulation.Footnote ¹¹

Is this direction of travel merely keeping pace with the new affordances and functionality of different types of media or does it mark a shift in the foundations of media law? It was the public interest in media production, both cultural and economic, and the positive obligations on states inherent in the right to freedom of expression that underpinned the AVMSD,Footnote ¹² as well as the EU’s approach to public service media and its creative industry support programme, Creative Europe. Harm and risk may be more essential to the new modus operandi, but as this chapter demonstrates, the concept of harm (and protection from it) is not completely new in EU media law.

This chapter traces the evolution of understandings of harm and its prevention in EU media law since 1989 in order to inform future thinking on EU media law. It provides answers to two questions: what are the understandings and assumptions of harm behind existing EU media laws, and how do they construct responsibility for risk mitigation? It presents the findings from an analysis of the final adopted texts of the 1989 TWFD and the Directives amending it in 2007, 2010, and 2018, the 2021 TERREG, the 2022 DSA, and the 2024 EMFA,Footnote ¹³ as well as the explanatory memoranda that accompanied the initial proposals for each. A two-part computer-assisted qualitative analysis was conducted.Footnote ¹⁴ The first looked at the ways ‘harm’ and synonyms for it, as well as words associated with protection or prevention, were used. The second applied a three-part framework drawn from the policy literature on audiovisual media and online platforms. This included the push/pull distinction among types of media, individual and societal policy aims, and sources of harm.

This chapter is organised around these three themes, with a short note on EU competence in this area beforehand and a discussion of the implications of the findings following. This chapter shows that the distinction between push media and pull media has remained relevant and crucial for the distribution of responsibility for harm prevention, with understandings of what constitutes pushing expanded to include the nature of algorithmically controlled platform systems. It then identifies a gradual move from law aimed at preventing harm to individual consumers to law designed also to prevent harm to society as a collective and to its systems. This chapter provides evidence of an expansion of the understanding of sources of harm that has implications for the type and distribution of responsibility for prevention. In conclusion, it argues that due to the evident shifts in EU media law in the understandings of harm and the distribution of responsibility for preventing harm, the next priorities for EU law should be ensuring that the institutional architecture can effectively enable governance through cooperative responsibility and addressing informational asymmetries among those who should contribute.

10.2 The Boundaries of EU Competences

The shape of EU media law is significantly determined by the fact that the EU has limited competences in the area of media and culture. The media law that exists is linked to the management of the single market. The establishment of broadcasting as an economic activity, rather than a cultural institution, by the Court of Justice of the European Union (CJEU) in 1974 laid the foundation for EEC- and then EU-level policy in this space.Footnote ¹⁵ The role of EU law in this area has always been relegated to addressing what is needed for the healthy functioning of media markets. However, this has arguably been stretched to include cultural policy and industrial policy in the media and cultural sectors.Footnote ¹⁶ This is evidenced in the unique blend of industrial and cultural policy that is the AVMSD. It also comes to the fore in other interventions such as the Amsterdam Protocol and subsequent communications on state aid in public service broadcasting, as well as in the significant investment into the Creative Europe Programme and its predecessors.Footnote ¹⁷

The EU does have clear competences in consumer protection, a feature that has been explicitly in place since the Maastricht Treaty.Footnote ¹⁸ It has a treaty-level obligation to ‘promote the interests of consumers and to ensure a high level of consumer protection’Footnote ¹⁹ and to take consumer protection into account when developing policy in other areas. This is reflected in EU media law. In concert with the Unfair Commercial Practices Directive,Footnote ²⁰ for example, the AVMSD contains specific rules on commercial communication to protect individual consumers from the advertising of controlled substances, discriminatory commercial communication, and affronts to dignity. It also contains rules to protect minors, who are characterised as vulnerable consumers. The DSA was in large part a response to EU lawmakers’ call for digital services regulation that had consumer protection at its core.Footnote ²¹ The DSA’s Article 1 aim statement hinges the ‘proper functioning of the internal market’Footnote ²² on effective protection of fundamental rights, highlighting only consumer protection among all those contained in the Charter of Fundamental Rights of the European Union (the Charter).Footnote ²³ A foremost purpose of the EMFA is also ensuring the functioning of the EU’s media market. Its recitals present problems of platform gatekeeping, media capture, editorial interference, and misuse of state advertising primarily as posing risks to the fair functioning of the market and the rights of media services to do business, while acknowledging the public interest concerns arising from media’s role in democratic discourse, public participation, and culture.

In summary, the basis for EU media law is primarily in its competences for market regulation, which includes consumer protection and the obligations to respect and protect citizens’ ability to exercise their fundamental rights as set out in the Charter and the Treaty on the Functioning of the European Union. There also has been a history of stretching this to what could be considered cultural policy or at least industrial policy towards the media and cultural industries, and as will be elaborated in what follows, recognition of wider public interests such as media pluralism and linguistic and cultural diversity.

10.3 The Evolving Distinction between Push Media and Pull Media

As it broke down the barriers to cross-border television broadcasting and attempted to create a Europe-wide market for audiovisual production and distribution, the TWFD set out minimum standards aimed at protecting audiences, especially minors. These mirrored standards that were already in place in many jurisdictions and were intended to prevent harm: to minors from exposure to certain content, and to the general public from certain types of advertising. They were rooted in the understanding that television, or linear audiovisual media, was a ‘push’ form of media, one that once switched on offered audience members no control other than the changing of channels.Footnote ²⁴ This made the advertising difficult to avoid and arguably made the content more compelling or, in the case of advertising, more convincing.

Though the word ‘harm’ was not used in the 1989 Directive, it required that television advertising should not cause ‘moral or physical detriment to minors’. The assumption that minors were particularly vulnerable to manipulation from advertising is clear in the text, which refers to their ‘inexperience and credulity’ and the potential for abusing the trust they place in adults around them.Footnote ²⁵ Member States were also required to ensure that all broadcasts do not include ‘programmes which might seriously impair the physical, mental or moral development of minors, in particular those that involve pornography or gratuitous violence’ or incitement to hatred.Footnote ²⁶ Adult viewers/consumers were also protected by bans on advertising that might ‘prejudice respect for human dignity’ or encourage behaviour ‘prejudicial’ to health and safety and to the environment.Footnote ²⁷ Compliance with these outright bans fell under the editorial responsibility of the broadcaster and was to be enforced by the national regulatory authority.

When video-on-demand services were added to the scope of the Directive in 2007, it was acknowledged that such technologies, which were new at the time, ‘give users increased choice and responsibility in their use of audiovisual media services’.Footnote ²⁸ In the later consolidated version an understanding that the push medium of television had a greater impact on society was also explicitly mentioned.Footnote ²⁹ The recital linked this assumption to the CJEU’s decision in the case of Mediakabel BV v Commissariaat voor de Media,Footnote ³⁰ which highlighted the simultaneous transmission to a mass audience inherent in linear television.

The two-tiered approach required stricter rules and regulation of linear services and a light-touch regime for on-demand or ‘pull’ services, reflecting assumptions about control and risk.Footnote ³¹ Herold explained the logic of the Commission at the time, writing, ‘the rules imposed on broadcasting (push) service remain tougher than those we proposed for non-linear (pull) services. The differing degrees of regulation of content “pushed” by suppliers or “pulled” by users reflects differences in user choice and control and in the likely impact of media services on society.’Footnote ³² Already the two-tiered approach based on the push/pull distinction had changed the distribution of responsibility for preventing harm from content.

Though on-demand services were assumed to bear editorial responsibility for preventing harm, some of the responsibility for preventing exposure to harmful content was shared with the viewer. Since 2007, Member States have been required to ensure that on-demand services that might impair or harm minors are normally not able to be accessed by minors and to comply with the qualitative consumer protection standards for commercial communication and hate speech.Footnote ³³ Measures expected to be taken by service providers include encoding, filtering, and labelling. The collection of potential measures includes ones that inhibit access at a technical level and ones that give viewers the information and tools needed to exercise control over the content to which they may be exposed.Footnote ³⁴

As Napoli has argued,Footnote ³⁵ the push/pull distinction has been blurred with the development of online social media because the algorithmic feed functionality of many such platforms means they are as much ‘lean back and consume’ media as television used to be. The 2018 revision of the AVMSD that brought video-sharing platforms (VSPs) into scope appears not to have quite recognised this. It added a third tier to the Directive, one that requires Member States to hold VSPs responsible for taking ‘appropriate measures’ to protect minors from harmful content and the general public from content that is illegal or contains incitement to hatred or violence. It suggests a list of measures that rely heavily on the role of the user in preventing harm,Footnote ³⁶ and that is closer to the expectations for on-demand services than to those for linear television.

In the 2018 revision there does seem to have been recognition of the push nature of the placing of advertising around and in VSP content. Member States must ensure that VSP providers guarantee that all commercial communication they carry complies with the same qualitative rules applicable to commercial communication on audiovisual media services.Footnote ³⁷ There is also apparent acknowledgement of the uniquely invasive nature of targeted advertising that is possible on VSPs. It essentially prohibits VSPs from delivering such advertising to minors by prohibiting the use of their data for such purpose.Footnote ³⁸

The classic push/pull distinction is not evident in the TERREG or the DSA; however, in neither law are the online services in scope treated solely as on-demand services. Drafted after high-profile attacks in which terrorists essentially broadcast using livestream, the TERREG clearly addresses the time sensitivity of removing terrorist content online because of the real-time harm that can be caused by its creation and consumption, in addition to the slower process of radicalisation.Footnote ³⁹ The DSA seems to acknowledge a new kind of pushiness in the way it addresses recommender systems and targeted advertising.

The DSA raises particular concerns with the recommender systems of very large online platforms that have very wide reach, stating: ‘Such recommender systems can have a significant impact on the ability of recipients to retrieve and interact with information online … They also play an important role in the amplification of certain messages, the viral dissemination of information and the stimulation of online behaviour.’Footnote ⁴⁰

Consequently, the DSA requires transparency, in a form accessible to the consumer, about the parameters given to the algorithms determining their recommendations. This means that consumers should be able to get clear explanations for what they are seeing in feeds, results, or suggestions from the platforms. Arguably the most radical step in the DSA is that very large services are required to conduct assessments of the systemic risk of negative effects from their services in four areas of societal harm that take into account the way their algorithmic systems may contribute to those risks.Footnote ⁴¹ The DSA also recognises the ‘serious negative effects’ and amplification of ‘societal harms’ that can arise from targeted advertising that is ‘optimised to match [users’] interests and potentially appeal to their vulnerabilities’.Footnote ⁴² It reinforces and takes further the steps taken in the AVMSD’s VSP provisions to protect minors from targeted advertising and introduces protections for all consumers by banning profiling and targeting based on the special categories of data set out in Article 9 of the General Data Protection Regulation (GDPR) such as race, religion, sexual orientation, and health.Footnote ⁴³

The push/pull distinction remains evident in EU media law. Push media are still considered to pose the greater risk of harm and, therefore, to be where service providers carry the most responsibility for preventing that harm. At the heart of this distinction remain the differences in the amount of control a consumer has over the content to which they are exposed, and the level of vulnerability of the consumer. When VSPs were brought into the scope of EU media law, the active user was given an even greater role due to the fact that VSPs disseminate user-generated content over which platforms have no editorial responsibility,Footnote ⁴⁴ but at the same time there was some acknowledgement that VSPs were not entirely pull media and therefore also bore responsibility. With the DSA, we can see a notable expansion of the understanding of what it means to be a push medium. Policymakers seem to have grasped that, as Helberger and colleagues have argued, ‘these contemporary digital choice architectures essentially offer an infrastructure to automate the continuous search for exploitable consumer vulnerabilities’.Footnote ⁴⁵ The DSA treats the algorithmically curated feeds, search results, and recommendations, as well as the advertising around them, as pushed and the responsibility for preventing harm from them as commensurate.

10.4 From Protecting Individuals to Preventing Harm to Society and Societal Systems

Examination of the EU media laws and their explanatory notes has also revealed a gradual move from addressing potential harm to individual consumers to covering both individual and collective, or societal, harm. This seems to go hand in hand with an apparent shift from an approach based on public interest objectives, which was underpinned by the positive obligations on states stemming from fundamental rights, to a risk management approach underpinned by procedural accountability for preventing harm both to individuals and society.

The TWFD contained some minimum standards aimed at protecting individual consumers, particularly in relation to advertising.Footnote ⁴⁶ These consumers were minors who might be exposed to content, those who needed to use the right of reply it guaranteed, or each viewer who might encounter incitement content or affronts to their dignity. The only evidence of provisions that seemed aimed at preventing harm on a societal level were those banning advertising that is prejudicial to health, to safety, or to the protection of the environment, which were carried through to the 2018 rules on commercial communication.Footnote ⁴⁷ However, these provisions do not mention ‘public health’ or ‘public safety’ in a collective sense.

In the 2007 revision of the TWFD into the AVMSD, protection of minors and consumer protection were listed among other public interests that were collective, namely cultural diversity, right to information (which was linked to democracy), media pluralism, and general public awareness and literacy.Footnote ⁴⁸ These public interest aims were reflected in positive obligations such as European works quotas, the rules on the use of short extracts, and attention to media literacy. These represent a positive rights perspective on freedom of expressionFootnote ⁴⁹ and on cultural and linguistic diversity.Footnote ⁵⁰ Collective concerns such as threats to public safety, public health, and national security were matters for Member States and listed as potential reasons for derogations.Footnote ⁵¹ There are frequent mentions of the ‘public’ or the ‘general public’ in the texts related to the 2007 revision and the 2010 consolidation. These terms were used to refer to the group of individual viewers and citizens, who needed protection from certain content and the ability to see important events, and who were targeted by audiovisual media services.

It is in the texts surrounding the 2018 AVMSD revision where there is evidence of a slight move in the direction of considering harm at a more societal level and establishing measures to prevent that harm. In the revising Directive, transparency of media ownership is presented as a means of ‘protecting’ freedom of expression, which it refers to as the ‘cornerstone of democratic systems’.Footnote ⁵² Also, for the first time, the rules on commercial communication are framed as protecting ‘consumers or public health’, which implies the aim of preventing harm to the health of individuals as well as protection for the wider societal system that deals with their health.Footnote ⁵³ This was in reference to the expanded provisions related to the advertising of unhealthy food and beverages and of alcohol.

The TERREG was proposed because of the ‘grave security risks this content entails for society at large’.Footnote ⁵⁴ Examination of the proposing documents and the final text show that a direct link is clearly made between the exposure of individuals to content and negative effects on the rest of society, such as ‘fear in the general public’, trust in services, and even the actual execution of atrocities. Because the mechanism of incitement can lead to physical violence, TERREG also aims to prevent immanent threat or harm ‘to the life or the physical integrity of a person’.Footnote ⁵⁵

From the start, the DSA was about both individual consumers and societal or collective concerns, and a link between harm to individuals and consequences to wider society is evident in the DSA. As the explanatory memorandum sets out in the rationales, ‘the use of those services has also become the source of new risks and challenges, both for society as a whole and individuals using such services’.Footnote ⁵⁶ Where the DSA most clearly addresses harm at a societal level is in its requirements that very large online platforms and search engines undertake systemic risk assessments. These very large services are singled out for additional obligations because of their role in ‘shaping public opinion and discourse, as well as online trade’ and because their advertising-driven design ‘can cause societal concern’.Footnote ⁵⁷

The DSA requires these large services to assesses and mitigate the risk they pose in four risk areas. These include risk from the dissemination of illegal content; risk from ‘actual or foreseeable negative effects’ on fundamental rights; risk from negative impacts on civic discourse, electoral processes, and public security; and risk in relation to gender-based violence, to minors, or to public and individual health.Footnote ⁵⁸ The elaboration of fundamental rights highlights individuals’ rights to dignity, privacy, freedom of expression, and consumer protection; the rights of the child; and collective manifestations of the positive obligations stemming from those rights, namely media freedom and pluralism and non-discrimination. The risk that the DSA requires very large platforms to manage is conceived as systemic due to both the number of individuals users that could be harmed and the potential for negative effects on societal systems well beyond the individual users of the services.Footnote ⁵⁹

The EMFA is the first EU law to directly address the issue of media pluralism and independence. It is intended to mitigate risks to the proper functioning of the internal media market from interferences in the work of journalists, barriers to media services’ ability to do business, and unlevel playing fields. Nevertheless, it also makes an explicit link between the functioning of the media market and the societal role of the media in enabling democratic discourse and public participation, as well as cultural expression.Footnote ⁶⁰ The positive obligation on states to guarantee effective pluralism and the specific role of news in shaping public opinion with ‘direct impact on democratic participation and societal well-being’Footnote ⁶¹ are both invoked as rationales for the Act.

Though earlier EU media law did not ignore societal concerns, these were noted as broad issues of public interest that were primarily the business of Member States. Protections from harm were afforded to individual consumers, especially vulnerable minors. Societal concerns such as media pluralism and cultural and linguistic diversity were addressed through positive or enabling interventions in the market, such as European and independent production quotas. This is notably different from the more recent laws. The DSA explicitly aims to prevent harm to societal systems, including media pluralism, electoral processes, and public security, and the EMFA aims to prevent harm to media industries because of the societal role of media. There is evidence in the 2018 revision of the AVMSD and in TERREG that the turn towards consideration of societal-level harm has not been abrupt. Both link individuals’ exposure to content to potential negative effects on wider society, the former in relation to public health and the later in relation to both public attitudes and public security.

10.5 Sources of Harm: Content, Behaviour, and Design

Fundamental to understandings of harm are assumptions about where it is likely to come from. Common across all the laws examined here is the assumption that harm to consumers can come from exposure to content due to the nature of that content (e.g. pornographic, containing incitement to violence or hatred, terrorist provocation, or marketing of alcohol products). In the more recent laws, additional sources of harm are also addressed, namely user behaviour and service design, and a kind of pollution effect from harmful content beyond those directly exposed seems to be acknowledged.

From the start, the TWFD established rules banning ‘programmes which might seriously impair the physical, mental or moral development of minors’ and required Member States to place restrictions on programmes that are ‘likely to impair’.Footnote ⁶² These rules remain in place for audiovisual media services as of the time of writing, having been expanded to on-demand services in 2007 and maintained in the 2018 AVMSD.Footnote ⁶³ Bans on content that contains incitement to hatred appear in the TWFD and the AVMSD, with the provision expanded in 2018 to incitement to violence and provocation to commit terrorism.Footnote ⁶⁴ Even the provisions on VSPs introduced in 2018 focused on content, requiring protection from harmful programmes, user-generated video, and commercial communication.Footnote ⁶⁵ The TERREG explicitly addresses terrorist content, defining it as content that incites the commission of terrorist offences, solicits a person or group to commit or contribute to terrorism, provides instructions for terrorist acts, or amounts to threat.Footnote ⁶⁶

The expansion of scope to include VSPs in 2018 introduced a new kind of responsibility for content, and therefore for prevention of harm from that content. VSPs are defined as not having editorial responsibility but deriving an organisational responsibility from their management of the programmes, user-generated videos, and audiovisual commercial communications that are disseminated through their services.Footnote ⁶⁷ The distinction between content providers with editorial responsibility and hosting services, such as VSPs, is evident also in the TERREG.Footnote ⁶⁸

As EU media law has been expanded to cover not only services with editorial control and responsibility but also hosting services, such as online platforms, the expectations on services have come to include measures that draw the user into sharing responsibility for mitigating the risk of exposure to such content.Footnote ⁶⁹ Measures such as tools for classifying the content they upload or reporting the content they see involve users in protecting each other from harm. There is evidence of a new source of harm being acknowledged for which users bear responsibility. As Nash has pointed out, when it comes to online content platforms, it is often the users who create the harm.Footnote ⁷⁰ Users may create harmful content, attempt to manipulate others through the dissemination of content, or harm others through their behaviour. Harmful user behaviour can range from the undisclosed promotion of products to the harassment and bullying of individuals, or the grooming of young people for terrorism or sexual exploitation. The TERREG and the DSA establish a kind of supervisory responsibility for policing user behaviour and preventing ‘misuse’ of their services.

The explanatory note to the TERREG proposal refers several times to the ‘misuse of the internet’ or the ‘misuse of hosting services’, highlighting an assumption of deliberate user behaviour as a source of harm,Footnote ⁷¹ even though its provisions largely target limiting the circulation of and exposure to content as the means of mitigating that harm. The TERREG explicitly covers a narrow category of misuse: the use of services for terrorist purposes.

User behaviour is most clearly and broadly addressed in the DSA, which refers extensively to both ‘misuse’ and intentional manipulation. Its recitals note several types of misuse, such as ‘frequently providing illegal content’Footnote ⁷² or use for the ‘conduct of illegal activities’.Footnote ⁷³ For very large services it refers to misuse for the rapid spread of disinformationFootnote ⁷⁴ and intentional or coordinated manipulation ‘including by inauthentic use or automated exploitation’.Footnote ⁷⁵ The DSA also defines and addresses misuse that can take the form of abuse of mitigation measures intended to prevent harm, such as malicious flagging, abusive notice-issuing, or inauthentic complaints.

The EMFA recognises harm from the misuse or manipulation of media by a particular category of users: political and state actors, such as public authorities or politicians who may act to gain political advantage,Footnote ⁷⁶ and third-country actors that may engage in campaigns of information manipulation.Footnote ⁷⁷ Its provisions aim to prevent ‘media capture’, especially of public service media, because of the distorting effect it can have in media markets.Footnote ⁷⁸ With reference to the DSA, the EMFA also establishes a framework through which national regulatory authorities can engage with the Commission on mitigating the risks of terrorist and foreign interference, especially on very large online platforms.Footnote ⁷⁹ The need to address user (mis)behaviour seems a natural result of the dissemination of user-generated content on newer services. Issues of media capture and interference have existed for a long time, yet the EMFA is the first element of EU media policy to directly address this.

The DSA also aims to prevent manipulative behaviour by platform providers, particularly what it refers to as ‘dark patterns’ and ‘nudging’ that can impair ‘autonomy, decision-making and choice’.Footnote ⁸⁰ Its Article 25 prohibits all services in scope from designing, organising, or operating their interfaces ‘in a way that deceives or manipulates the recipients of their service or in a way that otherwise materially distorts or impairs the ability of the recipients of their service to make free and informed decisions’.Footnote ⁸¹ The design and functioning of their services and their related systems are the first potential sources of risk named in the DSA’s provisions requiring providers of very large services to undertake systemic risk assessment.Footnote ⁸²

Examining the sample of texts for indications of what constituted sources of harm revealed that the DSA was not entirely novel in addressing this kind of behaviour. A ban on subliminal and surreptitious commercial communication and conditions on sponsorship to prevent it from being manipulative date back to the 1989 TWFD. Rules on product placement, which were added later, initially banned and then allowed in some programmes while setting conditions to prevent media services (in collaboration with advertisers) from placement that would influence editorial independence or be deceitful or manipulative.Footnote ⁸³ Though these rules have focused on commercial incentives related to advertising, there is still evidence that EU media law has long understood one of the potential sources of harm to be the design decisions or behaviour of the service providers.

The evidence indicates that as EU media law has expanded to cover hosting services that disseminate content, the sources of harm addressed by EU law have also been expanded. Exposure to harmful content remains a core concern, with audiovisual services bearing editorial responsibility to prevent exposure, and hosting services, such as VSPs or social media, having a kind of organisational responsibility and sharing responsibility with users. It may be that the recognition of the design and functionality of digital services as a source of harm engenders a responsibility closer to the editorial responsibility of audiovisual media, which have long been banned from surreptitious or manipulative practices. The novel source of harm explicitly noted in the TERREG and the DSA is user behaviour, which comes with supervisory responsibility to mitigate harm from it.

10.6 Conclusion: New Understandings of Harm Require a Path to Effective Cooperative Responsibility

Understandings of harm and the allocation of responsibility for preventing it have evolved considerably since the EU began legislating in the area of media. This chapter has identified two significant shifts. It has demonstrated that EU media law has moved on from coupling a narrow focus on preventing specific harm to individual consumers with positive interventions based on public interest grounds. We now see media law directly addressing harm to individuals as well as harm to wider society and the market. The second shift identified was in the assumptions about where harm was potentially coming from. In the earlier versions of the TWFD and AVMSD, exposure to content was the main source of harm recognised, albeit with a narrow concern for the design of commercial communication. The more recent laws understand the sources of harm to include the design and functionalities of services themselves and the malign intent of users: both individuals and institutions, including states and political actors.

These shifts in the scope of harm addressed by EU media laws were accompanied by changes in how responsibility for preventing or mitigating harm is attributed. As evidenced here, responsibility for preventing harm has become increasingly distributed. The TWFD and early versions of the AVMSD located the duty to prevent harm to consumers within the editorial responsibility of the audiovisual media services. Underpinning this was the understanding that where the prevention of harm is under the control of services, a clear line can be drawn between the responsibility of the service providers and enforcement by regulators that should lead to the prevention of that harm. With the 2018 AVMSD a new kind responsibility was established that reflected the different level of control that VSPs had over the content disseminated on their services. Instead of relying on editorial responsibility, the rules set out an expectation that VSPs have an organisational responsibility to take mitigation measures and provide tools to users as part of cooperative responsibility for managing the risk of harm.Footnote ⁸⁴ The DSA involves users not only in their own personal protection but also in the prevention of wider societal harms from very large services, and it introduces external auditors, trusted flaggers, civil society stakeholders, and ‘vetted researchers’ into the mix. The EMFA explicitly gives responsibility to researchers and civil society watchdogs to contribute to enforcement.

It seems appropriate to the scale and nature of media and services that responsibility for the prevention of harm is shared or distributed among multiple actors. With this comes the recognition that complete prevention is not likely to be achievable, and hence the approach of EU policy has shifted to risk mitigation. For it to be effective, however, the responsibility needs to be truly cooperative and not only distributed. How to achieve this should be the next priority in thinking about EU media law. Two issues need attention: the institutional architecture operationalising cooperative responsibility and the information asymmetry that persist among actors with responsibility.

The institutional architecture includes the bodies involved and the allocation of responsibility and roles among them. Of course, some of this is already in place. The AVMSD set up a body and mechanism for cooperation among national regulators that was upgraded by the EMFA. The DSA establishes a similar body of Digital Service Coordinators that has meaningful powers, a requirement for external audits, roles for civil society, and a mechanism for vetted researchers to get access to data for the purpose of monitoring and understanding systemic risks. The EMFA also outlines expectations for civil society actors and expert researchers in implementation as monitors and watchdogs. Individual and institutional users are attributed responsibility as well. There are significant imbalances in power and capacity among the various actors, and, very importantly for the prevention of harm, they have differing degrees of control over the sources of risk.

In thinking about EU media law there is a need to consider how to redress the imbalances of power proportionate to the expectations of responsibility and how to design mechanisms to enable cooperation. For example, codes of conduct designed by services and civil society stakeholders can be mechanisms for cooperation and are foreseen as playing a role in risk mitigation under the AVMSD and the DSA. What institutional arrangements are needed to ensure that civil society organisations are involved at an equal level with the services and can engage effectively in monitoring? Another example of a potential cooperation mechanism is in the use of external auditing as prescribed by the DSA. As it is currently set up, the conduct of audits is largely confined to the big auditing companies in a highly concentrated audit market.Footnote ⁸⁵ How can this process of auditing be made more inclusive? How can users and civil society organisations be brought into the processes?

Another challenge is in precisely defining the roles of the various actors in relation to risk mitigation, and this will need to consider the differing levels of control these actors have and the severity and nature of the harm. For some types of harm, a precautionary approach is merited and the responsibility for mitigating it must necessarily be more concentrated in the hands of those with the power to prevent harm quickly. As this chapter has demonstrated, the distinction between push media and pull media remains as relevant in current EU media law as it was over thirty years ago. It is fundamentally about the extent to which those who might be harmed can prevent that harm, and in EU media law the link between control over the risk of harm and responsibility remains consistent.

In 1989, there was not conclusive evidence that exposure to violent content or surreptitious advertising had negative effects; but because consumers had little control over their exposure to it, the TWFD required those with editorial control to prevent their exposure to it. Where there was an assumed greater risk of harm, such as from illegal hate speech or pornography, outright bans were put in place and services held responsible for compliance. As consumers had more control in relation to pull or on-demand services they also gained more responsibility for preventing harm to themselves (or to minors for whom they are responsible), leading to a lesser need for precaution, except perhaps in relation to vulnerable consumers.

It has been argued that when it comes to protecting the rights of the child,Footnote ⁸⁶ or preventing negative effects on public health,Footnote ⁸⁷ there are limits to the reliance on individual choices; in such cases, actions and a precautionary approach are needed. Individual user may be able to protect themselves from exposure to content available on video-on-demand services if given a clear content warning or rating system, but given the new vulnerability of all consumers in the face of platform architecture constructed to exploit their vulnerabilities and the relational asymmetries,Footnote ⁸⁸ there are limits to the effectiveness of user responsibility across the variety of harms now covered in EU media law.

The DSA addresses this to some extent by requiring very large services to mitigate risks in things they control such as their interface design, organisation, recommender algorithms, and targeting tactics, and through outright bans on targeting based on sensitive personal data. The TERREG and the DSA also seem to represent a precautionary approach to harm to individuals and society from illegal content. They require proactive identification and removal and, bringing in a role for state bodies, they set out rules for responding to illegal content orders. However, among the sources of harm now addressed by EU media law are sources that are external to platform and media services themselves. Mitigating risks of societal harm, such as to democracy, to public health, or to the independence of public media, will require other actors to be heavily involved. What tools will those actors need in order to contribute, and what mechanisms of cooperation are needed to enable that?

Information asymmetry is a contributing factor in the power imbalances that are plaguing the institutional architecture of distributed responsibility for harm prevention. Access to information is very important to all actors that have responsibility for preventing harm, especially wider societal harm. Despite some moves to address information asymmetry, this remains a critical issue for EU media law.

As it distributed some responsibility to users, the AVMSD had some provisions intended to give access to certain information, for example about the content that users were expected to engage in protecting themselves from and about the terms and flagging mechanisms of VSPs. The AVMSD’s approach to VSPs defined the relationship with national regulators as one of procedural accountability, which differed from the responsibility they had over audiovisual media services, but it did not address information asymmetry between the VSPs and the regulators. The DSA in some ways filled that gap but still leaves holes.

A lot is riding on the DSA’s requirements for transparency in certain key areas, its provisions on data access for vetted researchers, and the investigatory powers granted to the national Digital Service Coordinators and to the European Commission.Footnote ⁸⁹ The EMFA also institutes a media ownership register and some transparency in advertising and audience measurement. In both cases, civil society stakeholders are expected to play significant roles in ensuring effective implementation of the law. While the DSA and the EMFA have created some unprecedented transparency, there are insufficient guarantees of access for civil society to information or other service-produced data and regular public disclosure requirements in EU and Member State law (such as reporting requirements for public service media or regulators). At the same time, the capacity of the vast array of civil society actors and academics who have interest and expertise in all of what is now covered by EU media law is extremely varied. Work needs to be done on what information access and resources are needed by all those with some responsibility for preventing harm and how EU media law can enable it. The foundations are there, but the extent to which cooperative responsibility can mobilise to effectively prevent harm to individuals and to wider society remains to be seen.

11.1 Introduction

Disinformation, an old phenomenon, has experienced a resurgence with new characteristics and significant disruptive capabilities in today’s information landscape, greatly influenced by technology and increasingly dominated by a small number of global digital intermediaries. The potential of the large-scale and easy spread of disinformation online is considered a risk for freedom of expression, in all its aspects and corollaries, and ultimately to democracy,Footnote ¹ as well as to humanity.Footnote ² If combined with other contextual elements, such as the opacity of algorithm-driven online news intermediaries, the dominance of major online platforms, the polarisation of public discourse, and the declining viability of journalism and traditional news outlets, disinformation emerges as an increasingly significant disruptor, threatening fundamental rights, information diversity, electoral integrity, and democracy itself. The picture is even gloomier if we consider how the further spread of disinformation seems one of the main challenges posed by generative artificial intelligence whose development and applications are growing exponentially. From a policy perspective, it is therefore deemed necessary to address this risk to mitigate its impact on public opinion and fundamental rights, while also ensuring the protection of the fundamental right to freedom of expression, which can be compromised by inadequate regulatory interventions.

Addressing disinformation is a challenging task due to the difficulty of defining and identifying disinformation in a clear way, the sheer volume of content online and the speed of its dissemination. To a certain extent, this context makes it inevitable to rely on platforms in addressing such content or behaviour. Furthermore, no one knows what happens behind the walls of large platforms, as access to data for researchers and regulators is limited and much of the information falls under trade secrets. This results in information asymmetry between regulators, especially at the levels of individuals and smaller states, and the online platforms that have positioned themselves as key actors in the online information sphere. When a government cannot know as much about the industry as the industry knows about itself, and where no single actor has all the information needed to understand the problem and all the instruments needed to solve it, various types of ‘decentred regulation’ emerge as solutions.Footnote ³ This ‘decentred understanding of regulation’, as Julia Black has articulated it, moves from state-centred regulation to various forms of self-regulation.Footnote ⁴ In addition to this, even when forms of more traditional regulation emerge, they need to rely on private actors – in this case online platforms – for enforcement. While such a regulatory shift may be the only means to address the complexity of contemporary challenges, it often itself encounters challenges related to the sufficiency of oversight and the accountability of platforms, especially as these platforms become both the regulated and the regulator and as they make major decisions with impacts on fundamental rights.Footnote ⁵

In this chapter, we explore the complex interplay between the need to combat disinformation and the importance of safeguarding fundamental rights, particularly media freedom and media pluralism, as essential aspects of freedom of expression and the role of the news media as ‘the fourth estate’. We do this by examining the key European Union instruments in this area, namely the Digital Services Act, the Strengthened Code of Practice on Disinformation, and the European Media Freedom Act. These instruments connect on the matter of curbing disinformation and protecting media freedom, as a key value upon which the EU and other democratic systems are built. The chapter begins by highlighting the key challenges of today’s information environment, such as disinformation and the dominant role of online platforms, which significantly affect media pluralism and citizens’ access to journalistic content. It then outlines the evolution of the EU’s policies and regulations in the area of information integrity. In the final sections, the chapter examines the key elements of the EU’s approach to tackling disinformation, particularly in relation to media pluralism, and the challenges associated with this approach.

11.2 The Contemporary Information Environment: Platforms, Media, and Disinformation

Citizens’ habits around consuming news and information that are critical to forming political opinions have been shifting for some time, in some countries and between younger demographics increasingly favouring digital intermediaries over direct access to news media.Footnote ⁶ Leading online platforms have stabilised their role as key intermediaries between media outlets, their audiences, and advertisers. Through their content policies, platforms control the visibility of news and media content, strongly influencing its potential for monetisation by advertisers. By distributing the media content, platforms economically benefit from it and at the same time compete with media content providers in the online advertising market. They hold a significant advantage in this competition due to the vast amounts of data they collect, enabling them to better understand and target users and making their services as well as their overall reach more appealing to advertisers. As shown by the European Media Industry Outlook report, platforms such as Facebook and Google capture major shares of digital advertising revenues, while the news media lost more than 20 per cent of their revenues between 2016 and 2021.Footnote ⁷ Such market dominance and the gatekeeping role of platforms, as corporate actors with limited liability, threaten not only the economic sustainability of the media but also the democratic information environment and media freedom as constitutional values.

The online-platform-driven information environment has given rise to new voices and content creators who may not respect principles of accuracy and verification but who can still significantly influence public opinion. While the diversity of voices facilitated and amplified by online platforms has improved pluralism in the public arena, it has also led to high and globally shared concerns over information overload,Footnote ⁸ news avoidanceFootnote ⁹ and information disorder.Footnote ¹⁰ Influencers across various platforms are blurring the line between professional and non-professional content, with fewer safeguards to ensure accuracy. This shift contributes to the phenomenon of disinformation: the intentional spread of false or misleading content for economic or political gain. Even when the spread of false or misleading content is unintentional, the effects can still be harmful. As explained by Gershberg and Illing, this is one of democracy’s paradoxes: the more open communication is, the more demagoguery and misinformation follow.Footnote ¹¹ Disinformation, on the other hand, is strategic and coordinated, using technology in harmful ways and exploiting the vulnerabilities of both citizens and the broader information environment.

Online platforms, and in particular social media platforms, have emerged as powerful actors in the information sphere – a new type of entity that cannot be classified as traditional media companies or publishers but also that do not function as neutral technology companies or mere hosting services that could easily fall under the liability rules such as Section 230 of the US Communications Decency Act or the European E-Commerce Directive. In the aftermath of the Cambridge Analytica scandal, concerning the 2016 US presidential elections and the UK’s referendum on leaving the EU in the same year, the potentially disruptive impact of online platforms on democracy and legal responsibility came into the spotlight. Lawmakers began publicly questioning platform leaders – such as Mark Zuckerberg of Facebook (now Meta) – about the legal nature of their services. The responses from platform executives have been confusing and inconsistent:Footnote ¹² while claiming that Facebook is a technology company, not a media company,Footnote ¹³ they have also invoked publisher rights and protections in certain court cases.Footnote ¹⁴ Overall, platforms have been relatively more willing to publicly acknowledge responsibility,Footnote ¹⁵ but less willing to accept liability for the content and behaviour they mediate and their effects. As detailed by Bertolini et al.:

In the EU framework, the general conditions for platform liability were outlined in the E-Commerce Directive, which provides a liability exemption (Article 14) for service providers primarily acting as hosting services.Footnote ¹⁷ The exemption applies if the platform (a) does not have actual knowledge of illegal activity or information, and, in cases involving claims for damages, is not aware of facts or circumstances that make the illegal activity or information apparent; or (b) upon obtaining such knowledge, acts promptly to remove or disable access to the illegal information. Scholars such as Helberger, on the other hand, argue that regulators should view platforms not as mere ‘intermediaries’ but rather as active political actors wielding significant influence over public opinion.Footnote ¹⁸

More recent EU regulatory interventions, such as the Digital Services Act, require platforms – in particular those that, because of their size and reach, are very likely exerting an influence on public opinion – to take a more proactive role in combating disinformation and assessing and mitigating other systemic risks to society, democracy, and individuals’ rights and well-being.Footnote ¹⁹ This includes any actual or foreseeable negative effect on media freedom and media pluralism deriving from platform use or the very design of their services. Media and journalism play dual roles with respect to disinformation and broader information disorder challenges. They can both contribute to the spread of manipulative narratives through unverified or sensationalised content and serve as a critical tool for combating disinformation by providing accurate, complete information. Trusted, independent media are essential for tackling disinformation, but declining professionalism and economic pressures have often made the media part of the problem. This is why our analysis of EU policy and of the regulatory framework for addressing disinformation and safeguarding the integrity of the information environment considers both the platforms’ duty of care for information integrity and fundamental rights and the role of the media in key anti-disinformation measures.

11.3 Evolution of the EU Regulatory Framework for Information Integrity: From Self-Regulation to Co-regulation and Regulation

Threats to information integrity have become a matter of global concern because access to information is one of the fundamental rights on which many other rights and obligations of individuals in a democratic society are based.Footnote ²⁰ In the EU, the exposure of citizens to disinformation at scale has been recognised as a major challenge for democracies, one that requires a policy response.Footnote ²¹ However, addressing disinformation is a complex policy task. It first encounters the challenge of disinformation being a multifaceted phenomenon that cannot be easily operationalised and categorised within existing policy frameworks and competencies.Footnote ²² Disinformation can be approached from the angle of national security, election integrity, public health, informed citizenship, and democracy. When addressing disinformation, it is crucial to consider the range of actors involved, each with varying degrees of agency, awareness, and intent. Disinformation spans from illegal activities to legal but harmful speech, often intersecting with the boundaries of freedom of expression. The transnational nature of online disinformation is evident, yet it is deeply influenced by national contexts, legal traditions, and political cultures.

The European Union is at the forefront of policy making to address disinformation, and as such inspires regulatory activities worldwide.Footnote ²³ At the core of the EU’s approach in this area is the stated commitment to the protection of fundamental rights, including media freedom and pluralism. This policy area includes various instruments, such as data protectionFootnote ²⁴ and the regulation of political advertising,Footnote ²⁵ as well as development of media literacy skills,Footnote ²⁶ but the strongest emphasis has been on the roles and responsibilities of large online platforms. This is why this analysis focuses on the Code of Practice on Disinformation, the EU’s primary tool for tackling disinformation, which was first adopted in 2018 and revised in 2022.Footnote ²⁷ The 2022 revision includes a commitment to transforming it into a Code of Conduct under the Digital Services Act (DSA) for very large online platforms, signatories of the Code.Footnote ²⁸ This chapter, therefore, analyses relevant provisions of the DSA and its interaction with the European Media Freedom Act (EMFA) concerning the relationship between media, platforms, and disinformation.

11.4 Defining, Privileging, and Including Media

The media are crucial actors in the realm of disinformation, capable of both exacerbating the problem when operating with low professional standards, and serving as a key solution when carrying out their democratic task responsibly. It is surprising, therefore, that the media are not part of EU’s key instrument for addressing online disinformation, the Code of Practice on Disinformation. It is unclear whether there was no direct or compelling invitation extended to the media to participate in the Code, or if the media did not perceive themselves as part of this initiative. In any case, a policy instrument promoting self-regulation and multi-stakeholder involvement must be evaluated based on which stakeholders are included, as this significantly impacts the quality of policy solutions and may have broader consequences. By tackling disinformation, the Code implements certain measures that can impact the media and their content in the environment of online platforms, which have become an important gateway to news.

The measures and impact of the entire 2022 Code are important for the media, just as the media are important for the fight against disinformation in both online and offline environments, which increasingly blend. There are several commitments within the Code that can specifically affect the media, their reach on online platforms, and their potential for monetisation. These are primarily ‘indicators of trustworthiness’Footnote ⁴³ and prominence granted to ‘authoritative sources’.Footnote ⁴⁴ Relevant signatories commit to provide options to integrate, when commercially viable, ‘indicators of trustworthiness’ to guide ad buyers and demonetise disinformation. Such indicators or signals of ‘trustworthiness’ are also seen as empowering users by enhancing the discoverability of reliable content.

According to the Code, users may be given the option to incorporate signals about the ‘trustworthiness’ of media sources into their recommender systems. There are already companies among the Code signatories that provide ‘trustworthiness’ indicators as one of their business offerings (for example, NewsGuard). They were asked to commit to ensuring that information sources undergo reviews transparently, apolitically, without bias, and independently, with disclosed criteria applied equally to all sources to allow independent audits by regulatory authorities. They also agree to implement correction mechanisms and respect the right of publishers to be heard before applying indicators. These measures and commitments of the Code were established without direct involvement from the media, who are not among the Code signatories. This raises questions about the practical implementation of the measures and the criteria for ranking trustworthy sources in feeds or search results, which remain unclear from the Code. Moreover, it is not clear how the ranking policies will apply to all the sources indexed as trustworthy or how they will balance local, national, and transnational media. Given that ranking policies are closely linked with the media’s reach on online platforms, these questions are pertinent for both media economics and the media’s social role.Footnote ⁴⁵

Another commitment in the Code relevant to the media focuses on promoting ‘authoritative sources on topics of public and societal interest or during crisis situations’ through features such as information panels, banners, pop-ups, maps, and trustworthiness indicators.Footnote ⁴⁶ However, it remains unclear who will set the criteria for determining which sources are considered ‘authoritative’ and how decisions will be made about which topics are of particular public interest or crisis relevance across the diverse countries and regions where the platform signatories operate. If these decisions are to be made by the signatories, which include platforms, civil society groups, fact-checking organisations, and commercial entities – but notably not the media – this raises concerns about the exclusion of media from this framework.

By encouraging the adoption of codes of conduct, the DSA provides a tool to convert the Code of Practice into a co-regulation mechanism of compliance with systemic risk assessment and mitigation obligations for the VLOPs and VLOSEs. In this way, the current composition and scope of the Code make it a leading approach in platform regulation on disinformation, interplaying with fundamental rights and media freedom in the platform environment. The way in which VLOPs and VLOSEs assess and mitigate the systemic risks under the DSA affects the scope of implementation of Article 18 of the EMFA, a special treatment for the media service providers in content moderation by VLOPs. This is a complex sequence of actions and responsibilities that shape the conditions for freedom of expression and media freedom through different stages. As Helberger warns, ‘social media increasingly determines the conditions by which the legacy media functions’, and due to the shifting power conditions ‘the fourth estate risks increasingly being unable to act independently from platforms’.Footnote ⁴⁷ This is why it may be problematic when national or supranational policy and legal instruments ‘formalize the role of social media platforms as the governors of much of the speech that is being shared online’.Footnote ⁴⁸ Once this role is delegated, it is of the utmost importance that sound independent monitoring is provided, to at least partially restore accountability and enhance trust in a mechanism that otherwise could be perceived as opaque and arbitrary.

11.5 The Challenge of Public Oversight

Information asymmetry between online platforms (as information holders) and researchers, regulators, and journalists (as information seekers) is a bottleneck in the attempts to understand the problem of disinformation and the role that online platforms play in it. As noted by Leerssen, ‘information asymmetry represents the very foundation of economic and societal power’ that platforms hold.Footnote ⁴⁹ The limited access to platform data and the highly specialised expertise required to assess it make it difficult for regulators, researchers, and civil society actors to effectively understand and monitor algorithmic processes and their impacts across the EU. This creates significant challenges in ensuring transparency – a key principle of governance – especially when the assessment of fundamental rights is delegated to private actors. It is also a stumbling block for the development of evidence-based policies and for any effective monitoring of a policy implemented in this area.Footnote ⁵⁰ This information asymmetry is recognised as a general problem both across the EU and at the global level, but it also contains a dimension of regional asymmetry in data access and oversight potential: some states, public authorities, and researchers obtain better access due to their political power, legal competencies, and research capacities, while others are lagging behind.Footnote ⁵¹

Evaluating policy effectiveness and its impact, including unwanted effects, is a crucial aspect of policy-making. The first iteration of the Code of Practice was criticised for having neither ‘clear and meaningful commitments’ nor ‘measurable objectives’.Footnote ⁵² This later appeared as a key obstacle in assessing the effectiveness and impact of the Code,Footnote ⁵³ and ultimately also its purpose if there is no possibility of oversight. To address this deficiency, the updated 2022 version of the Code entails a set of key performance indicators, organised in two levels: service-level and structural indicators. Service-level indicators are tied to the specific measures adopted under the Code. More specifically, each measure agreed under the Code is accompanied by one or more service-level indicators that define which information or data is to be provided biannually by relevant signatories in order to monitor the implementation and effectiveness of the measure. Structural indicators, on the other hand, are envisioned as a more objective assessment of the disinformation phenomenon and the effectiveness of the Code in suppressing it across time, both in individual EU Member States and in the EU as a whole. These indicators are intended to provide external, independent assessments rather than rely on platforms’ self-reporting. However, as of the writing of this chapter – more than two years after the adoption of the 2022 Code – such indicators have yet to be fully established.Footnote ⁵⁴

Article 40 of the Digital Services Act now provides a framework for the transparency and access to data that are necessary to monitor and assess compliance with the Regulation by very large online platforms and search engines. Providers of VLOPs and VLOSEs must grant access to data, upon a reasoned request by the Digital Services Coordinator of establishment or the Commission, for the purpose of monitoring and assessing compliance with the Regulation. Such access must be provided in a manner that respects the rights and interests of the platform providers and service recipients, including data protection and confidentiality.Footnote ⁵⁵ The Digital Service Coordinator or the Commission may also request platforms to explain the design, the logic, the functioning, and the testing of their algorithmic systems, including their recommender systems. Although this is a significant step forward in terms of data access and oversight potential, without effective methods of validating the submitted data and information it still relies significantly on good-faith behaviour by platforms.Footnote ⁵⁶

What could serve as a validation mechanism to a certain extent would be allowing access to data for diverse and widely distributed researchers and research groups. Access to platform data foreseen under the DSA extends also to ‘vetted researchers’ (including civil society organisations that conduct scientific research in the public interest) who meet specific conditions and conduct research related to systemic risks and the assessment of the adequacy, efficiency, and impacts of risk mitigation measures. While the technical and security considerations of this access should be defined by delegated acts, it is nevertheless a step towards more information symmetry between online platforms and other relevant stakeholders. As such, it is a key precondition for effective monitoring of the online information environment and the effectiveness of policy designs and measures in this area, including against any unwanted consequences that they may provoke.

At the moment, it remains unclear whether and how a dimension of regional asymmetry in data access will be tackled by the DSA and delegated acts.Footnote ⁵⁷ This is especially important as certain countries in Europe, as shown by the Media Pluralism Monitor,Footnote ⁵⁸ exhibit relatively high structural risks to media freedom and pluralism – risks that may be exacerbated online and in the realm of online platforms. Very often in such countries researchers have few resources or capabilities to access platform data and to use it for research that can inform and assess policies. Considering the importance of building policies based on evidence, and having in mind the diversity of political and media systems in EU Member States, the data access provided should be inclusive, and local capacities should be strengthened to benefit from such access. Functional data access is the key dimension of transparency of platform operations and is the precondition for any meaningful assessment of the impacts that platforms’ policies, or measures that they implement as a result of EU policies, may have on information environments.

11.6 Conclusions

Tackling online disinformation requires a sophisticated and nuanced approach, recognising both potential risks to democracy and the importance of safeguarding freedom of expression and other fundamental rights. The European Union’s regulatory framework, particularly the Digital Services Act and the European Media Freedom Act, represents a first, sophisticated, and comprehensive effort to manage these challenges by regulating online platforms, on the one hand, and aiming at enhancing media freedom and pluralism on the other. The DSA’s provisions on risk assessments and mitigation for VLOPs and VLOSEs aim to protect the public from disinformation while respecting freedom of expression. The EMFA, in dealing with the relationship between media and VLOPs, specifically aims to uphold media freedom by ensuring that media content is treated with special care in content moderation processes. However, the effectiveness and the interplay of these regulations depend significantly on their reasonable implementation, on ways to assess their effectiveness adequately, and on ways to avoid arbitrary behaviours, practices, and definitions (of media services, of media pluralism) by VLOPSs and VLOSEs. In short, it is of the utmost importance to avoid the implementation of this corpus of regulations ending in a hidden delegation of power to the platforms, leading to the paradox that the law itself that aimed at making platforms more accountable instead strengthens their role and power. Challenges remain, such as ensuring sufficient oversight and accountability of platforms, avoiding the outcome that the implementation of Articles 34 and 35 DSA are simply elements of a shallow compliance, and addressing the complexity introduced by the rapid development of generative artificial intelligence, which complicates the disinformation landscape further. Overall, it is essential that a balanced approach is adopted in the implementation: this approach should involve multiple stakeholders, including platforms, the media, and civil society. As the landscape evolves, ongoing assessment, adaptation of policies, and international cooperation will be crucial to effectively counter disinformation without compromising the essential values of an open society.

12.1 Introduction: The Need for Information Resilience

In the intricate web of European Union (EU) media policies, a convergence of diverse policy interests and narratives takes place. Balancing the need for unified regulations across the Union with the autonomy of Member States to govern their national media landscapes is a key focal point. Moreover, while traditional legacy media sectors such as audiovisual media are subject to EU regulation, the modern media landscape has expanded to include a plethora of digital formats such as text, audio, and user-generated content.

When it comes to public service broadcasting (PSB) and its multimedia counterpart, public service media (PSM),Footnote ¹ the EU showcases a tapestry of diverse policy narratives that shape the perception of these media entities within national media landscapes and across the continent. A PSB organisation – a publicly funded but, in theory, independent national broadcaster – is supposed to offer a wide array of programming accessible to all. The Amsterdam Protocol on Public Service BroadcastingFootnote ² serves as the cornerstone policy framework for PSB in EU Member States. This protocol acknowledges PSB organisations as vital promoters of pluralism that fulfil societal needs; the protocol also addresses concerns of market distortion due to their public funding.

In the past few decades there has been a notable shift towards ‘public service broadcasting beyond broadcasting’,Footnote ³ as public broadcasters increasingly leverage digital technologies to deliver content and services. This evolution has seen many PSB organisations rebrand themselves as public service media,Footnote ⁴ with a strong presence online and through mobile apps. The term has even made its way into the EU’s policy discussions and, in 2024, into regulation.Footnote ⁵

In the ever-evolving landscape of media, the advent of digitisation has opened up a world of possibilities for public broadcasters. However, this technological shift has also posed a significant threat to the traditional business models of national commercial media, with advertising revenue increasingly flowing towards global online platforms. Across Europe, commercial competitors have long viewed public service broadcasters as competitors in the national market, emphasising a market-driven perspective on PSM. The difficulties with forging digital business models has only exacerbated the standoff between commercial media and publicly funded PSM.Footnote ⁶

As national media players battle it out with global platforms for viewership and digital advertising funds, a new and pressing concern has come to the forefront. What began as worries over ‘fake news’ during election campaigns has evolved into a debate about the growing problem of misinformation online. The result is a series of ‘information disorders’Footnote ⁷ in which conspiracies, hoaxes, false news, and hate speech proliferate on digital platforms worldwide. The EU and its Member States have responded with a series of measures to counter such misinformation, which has the potential to undermine trust in democratic institutions and polarise societies.Footnote ⁸

Moreover, the spread across several EU countries of the phenomenon of media capture, where governments along with associated or supportive businesses take control of national media outlets including PSM organisations,Footnote ⁹ adds a new layer of threats to democratic communication in those regions. These captured outlets are mostly used to spread disinformation and propaganda, further undermining the integrity of public discourse.Footnote ¹⁰

In the midst of such a rapidly changing media environment, national PSM organisations find themselves navigating uncertain waters. For years, experts have highlighted the lack of a clear policy mandate for PSB organisations in the digital age and warned of the damages that this lack of vision could cause to public-interest-oriented media. PSM advocates have drawn up proposals for policies for a future-oriented PSM mandate and charted propositions for a multimedia presence of PSM in their countries.Footnote ¹¹

After decades of neglect, the EU has changed gear and recently adopted the European Media Freedom Act (EMFA), according to which PSM organisations have a key role to play in upholding European democracy.Footnote ¹² The EMFA highlights the significance of PSM as a key pillar of democracy within the EU. The Act emphasises the need for the independence and adequate funding of PSM organisations, which have been longstanding concerns pertaining to the objectivity and public interest orientation of those institutions.

Yet the task of implementing the EMFA’s provisions on PSM organisations, including defining their mandate and responsibilities and deciding on their funding and governing models, rests with individual Member States, with the EU having no concrete role in those processes. This presents a delicate policy conundrum for the EU, as Member States retain autonomy over their respective media landscapes, including the scope of their operations. Early research on PSM policy shows that critics of public media have been pushing for precise delineations of its functions to impede these organisations’ adaptability in an ever-evolving technological and media landscape.Footnote ¹³ In contrast, PSM organisations in numerous EU Member States have long been entrusted with unique responsibilities, such as delivering educational content and serving minority language communities. Could the EU not provide guidelines for PSM to promote a more specific, potentially EU-wide, mandate that steers these institutions towards bolstering European information resilience, a concept that encompasses societies’ capacity to protect their democratic foundations and fend off misinformation and anti-democratic forces?Footnote ¹⁴

Public media is just one piece of the puzzle of how to shield democracy from harm. Information resilience is a multifaceted concept, encompassing societal structures (macro-level), knowledge institutions (meso-level), and individual trust in social and media systems (micro-level). This chapter argues that PSM organisations stand out for their ability to deliver credible and pertinent information to the public, free from political and commercial influences and backed by a strong policy mandate. While the EMFA stipulates that Member States must ensure that their PSM organisations are editorially and functionally independent, the role of PSM can be directly connected to all policies addressing European information resilience.

Section 12.2 of this chapter discusses the current landscape of EU PSM policies, which reveals a nuanced interplay between the lofty ideals of public media’s democratic value and the practical realities of addressing market distortions. Section 12.3 discusses the contrasting scenarios in Finland, a country with a robust PSM environment, and Hungary, where the public broadcaster’s independence has been compromised, to shed light on what the impact of PSM on information resilience can amount to. The chapter concludes with a set of actionable policy recommendations (Section 12.4) aimed at strengthening the role of PSM in improving both European and national information resilience.

12.2 PSM Policy Approaches: Toward Information Resilience?

Media policies within the EU are rooted in a variety of principles and regulations, with PSM being no exception. These policies are primarily influenced by the fundamental ideals outlined in the Treaty of the European Union (TEU), including the safeguarding of human dignity and rights, the advancement of democracy, and the promotion of pluralism.Footnote ¹⁵ Additionally, there is a strong emphasis on creating a well-functioning internal market.Footnote ¹⁶ The regulations specific to broadcasting reflect these core principles and have a long history within the EU. The key steps in the EU’s audiovisual media policy are the 1989 Television without Frontiers Directive,Footnote ¹⁷ which was transformed into the Audiovisual Media Services Directive (AVMSD)Footnote ¹⁸ in 2010 and underwent revisions in 2018 to adapt to shifting market and audience dynamics.

An examination of the EU’s current audiovisual policy unveils three distinct policy narratives guiding the sector: securing a well-functioning internal market, promoting technological process, and protecting media pluralism and cultural diversity.Footnote ¹⁹ It is thus evident that Member States have different media systems, allowing them to establish specific regulations for their audiovisual sector within the framework of EU legislation.

To begin with, the Amsterdam Protocol on Public Service BroadcastingFootnote ²⁰ focuses solely on the market mandates that public funding may be allocated to broadcasting organisations provided that the concept of PSB is clearly defined within the national framework. Furthermore, broadcasters must adhere to a specific public service mandate. While the EU has the competence to enforce EU state aid rules, including in the field of public service media, EU Member States ought to define the PSM mandate and corresponding funding in conformity with the EU’s state aid guidance. In other words, national public media entities are ultimately determined by individual Member States.Footnote ²¹

However, media regulation has become increasingly intricate in the age of digitisation. A recent study of legislative acts highlights the proliferation of legal instruments that now cover companies in the media and communications sectors; the convergence of technology has further blurred the lines between traditional media platforms and digital outlets, with many organisations operating across multiple mediums. This shift has posed a challenge for both the EU and national policymakers, who often struggle to address the multifaceted nature of modern media within existing regulatory frameworks. The current state of affairs has been aptly named ‘the European communication (dis)order’ by the authors of the study, underscoring the complexity of the regulatory environment in this ever-evolving industry.Footnote ²²

In the midst of this complex landscape, PSM organisations arguably grapple with several severe challenges: ever-evolving technology; the ever-increasing power of global platforms in national markets; and political polarisation and citizens’ diminishing trust in democracy, including democratic communication. The intertwined market and technology challenges are compounded by political and broader obstacles to democratic communication within Member States and across the EU. These hurdles collectively hinder the ability of PSM organisations to improve national information resilience, with far-reaching implications for the EU as a whole.

12.3 Missed Chances? Two Country Studies

The pursuit of information resilience provides an appropriate approach to establishing a unified EU-wide role for public media within national media systems. At the same time, information resilience acts as a cornerstone of democracy. Yet the grand declarations within the Amsterdam Protocol regarding the distinct role of PSM, and calls for independence and adequate funding under the EMFA, fall short in guaranteeing the stronghold of public media. The following case studies of two highly different societies and media systems, in Finland and in Hungary, provide insights into the clash between EU regulations and domestic circumstances, as political and commercial entities vie to shape the scope and support of public broadcasting.

12.4 Why and How: Designing PSM Policy for Information Resilience

The EU’s media policies, particularly those concerning public media, lack specific guidelines for the roles and responsibilities of PSB or PSM. This ambiguity is understandable, given the sovereignty of the Member States and the diverse nature of their unique media landscape; consider the contrasting cases of Finland and Hungary presented in this chapter.

Finland exhibits a high level of trust in society and media, particularly in Yle, and upholds freedom of expression. Yet there are underlying issues of polarisation and scepticism among the Finnish population. Despite their high level of media literacy and confidence in their ability to identify disinformation, Finns express doubts in their fellow citizens’ ability to navigate the complexities of digital media. Even young people experience information exhaustion and seek more curated and reliable news sources.Footnote ⁹³ Additionally, political affiliations further exacerbate distrust in the media, particularly among supporters of the Finns Party, who tend to reject mainstream outlets.Footnote ⁹⁴

In Hungary, the country’s media landscape lacks freedom of expression, positioning it as one of the European laggards in this regard. The government significantly controls most of the media outlets, with the public broadcaster MTVA serving as a propaganda platform. MTVA’s news is disseminated through its raft of radio and television channels as well as the Hungarian national news agency, which falls under the umbrella of MTVA. Hungary’s media landscape presents an intriguing dynamic in terms of its impact on public trust and political behaviour. On the one hand, Fidesz’s continuous electoral success since 2010 appears to be closely linked to the party’s overall control of the media. The government’s propaganda is so potent that Hungarians tend to place their trust in the government and are disinclined to penalise or even recognise its anti-democratic practices. On the other hand, it is perplexing that both Fidesz supporters and opposition voters exhibit low levels of trust in the media, with the former being particularly convinced that an independent press does not exist.Footnote ⁹⁵

Although the two cases reveal notable differences in terms of press freedom, media trust, and the role of public media within the national media system, both of them show the significant role that these media organisations play in shaping political discourses and informing media policy decisions in Europe. Particularly during times of economic and political instability, when there is a heightened demand for independent and well-funded media outlets, PSM organisations often encounter major challenges. Thus far, the prevailing market-oriented policy discourse and related actions have contributed to the diminishing influence of PSB organisations. The issue of media trust encompasses not only content credibility but also the media institution’s reliability and integrity, such as the PSM organisation in this particular context.Footnote ⁹⁶

To be sure, the EMFA is a significant departure in the discourse surrounding the recognition of the role of PSM in facilitating democratic communication. The Act duly acknowledges these broadcasters as creators and disseminators of unbiased information, while also acknowledging their vulnerability due to governance structures and funding mechanisms that are susceptible to political influence. As noted, it takes into account market considerations. Still, the level of abstraction can easily make such statements meaningless. The only real power that the EU has had to influence national public media has so far been related to state aid, as seen in the case of Finland. In contrast, the EU has not directly addressed media capture in Hungary, as it has limited powers to do so.

Still, even in such diverse circumstances as in Finland and in Hungary, specific guidelines would not be an aberration but would rather be akin to the responsibilities outlined for platforms and other signatories of the Strengthened Code of Practice on Disinformation.Footnote ⁹⁷ The Strengthened Code is now referenced in the Digital Services Act (DSA) as one example of the co-regulation of how to assess and mitigate risks by online service providers in the EU.Footnote ⁹⁸ The Strengthened Code’s activities encompass a wide range of responsibilities, ranging from concrete measures regarding advertising and disinformation, to improving data for researchers, to empowering users’ ability to report disinformation and encouraging their general media literacy, and pursuing collaborations with independent fact-checkers.

Many of the elements of the existing Code – for instance, transparency in the use of AI, literacy efforts, collaborations with other stakeholders – could be included in a similar, voluntary code for PSM organisations in the Member States. While only the Member States could formally designate that PSM include such tasks, this type of ‘checklist’ could prompt Member States to incorporate PSM in their national resilience policies in a comprehensive manner. The EU, or EU-affiliate organisations such as EDMO, could also monitor how PSM organisations are implementing said activities, as has been the case with the Code of Practice on Disinformation.Footnote ⁹⁹ The monitoring would not and could not result in formal sanctions, but it could inform the EU as well as facilitate knowledge exchange and innovation between PSM organisations in the Member States. The EU’s approach to State Aid and disinformation could even facilitate national investments for PSM to innovate measures to strengthen information resilience, as suggested by the European Commission:

One example of proposed concrete actions already exists in a Resolution of the Parliamentary Assembly of the Council of Europe calling on its member governments to support PSM while also urging PSM organisations to make countering disinformation a priority. The actions proposed in the Resolution include quality and innovative communication practices by PSM, especially regarding news and current affairs; specialised programmes containing analysis and comments regarding disinformation; programming that stimulates critical thinking among audiences; targeted online communication with young people; and projects and collaborations that address information disorder with other PSM organisations and national stakeholders.Footnote ¹⁰¹ The special role of PSM as a standard-setter is also strongly emphasised in the Recommendation of the Committee of Ministers of the Council on quality journalism.Footnote ¹⁰²

Finally, public value tests, a common practice in Europe, have traditionally evaluated the relevance and position of these broadcasters from a market-oriented perspective: they have been used as a mechanism to assess the impact of new services or significant changes to existing services offered, to ensure that PSM organisations fulfil their public service mandate in a way that provides value to society while balancing market considerations. A recent reconsideration has proposed the adoption of more nuanced, multidimensional assessments based on these broadcasters’ ‘dynamic public value’ in relation to society, the media industry, and individuals.Footnote ¹⁰³ The establishment of quality criteria centred around information resilience would elucidate these broadcasters’ role in supporting and fortifying democracy within the EU.

12.5 Conclusion

The EU’s lack of vision for PSB and for its multimedia reiteration, PSM, has treated public media as a state aid anomaly and not as an important building block of information resilience. The EU is now starting to recognise this omission and is becoming more vocal about the positive role a well-functioning and independent public media system can play. Stifling PSB’s digital transformation to PSM by limiting its remit to reducing outdated television and broadcasting formats, for instance by offering commercial competitors opportunities to challenge the role of PSM in online text-based news production, does not bode well for the important role of public media in the information disorder.

It has been argued that another narrative for the media field is gaining ground, stemming from the human rights and democracy principles of the Union and supported by, among others, the Council of Europe’s views on the central importance of PSM to democracyFootnote ¹⁰⁴ – and that curbing information disorder is essential for democratic communication. Indeed, the holistic approach the EU has set in place in its EDAP, with specific EU-wide legislation (e.g., the DSA Package), proposed support for national media systems (EMFA), and guidelines (the Strengthened Code of Practice), coupled with legislation on artificial intelligence (AI),Footnote ¹⁰⁵ is an unparallelled undertaking in scope and scale. However, at the time of writing this chapter (September 2024), it is still unclear how these initiatives, especially the DSA, align with the revised AVSMD – and what the roles, responsibilities, and resources for implementation in individual Member States will be.

The EU would be well advised to rethink its approach and try to embrace the expansion to online and text-based content, and further digital innovations, wherever this is in fulfilment of the public service remit. In the EMFA, the calls for independence and adequate funding are vague markers; concrete action points or tasks for information resilience could create more incentives.

This quote from the Vice-President of the European Commission, Věra Jourová, does not address public media alone, but in the light of the contrasting examples of Finland and Hungary, it could be addressing the status of public media in the EU. To be sure, PSB or PSM alone cannot solve the information disorder problem and restore trust in society, in knowledge institutions, or between individuals and different social groups.

Indeed, it can be argued that the implementation of measures against information disorder may be impeded by national economic and political trends. It is also apparent that trust in public media may not be recoverable in environments where capture is prevalent. Nonetheless, the PSM system remains a potentially valuable tool in most EU countries and warrants support, particularly in the current global communication landscape characterised by independent media outlets’ decline in Europe and beyond,Footnote ¹⁰⁷ as well as considering concerns about the increasing influence of AI: among other things, AI can make the process of disseminating disinformation more efficient, widespread, and difficult to detect.Footnote ¹⁰⁸ Consequently, public media are actively adopting AI and have the potential to be forerunners in ethical industry standards.Footnote ¹⁰⁹

The challenges of AI have been subject to extensive debate in academic discussions.Footnote ¹¹⁰ At present, European societies find themselves at a critical juncture concerning public communication and trust. Despite the immense advances in communications technology, societies with diverse political, economic, and cultural contexts are confronted with emerging disparities in digitally enabled capabilities as well as a decline in the availability of reliable and verified information.Footnote ¹¹¹ This situation is also applicable to PSM in the EU. PSM organisations can either serve as valuable instruments for European democracies or contribute to the erosion of public trust. To ensure the desired outcome, public media need to be fully integrated into the policy narrative of resilience.

13.1 Introduction: What Is the Extreme Public Sphere?

Violent events involving the far right, including the Charlottesville Unite the Right rally, the Pittsburgh synagogue attacks, and the Christchurch Mosque shootings, led to the removal of several thousands of accounts from some of the most popular online platforms such as Facebook, Instagram, and YouTube. Prominent far-right personalities such as Alex Jones and his Infowars, Milo Yiannopoulos, and Paul Joseph Watson were removed from Facebook, along with Stephen Yaxley-Lennon (known as Tommy Robinson) and other accounts associated with the British far right.Footnote ¹ These removals peaked in January 2021, after the US Capitol attack, in a process referred to as the ‘great deplatforming’,Footnote ² when major platforms removed thousands of accounts, including those of Donald Trump himself.

This ‘deplatforming’ took place in an attempt to limit disinformation and incitement to violence on mainstream platforms such as Facebook and Twitter (now X). However, research suggests that while deplatforming improved the quality of information and communication on these main platforms, it also led to increasing numbers of users joining non-mainstream platforms and to the creation of what we refer to here as the extreme public sphere: a collection of smaller ‘alternative’ platforms that emerged as an infrastructure for the far right and other extremist movements that find themselves excluded from the mainstream.Footnote ³ This extreme public sphere is comprised of platforms that adopt a radicalised version of absolute freedom of speech and for this reason intervene only minimally, if at all, in the content produced by their users. It includes platforms such as Gab, Bitchute, Rumble, and Gettr, which were created by and for the far right, but also ‘co-opted’ platforms such as Telegram, Dlive, and Discord which have both mainstream and far-right users. Collectively, these platforms are referred to as ‘Alt Tech’. We understand Alt Tech as a political media infrastructure for the far right that supports and sustains the extreme public sphere. Research has found that Alt Tech platforms such as Gab and Bitchute contain toxic content,Footnote ⁴ including hate speech and disinformation.Footnote ⁵ In this context we ask: is the new regulatory approach of the EU sufficient to address and regulate the extreme public sphere?

In focusing on the extreme public sphere this chapter seeks to identify the regulatory challenges that its existence poses specifically for European policy and regulation of digital media. It begins with a discussion of the specificities of the extreme public sphere and an overview of relevant research findings (Section 13.2). Section 13.3 looks into regulatory developments in Europe: in particular the evolution of platform governance, which combines the voluntary Code of Conduct on countering illegal hate speech onlineFootnote ⁶ and the Strengthened Code of Practice on disinformationFootnote ⁷ with the legally binding requirements of the Digital Services Act (DSA).Footnote ⁸ Section 13.4 identifies three interrelated challenges that the extreme public sphere poses for these regulatory instruments: (i) they are not motivated to act in ways that the regulatory instruments assume, as they are political and not only economic actors; (ii) their diverse business models do not rely on advertising; and (iii) their minimal obligation under the DSA is to remove illegal content when it gets reported to them.Footnote ⁹ One of the aims of the DSA is to protect and safeguard the operations of a pluralistic but democratic, inclusive, and respectful digital public sphere, balancing freedom of expression and the right to non-discrimination, as alluded to in Recital 3; the operation of Alt Tech presents a serious challenge to achieving this aim. Section 13.5 of this chapter brings all the threads together and discusses a potentially more fruitful avenue to follow for addressing the extreme public sphere.

13.2 Understanding Alt Tech

Research on Alt Tech and the broader information ecosystem has provided crucial insights into the rise and operation of this new breed of platform. The general agreement is that although smaller and fringe platforms have existed for quite some time, Alt Tech as it appears today emerged in the context of the mass deplatforming of far-right and other extremist accounts from the big three platforms: Facebook, YouTube, and Twitter. This deplatforming led prominent accounts and their followers to migrate to smaller platforms or build their own: Alt Tech is therefore seen as an alternative media infrastructure supporting extreme ideologies.Footnote ¹⁰ The key characteristic of Alt Tech is a lax approach to content moderation, with an emphasis on an understanding of freedom of expression as almost completely unrestricted speech. Given this absolutist freedom-of-speech approach, it is not surprising that the content they host contains a large volume of hate speech, dis- and misinformation, and other kinds of toxic and problematic speech. Finally, an important attribute shared by most Alt Tech platforms is that they do not have data-intensive business models that rely on the collection of data from users. This in turn is directly connected to their absence of elaborate algorithms and recommendation systems for structuring and guiding the user experience. As we will argue later, this is an important difference between Big Tech and Alt Tech and constitutes one of the challenges for policy.

A series of high-profile violent events driven by the online far right led to increased pressures on platforms to act. Events such as the Unite the Right Rally, the Pittsburgh synagogue terrorist attack, the Christchurch mosque terrorist attack and the events on 6 January 2021 in the US Capitol all contributed to the mass deplatforming of the far right, including several highly prominent accounts, such as the account of former US President Donald Trump. In his groundbreaking article, Rogers studied the effects of deplatforming by tracking the activities of ‘extreme celebrities’, finding that Alt Tech constitutes a viable destination for them even if they have a smaller fanbase there.Footnote ¹¹ Rogers further reports that several of these celebrities of the far right direct users to their personal websites rather than to other social media platforms.Footnote ¹² In their study on deplatforming, Ali and colleagues report similar findings: deplatforming results in a migration to alternative platforms, diminishing the reach of those deplatformed but often accompanied by a heightened volume of toxicity.Footnote ¹³ In sum, there is general agreement that deplatforming (i) leads abusive users to Alt Tech platforms, which (ii) diminishes their reach but (iii) may radicalise those users further, pushing them to more extreme content; additionally, (iv) there is some evidence that extreme users rely on Alt Tech for community-building and use mainstream platforms for propaganda and recruitment.Footnote ¹⁴

But deplatforming further led extreme actors to the realisation that dependence on mainstream digital platforms entails the possibility of being entirely cut off from their actual and potential audiences. This threat to their survival, argue Donovan, Lewis, and Friedberg, pushes the extreme right towards creating their own infrastructures.Footnote ¹⁵ Donovan and colleagues view the rise of Alt Tech as a form of tactical innovation in response to the calls for ‘no platforming’ for far-right actors, but also enabled some of them to coalesce, organise, and amplify their voices.Footnote ¹⁶

For Alt Tech to succeed as tactical innovation for the far right, it had to not only fulfil its purpose of providing a means for identity-building, organisation, and propagation of the ideas of those movements; it also had to ideologically align with the far right. This is reflected in a dual move: appropriating the norm of freedom of speech and giving it a very specific meaning, that of the removal of any limits to the circulation of content; and putting this at the centre of both their overall ideological approach and their new Alt Tech infrastructure. Donovan and colleagues quote Gab’s announcement of the so called Alt-Tech Alliance:Footnote ¹⁷ ‘The Free Speech Tech Alliance is a passionate group of brave engineers, product managers, investors and others who are tired of the status quo in the technology industry. We are the defenders of free speech, individual liberty, and truth’.Footnote ¹⁸ While in practice Alt Tech platforms have to impose some limits, if only so that their apps can be listed in app stores, this version of absolute freedom of speech animates all of them.

Alt Tech’s combination of absolute freedom of speech as its key value, non-existent or rudimentary moderation practices, and the extremist ideology of far-right groups, which includes white supremacy and deep-seated misogyny,Footnote ¹⁹ means that Alt Tech is characterised by high volumes of hate speech, disinformation, conspiracy theories, and other kinds of toxic content. Comparatively speaking, Zannettou and colleagues report that Gab has a much higher prevalence of hate speech than Twitter/X but contains less hate speech than 4chan/pol/.Footnote ²⁰ Using a similar methodology, Trujillo and colleagues found that Bitchute contains more hate speech than Gab, but still less than 4chan.Footnote ²¹ There is evidence to suggest not only that these kinds of discourses are widespread on Alt Tech platforms but also that they can become increasingly extreme. Dehghan and Nagappa found that content on Gab about vaccination was already verging on the conspiratorial, but as time went on it intensified and became more explicitly political.Footnote ²² For Dehghan and Nagappa this question of depth or degree of extremism is an important element of Alt Tech that should be studied in addition to the spread of extremist content and narratives.Footnote ²³

A final important attribute of Alt Tech platforms concerns their business model and associated internal organisation. Most Alt Tech platforms do not rely on the data-intensive model that is central to the very large mainstream platforms. Few, if any, collect any user data at all. Some Alt Tech platforms, for example Gab and Bitchute,Footnote ²⁴ adopt a clear ideological stance in favour of free information flows and decentralisation and, therefore, they do not enclose users in ‘walled gardens’ to collect their data. Others, for example Telegram, put user privacy at the centre of their model. Generally, most of these platforms have two sources of revenue: premium services, for which they charge a monthly subscription (e.g. Telegram and Rumble business accounts), and/or content monetisation, whereby they enable and support content creators in monetising their content so that they can then receive a fee for hosting them (e.g. Bitchute).Footnote ²⁵ Because Alt Tech platforms do not generally collect user data, their algorithms for ordering content tend to be much simpler than those of very large online platforms. On Bitchute and Rumble, which are both video platforms, users viewing content made by a creator will not get recommendations for similar creators or content, as on YouTube, but will get more of the content by the same creator. Any recommendations will be on their landing page and will depend on a mixture of recency and number of views.

To summarise, Alt Tech platforms differ substantially from mainstream digital platforms in their ideological affiliation with the far right, in their adoption of absolute freedom of speech as their key value, and in their business models, which do not rely on user-data extraction or advertising revenues. In this sense, Alt Tech can be seen as a political media infrastructure that sustains the far right and related ideological groupings.Footnote ²⁶ This political function of Alt Tech presents significant challenges for current platform regulation models.

13.3 Platform Regulation

Approaches to platform regulation can be broadly classified in terms of four ideal-typical approaches: (i) authoritarian; (ii) libertarian; (iii) liberal; and (iv) critical.Footnote ²⁷ While these ideal types reflect different underlying values and ideologies, existing regulation combines them, borrowing some elements and discarding others. This section will first present these ideal types and then discuss the European Union’s approach to platform regulation by discussing its Codes of Conduct and Practice and Digital Services Act. It will argue that the EU’s approach borrows from the critical approach in its concerns over data extraction and surveillance capitalismFootnote ²⁸ but for the most part follows a moderate liberal path of co-regulation combined with elements of libertarianism, viewing platforms as rational economic actors that have a stake in regulating themselves.

In her genealogical approach to platform governance and more broadly to internet regulation, Bietti identifies three broad ideological positions: anarcho-libertarianism, liberalism/neoliberalism, and critical conceptions.Footnote ²⁹ Libertarianism is associated with early internet techno-optimism and is typified in John Perry Barlow’s cyberlibertarian manifesto, ‘A Declaration of the Independence of Cyberspace’.Footnote ³⁰ Under this perspective, regulation stifles innovation and state interference is entirely unwelcome. For proponents of this view, the internet is capable of self-governance and it should be left to its own devices. This position constituted more of a utopian techno-optimist narrative, characteristic of the early days of the internet, rather than a fully-fledged view on regulation.

While the internet developed initially without any regulatory interventions, liberal critiques pointed out that the lack of regulation does not guarantee individual freedom. For critics such as Lawrence Lessig, computer code was already structuring cyberspace and in this sense was acting as law.Footnote ³¹ In the absence of regulation, users/citizens are unprotected and their ability to use the internet can be compromised. From the liberal perspective, regulation is seen as imposing some limits in order to protect individual liberty. Bietti points out that such liberal views tend to oversimplify the issues involved, considering regulation a matter of planning and development of specific technical protocols.Footnote ³² In focusing on these, liberal views eschew questions of power distribution and unpredictable risks. This is where the critical perspectives come in. For such perspectives, technologies are not neutral artefacts but embed power relations and can also shape political realities.Footnote ³³ Critics such as Yochai Benkler proposed a peer-to-peer, commons-based governance that would address questions of emerging power dynamics and enclosures on the internet.Footnote ³⁴ Others, such as Barbrook and Cameron, made an explicit connection between the hippy libertarian ideology and the neoliberal approach to markets and the economy. They posited the emergence of a new ideology, the Californian Ideology, specific to the internet and characterised by techno-market solutionism, limited state involvement, and freedom understood in terms of individual preferences.Footnote ³⁵

Bietti convincingly argues that these ideological frameworks underpin current platform regulation.Footnote ³⁶ Similarly, Viejo Otero has shown that there are three approaches to content moderation on digital platforms. The first, freedom-of-speech absolutism, is more or less what we have already identified with respect to Alt Tech.Footnote ³⁷ Second, the liberal position, which is currently in place on large platforms such as Facebook, Instagram, and YouTube, assumes a position of neutrality; some critics have found this to be essentially blind to the realities of racism.Footnote ³⁸ Third, the social justice approach found on some Mastodon servers approaches content moderation from the point of view of silenced communities, not only protecting them but also in certain contexts prioritising their voices.Footnote ³⁹ To these we may add an authoritarian position, which we can associate with the policy of imposing tight controls on social media content that is found in some states, notably Iran and China.Footnote ⁴⁰

It is this context that saw the emergence of the DSA, the EU Code of Conduct on Countering Illegal Hate Speech Online, and the EU (Strengthened) Code of Practice on Disinformation. These measures represent a distinct European approach that combines various elements from these ideological positions. For Viejo Otero, the European approach is a stronger version of the liberal view:Footnote ⁴¹ it seeks to reconcile freedom of expression, enshrined in Article 11 of the EU Charter of Fundamental Rights,Footnote ⁴² with protection of minorities, recognising specific historical events such as the Holocaust. Like the liberal position, the European approach prioritises the rights of individual users, and in particular their right to freedom of expression and information as found in Article 11 of the Charter and the freedom to conduct a business as found in Article 16. But crucially, the European approach views co-regulation as the optimal perspective,Footnote ⁴³ displaying affinities with both the libertarian and the (neo)liberal positions.

In particular, while the DSA is legally binding for EU Member States, the Codes include both self- and co-regulatory approaches. In self-regulation, such as in the Code of Conduct on Countering Illegal Hate Speech Online, digital platforms that have opted in volunteer to monitor and enforce the Code. In co-regulation, such as in the Strengthened Code of Practice on Disinformation, the European Commission monitors the enforcement of the Code on a regular basis. From the point of view of the European Commission, the Codes constitute a set of expectations that signatories agree to meet. These expectations are important in setting the broad parameters of how to tackle illegal and/or problematic content such as hate speech and disinformation. The Strengthened Code of Practice on Disinformation, in particular, offers a comprehensive set of policies covering (i) demonetisation of disinformation; (ii) labelling of political adverts; (iii) preserving the integrity of the services by removing bots, fake accounts, and the like; (iv) empowering researchers by offering access to data and users through labelling and literacy; (v) monitoring and transparency measures.Footnote ⁴⁴ The Codes clearly recognise that social media corporations can and should do a lot more to keep their platforms free of illegal hate speech and disinformation; while the Codes are nominally voluntary, they are increasingly concretised as formal obligations and constitute a form of soft law.Footnote ⁴⁵

In the binding regulatory part, the DSA steps up these efforts. It begins by creating a tiered system, distinguishing between services considered to be ‘mere conduits’, ‘hosting’, and ‘caching’,Footnote ⁴⁶ and online platforms, which not only host but also disseminate information.Footnote ⁴⁷ Online platforms in turn are divided into two categories. The first comprises very large online platforms (VLOPs) and search engines (VLOSEs), designated as platforms that have more than 45 million users per month in the EU; the other category comprises platforms with less than 45 million users. While all platforms are subject to the same baseline obligations, VLOPs and VLOSEs have additional, more stringent obligations. These additional obligations are found in Section 5 of the DSA.Footnote ⁴⁸ For the purposes of this chapter we focus on three categories of obligation, which illustrate most clearly the challenges raised by Alt Tech platforms: risk management; transparency; and independent audits.

For online platforms that are not designated as VLOPs/VLOSEs, there are no specific obligations around risk management and mitigation; this means that by virtue of not being VLOPs/VLOSEs, Alt Tech platforms do not need to assess the risk that their platforms may be hosting illegal content. Recital 104 of the DSA states that ‘risk mitigation measures concerning specific types of illegal content should be explored via self- and co-regulatory agreements’ but does not contain any binding rules.Footnote ⁴⁹ In contrast, VLOPs/VLOSEs have obligations around the management of systemic risks, such as large-scale manipulative behaviour enabled by algorithmic ordering and recommendation systems. They must conduct periodic risk assessments covering risks around the dissemination of illegal content; negative impact on fundamental rights, civic discourse, and electoral processes; and gender-based violence.Footnote ⁵⁰ They must then take measures to mitigate these risks, for example through adapting their terms of service and their algorithms.Footnote ⁵¹ Smaller platforms are exempted from these obligations. Secondly, while all platforms must publish annual transparency reports on content moderation activities,Footnote ⁵² VLOPs/VLOSEs must provide more detailed reports every six months, including information on their risk assessment and mitigation measures.Footnote ⁵³ Thirdly, VLOPs/VLOSEs are required to undergo annual independent audits to assess their compliance;Footnote ⁵⁴ there is no such requirement for smaller platforms.

Further, the DSA retains the same liability regime as the E-Commerce Directive of 2000,Footnote ⁵⁵ where service providers are not deemed liable for illegal content created by their service users when they do not have actual knowledge of such content or when, upon obtaining such knowledge, they act promptly to remove or to disable access to the illegal content. Article 7 stipulates that these intermediary service providers will remain exempt from liability even if they take measures to detect, remove, or disable access to illegal content, while Article 8 makes clear that these platforms are not under any general obligation to monitor the information they transmit or store. Their obligations begin when they receive orders from relevant authorities to take action against illegal contentFootnote ⁵⁶ and to provide information about individual users, where this has a legal basis.Footnote ⁵⁷ Compliance with the DSA is mandatory, and breach of the rules may lead to hefty fines of up to 6 per cent of the annual worldwide turnover of VLOPS/VLOSEs.Footnote ⁵⁸

There is little doubt that the DSA constitutes a groundbreaking development in the field of digital policy and regulation. Combining self- and top-down regulation and adopting a tiered approach, separating the obligations of VLOPs/VLOSEs from those of smaller platforms, it aims to occupy the medium ground between liberalism and libertarianism, safeguarding freedom of expression while protecting citizens from the pernicious effects of hate speech and disinformation. Moreover, it still affords platforms a significant say in their own regulation. This is because, despite having more obligations under the DSA, platforms still retain a significant degree of autonomy in developing and implementing internal policies for the flow of content on their outlets, selecting trusted flaggers, performing monitoring exercises, and structuring their transparency reports. Finally, platforms still enjoy a degree of protection from liability, since the DSA upholds the liability regime of the E-Commerce Directive.

Importantly, the DSA is essentially a continuation of the E-Commerce Directive and operates as a form of market regulation, looking to harmonise rules concerning platforms while also protecting users/consumers from illegal content.Footnote ⁵⁹ In this context, platforms are considered rational economic actors that are motivated to act in ways that protect the integrity of their services and thereby protect their users from harm. Platforms are motivated to adhere to regulation because it helps them create a trustworthy and ‘clean’ environment for their service users, including advertisers, small businesses, and individual users. Since both platforms and regulators want to ‘clean up’ platforms, phenomena such as hate speech and disinformation are seen as containable through technological means. These include addressing potential side-effects of their internal design, algorithms, and affordances, and other types of interventions such as, for example, the use of AI to remove or demote certain content and the reliance on trusted flaggers and digital literacy initiatives. While this is likely to hold true of the VLOPs, it is not the case with Alt Tech platforms. Section 13.4 addresses the challenges that Alt Tech poses for the DSA.

13.4 The Challenges of Alt Tech

As we have seen, Alt Tech consolidated its presence as a political media infrastructure in the aftermath of far-right activism and processes of deplatforming that purged far-right extremist accounts from the main digital platforms.Footnote ⁶⁰ Alt Tech emerged as a tactical innovation to enable far-right movements to continue their activism and propagation of their ideas.Footnote ⁶¹ Its internal structure and design features differ substantially from those of the main digital platforms and are geared towards supporting content creators, who tend to be far-right influencers, with minimal intervention in terms of moderation.Footnote ⁶² Since Alt Tech platforms are in the first instance oriented towards a very specific public, their revenue model is substantially different from that of the main platforms, as they do not collect data for microtargeting. The challenges that Alt Tech poses for the DSA and its approach to regulation stem from these characteristics. Based on these, we can identify the following challenges. Firstly, Alt Tech platforms are not only or primarily economic but also political actors and have altogether very different motivations from those of mainstream digital platforms.Footnote ⁶³ Secondly, as of 16 August 2024, no Alt Tech platform has been designated as a VLOP or VLOSE and therefore none of them has any obligation to audit algorithms or identify systemic risks.Footnote ⁶⁴ Thirdly, their business model – supporting content creators through micropayments but also venture capital, donations, and subscriptions – makes them unaccountable to advertisers.Footnote ⁶⁵ Finally, Alt Tech platforms such as Bitchute nominally comply with requirements to have a content moderation system in place and to publish transparency reports.Footnote ⁶⁶ But this nominal compliance does not mean that the platform is free of hate speech and disinformation. This section elaborates on these challenges and their implications.

The brief exposition of the DSA and the Codes in Section 13.3 of this chapter made the point that these regulatory instruments consider digital platforms as rational economic actors, motivated by profit and having a stake in a ‘clean’ platform in order to attract and retain advertisers. Indeed, the advertiser exodus observed on Twitter/X under Elon Musk shows that most advertisers are looking for properly moderated platforms.Footnote ⁶⁷ But Alt Tech platforms are not in the first instance acting as economic actors appealing to advertisers. Rather, they operate as political actors motivated by ideology and are addressing a specific category of users who share their worldviews. A central value across all Alt Tech platforms is that of a particular version of free speech, understood as almost unhindered information flows. For example, Gab describes itself as ‘a free speech software company’Footnote ⁶⁸ and Rumble sees itself as ‘immune to cancel culture’.Footnote ⁶⁹ This commitment to free speech is not entirely a political one: it is also a means by which they differentiate themselves and attract and keep a specific community of users. As Gillespie has argued, moderation is the commodity that platforms sell,Footnote ⁷⁰ and this also applies to Alt Tech; in their case, however, they are selling non-interference, minimal or non-existent moderation of content. Since their brand identity is directly entangled with minimal moderation, it is very difficult to see how they could adhere to the spirit if not the letter of the DSA.

The DSA and the Codes expect and stipulate that platforms have a content moderation system in place in order to remove illegal content or content that goes against their terms of service. While some VLOPs have automated systems, smaller platforms rely almost exclusively on user reports. Some Alt Tech platforms, most notably Bitchute and Telegram, have content moderation systems in place where users can flag content for, among other reasons, terrorism, dogpiling, spam, fake accounts, violence, pornography, child abuse, and copyright violations. Bitchute geo-blocks content that is illegal in Europe: for example, incitement to racial hatred or Holocaust denial. But both platforms rely on user reports, and their users tend to agree with the viewpoints and politics of most of the accounts/channels on such platforms and therefore are unlikely to report any but the most problematic content. Indeed, in its 2023 Transparency Report, Bitchute reported that in the first quarter of 2023 it received 2,474 reports for incitement to hatred (which is illegal in the UK, EU, and EEA territories); of these it found that 1,650 were valid reports and actioned them, affecting 11,231 videos.Footnote ⁷¹ Bitchute calculates the prevalence of this kind of content at 0.0847 per cent. This does not account for the findings of Trujillo and colleagues that Bitchute contained 4.4 times the number of hate terms encountered on Twitter/X.Footnote ⁷² While Alt Tech platforms have a content moderation process and meet to a degree the formal requirements of the DSA, they are still likely to host a large volume of problematic content. It can be said that they meet the letter of the DSA in that they have content moderation systems in place, but they do not meet the spirit of the DSA in creating a safe space that upholds fundamental rights.

Even if Alt Tech platforms have some content moderation processes in place, they are under no obligation to audit or check their systems for systemic risks as they are not considered VLOPs. Systemic risk audits for VLOPs are meant to reveal whether their algorithmic systems end up unintentionally diffusing disinformation. In general, platforms’ algorithmic organisation revolves around their profit-making function and is structured in ways that maximise benefit for advertisers while preserving the integrity of the platform’s services.Footnote ⁷³ Because Alt Tech does not rely on advertisers, its algorithmic organisation tends to be different from that of very large online platforms. As already explained, YouTube tends to recommend ‘similar videos’ based on those a user has interacted with before. Bitchute, by contrast, recommends only more videos from the same creator, which then supports creators in building their profiles.Footnote ⁷⁴ Since Bitchute creators deal primarily in far-right content, this algorithmic system allows them to build a following. While VLOPs are both motivated by their economic activities and regulated by the DSA to control for the popularisation and diffusion of harmful content, Alt Tech platforms rely on providing a service to the ‘ideology entrepreneurs’ of the far right and other extremist movements.Footnote ⁷⁵ The architecture of Alt Tech platforms and their internal organisation through algorithms reflect precisely this service that they provide to influencers of the far right. While VLOPs and VLOSEs are subject to annual audit obligations,Footnote ⁷⁶ no audit can lead to any corrections in the case of Alt Tech since their system is calibrated to meet the needs of this particular ideological milieu.

As also mentioned, the business model of most Alt Tech platforms reflects this central service as a political media infrastructure for the far right: rather than relying on advertising income they rely on subscriptions, donations, and micropayments and in some instances on venture capital. For example, Rumble has received funding from Peter Thiel, the chairman of Palantir and a major donor to Donald Trump’s 2016 campaign.Footnote ⁷⁷ These platforms are therefore accountable not to mainstream advertisers but to these ideological groupings of users, channels/creators, and financial backers.

Finally, the DSA obliges platforms to remove illegal content and the Code expects platforms to improve access to authoritative sources and demote disinformation,Footnote ⁷⁸ which Code signatories are likely to do because they have a stake in providing a safe and trustworthy platform to their users and advertisers. However, as we have argued, Alt Tech is providing platform services to far-right users and publics who are producing and disseminating exclusionary and discriminatory narratives against certain groups. Even if Alt Tech platforms remove illegal content when it is reported to them and geo-block overtly discriminatory content, as Bitchute does, their users and channels are quick to adapt their narratives so that they are framed as debates, using metonymies, memes, symbols, and other ways to ‘hide in plain sight’, as May and Feldman put it.Footnote ⁷⁹ The combination of Alt Tech’s operation as a political media infrastructure for the far right and its users’ political views make it very difficult if not impossible to see how the DSA and its co-regulatory approach might work.

The implications of all this include the bifurcation of the public sphere, with the mainstream covered by the DSA and the Codes and an extreme public sphere that can remain almost untouched by regulation provided it meets the minimum requirements. As we have argued, this is because in the DSA, platforms are obliged to take down illegal content only when it is reported by users. Although most VLOPs/VLOSEs are motivated to keep their platforms ‘clean’ and safe to ensure advertiser income, Alt Tech platforms do not share the same incentive; and their users are unlikely to report content they agree with, for example incitement to racial hatred, even if they are illegal. Since these two parts of the digital public sphere are still connected like two communicating vessels, the extreme public sphere will continue to feed its content into the mainstream.

13.5 Conclusion: Is Platform Regulation Enough?

This chapter has focused on the operation of platforms known collectively as Alt Tech. We understand Alt Tech as a political media infrastructure for the far right that supports and sustains the extreme public sphere. The question that animated this chapter concerns the extent to which the DSA is in a position to address the challenge of these platforms. Our analysis of the DSA highlighted the co-regulatory approach taken by the EU and the central understanding of platforms as rational economic actors, motivated to keep their platforms as free as possible from toxic content. This chapter’s discussion of the challenges of Alt Tech has sought to demonstrate that Alt Tech platforms act mainly as political actors, catering to the needs and values of users who are ideologically aligned with the far right and conspiratorial worldviews and who prioritise the value of absolute freedom of expression. Their business model makes them accountable not to advertisers but to these political publics, and they are therefore not sufficiently motivated to design and implement a fully functional content moderation system.

From this analysis we concluded that it is unlikely that the DSA and the Codes can regulate the extreme public sphere effectively. Moreover, it is unlikely that the EU can produce a more stringent form of regulation without contradicting its commitment to fundamental rights and values, such as freedom of expression. The co-regulatory approach is consistent with the liberal ideological commitments and values of the EU, but it inevitably runs into trouble when it comes to regulating the extreme public sphere.

We are not suggesting here that stricter regulation will resolve the challenges posed by Alt Tech. The political character of Alt Tech, and the increasing mainstreaming of some of its far-right narratives,Footnote ⁸⁰ reveal that these challenges are unlikely to be resolved only at the level of regulation. Rather, a whole-society approach may be necessary to tackle the proliferation of hate speech, conspiracies, disinformation, and all kinds of extremist content. By a whole-society approach we mean an approach that addresses racism, misogyny, and other forms of structural discrimination; an approach that recognises and resolves points of social tension and inequalities that feed far-right narratives; and an approach that aims to increase social trust and political efficacy.

Regulatory approaches to platform governance cannot resolve these tensions on their own but should be seen as part of a whole-society approach and should be nested in that. There are important questions, however, regarding the ultimate effectiveness of regulatory instruments such as the DSA. Its stated goals include the provision of a new set of harmonised rules for addressing and removing illegal content while protecting fundamental rights. There are clear references to the protection of citizens’ right to freely express themselves but not many references to the overall health of the digital public sphere and the potential contribution of toxic (but not illegal) content to political polarisation and fragmentation.Footnote ⁸¹ The reluctance of the DSA to name these and its focus on the tip of the iceberg of toxicity (i.e. illegal content) compromises its ability to deliver a healthy digital public sphere.

14.1 Introduction

Disinformation, despite being around for centuries,Footnote ¹ is a growing concern in the digital age. Defined as ‘false or misleading content that is spread with an intentionFootnote ² to deceive or secure economic or political gain and which may cause public harm’,Footnote ³ disinformation has become increasingly prevalent on social media platforms and instant messenger groups.Footnote ⁴ In view of the potentially significant societal and political implications that its spread can have, including the erosion of public trust in institutions, exacerbation of social polarisation, and manipulation of democratic processes,Footnote ⁵ policy-makers have discussed and probed different regulatory approaches to tackle such ‘information disorders’.Footnote ⁶ Traditional approaches, such as state regulation and self-regulation by intermediary platforms and service providers, have shown significant limitations. State regulation, for instance, raises concerns about potential infringement on freedom of speech and the risk of political manipulation of public communication.Footnote ⁷ On the other hand, self-regulation by platforms often leads to inconsistent enforcement and lacks public accountability.Footnote ⁸ Co-regulation is being seen as a more balanced and effective approach to disinformation governance in general:Footnote ⁹ involving a collaborative process between the state and the private sector, this approach combines the strengths of state regulation and self-regulation while mitigating their weaknesses.

While the advantages of co-regulatory settings are indeed generally agreed upon, the approach shows challenges in such areas as disinformation, misinformation,Footnote ¹⁰ and malinformation,Footnote ¹¹ where the statements in question might be dubious (and sometimes misleading) but still consist of lawful forms of expressions and are therefore protected by freedom of speech.Footnote ¹² Moreover, current co-regulatory approaches aiming at disinformation implicitly assume that false or true statements as well as misleading expressions can always be clearly identified.Footnote ¹³ This, however, is not the case,Footnote ¹⁴ since many forms of relevant information consist of half-truths, decontextualised quotes and facts, or simply opinions.Footnote ¹⁵ Without focusing on the notion of disinformation and the process of determining truth – and particularly who has the final say in this process – current co-regulatory frameworks still carry the risk of assigning to either state bodies or private parties the power over who gets to say what online. Given these challenges, this chapter aims to explore potential and necessary advancements in co-regulatory governance structures for dealing with forms of ‘awful but lawful’ content – that is, socially undesired but nevertheless licit expressions – from a social constructivist perspective.

To do this, Section 14.2 discusses the limitations of classic regulatory approaches to governing disinformation online. Section 14.3 shows that while generally better suited to tackle disinformation in a human-rights-considerate way, current co-regulatory schemes carry with them underlying structural risks of interfering with freedom of expression and basic democratic principles and could be prone to misuses of power. Against this background, Section 14.4 develops the basic, procedural, and institutional requirements when it comes to advancements in co-regulation that can overcome the identified structural risks. Finally, Section 14.5 concludes the chapter by summarizing the findings and offering recommendations for future policy development.

14.2 Deficits of State-Based and Self-Regulatory Approaches to Regulating Disinformation Online

The challenge of disinformationFootnote ¹⁶ online has traditionally been addressed through two primary regulatory approaches: either state regulation or self-regulation by platforms. However, both these strategies present significant limitations that either hinder their effectiveness or bear risks of misuses of power over public communication.

14.3 Potentials and Risks of Co-regulatory Approaches to Tackling Disinformation Online

Given the limitations and structural challenges discussed in Section 14.2, state regulation and self-regulation fall short as strategies for governing disinformation online. Many authors, therefore, propose the exploration of co-regulation as a better solution:Footnote ⁶³ co-regulation, which involves a collaborative process between the state, the private sector, and sometimes civil society, could combine the strengths of state regulation and self-regulation while mitigating the issues identified here.

14.4 Requirements for the Advancement of Co-regulatory Frameworks in the Area of Disinformation Governance

As this discussion has shown, shaping co-regulatory frameworks to tackle disinformation is an intricate task that requires careful consideration of power dynamics with a specific focus on the societal process of negotiating truth. Here, a governance approach is needed that combines the strengths of co-regulation with strong links to this societal process. This section looks into the basic, institutional, and procedural requirements that underpin such an advanced co-regulatory framework in the area of disinformation, drawing on concepts from hybrid governance and its intertwined norm-making between legislators, platform providers, regulatory bodies, NGOs, and society at large.

14.4.1 Basic Requirements: Components of an Advanced Co-regulatory Framework

The first provision an advanced co-regulatory framework must set up is the clear differentiation between illegal and legal expressions. Where there is an existing statutory and opinion-agnostic prohibition of specific expressions (e.g., information that is provably false and obviously leads to harm, such as incitement to violence or harmful health information during a pandemic), the above-mentioned challenges for legitimate speech are not applicable. For any form of dubious information that infringes existing laws – for example, personal rights, criminal law provisions, or both – the lawmaker has issued clear directives. A co-regulatory framework might very well include provisions for how to identify and proceed against illegal forms of speech; however, this is not the peculiarity of governing dubious but legitimate statements. When it comes to tackle legal forms of dubious information, the framework proposed in Figure 14.1 should make this circumstance very clear.

Figure 14.1

Forms of dubious information and their handling in advanced co-regulatory frameworks.

Figure 14.1 Long description

Overview of provisions that a co-regulatory framework might include to identify and proceed with illegal forms of speech. Some of the possible measures involve user comments, user-based tagging or labelling, reporting mechanisms, external fact checks, information correction, or other forms of providing objection or other context information. To encourage and support open public discourse, these measures should always be designed in a way to foster constructive dialogue and debate, for instance, by providing users with tools to evaluate the credibility of sources and information, rather than making unilateral decisions on content removal.

For contested but nevertheless legitimate statements, an advanced co-regulatory framework seems even more complex than current approaches. Based on the concept of hybrid governance, several norm-making players are tightly interacting with each other in these advanced governance structures. Neither the state nor private corporations are ideally positioned to ensure the societal negotiation of truth. As we have shown, the democratic imperative is to decentralize this process, ensuring that the negotiation of truth remains a collective, societal endeavour, free from undue influences on legitimate expressions, be they political or commercial, constructive or shocking. The basic premise of an advanced co-regulatory framework therefore is to appreciate this societal process, decoupling it from handling provable untrue and harmful expressions. This means of establishing and safeguarding public discourse, especially when it comes to disputed but not provably untrue expressions, calls for a legal framework and an infrastructure that enable public discourse to make doubts visible when it comes to digital information.Footnote ⁷³ Where discourse participants can openly discuss controversial statements, and contested information can be clearly identified as such, the recipients of such information can be consciousFootnote ⁷⁴ of the dispute regarding the truth or alleged falsehood of a statement – enabling the negotiation process that is needed.

Making doubts visible in digital environments means implementing technical features and interfaces that allow for contradiction and discussion.Footnote ⁷⁵ Some of the possible measures involve user comments, user-based tagging or labelling, reporting mechanisms, external fact checks, information correction,Footnote ⁷⁶ or other ways of expressing objections or providing contextual information.Footnote ⁷⁷ To encourage and support open public discourse, these measures should always be designed in a way as to foster constructive dialogue and debate: for instance, by providing users with tools to evaluate the credibility of sources and information, rather than making unilateral decisions on content removal.

This alone will not suffice to tackle potential negative effects. Three other contextual factors play a central role when it comes to the societal handling of contested information: (1) the skills to critically evaluate information in general, (2) the (theoretical) opportunity for citizens to take part in the discourses that negotiate truth, and (3) the ability to comprehend and critically reflect on perceivable doubts or ongoing discussions regarding the truth value of a relevant statement. For the first factor, promoting media literacy from an early age will result in a society that is more discerning and less susceptible to dubious information. For the second, a co-regulatory framework can provide underlying principles when designing features that enable discourse, such as openness, low thresholds for participation, and transparent handling of any reacting user comment. For the third, measures might be clearly visible visual markers (including machine-readable labels), information about the contesting users(s), and highlighting of contesting parties that adhere to specific duties of care, such as fact checkersFootnote ⁷⁸ or journalistic outlets. Moreover, encouraging the proliferation and accessibility of diverse information sources seems helpful where individuals are exposed to a range of perspectives, leading to them becoming better equipped to (co-) negotiate truth.

Another (albeit indirect) prerequisite for advanced co-regulatory settings are basic standards regarding the transparency of the discourse taking place (see Section 14.4.3). Where platforms have access to data – either specific statements and their distribution networks or articulated doubts regarding a content piece – such data can be used to support the process of societal discourse, for example by providing debates regarding specific statements or naming the accounts publishing them. Open data initiatives could set an example for accessible data regarding public discourse,Footnote ⁷⁹ as data that is open to the public almost always makes for better and wider control, examination, and dispute.

14.4.2 Institutional Requirements: Decoupling Truth-Finding from Regulatory Interventions

In classic co-regulatory settings, we can observe two different governance structures. In code-based co-regulation, industry players agree on a code that is then referenced in the legal framework and/or monitored by a supervisory body. In an alternative co-regulatory set-up, the lawmaker establishes legal provisions that are then concretised and enforced by an approved co-regulatory body that is monitored by a regulator. In hybrid speech-governance environments, public and private communication rules overlap and interact to a significant degree: the lawmaker’s requirements shape private platform rules, while private platforms interpret and concretise these legal requirements in community standards from a strategic and economic perspective. However, the terms not only implement the legal provisions but also often contain provisions and guidelines that go beyond. Hybrid governance concepts recognize such inextricable links between private and public communication rules in speech regulation on platforms.Footnote ⁸⁰

In the case of disinformation governance, both the lawmaker and the platforms should refrain from defining disinformation based on the dichotomy of true or false. Instead, one of the basic requirements for co-regulatory frameworks in advanced disinformation governance is to keep the societal process of negotiating truth open and to make doubts visible; any legal framework should therefore focus on providing the foundation for a governance structure and concrete measures that take this into account, either refraining from interfering with this process or supporting and helping society to accomplish it.Footnote ⁸¹ The institutional requirements of such a co-regulatory approach involve one or more new entities that facilitate this process by developing and supporting respective measures and by supervising their implementation by providers and/or any third parties (discourse-oriented bodies, or DOBs). While one potential configuration of current hybrid governance systems is the establishment of independent social media councils, these are structurally a little different from the envisaged DOBs. Social media councils usually act as impartial, third-party institutions responsible for overseeing content moderation decisions, developing guidelines and best practice and ensuring that content moderation practices adhere to principles of human rights and due process. By contrast, DOBs identify and oversee tools and measures to facilitate public discourse, enabling communities to make doubts about a specific statement visible. DOBs have an enabling role on an infrastructural level rather than in a case-by-case decision-making body; they support a critical public discourse on private platforms with a focus on negotiating truth.

Besides these entities, the need for classic actors in co-regulation will remain: the state providing the legislative framework, and co-regulatory bodies supervising the implementation of measures in cases of illegal expressions or where false statements have been identified, as shown in Figure 14.2.

Figure 14.2

Governance structure of an advanced co-regulatory system for disinformation governance.

Figure 14.2 Long description

A co-regulatory approach involves one or more new entities that enable facilitating the process of negotiating truth by developing and supporting respective measures and by supervising their implementation on side of providers or/and any third parties, namely: Discourse-Oriented Bodies. Besides these entities the need for classic actors in co-regulation will remain, i.e., the State providing the legislative framework, and co-regulatory bodies supervising the implementation of measures in cases of illegal expressions or where false statements have been identified.

To fulfil its role in such a setting, a DOB should be free from potential influences from either the state or private companies; it has to be independent from external influences, political agendas and organisations, and financial, knowledge-based, or factual dependencies.Footnote ⁸² Such an institution should be bound to the common good: either through its composition, with internal pluralism or multiple stakeholders,Footnote ⁸³ or by procedure, with for example participatory approaches.Footnote ⁸⁴ Institutional approaches known from network governance could be fitting for DOBs as well: concepts that emphasise horizontal interactions among a network of equal stakeholders from civil society, academia, the tech industry, user communities, and other relevant sectors, where decision-making relies on consensus, collaboration, and mutual agreement. Alternatively, one could assess whether a form of hybrid institution might work as a DOB: that is, by combining elements of both public and private governance structures a hybrid institution might formally be a public body but still operate with sufficient autonomy.

As a DOB’s main task is to help with and observe the implementation of features on the infrastructural level and of processes on the providers’ organisational level as well as to supervise the discourse-oriented application of such processes, it has to operate with a strong backlink to public interest. This might be realised through strong legal requirements regarding the public remit of such a body, or through organisational requirements concerning public representation or participatory approaches. The active involvement of civil society can provide valuable insights into the societal impacts of disinformation and help ensure that the co-regulatory approach is responsive to the needs and concerns of the public.

While a state- and company-independent, public-interest-bound third party such as a DOB is crucial to overseeing the enabling and support of societal negotiation processes by making doubts perceivable, there will still be a need for a co-regulatory body that monitors compliance, enforces rules, resolves disputes, and ensures transparency and accountability once dubious information has been objectively falsified or has been deemed false on the basis of negotiation. Here, traditional content moderation measures can be foreseen by the legal framework (deletion, downranking, warning labels, profile-related limitations), comparable to existing areas of co-regulation. This also entails supervisory tasks on the part of a regulator that monitors and controls the co-regulatory body’s decisions and actions.

In such a co-regulatory framework aiming at enabling the wider communicative ecosystem, some institutions and stakeholders can be identified to which additional requirements should apply. Where fact-checking organisations can evaluate claims and provide evidence-based assessments of relevant statements, these bodies are an important actor when it comes to identifying and assessing allegedly false claims.Footnote ⁸⁵ To minimise any structural risk that comes with such a position of power in negotiating truth, fact-checking bodies have to be independent and transparent.Footnote ⁸⁶ There should not be any dependencies on either state bodies or private companies, and their remit should have a strong public interest orientation to be in line with the societal objectives of public discourse. Stakeholders in media education and awareness-raising, aiming at educating the public about critical thinking, source evaluation, and the basics of journalistic integrity, should also be free from (hidden) political agendas.

When it comes to norm-making and functions within the proposed governance structure, the lawmaker has to set up a legal framework to establish the public interest body explained here as well as a co-regulatory body that supervises the providers’ handling of content that has been identified as false or misleading.Footnote ⁸⁷ The lawmaker should state the general principles of the framework and should name exemplary measures to facilitate the societal negotiation of truth and making doubts visible. Moreover, the legislator should either stipulate how providers should handle information that has been identified as false or establish a framework where industry develops a code that after an agreement becomes binding within the legal framework.

The DOB is the competent player to (1) concretise, optimise, and extend the legally foreseen instruments and measures that support the public process of negotiating truth, (2) supervise the implementation of negotiation-supporting measures on the side of the providers in a way that is aligned with public interest (both ex ante and ex post), and (3) set up requirements for and approve independent and neutral fact-checking bodies and/or supervise their compliance. On the institutional level the DOB might also consult the regulator as well as the co-regulatory body on relevant topics. This separation of truth-identifying powers ensures that truth-related processes run independently of both state and company interests and interventions.

The regulatory body is needed to supervise the compliance of the providers with the provisions concerning their handling of content that has been identified as false and/or misleading, if the system is based on an industry code (in this case, the regulatory body also would have to approve such a code in advance). Alternatively, the regulator will have to approve and monitor an industry-led co-regulatory body to monitor the providers’ compliance with either legal norms or a code concerning platforms’ governance of content identified as false and/or misleading. In all cases, the supervisory function would encompass ex ante checks of standard operating procedures and technical configurations as well as ex post monitoring of their content governance in practice.

The providers themselves have to implement the requirements and measures developed by the DOB regarding the facilitation of the societal process of negotiating truth, and they also have to implement the legal requirements, measures, and processes regarding content that has been identified as false and/or misleading. These tasks comprise steps to provide technical access not only to infrastructural tools but also to their documentation, as well as access to platform data to be able to assess both the functioning of the negotiation process and the impact of any intervening measures. In this way, a structural decoupling can be established between the societal process of negotiating truth and decisions regarding content that has been identified as being false.

14.5 Summary: DOB is a Free Elf

This chapter has explored the challenges and opportunities associated with disinformation governance, with a particular focus on the potential of advancing current co-regulatory approaches. The central issue with current approaches to tackling disinformation is the implicit assumption that disinformation is something that can be easily identified. Current approaches accumulate decision-making power on the side of either the state or private platform providers, but the democratic ethos, deeply embedded in the annals of political theory, hinges on the principle of open discourse. It is through public debate that societies negotiate their truths, shaping collective realities and shared understandings. This process is not merely a by-product of democratic governance but a foundational pillar upon which democracies are built. Where state bodies or digital platforms are centralised actors deciding on what is true and what is false, regulatory frameworks run into a profound democratic dilemma.

The path forward requires a model that decouples truth-related deliberation from central decision-making, giving the process of negotiating truth (back) to society and ensuring that the power to influence public discourse is not concentrated in the hands of a few. Delving into potential governance structures, this chapter has identified that advancing co-regulatory settings can strike a balance between freedom of expression, freedom of information, and the prevention of societal harms. Structurally decoupled governance models, grounded in democratic principles and societal interests, emphasise the collective negotiation of truth, thus restoring the democratic ethos of open discourse.

The approach suggested here combines elements of state regulation, self-regulation, and the active participation of civil society, creating a form of hybrid governance. The model centrally relies on a public-interest bound DOB that identifies and supervises the implementation of discourse-oriented tools, measures, and procedures with the central objective of enabling the public to make doubts visible. The application of measures regarding content that is deemed false as a result of the negotiation process lies within a traditional co-regulatory set-up: platform providers apply measures, and co-regulatory bodies and/or regulatory bodies supervise their actions.

The co-regulatory approach offers a promising path forward, but it is not without its challenges. Implementing this approach will require careful design and ongoing adjustment to ensure it remains effective and responsive to the evolving nature of disinformation. However, as the digital environment and disinformation policies continue to evolve, there is an increasingly pressing need for innovative regulatory approaches to address the challenges posed by awful but lawful content. Hybrid governance offers a promising solution here that can help strike the right balance between freedom of expression and the mitigation of societal harms. By embracing hybrid governance and fostering public–private cooperation and public-interest-bound institutions, policy-makers, service providers, and stakeholders can work together to build more effective, balanced, and rights-preserving governance structures.