5.1 Introduction

The numbers accumulated over the years. The major surge came in 2018, when 476 Hungarian media outlets were united under the roof of the Central European Press and Media Foundation (KESMA) with the purpose of coordinating their news services.Footnote ² Such unprecedented concentration of media power close to the ruling party set off alarm bells and reminded lawmakers in Brussels of a notorious and painful policy headache: media ownership concentration.

Few issues on the media and communication policy agenda have had the same longevity as ownership concentration. Since the inception of the media and communication industry, owners were suspected of limiting pluralism and diversity of opinion or at least exerting undue influence on the public agenda. Indeed, media ‘moguls’Footnote ³ (such as William Randolph Hearst and Reinhard Mohn) and later ‘tycoons’Footnote ⁴ (e.g. Rupert Murdoch, Robert Maxwell, Silvio Berlusconi, Vincent Bolloré, Arnaud Lagardère) built media empires in their national markets, and some of them even beyond. Regulation never really managed to control the phenomenon, despite its obvious and acknowledged risks for democratic societies.

In this chapter, the bumpy ride of European policy efforts to get to grips with media ownership concentration is addressed, with a focus on initiatives by the European Union. Looking back on the cumbersome process and analysing the current policy activities allows for a better understanding of the remarkably modest success so far. This chapter suggests that focusing policy on the establishment of ownership transparency and pluralism monitoring, instead of ownership control, risks absorbing transformative energy at the expense of progress in limiting the power and dominance of transnational media and communication conglomerates. Both ownership transparency and pluralism monitoring are indeed necessary pre-conditions, but they are by no means sufficient instruments for effective media ownership control. It can also be argued that stricter and more consistent regulatory measures by the European Commission could have avoided the ominous market dominance of individual media companies and conglomerates today, such as KESMA in Hungary, Berlusconi’s Fininvest and Media-for-Europe in Italy and other countries, and Bolloré’s Vivendi group in France. In conclusion, this chapter suggests establishing a European mechanism whereby a higher degree of ownership concentration necessarily entails obligations for greater internal editorial freedom.

5.2 Issues of Media Ownership Concentration Over Time

Concerns about the detrimental effects of concentrated media ownership cluster around two main strands. First and foremost, neoliberal ideology claims that any kind of market concentration damages the benefits of the free market. Looking back at 250 years of market economy, Picard notes that producers and consumers engaging in unrestrained competition with each other generate economic and social benefits. Any constraints on competition potentially deny those benefits.Footnote ⁵ Within this market-based ideology, the first and principal duty of politics is to protect and promote competition. Ownership concentration, leading to oligopolies or even monopolies, threatens well-functioning competition. Competition authorities and other supervisory bodies have a full set of regulatory instruments at their disposal to prevent such distortion of competition. The European Union is firmly rooted in competition-oriented economics within and beyond the internal market, as set out in Part Three of the Treaty on the Functioning of the European Union, Titles I (The Internal Market) and VII (Common Rules on Competition, Taxation and Approximation of Laws).

The second set of concerns is detached from economic and competition law considerations but is no less serious. Media ownership concentration is believed to limit the free flow of information, reduce the quality standards of the media, harm pluralism, and thus put democracy at risk. Literature and policy provide ample evidence for these claims.Footnote ⁶

Concerns have been expressed in Europe and beyond. In the context of the United Nations, Mendel and colleagues have pointed out that ‘concentration threatens the ability of the media system as a whole to reflect the variety of ideas, viewpoints and opinions that exist in society and to represent all political, cultural social groups’.Footnote ⁷ While any restrictions of media ownership might also restrict the freedom of expression of media owners, international law provides an alternative view: ‘[B]y promoting a plurality of voices in the public sphere, such limits enhance the right of listeners to receive a diversity of information and ideas, which is essential to the exercise of full citizenship, political participation, robust cultural expression and many other important values in society.’Footnote ⁸ The authors of the report furthermore argue that media ownership concentration increases the risk of reducing the quality of journalism:

Similarly, the Council of Europe has repeatedly addressed the issue of media ownership concentration over the last three decades.Footnote ¹⁰ Most recently, Recommendation CM/Rec(2018)1 of the Committee of Ministers to member states on media pluralism and transparency of media ownership points out that ‘[o]ne or a small number of media owners or groups can acquire positions of considerable power where they can separately or jointly set the agenda of public debate and significantly influence or shape public opinion’.Footnote ¹¹ This applies not only to the incumbent media business, but also and in particular to online platforms. Thus ‘[s]tates are furthermore encouraged to ensure procedures to prevent media mergers or acquisitions that could adversely affect the pluralism of media ownership or diversity of media content’.Footnote ¹²

In the academic literature, the debate on the consequences of media ownership concentration has been controversial. Some scholars have praised competition as well as monopolistic market conditions as enhancing diversity. Robert Entman argued back in 1989 that ‘[a]lthough competition does not have broad impacts, it may in some circumstances incrementally enrich the diversity of ideas in a community’.Footnote ¹³ He continued to argue that enjoying monopoly status ‘may allow a newspaper the freedom to report more extensively, innovatively, and fearlessly than it would under the threat competition poses of losing readers and advertisers’.Footnote ¹⁴ In response, Oscar Gandy took a more critical stance and claimed: ‘When competition and profit maximization are presented as rational, a critical response seeks to demonstrate that the products of such pursuits are something other than optimal.’Footnote ¹⁵

In her seminal book on media economics, Gillian Doyle called for a more sophisticated approach and a distinction between ownership of media and control over its content. ‘The extent to which, and the precise point at which, ownership of a media organization will translate into influence over the content of its products has been the subject of analysis, debate and many divided opinions.’Footnote ¹⁶ She pointed out that editorial interference by owners can often be indirect, ‘through the selection of key personnel, or through the establishment of a culture of obedience and self-censorship’.Footnote ¹⁷ It is this ambiguity that propelled reservations about the negative implications of ownership concentration in the media sector and slowed down the process of policy making in this contested area. Much clearer, however, is the notion that the influence of ownership concentration on pluralism and diversity constitutes a risk. Doyle insists that ‘greater levels of concentration contribute to a greater risk of media power being abused’.Footnote ¹⁸

Another compelling argument for regulating media ownership has been developed by C. Edwin Baker. He has argued that media are essential for democratic public opinion formation, as media constitute the public sphere and mediate between the public and the government. ‘For this reason, a country is democratic only to the extent that the media, as well as elections, are structurally egalitarian and politically salient. The best institutional interpretation of this democratic vision of the public sphere is … an egalitarian distribution of control, most obviously meaning ownership, of the mass media.’Footnote ¹⁹

When the Internet and the World Wide Web hit the mass markets and developed their own market realities, some scholars nurtured the illusion that dominant media ownership would disappear without further intervention, as ‘the monolithic empires of mass media are dissolving into an array of cottage industries’.Footnote ²⁰ Realities did not follow this scenario. Instead, new business giants evolved, global in scope and unprecedented in size. Amazon expanded its global turnover from 4 billion in 2003 to 74 billion in 2013 and, again ten years later, to 575 billion in 2023. Meta (Facebook) reached global revenues of 8 billion in 2013 and 135 billion in 2023. Alphabet reported a turnover of 307 billion in 2023.Footnote ²¹ Such market realities prompted the authors of the Media Manifesto to point out that more concentrated media ownership in ever fewer hands would exert ‘undue influence over politicians, impacting on diversity of media content, promoting clientelism and creating an ever more impoverished public sphere’.Footnote ²²

To sum up, media ownership concentration is contested in two respects. On the one hand, and no differently from other sectors of the economy, media companies that grow too large threaten the good functioning of market competition, thereby reducing economic welfare. On the other hand, media ownership concentration restricts the broad public’s freedom of expression, reduces diversity, threatens pluralism, jeopardizes the development of a democratic public sphere, and reduces ‘what could be called citizens’ communication welfare’.Footnote ²³

5.3 Review: European Activities to Address Media Ownership Concentration

Although it was initially not a core activity for European institutions, they have been wrestling with this twofold issue for four decades, maintaining competition and defending democratic values. The bumpy ride for European institutions started in 1984 when the European Commission and Council released the Green Paper on audiovisual policy, ‘Television without Frontiers’,Footnote ²⁴ which eventually, in 1989, ended up as a Directive of the same name. There, ownership is not explicitly addressed but the Commission and the Council expressed their concern: one recital of the preamble stipulates that ‘it is essential for the Member States to ensure the prevention of any acts which may prove detrimental to freedom of movement and trade in television programmes or which may promote the creation of dominant positions which would lead to restrictions on pluralism and freedom of televised information and of the information sector as a whole’.Footnote ²⁵

At the same time that the Commission was working on the ‘Television without Frontiers’ Directive, the European Parliament vigorously embraced the issue of media ownership concentration. In the second half of the 1980s, the following resolutions were adopted:Footnote ²⁶

• 1985: Resolution on the Economic Aspects of the Common Market for Broadcasting in the European Community, focusing on competition policy in the television and film industry;

• 1986 and 1987: Resolutions on the Fifteenth and Sixteenth Report of the CEC on Competition Policy, outlining potential dangers to competition in the area of the media, explicitly including newspapers, magazines, television stations, and cable and satellite operators;

• 1990: Resolution on Media Take-overs and Mergers, going beyond the previous resolutions by stating that restrictions are essential in the media sector not only for economic reasons but also for protecting sources of information and the freedom of the press in general.

Despite these interventions the Commission decided to retain its media policy focus on the audiovisual sector only; it released a communication in 1990 that addressed the issue of ownership concentration in the television business only marginally, stating that its policy would be designed to encourage the diversity of programmes offered to the public.Footnote ²⁷

The European Parliament did not let up and increased the pressure on the Commission to eventually address the issue of media concentration. It turned out that the Commission and the Parliament were working on the issue almost simultaneously. In April 1992, the Parliament adopted a ‘Resolution on Media Concentration and Diversity of Opinions’, calling on the Commission to ‘submit a proposal for effective measures to combat or restrict concentration in the media, if necessary in the form of an anti-concentration directive, with a view to: (a) harmonise national provisions on the concentration of media ownership; and (b) guarantee diversity of opinion and pluralism where the proposed concentration is on a European scale’.Footnote ²⁸

Furthermore, the European Parliament called on the Commission to set up a European Media Council, a new body charged with media ownership matters such as ownership transparency and mergers.Footnote ²⁹

A few months later, in December 1992, the Commission published its widely recognized Green Paper on Pluralism and Media Concentration.Footnote ³⁰ Instead of preparing a path towards an anti-concentration directive in the media sector, the Commission’s key message was that safeguarding pluralism is a matter of responsibility for Member States, while incidents of anti-competitive market behaviour would be taken care of at the European level. Three options were suggested for public consultation: (1) no action; (2) action regulating transparency, and (3) action to harmonize laws.

In a reaction to the Green Paper, the European Parliament replied with another resolution in 1994, repeating its request for a directive and the creation of a European Media Council ‘whose role would be monitoring developments in the media, providing expertise and opinions to the Commission on mergers, and ensuring transparent relations between media firms’.Footnote ³¹ Industry representatives clearly expressed their preference for option (1) of the Green Paper.Footnote ³² Nonetheless, Commissioner Mario Monti prepared a first draft of a directive on media pluralism in 1996 and a second draft in 1997, but did not succeed in convincing his colleagues. It became clear that ‘any attempt to tackle the issue of media ownership and concentration at a European level is unrealistic’.Footnote ³³

In the wake of media mogul Silvio Berlusconi’s return to political power, the European Parliament released a resolution in 2004 calling on the Commission to submit a proposal for a directive to safeguard media pluralism in Europe.Footnote ³⁴ They asserted that the protection of media diversity should become a priority of EU competition law, and the dominant position of a media company should be considered as an obstacle to media pluralism in the European Union.Footnote ³⁵

Nonetheless, it took the Commission a decade to recover from its failure and to address the issue again. In 2007, at a time when digital platforms of US origin had long been disrupting media and communication industries worldwide, the Commission released a ‘staff working paper’ on media pluralismFootnote ³⁶ with a view to a later communication (which never materialized).Footnote ³⁷ The working paper acknowledges the relevance of the issue: ‘A major concern is the possible domination of a number of markets by national and international companies. … A few companies may control the majority of TV channels and newspapers, potentially leading to an enormous opinion-forming power in that market.’Footnote ³⁸ However, the Commission insisted that ‘European competition law cannot replace – nor does it intend to do so – national media concentration controls and measures to ensure media pluralism.’Footnote ³⁹ Thus the general attitude survived the decade: that pluralism is a matter for the Member States rather than a matter of European concern. There was even some hope expressed that this thorny issue might resolve itself: ‘Hence, even if it is still too early to draw any conclusions in relation to media concentration and media pluralism, one can already argue that, theoretically, internet media seem promising for pluralism.’Footnote ⁴⁰ The paper ends by announcing the intention to commission an independent study to define indicators for assessing media pluralism. In parallel, the Audiovisual Media Services Directive was revised in 2007 – with the same vague reference in the preamble to pluralism and freedom of information as in 1989.

The European Parliament did not agree with the Commission’s analysis. In another resolution it concedes that ‘the EU has no intrinsic competence to regulate media concentration’ but states that ‘its competence in various policy fields enables it to play an active role in safeguarding and promoting media pluralism’.Footnote ⁴¹ The resolution identifies a legal shortcoming as the reason for the ineffectiveness of the European approach towards media concentration: ‘EU competition law is somewhat limited in its ability to address media concentration issues because the activities creating concentration of media ownership at vertical and horizontal level in the new Member States have not reached the financial threshold at which EU competition law would apply.’Footnote ⁴²

Nonetheless, the European Parliament recalls that ‘the unrestricted concentration of ownership jeopardises pluralism and cultural diversity and … a system purely based on free market competition alone is not able to guarantee media pluralism’.Footnote ⁴³ Such a pluralistic media system is an ‘essential requirement for the continued existence of the democratic European social model’.Footnote ⁴⁴ Consequently, the resolution establishes that ‘competition law must be interlinked with media law, in order to guarantee access, competition and quality’Footnote ⁴⁵ and calls on the Commission to ‘commit itself to promoting a stable legal framework with a guaranteed high standard of protection of pluralism’.Footnote ⁴⁶

In July 2009, the independent study on media pluralism in the Member States was published.Footnote ⁴⁷ It identified six risk domains in the field of media pluralism: risks to fundamental rights (basic domain), geographical pluralism, cultural pluralism, political pluralism, pluralism of media types and genres, and pluralism of ownership and control.Footnote ⁴⁸ The latter risk ‘include[s] a high horizontal concentration of ownership and/or control in the various media sectors (terrestrial television, cable/satellite/DSL television, radio, newspapers, etc.), a high degree of cross-media ownership and certain forms of vertical integration, and also a lack of transparency with regard to ownership structures’.Footnote ⁴⁹ For each of the six fields, the authors suggest a number of indicators to be empirically tested. This academic study carried out by three universities and one business consultant laid the foundation for the (now annual) Media Pluralism Monitor (MPM), headquartered in Florence, Italy, at the Centre for Media Pluralism and Media Freedom (CMPF), established in 2011.

The years after the release of the staff working paper in 2007 were characterized by extensive efforts to grasp the rapid development in the digital media and communications realm. In 2010 the Commission released its Digital Agenda, which acknowledged the role of the internet as ‘a driver of greater pluralism in the media, giving both access to a wider range of sources and points of view as well as the means for individuals’.Footnote ⁵⁰ Potential problems arising from emerging dominant digital actors were not addressed. However, Commissioner and Vice-President Neelie Kroes picked up the issue again in 2011 when calling for a High Level Group to examine and assess the need for action with regard to pluralism and freedom of the media. In the terms of reference of the group, the Commission asked it to cover possible limitations to media freedoms (in particular state interference) and the impact of media ownership on freedom and pluralism of the media.Footnote ⁵¹

When the Charter of Fundamental Rights of the European Union became legally binding upon the entry into force of the Treaty of Lisbon in 2009, the High Level Group had a strong starting point at hand, whereby Art. 11.2 stipulates ‘The freedom and pluralism of the media shall be respected.’ The High Level Group presented and published its report in January 2013. Regarding media resources in the hands of a few owners, the report starts out by raising the question ‘as to how to maintain a pluralistic environment in markets in general, and in smaller markets specifically’.Footnote ⁵² In the compact one-page analysis of competition and concentration (chapter 2.4) the group calls for competition policy authorities ‘to look at market concentration not only as an issue related to competition, but also related to pluralism’.Footnote ⁵³ This remarkable statement suggests combining the two elements of media ownership concentration and calls for an integrated view. However, the subsequent recommendation no. 7 does not take up this crucial insight, but merely calls for regular assessments of the media environments in the Member States. Dominant positions bother the group only with regard to the emergent internet giants. Recommendation no. 8 stipulates that the ‘dominant position held by some network access providers or internet information providers should not be allowed to restrict media freedom and pluralism’.Footnote ⁵⁴

Taken together, these various policy and research initiatives defined the lowest common political denominator, which was monitoring media ownership concentration, rather than limiting the media market power of dominant companies and conglomerates. Monitoring was recommended by the independent study on media pluralism 2009,Footnote ⁵⁵ and replicated by the High Level Group in 2013. With the establishment of the CMPF at the European University Institute in Florence, a permanent working unit was institutionalized, demonstrating and documenting the agility and agency of European policy making. The European Parliament’s request for political intervention, however, in a media ownership directive and the establishment of a European Media Council disappeared from the political agenda.

5.4 2020s: New Try, New Luck

The time that has elapsed since the High Level Group submitted its recommendations has worked against the policy objectives of limiting media power and sustaining and promoting media pluralism. Global digital platforms developed into powerful oligopolies and some Member States succeeded in boosting media ownership concentration around the ruling political circles. The establishment of the KESMA conglomerate in 2018, quoted at the very beginning of this chapter, literally cried out for the revision of European media policy.

Actually, the European Parliament never lost track of its endeavours to further political and regulatory action against the negative effects of media concentration and in favour of fostering media pluralism. Building upon its earlier work, the European Parliament referred in its resolution ‘Media pluralism and media freedom in the European Union’ to the findings of the MPM on high ownership concentration and emphasized the freedom of the media from political and economic power, reiterating ‘the importance of preserving journalism that benefits from mechanisms which prevent the concentration of single, monopolistic or quasi-monopolistic groups, ensuring free competition and editorial diversity’.Footnote ⁵⁶ It called on the Member States to ‘adopt and implement a media ownership regulation in order to avoid horizontal concentration of ownership in the media sector and indirect and cross-media ownership, and to guarantee transparency, disclosure, and easy accessibility for citizens to information on media ownership’.Footnote ⁵⁷

In 2020, the Commission released a compact set of policy documents, addressing the twofold issue of media ownership concentration, distortion of competition and threats to pluralism. Each of these documents explicitly refers to media (pluralism), thus earmarking this issue with a salient profile within the Commission’s term of office that started in 2019.

In the EU Action Plan on Human Rights and Democracy 2020–2024, the Commission, together with the European Parliament and the Council, expressed their concern that fundamental and human rights are under stress across the world, including media freedom.Footnote ⁵⁸ In more detail, the European Democracy Action Plan devotes two of its five chapters to media and pluralism. One of these deals with countering misinformation and the other looks into strengthening media freedom and media pluralism.Footnote ⁵⁹ In addition to a general call for transparency of media ownership, the Action Plan enlarges the scope to include revenues and thus the economic dimension of the media. ‘Better public disclosure of information on who owns or controls media outlets and the transparent and fair distribution of state advertising can also protect media pluralism.’Footnote ⁶⁰ Beyond this general declaration, the Commission announces that it will co-finance a pilot project establishing a Media Ownership Monitor with the objective to provide a publicly available database containing relevant information on media outlets.Footnote ⁶¹ Other issues included in this chapter concern safety of journalists, abusive use of strategic lawsuits against public participation (SLAPPs), and professional editorial standards.

Focusing primarily on audiovisual media in the tradition of the Television without Frontiers Directive as well as the subsequent Audiovisual Media Services Directive, the Digital Media Action Plan sets out a comprehensive and well-scheduled programme to support the recovery, transformation, and empowerment of audiovisual media.Footnote ⁶² Action 3 ‘NEWS’ addresses the news media sector as a whole and promises better access to finances, capacity building among investors, and support for collaborative transformation. Ownership issues, however, are not addressed at all.

Finally, in 2020 the Commission released its first Rule of Law Report.Footnote ⁶³ One of the four pillars of this series of annual reports is media pluralism, next to the justice system, the anti-corruption framework, and other institutional checks and balances. In the relevant chapter, media pluralism and media freedom are depicted as ‘key enablers for the rule of law, democratic accountability and the fight against corruption’.Footnote ⁶⁴ Transparency of media ownership is considered to be ‘an essential precondition for any reliable analysis on the plurality of a given media market’.Footnote ⁶⁵

The European Parliament acknowledged the progress made in media policy by the Commission and released its Resolution ‘Strengthening democracy, media freedom and pluralism in the EU’, calling on the Member States ‘to guarantee media pluralism and ensure transparency of media ownership’ and ‘on the Commission and Member States to develop an ambitious, robust and complete legal framework’,Footnote ⁶⁶ which later became the proposal for a European Media Freedom Act (EMFA).

To sum up, media ownership and media pluralism has climbed up remarkably on the European policy agenda. Compared to efforts in the 1990s and the 2010s, the issue has gained urgency and attention. However, monitoring as the lowest common policy denominator still dominates the policy agenda. Every year, the CMPF publishes the Media Pluralism Monitor for all Member States and beyond, pointing out year after year the high risk of media ownership for media pluralism.Footnote ⁶⁷ The Rule of Law reports call for ownership transparency. Furthermore, the pilot phase of the Euromedia Ownership Monitor (EurOMo) begun in 2023 has resulted in a substantial and easily accessible public website containing ownership information on opinion-shaping media in all twenty-seven Member States, including graphic displays of trans-national networks of ownership chains as well as detailed country reports.Footnote ⁶⁸ EurOMo has been developed by a consortium of mostly university institutes, coordinated by the University of Salzburg in Austria. All these monitoring exercises cannot, however, fill the increasingly pressing need to move forward from monitoring to regulating ownership patterns and pluralism protection.

However, resistance against any form of media ownership regulation, even against transparency requirements, is still considerable. Efforts to keep the public informed about company ownership experienced a major setback in November 2022, when the Court of Justice of the European Union ruled that the provision of the fifth anti-money-laundering directive – whereby Member States must ensure that the information on the beneficial ownership of corporate and other legal entities incorporated within their territory is accessible in all cases to any member of the general public – was invalid.Footnote ⁶⁹ Such access by the general public to information on beneficial ownership was held to constitute a serious interference with the fundamental rights to respect for private life and to the protection of personal data. This ruling bears consequences for making information available about beneficial owners of media companies and conglomerates and fundamentally counteracts the transparency intentions laid down in recent policy acts by the European Commission. Transparency International, together with many other concerned NGOs, criticized this ruling, saying that it ‘takes us back years’.Footnote ⁷⁰

5.5 2024: The European Media Freedom Act

The latest landmark in European media policy constitutes the European Media Freedom Act (EMFA), which was adopted by the Council on 26 March 2024.Footnote ⁷¹ This regulation was preceded by a proposal by the Commission in September 2022,Footnote ⁷² and by a recommendation by the Commission also in September 2022.Footnote ⁷³ This new regulation of the European Parliament and the Council remarkably extends the scope of European media policy. The regulation not only covers all news media including the press and digital platforms, it also for the first time addresses editorial processes in newsrooms in order to safeguard journalistic freedom.

Regarding media ownership concentration, however, the regulation is less bold. Media ownership is addressed in two ways. First, ownership must be transparent to recipients of the media services; second, concentration of ownership must be assessed against the risk to pluralism, opinion-shaping, and editorial independence. The regulation’s preamble confirms that it is ‘crucial for the recipients of media services to know with certainty who owns and is behind the news media so that they can identify and understand potential conflicts of interest which is a prerequisite for forming well-informed opinions and consequently to actively participate in a democracy’.Footnote ⁷⁴

The EMFA requires media service providers to publish their legal names and contact details, including the names of beneficial owners. This up-to-date information should be made ‘easily and directly accessible to the recipients of their services’.Footnote ⁷⁵ With reference to recital 32 of the EMFA this obligation is to be understood as the publication of this ownership information on the websites of the service providers. In the same recital 32, the EMFA addresses the above-mentioned ruling of the Court of Justice of November 2022 on the limits to disclosure of personal data on company owners, by weighing the two legal goods of privacy and the public’s right to know. Thus the disclosure of targeted media ownership information would produce benefits clearly outweighing any possible impact of the disclosure obligation on fundamental rights, including the right to private and family life and the right to protection of personal data.Footnote ⁷⁶

Beyond transparency of ownership, the EMFA acknowledges that it is not only potential restrictions of the good functioning of the internal market that constitute justification for regulation; negative impacts on pluralism and editorial independence also justify regulation. The EMFA establishes a wider argument. This is based on the one hand on the traditional view protecting the internal market. Concentrated ownership might reduce the variety of views and information in the market, thus endangering the good functioning of internal markets. On the other hand, Art. 11 of the Charter of Fundamental Rights of the European Union requires free and pluralistic media services based on editorial independence. Following this argument, ownership concentration constitutes a risk. The EMFA clearly delegates the responsibility to mitigate this risk to the Member States:

The EMFA specifies that assessments of media market concentration that could have a significant impact on media pluralism and editorial independence should be carried out by competent national authorities and in accordance with objective, non-discriminatory, and proportionate criteria.Footnote ⁷⁸

Under these arrangements, the assessment of ownership concentration should be undertaken according to procedural rules laid down by national laws that address the impact on media pluralism and editorial independence. It should take into account ‘(a) the expected impact of the media market concentration on media pluralism, including its effects on the formation of public opinion and on the diversity of media services’ and ‘(b) the safeguards for editorial independence, including the measures taken by media service providers with a view to guaranteeing the independence of editorial decisions’.Footnote ⁷⁹

These assessments should not go unnoticed by the general public. The EMFA is to conduct an annual ‘monitoring exercise’ of the internal market for media services, including the risks and progress of its functioning.Footnote ⁸⁰ Based on a list of key performance indicators, the monitoring is intended to analyse the level of media concentration in all Member States and the impact of online platforms on the internal market for media services; to provide an overview of risks to media pluralism and the editorial independence of media service providers; and to assess the success of the measures taken in guaranteeing the independence of editorial decisions.Footnote ⁸¹ The monitoring report is to be available to the public and subject to discussion by the European Parliament.

Overall, the EMFA widens the scope for justification of media ownership concentration rules, but it calls Member States to action, refraining from establishing European concentration rules. In this respect, the EMFA – again – has failed to establish sound and strict European media ownership concentration restrictions.

Some statements during the consultation processes show how controversial the issue of ownership concentration is. The International Press Institute, for example, pointed out that publishers are concerned about the EMFA’s focus on ownership and pluralism and afraid that it represents a dangerous restriction on their freedom to operate in the same way as any other businesses.Footnote ⁸² Other press representatives go even further, claiming that ‘[m]edia markets need more concentration in order to gain scale and be competitive to innovate and be resilient. Legislation should not restrain this from happening.’Footnote ⁸³ Similarly, the European Newspaper Publishers’ Association commented that ‘media consolidation is an indispensable instrument to salvage media outlets during economic downturns and to better sustain the costs of running a professional media outlet’.Footnote ⁸⁴

While the EMFA constitutes substantive progress in other media policy areas (editorial freedom, protection of journalists, quality news content, digital platform governance), achievements with regard to mitigating risks of media ownership concentration are limited to ownership transparency rules and ownership monitoring. Responsibility for applying measures against the abuse of dominant media market power by concentration of ownership remains a matter to be settled by Member States.

5.6 Conclusions: Ample Evidence in Support of Regulatory Action

The bumpy ride towards establishing European rules on media ownership concentrations continues. After its kick-start in the early 1990s, ownership concentration intensified, accelerated, and culminated in the global oligopolies of very large digital platforms, most of them of non-European origin. In parallel, continuous endeavours of the European Parliament to establish some kind of European set of rules to cope with the risks and negative consequences of accumulated market power in the hands of a small number of media owners (some call them oligarchs) did not bear much fruit. Instead of focusing political activities on limits and control, European media policy has aimed at monitoring concentration and at transparency of media ownership. This transfer of attention from ownership concentration to ownership transparency constitutes a step back from the ultimate goal of ensuring pluralism and diversity. Ownership transparency is a necessary, but by no means sufficient, condition for limiting concentration and fostering pluralism and diversity.Footnote ⁸⁵

Nonetheless, responding to the digital disruption of the entire (news) media business, some progress has been made with regard to the justification of regulatory action. No longer is the protection and development of an undisturbed internal market the single argument for scrutinizing media ownership patterns. Rather, media pluralism and editorial independence are now strong and accepted arguments to justify policy interventions.

From a bird’s-eye view, progress towards effectively limiting undue power of concentrated media ownership has been modest and options beyond monitoring and transparency have hardly been considered. What should be clear, however, is that the thorny issue of media ownership requires a gradual approach. In principle, the more media market power is accumulated in the hands of single owners, the stricter should be their obligations for editorial freedom and pluralism. Looking back at this policy history, it is plausible and fair to suggest that after four decades of Europe’s wrestling with media ownership regulation a considerable portion of today’s news media problems could have been avoided by releasing and applying stricter ownership rules forty years ago.

6.1 Introduction

Audiovisual media services (AVMSs) play a pivotal role in shaping and influencing society, democracy, and culture. Concerns linked to the power of mass media and technology made regulatory intervention in the form of content-related and structural measures indispensable.Footnote ¹ The Audiovisual Media Services Directive (AVMSD)Footnote ² – originally the Television without Frontiers Directive (TVWFD) – is the main instrument regulating audiovisual content in the EU. The TVWFD was enacted in 1989, triggered by the development of cable television and satellite television.Footnote ³ The Directive was envisaged to facilitate the circulation of television services throughout the EU by establishing minimum harmonisation of certain aspects of national legislation. Throughout the decades, technological and market developments – such as convergence – have regularly challenged the scope of the EU’s regulatory framework for the audiovisual sector. In response to these challenges, the scope of the Directive has been extended several times. The first amendment to the TVWFD took place in 1997.Footnote ⁴ From the second half of the 1990s, the sector started to digitise and moved beyond traditional broadcasting. The emergence of on-demand services (e.g. online catch-up TV, Netflix, and Disney+) led to the next set of amendments to the TVWFD in 2007.Footnote ⁵ At the time, the Directive was renamed as the Audiovisual Media Services Directive to reflect its broadened scope. A technology-neutral, graduated approach was introduced with a ‘light regime’ for on-demand services. A consolidated text of the Directive was codified in 2010.Footnote ⁶ In 2018, the AVMSD was revised again, bringing about a paradigm shift: traditional TV is no longer the benchmark as the requirement to be ‘TV-like’ has been deleted, the graduated approach towards linear and on-demand services has been diminished, and video-sharing platforms (VSPs) have been brought within the scope of application of the Directive.Footnote ⁷ Furthermore, user-generated videos (UGVs) seem no longer to be excluded from the scope of the AVMSD by their very nature (see Recital 21 AVMSD 2010 and Recital 3 AVMSD 2018), provided that the content qualifies as an AVMS in the sense specified in the Directive.

Throughout the amendments, the AVMSD was always underpinned by policy goals serving cultural, social, and economic purposes.Footnote ⁸ In the context of this chapter, the most significant policy goals are promoting the EU internal market for AVMSs; protecting freedom of expression and information; protecting viewers and users, in particular minors and other vulnerable groups; and promoting fair competition.

Even though today’s regulatory framework has already been shaped considerably by continuous evolution, its ability to meet the challenges of the contemporary audiovisual media landscape can be questioned. What is, for instance, the legal status of hybrid services, such as short video clips on audio streaming platforms or audiovisual content within video games?Footnote ⁹ The aim of this chapter is to contribute to the ongoing discussions regarding the modernisation of the EU’s regulatory framework for AVMSs. In particular, the focus will be on the appropriate delineation of the scope ratione materiae of the Directive. The question underpinning this research is whether the material scope of the AVMSD allows it to effectively and efficiently achieve its underlying objectives in today’s audiovisual media landscape.

The building blocks of the AVMSD’s scope of application have regularly been under significant strain due to the rapidly evolving and converging audiovisual media sector. Even though the Directive’s scope has faced repeated scrutiny in the past,Footnote ¹⁰ the media sector finds itself once more confronted with challenges leading to difficulties of application and interpretation. The exercise central to this chapter holds crucial significance in revisiting this area. Considering that pre-existing concerns regarding user-generated content have now materialised and new hurdles have surfaced, this chapter takes on a novel ‘influencer angle’ in order to pinpoint shortcomings in relation to the present scope of the AVMSD. While the traditional media law model is based on the premise of few and professional senders of content and many receivers, influencers are a phenomenon resulting from the democratisation of (audiovisual) content creation and dissemination. As a product of technological advancements and convergence they serve as an ideal point of reference to highlight contemporary issues regarding the Directive’s scope of application.

Section 6.2 of this chapter focuses on influencers and the significant role they play in our society. In Section 6.3, the constitutive elements of the scope of the AVMSD will be critically assessed and applied to influencers as ‘new’ content providers. The question of whether the AVMSD is (still) able to reach its policy goals today will be addressed in Section 6.4. The chapter concludes with a number of critical and questioning remarks to stimulate debate on the EU’s audiovisual media policy. The research is based on a doctrinal legal research method, focusing on the provisions of the Directive as such but also on the preparatory works, policy documents, legal doctrine, and relevant case law.

6.2 Introducing Influencers and Their Impact

The emergence of VSPs such as YouTube, Twitch, and TikTok has served as a catalyst for the democratisation of audiovisual content production and distribution. The empowerment of audiences to become content creators themselves has given rise to the influencer phenomenon.Footnote ¹¹ At the moment, there is no legal definition of the notion ‘influencer’. For the purpose of this chapter, influencers can be defined as creators of UGVFootnote ¹² – such as video blogs, shopping hauls, (toy) reviews, gaming content, but also entire formats such as talk shows – on VSPs, characterised by their peer-to-peer appearance and the potential to monetise their personality and influence by generating interest in something (e.g. a consumer product) via a post on social media.Footnote ¹³

Influencers have become established sources of entertainment, information, education, and commercial communication and are in effective competition with traditional television and on-demand platforms.Footnote ¹⁴ Through engaging and interactive features – such as live streaming, chat functionalities and gifting mechanisms – influencers foster a sense of their own relatability, accessibility, and credibility.Footnote ¹⁵ This positions them effectively to influence the (consumption) behaviour of their audience. In fact, influencer marketing stands out as one of the most popular and impactful online marketing strategies.Footnote ¹⁶ This raises concerns about problematic commercial communication by influencers, such as undisclosed commercial communication or the promotion of dangerous products or food.Footnote ¹⁷ Furthermore, influencers are aware that controversial content attracts more views, which translate into increased (financial) rewards. This encourages them to share questionable and harmful material such as content glamorising gambling, unhealthy eating habits, or dangerous challenges.

As viewers and advertisers increasingly shift towards VSPs and influencers, the EU’s regulatory framework and enforcement bodies have not kept pace with this transformation, resulting in an unlevel playing field vis-à-vis more traditional media services. The latter are required to comply with numerous provisions, encompassing transparency obligations, rules pertaining to harmful and commercial content, the protection of minors, the promotion of European works, and ensuring accessibility for people with disabilities. In a world where VSPs, as well as the countless creators who populate these platforms, are competing for the same audiences and revenues as traditional television, and considering the substantial presence of children and teenagers in this audience, it is imperative to conduct research on the legal status of influencers.Footnote ¹⁸

6.3 Scrutinising the Material Scope of the AVMSD

The AVMSD governs EU-wide coordination of national legislation on AVMSs and VSPs. Within this part of the chapter, the scope ratione materiae of the Directive will briefly be discussed (Section 6.3.1) before being critically assessed in the context of influencer videos (Section 6.3.2).

6.4 Evaluating the AVMSD’s Policy Goals in the Influencer Realm

The exercise central to this section is limited to four policy goals: the proper functioning of the internal market for AVMSs, the protection of freedom of expression, the protection of viewers and users – minors in particular – and the promotion of fair competition. Based on preliminary research, these policy goals are considered to be challenged the most by the emergence of influencers on the audiovisual media field. Originally, the AVMSD policy goals were introduced in a context where spectrum scarcity, pervasive influence on public opinion, and lack of user control were invoked as justifications for regulatory interference. Even though these grounds are no longer (as) relevant today, it can be concluded that new barriers to achieving these policy goals have emerged (see Table 6.1).

Two overarching problems that touch upon all four policy goals are legal uncertainty and enforcement issues. The AVMSD leaves the status of UGVs somewhat ambiguous. The sole mention of its potential inclusion can be found in Recital 3 of the Directive, which does not provide a solid legal basis. The fact that EU regulation of audiovisual media was originally written for twentieth-century media providers causes difficulties in its application and interpretation. This has led to legal uncertainty on behalf of media service providers, advertisers, viewers, and national regulatory authorities.

Additionally, the scale and complex architecture of VSPs,Footnote ⁹⁰ as well as the dispersed nature of enforcement competencies (i.e. media regulators, consumer authorities, data protection authorities, gaming commissions, competition authorities, self-regulatory bodies, etc.), are complicating enforcement. So are the active role and high number of users on those platforms.Footnote ⁹¹ Another difficulty when applying the AVMSD vis-à-vis influencers is that there is still some level of interference by the platform (e.g. organisation of the platform, inserting advertisements before, during, or after videos, or adding overlays). Finally, bringing influencers under the scope of the AVMSD represents a significant increase in the workload of media regulators, which is challenging in terms of human and financial resources.

This discussion demonstrates that the policy goals in this area still stand today and continue to necessitate regulatory protection. Lack of clarity regarding the Directive’s scope of application leads to legal uncertainty and enforcement difficulties and stands in the way of achieving the underlying normative goals. This highlights the need to update the regulatory toolbox.

6.5 Concluding Thoughts

Continuous technological and market developments present challenges in delineating the scope of the AVMSD. This chapter has sought to highlight some of the interpretation and application issues the sector is facing. By providing considerations for a consistent and future-proof regulatory framework it aims to contribute to the ongoing debate regarding the scope of the AVMSD.

It is evident that the selected elements of the Directive’s material scope of application are under strain. Bringing influencers under the scope is laudable, as money and influence should come with responsibility. However, doing this solely by an indirect reference in a recital is not sufficient. The Directive’s definitions and provisions are outdated, leading to problems in practice. Instead of stretching old concepts and ideas, it is time to make some fundamental changes in light of today’s reality.

1. (1) The demarcation between hobbyists and professionals must be clearly delineated. A balance should be struck between fostering creativity and internal market growth, and effectively ensuring consumer protection. Over-regulation should be avoided: rules for audiovisual content still need to constitute a justifiable and proportionate restriction on freedom of expression. One potential solution could be for the CJEU to reassess its interpretation of Articles 56 and 57 TFEU reflecting the current audiovisual media landscape where ‘ordinary individuals’ sometimes engage in economic activities, such as creating user-generated content on (video-sharing) platforms, selling clothes on platforms such as Vinted, or listing items on eBay. A more pragmatic approach would involve establishing remuneration thresholds, although these should not be determined by media regulators or national regulatory authorities as is currently the case. Introducing de minimis thresholds in light of Articles 56 and 57 TFEU cannot be reconciled with the current CJEU interpretation of these articles and, hence, would go against the minimum harmonisation nature of the Directive. Instead, the EU legislator could define these thresholds within the AVMSD or a Union code of conduct, limiting its scope to services as defined by Articles 56 and 57 TFEU that meet a certain remuneration threshold. Determining the appropriate threshold requires further research.

2. (2) With a view to legal certainty and future-proofing, it is crucial to clearly delineate not only the boundary between amateur and professional content, but also that between purely promotional content and content that informs, entertains, and educates.

3. (3) Instead of moving away from a graduated approach (i.e. linear and on-demand services), one could argue for reinforcing it, albeit in a different manner because nowadays traditional TV, on-demand TV, and UGV are to a large extent in competition. Drawing inspiration from the current definition of editorial responsibility, rules could be attributed based on the potential influence of the provider: on the choice of the content, the organisation and accessibility thereof, or both.

4. (4) In light of the principle of equal treatment, further research is warranted to determine whether influencers should be subject to the same rules as traditional media. Consider, for instance, the relationship between live streamers on VSPs and traditional broadcasters. If we treat live streamers like linear AVMS providers – as is already the case in some Member States – do they also benefit from exclusive rights and short news reports?Footnote ⁹²

Directly regulating influencers enables media regulators in their country of origin to tackle non-compliant content at the source, instead of holding VSPs responsible. The leading providers of such platforms are situated in a limited number of countries, which means that the media regulators of those countries would be responsible for monitoring all content available on the platforms they use.

It is important to bear in mind that the AVMSD should not be viewed in isolation. Various other legal instruments within the realms of consumer law, competition law, civil law, and criminal law as well as self- and co-regulation can also be relevant and applicable. Therefore, providers who do not fall within the AVMSD’s scope need not be left in a legal void. In the context of influencer marketing, significant actions have for instance been taken under consumer law and competition law. At the EU level, one notable initiative is the Influencer Legal Hub established by the European Commission.Footnote ⁹³ This is a freely accessible resource library containing information on influencer marketing in accordance with European consumer protection rules. At the national level, the German Federal Court of Justice (Bundesgerichtshof) has decided on a number influencer-related cases, particularly in relation to competition law.Footnote ⁹⁴

The fact that the media sector is intertwined with a multitude of other sectors requires strong cooperation between media regulators of different countries, but also between media regulators and other regulators (including consumer authorities, data protection authorities, gaming commissions, and competition authorities).

It can be concluded that the material scope of the AVMSD currently does not allow it to effectively and efficiently achieve its underlying objectives. The analysis presented in this chapter underscores the lack of legal certainty on the audiovisual media field. As a product of its time, the AVMSD has navigated technological advancements and market shifts to regulate audiovisual content effectively. However, in the era of influencers and pervasive online platforms, the Directive stands at a crossroads once again. Although the definitional criteria and concepts were intended to be technology-neutral, this research has demonstrated the precariousness when applying the scope of the AVMSD to influencers: outdated concepts (e.g. ‘programme schedule’), the involvement of multiple actors influencing content (including VSPs, influencers, and brands), information asymmetries (e.g. was the influencer remunerated for the content made?) and so on. There are many types of influencer content and many different ways to deliver it, which makes it impossible to apply the AVMSD in a correct and consistent manner today. To remain meaningful, the Directive requires a revision that cuts ties with old and outdated concepts and ideas, reflecting the current audiovisual media market and anticipating future shifts beyond influencers.

7.1 Introduction

The European Union (EU) is undertaking an unprecedented series of legal initiatives aimed at navigating the challenges of the digital communication landscape. These efforts are aimed at safeguarding a secure and sustainable environment that supports the exercise of freedom of expression and media freedom, and what is particularly novel (and intriguing given the past attempts) also media pluralism, as the pillars of democracy. The Digital Services Act (DSA),Footnote ¹ a risk-based regulation of online platforms, fully entered into force in February 2024 after a phased coming into effect following its adoption in October 2022. The EU has made other efforts to protect free speech, public service media, independent journalism, and media pluralism and to prevent manipulation of content, including deepfakes, amidst increasing disinformation, hostile propaganda, political harassment of journalists, and concerns about media sustainability. These include the Anti-SLAPP Directive,Footnote ² the European Media Freedom Act (EMFA),Footnote ³ and the Artificial Intelligence Act,Footnote ⁴ all of which were adopted in 2024. Just a few months ahead of the 2024 European Parliament elections, another highly anticipated piece of EU legislation was passed: the Regulation on the Transparency and Targeting of Political Advertising,Footnote ⁵ which aims to bring more transparency to the increasingly cross-border field of political advertising.

At the international level, developing common policies is far more challenging than at the national level – particularly within the media landscape, given its complex interplay of social and industry relationships.Footnote ⁶ On top of that, in the EU these challenges are compounded by the need to reconcile supranational ambitions with the diverse priorities of individual Member States. On the one hand, the EU envisions a united Europe driven by economic integration and a shared European identity, while on the other, it must work with Member States’ desire to preserve their social and cultural differences.Footnote ⁷ At the EU level, for each media policy field a compromise is sought between harmonisation and subsidiarity.Footnote ⁸ The EU’s harmonisation efforts, previously typical of the audiovisual sector and the digital market, are now spreading to all media including the press and radio, which were previously the exclusive domain of self-regulation or Member States. Pitfalls of the EU audiovisual framework regarding the interests of small countries, citizens, public welfare, and cultural goals, which were detected by older critical discussions,Footnote ⁹ remain relevant in the context of the current reform. We can once again ask how EU media policies take care of reconciling economic integration and democratic legitimacy.

In the EU regulations that apply to television services, the Audiovisual Media Services Directive (AVMSD)Footnote ¹⁰ and its predecessor the Television without Frontiers Directive,Footnote ¹¹ the country-of-origin principle frequently stirred the tension between the ideals of an unrestricted and unified European television market and the interests related to Member States’ television sectors. Efforts to safeguard national media frameworks, along with the principles of national sovereignty and integrity, are also present in instances dealing with content from non-EU countries. Given the utilisation of media services as instruments of political influence in certain parts of Europe, the significance of the country-of-origin principle has escalated in geopolitical terms.Footnote ¹²

The focus on market integration is being balanced with the EU’s increasing dedication to upholding fundamental rights, as enshrined in the Charter of Fundamental Rights of the European Union.Footnote ¹³ The package of instruments introduced under the 2019–2024 European Commission represents a shift in the EU’s engagement in media-related rights, following a period when such intervention in the media market was lacking. The use of Article 114 of the Treaty on the Functioning of the European Union (TFEU)Footnote ¹⁴ as a legal basis for regulation promoting media freedom and pluralism – as in the case of the EMFA – is supported by some academics.Footnote ¹⁵ It is also affirmed by caselaw of the Court of Justice of the European Union (CJEU), which recognises in Article 114 TFEU its applicability to ‘non-market’ objectives when the required legal conditions are met.Footnote ¹⁶

This presupposes that such measures adhere to the principles of subsidiarity and proportionality, since the CJEU has consistently held that regulation based on this legal ground is warranted only if there is a significant distortion of the internal market, not merely abstract risks. Thus any intervention must demonstrably prevent potential trade barriers and address competitive imbalances.Footnote ¹⁷ Before introducing the EMFA, the European Commission, in its call for evidence for the impact assessment, identified the following key issues impacting the internal media market: varied national media pluralism rules; lack of cooperation frameworks among media regulators; private and public interference in media ownership; and absence of media pluralism safeguards, including in digital environments.Footnote ¹⁸

The adopted text of the EMFA seems to acknowledge the complexities inherent in modern media landscapes. However, while its governance model is put into practice in the months and years following its entry into force,Footnote ¹⁹ many questions are still to be answered. This chapter next addresses the current media and journalism challenges that the EMFA aims to tackle. It then explores the dynamics between key stakeholders within this framework, detailing the responsibilities and interactions of national regulatory authorities among themselves and in relation with their new supranational body – the European Board for Media Services, established by the EMFA – in enforcing the legislation. The discussion concludes by pointing to issues of democratic legitimacy and implications for Europe’s public(s).

7.2 Media, Journalism, and Regulation

The dissemination of audiovisual content through various media such as broadcasting, and electronic communication networks, including telecommunications, satellites, and the internet, have been subject to regulations due to their significant potential impacts on the economy, society, and democracy.Footnote ²⁰ The role of journalism has also long been an interest of media policies as much more than just a source of information,Footnote ²¹ but rather a distinct (and public) ‘form of knowledge’,Footnote ²² although it has not necessarily been directly regulated.

The media occupy an important position in a market economy, acting as intermediaries between producers and consumers and as a crucial element in democratic processes. In the Althusserian perspective, they are an important ideological apparatus,Footnote ²³ while through the lens of Foucault’s ideas they are seen to dictate what is perceived as truth in our societies and what constitutes deviation from what is deemed normal.Footnote ²⁴ Curran compares the media’s power and role in social integration to that of the Catholic Church in medieval Europe: they control not only the means of communication but also the institutions of mental production, that is, culture, education, rituals, and even magic.Footnote ²⁵ As such, the media are too important for states to leave their regulation to other actors, yet the EU also seeks to assert authority in media policy. With globalisation, both the EU and the Member States have found arguments (or excuses) for media policy revisions in line with their own priorities. In the case of the Member States, these can be strengthening the media industry and creating national champions.Footnote ²⁶ But there has also been a rise in authoritarian views of the media – as seen in Hungary, Poland, and other Member States, often cited as catalysts for the European Commission’s push for the EMFA.Footnote ²⁷

In today’s digital communications environment, faced with always-on, omnipresent, and multi-epistemic social communication,Footnote ²⁸ journalism has reshaped its knowledge-based practices, integrating social media as part of its resource pool. News has shifted from the domain (and control) of professional journalism. This shift contributes to the ‘erosion of shared understandings of reality’Footnote ²⁹ seen across other institutions and deepens the problems of contemporary journalism.Footnote ³⁰ As a cornerstone of democratic public discourse and an essential institution of democratic public spheres,Footnote ³¹ the media not only experience this broad epistemic turmoil but also contribute to the diminishing trust in other critical democratic institutions. In the asymmetric and propaganda-laden online media landscape, the pursuit of truth in fields such as medicine, law, science, academia, and education (and journalism) is challenged by a host of players: from those generating clickbait to extremist websites, social media algorithm manipulations, and even conventional ad-reliant media outlets.Footnote ³² This has far-reaching implications, from denying the climate emergency to societal radicalisation. With the continued expansion and wide availability of generative AI apps and deepfake software, democratic elections at Member State and EU levels face new threats, as pointed out by the European Union Agency for Cybersecurity (ENISA) in its 2023 Threat Landscape Report.Footnote ³³

7.3 The Roles of the EU and Member States

It was not until the 2018 revision of the AVMSD, after years of debate and some Member States’ reluctance to find common ground, that a clear and binding mandate was established for setting up independent national authorities to regulate audiovisual media services, along with specific requirements for their independence. In 2024, the EU’s media law framework was further expanded to explicitly address a few other areas that have historically been debated due to Member States’ primacy over media laws and policies and to reliance on self-regulation. It addresses a broad and ambitious selection of topics, such as the protection of editorial independence;Footnote ⁴³ the protection of journalistic sources;Footnote ⁴⁴ transparency of media ownership;Footnote ⁴⁵ prohibiting the use of spyware against media, journalists, and their families;Footnote ⁴⁶ the independence of public service media and their stable funding;Footnote ⁴⁷ media pluralism tests and media market concentrations;Footnote ⁴⁸ transparency of state advertising;Footnote ⁴⁹ and objectivity of audience measurement systems.Footnote ⁵⁰ It also seeks to provide safeguards against the unjustified removal of media content online and introduces a (new) right of customisation of the media offer on devices and interfaces.

7.4 Enforcement and Compliance

The implementation of the EMFA across EU Member States could face challenges due to discrepancies in the resources of NRAs. The INDIREG study, unprecedented in its scope, not only identified the key characteristics constituting an independent regulatory body in the light of the AVMSD and introduced a ranking tool of independence, but also offered extensive data illustrating the fragmentation of the audiovisual regulatory landscape.Footnote ⁶⁸ More recent data, extracted from the online database of the European Platform of Regulatory Authorities (EPRA),Footnote ⁶⁹ reveals continuing diversification across the EU as regards the staffing levels of NRAs for media, but also differences in regulatory approaches, sources of funding, and the scope of responsibilities assigned to these bodies. This puts the coherent enforcement of the EMFA across Member States at risk and may require addressing key differences in national regulatory capacities and approaches.

The EMFA mandates that countries provide their regulators with the necessary resources – staffing, expertise, financial means, and technical tools, including digital resources – to fulfil their responsibilities.Footnote ⁷⁰ It stresses that this support is also essential for their participation in the Board. However, similarly to the situation with the independence of regulators required by the AVMSD, without effective enforcement this requirement may remain merely declaratory.

7.5 Discussion of Democratic Legitimacy and Conclusion

In democratic political regimes, the state holds the public mandate to regulate the media sector, which places it at the centre of struggles over underlying concepts and meanings. Yet in an era increasingly characterised by dispersed and transnational forms of governance, attributing media policies to a single actor or regulatory instrument becomes impossible as the ever-growing array of actors now includes major global players.Footnote ⁷⁸

Decades ago, when public or state broadcasters predominantly controlled the media landscapes of Member States, the state had free rein and the final say in shaping their operation. The strengthening of the EU’s powers, first – and for a long time only – in the television sector, has occurred alongside the liberalisation and commercialisation of the television market.Footnote ⁷⁹ Today, the most prominent providers of media content are not content creators, news agencies, or film companies but digital platforms who integrate numerous media usage streams into practical ‘wholes’.Footnote ⁸⁰

The main three social categories in media policies – the state, the economy, and civil society – remain unchanged, but the circle has expanded from national to global and has brought in numerous other categories, as ‘the complexity of the public sphere in terms of arenas, styles, genres and themes has exploded’Footnote ⁸¹ and became ‘multi-layered, multi-spatial, multi-dimensional’.Footnote ⁸² While transnational governance matters, the national context still plays a significant role in shaping regulation, influenced by the political, administrative, and legal traditions of each state.Footnote ⁸³ Even in democratic countries, media policies are not implemented in a purely technical manner, by anonymous public servants, entirely based on the advice of experts and scientists, in the interest of the public, and at the initiative of a responsible government.Footnote ⁸⁴ Regardless of whether regulation is carried out by formally and de facto independent regulators, it is impossible to separate technical tasks from political decisions, as technical assessments and political choices are deeply intertwined.Footnote ⁸⁵ According to Freedman, media policy is always a site of ideological struggle and power dynamics; instead of being carried out by disinterested parties, it is deeply influenced by political, economic, and social forces.Footnote ⁸⁶

Drawing from Habermas’s theoretical framework,Footnote ⁸⁷ discussing the concept of the public sphere within the realm of the EMFA would allow us to evaluate how emerging EU law is impacting on democratic discourse and public dialogue in the digital era. The transition to a more EU-centric regulatory framework raises another level of concern about democratic legitimacy, especially when compared to regulation that exists within national public spheres. In transnational public spheres, mechanisms for translating public sentiment into political action are even less clear and functioning than in national spheres. On top of this, the enhanced role of powerful corporate entities in generating or mediating aspects of both public and private life has led to a regulated formation of will – with what Splichal calls the ‘contractual public’ being the main actor.Footnote ⁸⁸ According to him, the current prevalence of online contractual relationships substantially impedes the capacity of the public to generate public opinion as an expression of the general will.Footnote ⁸⁹ More in-depth discussion, which this topic certainly deserves, would go beyond the scope of this chapter; this calls for further scholarly exploration into how the EMFA can align with or challenge the notions of democratic legitimacy within the EU’s diverse public spheres. Despite key social processes transcending national borders and regardless of the existence of transnational bodies for regulation, democratic participation still largely occurs within states.Footnote ⁹⁰

Influencing the implementation of media policies in individual countries through peer pressure from the Board can circumvent democratic processes, which suggests that other states or the Commission may have a ‘more correct’ or better understanding of issues. It is important to note that decisions are made by a two-thirds majority vote, where each Member State has an equal vote. This opens the door for strategic interest-based coalitions among countries and even allows for decisions to be made by overpowering minority positions. Such a voting mechanism, while designed for consensus-building, raises concerns about the democratic legitimacy of such influence. Although it provides only non-binding opinions that can be taken into account by the European Commission or courts, this set-up has the power to sideline national autonomy, public discourse perspectives, and the interests of EU Member States in favour of a presumed superior understanding at the supranational level.

In the new EU model of media regulation where more polices are being implemented on the transnational level, states paradoxically remain the main translator of EU interests to media providers and to national publics. This makes them both weak and strong: it deprives them of some of their powers, but in a globalised situation it allows them influence in a different way. States (or often their industries) also have their own interests, which they may try to transfer to the entire EU through the EU’s governance models and common institutions. Moreover, in the context of ‘contractual publics’, states may possess sufficient empowerment to advocate for public interests against corporations.

In the enforcement of the EMFA, the balance struck between regulatory authority and democratic accountability will not only shape the media landscape but also reflect the EU’s capacity to foster a pluralistic, informed, and engaged public sphere in the digital era.

8.1 Introduction

The blueprint for capturing the media is from Hungary. After Fidesz, the political party led by Viktor Orbán, won two-thirds of the seats in the Hungarian parliament back in 2010, his most pressing priority was to address what he criticised as left-wing bias in the media.Footnote ¹ Within a decade, the Fidesz government had cemented its control over media regulation, public media outlets, and a raft of the country’s privately owned media. Orbán’s mission was accomplished: not only was the left-wing bias wrung out from the Hungarian media, but independent, critical journalism was also hampered and pushed to the fringes.

Media capture has undermined free media and editorial independence in several European countries during the past decade. European media have been facing a series of threats for a longer time, including concentration of ownership, politicisation of public service media, controlled media regulation, and collusion between political power and businesses. Media capture, however, poses a much larger threat as it involves the systematic takeover of a significant portion of a country’s media system by a coalition of interests that includes the ruling political party and affiliated businesses. As such, media capture significantly reduces the space for independent journalism, hurting the financial viability of independent media outlets.

Building on the results of empirical research carried out over the past twenty years, Marius Dragomir’s media capture matrix identifies four key elements of media capture: 1) control of national media regulators; 2) government control and political influence in public service media; 3) channelling of public funds to government-friendly, privately owned media (i.e., through state advertising); and 4) control of ownership of private media by state-owned companies or businesses directly or indirectly associated with the government or the political party holding power.Footnote ²

Several countries across Europe have faced growing levels of media capture, especially in Central and Eastern Europe. Among them, Hungary is a textbook case of media capture, as the government of the Fidesz party has since 2020 managed to achieve control in all four areas described here. Poland, under the PiS government, followed in Hungary’s steps, rolling out a strategy aimed at the ‘repolonization’Footnote ³ of the media by pushing out foreign owners of media assets and taking them over through businesses connected with the state. Only the 2023 change of government put a halt to these efforts. Tendencies of media capture have been documented in several other countries, including Czechia, Slovakia, and Bulgaria.Footnote ⁴

Yet the media capture phenomenon is not confined to Central and Eastern European countries. At times, public service media in various EU Member States in Western Europe have come under attack by governments.Footnote ⁵ Although the media systems in these nations are more resilient to capture than their Central and East European counterparts, mostly due to stronger journalistic communities or a longer tradition of independent journalism, the threat of capture looms large.

The literature on media capture has grown in recent years. Most of the work on this topic has thus far focused on defining the phenomenonFootnote ⁶ and studying its manifestation in various countries.Footnote ⁷ In contrast, the assessment of the impact of capture has received less attention.Footnote ⁸ Similarly, the role of the EU in preventing or combating media capture has been less analysed. This chapter aims to fill the gap in the literature by examining the role and impact of EU legal provisions in fighting capture, namely the EU-level interventions that have addressed the four elements of media capture described here.

The chapter aims to shed light on what the EU could have done differently to more effectively prevent media capture from taking root across various countries in Europe. Media regulation is the responsibility of national governments, with the EU having little room to intervene in national media-related affairs. Yet the EU should have recognised the indispensability of independent media for the functioning of democracy in Europe, especially after the two waves of EU enlargement that allowed several Eastern European nations with poor track records in media freedom to join the Union. The EU acted more forcefully to protect media freedom, using existing tools or designing new ones. Some countries lacking a healthy and independent media sector have experienced significant democratic backsliding in the past decade, which endangers European unity and also harms public accountability, especially around the spending of EU funds. Hence, the analysis in this chapter can also serve as a resource for identifying regulatory measures that could be more effective in staving off media capture in the future.

8.2 The Unbearable Lightness of Criticising the EU

Traditionally, the European Union has only limited power to regulate media. Article 6(1) of the Treaty on European Union (TEU)Footnote ⁹ incorporates the Charter of Fundamental Rights of the European Union (CFREU),Footnote ¹⁰ which requires that the freedom and pluralism of the media be respected, along with the right to freedom of expression. This right includes the freedom to hold opinions and to receive and impart information and ideas without interference by public authority, regardless of frontiers.Footnote ¹¹ According to the European Commission, media pluralism covers not only the variety of sources of information and the range of content available, but also the diversity of ownership.Footnote ¹²

However, the CFREU applies to EU institutions and Member States only if they implement EU law. Article 6(1) of the TEU determines that the endorsement of the Charter shall not extend, in any way, the competences of the Union as enshrined in its treaties. Moreover, a significant part of the media ecology is not covered at all by EU legislation. The detailed regulations accepted by the EU to cover specific areas of the internal market cover only audiovisual media services, but not online and print media, which are essential players in the overall media system.Footnote ¹³ Therefore, the EU does not have sufficient competence to regulate media pluralism and freedom in EU Member States.Footnote ¹⁴ The onus is on the authorities and courts in each EU country to protect these rights.

Because of the EU’s limited competences in relation to media, the European Commission can only criticise legal developments in Member States that are found to be in contradiction with EU law. Therefore, when the Hungarian government adopted a rather controversial new media law and media constitution in 2010,Footnote ¹⁵ even though the two acts empowered the government to greatly distort the Hungarian media system and the European Parliament had voted for a stricter resolution on the Hungarian case,Footnote ¹⁶ all that the European Commission could do was to criticise four provisions put forward by those acts that affected the internal market of audiovisual media services. Those issues included the disproportionate application of rules on balanced information, the application of fines to broadcasters legally established and authorised in other Member States, rules on the registration and authorisation of media service providers, and rules against offending individuals, minorities, or majorities.Footnote ¹⁷

The limited power of the EU in media-related matters has been exploited by various European governments in their meddling with the media. In 2011, despite requirement from the EU to adopt a series of amendments to the Hungarian Media Law and Media Constitution, the government in Budapest ignored the requests and adopted those two controversial Hungarian laws. But this was not the first time an attempt by the EU to intervene in media-related issues had not generated results.Footnote ¹⁸ Two years earlier, the European Parliament had aimed to take action against the media empire controlled by the then prime minister of Italy, Silvio Berlusconi. However, the proposals put forth in the European Parliament by various groups of MEPs did not receive enough votes to pass.Footnote ¹⁹

Notwithstanding its limited power to regulate media-related matters within EU Member States, the EU does possess the authority to enforce compliance with specific standards and regulations in countries that aspire to accede to the EU. According to the Copenhagen Criteria, the EU can require stability of institutions that ensure democracy, the rule of law, and human rights from countries seeking to join the EU.Footnote ²⁰ This is a major opportunity for the EU to push EU aspirants to comply with a set of rules that can positively influence their long-term track record in protecting media freedom.

The limitations faced by the EU in regulating the media have been criticised by media freedom NGOs across Europe. This is especially true in the context of the expansion of the media capture phenomenon, which leads to serious power imbalances in the communications and media ecosystem, ultimately harming the quality and diversity of content and media pluralism.

With media capture spreading across Europe, calls for the recalibration of the EU regulatory framework have intensified in recent years. The crises unleashed by the COVID-19 pandemic and the Russian invasion of Ukraine have deepened the vulnerabilities and structural challenges faced by the media, adding to the pressures that prompted the EU to put forward the European Media Freedom Act (EMFA), a law that was supposed to address threats to media freedom in Europe.Footnote ²¹ The preparation of the EMFA was part of a more extensive lawmaking process that comprises several major regulations that the EU has put in motion in recent years, including the revision of the Audiovisual Media Services Directive (AVMSD),Footnote ²² the renewal of the copyright directive,Footnote ²³ and more recently the Digital Services ActFootnote ²⁴ and the Digital Markets Act.Footnote ²⁵ Of those, the AVMSD (Article 30) is relevant to media capture.

Yet the effectiveness of these new regulations in combating media capture is questionable. Ensuring that national governments will comply with the EMFA’s provisions will depend on the mechanisms that are introduced to achieve that.

8.3 EU Media Policy: The Weakest Link

This section presents an analysis of what the European institutions have done, are doing, and plan to do in each of the four areas of media capture and assesses the EU’s effectiveness in combating media capture.

8.4 A Better Future for Independent Media in Europe: What the EU Can Still Do

The rise of media capture over the last decade has presented significant obstacles to media freedom and independent journalism in Europe. When the Media Constitution was adopted in Hungary in 2010, experts warned that it could have serious long-term consequences for the country’s media and journalism due to the threats it posed to the independence of media regulation and media freedom.Footnote ⁷⁰ Their warnings now appear almost prophetic. The legislation adopted at that time was only the first in a series of measures implemented by the Hungarian government that led to growing control over significant portions of the country’s media.

More than a decade later, as media capture began to spread across many European countries, the erosion of media freedom started to raise major concerns among EU institutions, prompting them to take action. EMFA,Footnote ⁷¹ accepted in April 2024, was created to address many of the threats posed by capture. Civil society organisations, experts, and journalists put much hope in this new law, calling on EU institutions to include strong legal provisions that could tackle the most serious threats to media freedom.Footnote ⁷² But how effective will the EMFA be in dismantling existing instances of media capture and preventing new ones?

First, the EMFA addresses the topic of independence of the national regulatory authorities,Footnote ⁷³ but it does so by merely reiterating the requirements for ‘adequate’ financial and human resources and appropriate competence that were already put forward by Article 30 of the AVMSD. In fact, the AVMSD has more provisions aimed at ensuring the independence of national regulatory authorities than the EMFA.

Secondly, as regards public service media, the EMFA introduces institutional guarantees for the independent functioning of public service media providers. These guarantees are focused on the appointment and dismissal of the management and governing boards of these organisations.Footnote ⁷⁴ However, despite the good intentions behind these provisions, there is no mechanism in place to assess whether the already appointed or future heads and boards of public service media organisations in certain countries not only formally meet those requirements but also genuinely act independently.

Thirdly, the EMFA tackles the problem of undue influence on the media by addressing the preferential use of state advertising. It mandates that state advertising budgets should be allocated based on transparent, objective, proportionate, and non-discriminatory criteria, as well as open, proportionate, and non-discriminatory procedures.Footnote ⁷⁵ However, where current state aid rules are not effectively implemented, as has been the case in various instances so far, there are low expectations that the new provisions will be more strictly enforced.

Finally, the EMFA addresses the issue of undue influence in the media through its provisions on market concentration and ownership transparency, specifically their impact on both media pluralism and editorial independence.Footnote ⁷⁶ The assessment of this impact must cover the ‘effects on the formation of public opinion and on the diversity of media players in the market, taking into account the online environment and the interests, links, or activities of the parties in other media or non-media businesses’.Footnote ⁷⁷

The EMFA is undoubtedly the EU’s boldest attempt at media regulation to date. While its provisions on the independence of media regulationFootnote ⁷⁸ and public service mediaFootnote ⁷⁹ are somewhat vague, reflecting provisions in existing EU law, the EMFA goes as far as any EU law can in addressing state fundingFootnote ⁸⁰ and market interference,Footnote ⁸¹ which are two key components of media capture. However, it appears that this will not be sufficient, as strong enforcement mechanisms are still lacking.

As Bayer and Cseres write, ‘the proposal for EMFA is currently based on the assumption that each Member State has a fully independent NRA [national regulatory authority] capable of effectively enforcing media law, including the EMFA’.Footnote ⁸² One might expect the new pan-European regulatory body created by the EMFA, the European Board for Media Services,Footnote ⁸³ to play that role. However, it does not. The Board is tasked with drawing up opinions that assess the impact of nationally adopted decisions on media pluralism and editorial independence in cases of media market concentration. An opinion of the Board may serve as the basis for another opinion that the Commission ‘may issue’.Footnote ⁸⁴ Yet the Board cannot impose any obligations on national regulators or Member States’ governments. ‘Its function merely involves consultation and cooperation, and its most concrete actions are the issuing of opinions’, write Bayer and Cseres.Footnote ⁸⁵

Moreover, with the role afforded to it by the EMFA, the European Commission is completely toothless: all it can do is issue opinions, organise dialogues, and conduct regular monitoring activities. ‘These proposed tools do not have the potential to make the already existing enforcement tools of EU law more effective, credible, or deterrent’, conclude Bayer and Cseres. In summary, the main problem at the heart of the EMFA is that it fails to provide ‘sufficient guidance on how, or by whom, decisions should be made’.Footnote ⁸⁶

8.5 Conclusions

Despite the EU’s reputation as a leading authority in shaping policies for the digital age, its regulations have not been effective in fighting or preventing media capture; they have not provided sufficient protection for media freedom and independent journalism. This is partly because the EU was not originally designed to serve as a second line of defence against the erosion of media freedom in Member States, hence its limited ability to compel national governments to uphold these principles. Nevertheless, the European Union possesses the necessary mechanisms, notably the rule of law, and has had the capacity to develop additional measures in order to more efficiently intervene in preventing national governments from seizing control of media outlets and misappropriating EU subsidies. Furthermore, the EU could have assumed a more stringent oversight role in monitoring instances of capture throughout Europe. That the EU has not done this is arguably because of a confluence of factors, including excessive bureaucratic procedures needed to take action against governments and internal political dynamics. That discussion is beyond the scope of this chapter; the reasons why the EU has not intervened when it could do so require further investigation.

The latest legal initiatives at EU level, particularly the EMFA, serve as a clear indication of the mounting concern among EU institutions regarding media freedom in Europe. While the provisions within the EMFA address all problematic areas that contribute to media capture, some of them could benefit from improved precision. Moreover, the responsibility for implementing those provisions is solely entrusted to national regulatory authorities, which, unfortunately, are often subject to political interference themselves and are thus used to promote the government’s interests in the media. The establishment of a pan-European body, as envisioned by the EMFA, does not guarantee the effective enforcement of any EU law at the national level.

In conclusion, the argument for implementing regulations that seek to dismantle such forms of capture, in order to foster an environment for independent and diverse media to thrive, is more compelling than ever. The EU has made little progress in addressing this issue, despite clear indications of a severe decline in media freedom within its borders. In spite of the visibly good intentions behind its latest legal initiatives, there are no indications that this situation will improve much in the foreseeable future. The EU should take bolder and more effective action by monitoring, as recommended in this chapter, the activities of the regulatory authorities and intervening in cases where it finds that their independence is compromised.

9.1 Introduction

There are several ways to rethink media law in Europe, and to consider the law as a possible means to make media policy European and shape a policy that reflects what ‘Europe is made of’. In the media field, the legal perspective is entangled with the important questions of guaranteeing freedom of expression in the European tradition: media freedom under the Article 10 framework of the European Convention on Human Rights (ECHR).Footnote ¹ This context asserts that it is the role and the responsibility of the (nation) stateFootnote ² to guarantee media freedomFootnote ³ and to live up to its positive obligation to ensure media pluralism. The European media order was built on these pillars after World War II, born in the historical moment of recovery from the war and the genuine belief in controlling the media for the sake of peace and reconciliation.Footnote ⁴

However, the structural and fundamental transformations in media content production and dissemination through the decades have risen above the level of the nation-state, and transfrontier services have become the norm. Digital content dominance has further diminished the possibilities of national-level control and jurisdiction and thus the achievement of domestic policy objectives in media control. Since then, the European legal order has struggled to relocate within global media governance and find appropriate mechanisms to ensure democratic freedoms and the necessary communicative context. Finally, the most recent shifts to privately ordered and globally exerted rule over content on digital platforms have disrupted the constellations and prospects of ‘making Europe’.Footnote ⁵

In the European Union (EU) – which pursues a distinct but essentially aligned legal order to the ECHR – the Charter of Fundamental Rights of the EU’s Article 11 framework stipulates the values and principles of media freedom, accompanied by policies on diversity and pluralism.Footnote ⁶ This policy context defines the future of media law in Europe with a mission to clarify what is ‘European’ about the media and its regulations. The enlargement of the EU offers an ideal case for identifying the sites of contestation across the Europeanisation of media governance and to envision the options for the future of the legal regime.Footnote ⁷ Studying the transfer of EU audiovisual media policy to certain EU candidate countries will highlight crucial issues about the suitability of the current legislative arrangements and their resilience for the future of the European media order.Footnote ⁸ This chapter will cover the transposition of the EU’s Audiovisual Media Services Directive (AVMSD) in Serbia and Ukraine, both candidate countries, and Georgia, a potential candidate country subject to the EU Association Agreement.Footnote ⁹

The chapter investigates the transfer arrangements in digital audiovisual media policy in the context of EU enlargement, focusing on the legal manifestation of European values and principles in the law-making process. First, it contemplates the transfer of European media policy and Europeanisation in media governance as embedded in the conditionality of legal alignment.Footnote ¹⁰ Next, with the help of a mixed-method approach – policy and legal analyses and three country case studies – the chapter maps out the critical matters for digital media policy and the junctures with Europeanisation. In-depth interviews were conducted by the author in March and April 2023 with the European Commission’s representatives for audiovisual policy and those of the national regulatory agencies of the three selected countries. Finally, conclusions will be drawn about the options for the future of media law, embodying core values such as cultural diversity, plurality, and the freedom of media services within Europe.

9.2 EU Enlargement and Europeanisation in Audiovisual Media Policy

The objectives of EU enlargement are fostering peace and stability in regions close to the EU’s borders through integration and cooperation corresponding with EU values, laws, and standards. The Treaty on European Union provides the legal basis for any European country to join the EU (Article 49) and expresses the values on which the EU is based (Article 2).Footnote ¹¹ All candidate countries must satisfy the ‘Copenhagen criteria’, which include political elements (stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities), economic elements (a functioning market economy and the capacity to cope with competition and market forces), and administrative and institutional capacity (to effectively implement the EU acquis and take on the obligations of EU membership).Footnote ¹²

The enlargement of the EU has been closely linked to the broader calls for a European public sphere and envisioned the media as a common infrastructure for creating a shared identity.Footnote ¹³ However, the EU’s limited competencies in cultural policy and the largely economic-driven agenda have restricted the options for policy transfer to European accession and member countries.Footnote ¹⁴ Thus despite the cultural–historical–societal complexity of the terrain, accession negotiations in the audiovisual media field largely came down to legislative alignment with the EU acquis. The transposition of the AVMSD (the EU’s single significant piece of audiovisual media legislation) into the national laws of accession and candidate countries became the most relevant conditionality factor.Footnote ¹⁵

Europeanisation, according to Claudio Radaelli, refers to the ‘[p]rocesses of (a) construction, (b) diffusion, and (c) institutionalisation of formal and informal rules, procedures, policy paradigms, styles, “ways of doing things” and shared beliefs and norms which are first defined and consolidated in the making of EU public policy and politics and then incorporated in the logic of domestic discourse, identities, political structures and public policies’.Footnote ¹⁶ This approach incorporates broad processes of institutionalisation and covers the political structure, public policy, identities, and the cognitive dimension of politics – all aspects with inherent relevance to the media. Moreover, ‘EU-ization’Footnote ¹⁷ and policy formation are interconnected and influenced by experiences with EU accession and enlargement.Footnote ¹⁸ This begs the question of what lessons have been learned from Europeanisation and how this has informed, perhaps shaped, EU policy.

The first EU enlargement (1998 to 2002) covering the Central and Eastern European (CEE) countries shed light on several conflicts between national cultural identities and the European media model,Footnote ¹⁹ repeated later in the Western Balkans context.Footnote ²⁰ The Europeanisation process back then was mainly concerned with countering the effects of Americanisation in the small and fragmented national markets with limited access to cross-border media distribution.Footnote ²¹ Western Europe wished to ensure the opening of new markets for their investments; thus, the CEE enlargement was a ‘battle of models’, especially about the promotion of public service broadcasters and European content in programming and the independence of public broadcasters from the state (i.e. privatisation).Footnote ²² Even though the EU enlargement agenda recognised media freedom as a political criterion, the only requirement for aspiring CEE states was to implement the Television without Frontiers (TVWF) Directive into their national legal systems.Footnote ²³ Such legalistic conditionality ensured some policy aims, such as protecting European content, despite extreme political pressure from the United States and affiliated business interests.Footnote ²⁴ However, other critical areas of media policy not covered by the TVWF Directive – the control of distribution markets and, in general, media concentration – remained mainly unresolved issues in the CEE countries that entered the EU.Footnote ²⁵

The TVWF Directive was revised in 1997 and 2007 before it was renamed and adopted as the AVMSD in 2010. Beyond in-depth analytical works comparing these legal acts, it needs to be known whether the experiences with the CEE enlargement have informed the review of the regulatory framework.Footnote ²⁶ The formal EU announcement remained silent about any feedback on media policy issues experienced during and following the CEE enlargement and missed a resonance on the difficulties of small, linguistically isolated markets, lack of independence, and the failures of transition from state to public broadcasting.Footnote ²⁷ The AVMSD established groundwork to create a level playing field for emerging audiovisual media in general, but without further specifics on what type of diversity was pursued by the policy. Similarly, safeguarding media pluralism remained mostly aspirational and an unenforceable aim in the AVMSD.Footnote ²⁸

As a novelty, the AVMSD, for the first time, introduced in 2010 the notion of independent national regulatory authorities (NRAs) in audiovisual media, aiming to address a typical and widespread policy problem across CEE. However, the national transpositions of the AVMSD remained in the de jure domain and failed to establish meaningful de facto independence of the NRAs across Europe.Footnote ²⁹ This changed with subsequent revisions to the AVMSD in 2018,Footnote ³⁰ which showed evident concern about the pervasive threats to media freedom in certain EU Member States.Footnote ³¹ Overall, the 2018 AVMSD strengthened the requirements for the independence of NRAs but there remained still a need to establish EU-level monitoring and enforcement mechanisms that could credibly discipline evident implementation failures.Footnote ³²

The 2018 AVMSD revision was on other occasions not attentive to policy tensions within the EU. The updated rules adjusted the AVMSD to changing market realities where global – primarily United-States-based – digital platforms could acquire dominant positions in European media markets.Footnote ³³ The AVMSD refit aimed to level the playing field for European media providers and expanded further into the regulation of online digital media.Footnote ³⁴ The new provisions not only extended the scope of application of the AVMSD to video-sharing platforms (VSPs) but also updated and refined the rules and procedures on the restrictions to transmitting non-linear audiovisual content online. In both cases, Member States’ NRAs are to implement norms on the most delicate issues of online content regulation while balancing national law, EU policy objectives, and international legal standards on freedom of expression.

Meanwhile, the queue of EU candidate countries – Montenegro, Serbia, Turkey, North Macedonia, Albania, Ukraine, Moldova, Bosnia and Herzegovina, and Georgia – are expected to align with the 2010 AVMSD and the 2018 update too. In the following sections, we look closely at the EU accession negotiations to see whether the AVMSD fits the purpose of passing on European values and principles on media freedom, pluralism, and diversity through the law, and how EU audiovisual media policy could (re-)integrate these values and principles for newcomers.

9.3 Lessons from EU Media Policy Transfer for EU Candidate Countries and for the Union as a Whole

EU enlargement gained dramatic momentum in 2022 when Ukraine, Moldova, and Georgia – which had been vassal states of the Soviet Union until its collapse – immediately applied for EU membershipFootnote ³⁵ in reaction to Russia’s invasion of Ukraine.Footnote ³⁶ The European Council – based on the Commission’s recommendation – urgently granted Ukraine and Moldova the status of EU candidate countries and laid out the priorities for Georgia’s candidacy.Footnote ³⁷ Similarly, the proximity of Russia’s war prompted the EU to re-evaluate the candidacies of Western Balkan countries, specifically of Serbia. Across the board, the fundamental criteria of freedom of expression, media freedom, and pluralism were communicated to the new candidate countries and re-assessed vis-à-vis those already in the process.

On behalf of the EU, there are two central contact points steering and operationalising enlargement: the Directorate-General for Neighbourhood and Enlargement Negotiations (DG NEAR) is responsible for enlargement policies, and the Directorate-General for Communications Networks, Content and Technology (DG CNECT) oversees audiovisual media and digital content policies. The representatives of both DGs regularly exchange information on candidate countries’ progress as assessed in annual reports. As was confirmed in an interview with a representative of DG CNECT, the ‘legal perspective is always considered first’ when scrutinising the readiness to accession, and the transposition of the AVMSD into national law is the focus. According to the ‘stick and carrot approach’, the law is the ‘stick’ and gaining access to the Creative Europe frameworks and accompanying EU funds is the ‘carrot’.Footnote ³⁸

In general, the interviewee highlighted that the assessment was rather formalistic. It takes as a starting point the alignment of legal definitions and the compliance with certain principles of the AVMSD, such as the country-of-origin principle. At a later stage, the implementation of European content quotas and rules on advertising is considered. When it came to the transposition of the 2018 revision of the AVMSD, the extension of the scope of regulation to online digital platforms and VSPs was considered a risk. Still, DG CNECT believes that VSP regulation should not be the ‘Wild West’: there should be rules protecting citizens, and these rules should be enforced impartially and independently. In this regard, the candidate country has to guarantee the independence of the NRA to ensure the appropriate implementation of the national law transposing the AVMSD. However, it was acknowledged that DG CNECT could only gauge the de jure provisions of independence. De facto independence and the effective functioning of the NRA are political matters and are omitted in the formalistic assessment.

These constraints exemplify the circumstances surrounding legal accession and EU media policy transfer. In the following, the selected country cases – Georgia, Serbia, and Ukraine – should illustrate the specifics of the barriers and hindrances to enlargement and their impact on Europeanisation.

9.4 Rethinking Media Law – Rethinking Europeanisation

This chapter has pointed out some crucial matters for digital media policy, the law, and junctures with Europeanisation in the context of EU enlargement. The intriguing question about how the EU has utilised the law as the vessel of Europeanisation in the accession process sheds light on the controversies of policy transfer and reveals opportunities for rethinking the law for the future of Europe.

Recently, European media law has been confronted with systemic attacks on human rights, including the freedom of expression and the traditional safeguards enabling a free and pluralistic media environment. Disinformation, foreign propaganda during a war of aggression, and intrusions in the European public sphere have paralleled the decline and erosion of trust in democratic institutions such as the news media. On the fringes of Europe, the current EU media order has faced the harsh realities of internal political influence on the media and foreign propaganda and interventions in the digital information space. On several occasions – exemplified in Georgia, Serbia, and Ukraine – it became evident that EU audiovisual policy exports did not ‘fit’ the local situation. The legal formalism of transposing EU law was also open to exploitation by ‘staging’ EU compliance.

Under Europeanisation’s current procedural and legal settings, policy transfer mechanisms from the EU have proved incomplete, and policy adaptation and reflection mechanisms have been insufficient. EU law was an overloaded vessel of transfer in the absence of accompanying resilient governance and accountability mechanisms. These transfer procedures sometimes import bad practices and ‘wicked problems’Footnote ⁹³ of media governance under the pretext of EU legal alignment. Newcomers have been exposed to EU-internal issues with non-independent and non-accountable NRAs in the politically salient media sectors of EU candidate countries, deficient and inconsistently enforced rules on media transparency and ownership, and inefficient and rigid procedures against information attacks through the media – all of which reflect decades-long, complex, and unresolved non-tame problems of European media policy. Newcomers were also without meaningful safeguards against systemic failures.

At the same time, the enlargement procedures were not designed to exploit the opportunities for providing feedback on EU media policy. No reciprocity elements were built into the accession negotiations, and there were no instances of considerations or feedback. The one-way, overwhelmingly top-down dictation of conditions completely missed the aspect of the ‘making of Europe’ and the essence of the cultural, historical, political, societal, and linguistic diversity that should form the stronghold of European integration. These settings repeated the past failures of the previous EU enlargement round in CEE. Back then, ‘the acquis (which forms the basis of every negotiation) [wa]s non-negotiable’ and the EU candidate countries could ‘at best, influence the pace, but not the content’,Footnote ⁹⁴ and this pattern seems to carry on even today. The historic call of the High-Level Group on Audiovisual Policy in 1998, for EU institutions and bodies to acknowledge (newcomer) ‘countries as partners in a joint endeavour and not merely as markets and work with them to enable them to make their contribution to common goals’, has remained unechoed.Footnote ⁹⁵

If future media law is to counter attacks on the fundamentals of the European democratic order, Europeanisation should take strength in learning and adapting to media systems at the borders of Europe, which are subject to such attacks on a large scale. The recent European Media Freedom Act is an attempt at put right the many policy failures of the past and the wicked problems of independence, ownership transparency, and media capture. It is also an opportunity to take seriously the making of Europe. ‘More Europe’, in terms of openness and mutual exchange, could bring resilience to the European dimension vis-à-vis global digital platform dominance or aggression against European values and principles. Necessarily, this would call for re-conceptualising the underlying policy processes, translating into the making of the future of Europe.