European Media Policy Grounded in Fundamental Rights

doi:10.1017/9781009568159.005

2 - European Media Policy Grounded in Fundamental Rights

Linking the Council of Europe and the European Union

from Part I - Fundamental Rights Foundations of European Media Law and Policy

Published online by Cambridge University Press: 30 May 2026

Urška Umek and

Max Z. van Drunen

Edited by

Martin Senftleben ,

Kristina Irion ,

Tarlach McGonagle and

Joost Poort

Show author details

Martin Senftleben: Affiliation:
University of Amsterdam
Kristina Irion: Affiliation:
University of Amsterdam
Tarlach McGonagle: Affiliation:
University of Amsterdam
Joost Poort: Affiliation:
University of Amsterdam

Book contents

Summary

This chapter explores the evolving interplay between the Council of Europe (CoE) and the European Union (EU) in safeguarding fundamental rights in the context of media policy. Both organisations have a long history in media policy, and both have extensively adapted their standards to counter recent threats resulting from digitisation and democratic backsliding. In this process the EU has significantly expanded its safeguards for fundamental rights, traditionally the CoE’s main focus. This convergence raises the possibility of conflict but also that of mutual reinforcement. In this chapter we first sketch the history of increasing convergence between EU and CoE media policy and provide an overview of each institution’s recent overlapping activities. We then argue for a closer relationship between the two institutions in the context of fundamental rights in media policy, focusing on the need for consistency between their respective standards, the normative guidance CoE standards can provide to the EU, and the practical implementation of fundamental rights standards EU enforcement can ensure. We close by suggesting ways in which a mutually reinforcing relationship between the two institutions can be operationalised through closer legal and organisational ties.

Keywords

Council of Europe European Union standard-setting digitisation fundamental rights

Information

Type: Chapter
Information: The Cambridge Handbook of Media Law and Policy in Europe , pp. 61 - 82

DOI: https://doi.org/10.1017/9781009568159.005 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2026
Creative Commons: This content is Open Access and distributed under the terms of the Creative Commons Attribution licence CC-BY-NC 4.0 https://creativecommons.org/cclicenses/

2 European Media Policy Grounded in Fundamental Rights Linking the Council of Europe and the European Union

2.1 Introduction

The process of digital transformation, the accompanying problems of online disinformation and hate speech, and the decline in media freedom, all of which are widely seen as threatening democracy, have triggered responses from both main European policy-makers: the European Union (EU) and the Council of Europe (CoE).Footnote ¹ Both organisations have decades-long history in media policy and regulation. However, they have until recently followed different logics of regulatory intervention. The CoE standards are grounded in a fundamental rights-based approach, with the right to freedom of expression enshrined in the European Convention on Human Rights (ECHR) as its centrepiece. The EU has relied on its competence to regulate the internal market, focusing on the economic rather than the political and cultural dimension of the media. Recent EU initiatives, most saliently the European Media Freedom Act (EMFA), have shifted towards a more fundamental rights-oriented approach. The increasingly convergent approaches of the EU and the CoE raise questions about the interplay between the two systems and the importance of their consistency. This chapter analyses the relationship between the two frameworks and how it could benefit from strengthening. To that end, it describes how CoE and EU media rules governing (online) expression have grown to overlap; analyses why a closer relationship between the two frameworks may be required; and explores how such a relationship may be operationalised.

2.2 The Emerging Overlap between Council of Europe and European Union Rules on (Online) Expression

European media regulation and governance is marked by its complex, multileveled, multi-stakeholder, and interjurisdictional environment and a number of different, ‘formally independent but functionally interdependent actors and institutions’,Footnote ² including the EU, the CoE their respective Member States, media regulators and self-regulatory bodies, media organisations and their associations, platforms, civil society organisations, and other interest groups. It is recognised that the challenges brought about by the structural transformation of the public sphere cannot and should not be addressed by states alone.Footnote ³

In this transnational environment characterised by market disruption and democratic backsliding, two things emerge with some clarity. Firstly, the complex media architecture can benefit from international co-operation, as the scale of globalisation combined with digitisation poses regulatory challenges that cannot be successfully tackled in isolation.Footnote ⁴ Secondly, despite the CoE’s and EU’s different starting points, the dual economic and cultural/political nature of the media has proven difficult to separate from the beginning, since the regulation of one aspect often entails regulation of the second.Footnote ⁵ The 1980s development of cross-border television policy showed that while the EU Television without Frontiers (TVwF) Directive and the CoE European Convention on Transfrontier Television (ECTT) were prepared in parallel, they converged on the topics covered and, to a certain extent, on the wording.Footnote ⁶ This happened although EU policy started from common market objectives and made media services the focus of its attention, while the CoE’s approach was underpinned by the parties’ commitment to the free flow of information and the promotion of the cultural and opinion-making role of broadcasting.Footnote ⁷

The example of the TVwF Directive and the ECTT also illustrates how the relationship between two systems is influenced by the – at times diverging – political will of the respective organisations, even when their membership significantly overlaps (twenty-seven of the forty-six CoE Member States are also members of the EU). The instruments were, as mentioned, similar in substance, and the need for their modernisation was recognised around the same time. Following the substantial revision of the TVwF Directive in 2007, it was renamed the Audiovisual Media Services Directive (AVMSD)Footnote ⁸ and later codified in 2010.Footnote ⁹ This revision necessitated aligning the ECTT with the AVMSD to ensure coherence between the two instruments and provide legal certainty for both states and transfrontier broadcasters. The ECTT underwent a revision process in 2009,Footnote ¹⁰ but negotiations were discontinued after the European Commission asserted the exclusive competence of the EU in most matters covered by the ECTT and reminded EU Members States that they could not independently become parties to a revised ECTT. However, the Commission did not take a position on negotiating a revision of the ECTT on behalf of its Member States. In practice, this meant that the negotiations on the ECTT revision stalled. Subsequent discussions with CoE Member States and media regulatory authorities indicated that the ECTT continues to offer added value but would require updating to remain relevant. Despite this, a consensus has yet to emerge to undertake concrete steps towards another revision process.Footnote ¹¹

This experience underlines the important role of political will, a factor to bear in mind as overlapping efforts by the EU and the CoE in the area of media policy and regulation have intensified in recent years. EU activity in this area has increased to address changes to the media system due to democratic backsliding, platformisation, and digitisation. However, we will not focus on political considerations involved in international media regulation, but rather examine why closer relationship between CoE and EU media law might be necessary and how such an alignment could be operationalised in the future. We will start by highlighting a few of the more important recommendations and regulations to show how the hitherto separate regulatory rationales of the two organisations are converging.

2.2.1 Council of Europe

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

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

2.2.2 European Union

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

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

2.3 The Case for a Closer Relationship between the CoE and the EU in Media Law

The significant expansion of EU media law and policy, combined with the EU’s focus on safeguarding fundamental rights, creates a potential tension with the CoE standards that have traditionally governed the fundamental rights aspects of media policy on the European level. In this section we explore the need for a closer relationship between the two legal frameworks, focusing on the need for consistency, normative guidance for the new EU rules, and the practical effect of CoE standards.

2.3.1 Consistency

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

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

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

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

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

2.3.2 Normative Guidance

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

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

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

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

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

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

2.3.3 Implementation

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

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

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

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

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

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

2.4 Operationalising a Closer Relationship

2.4.1 Legal Ties

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

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

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

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

2.4.2 Organisational Ties

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

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

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

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

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

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

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

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

2.5 Conclusion

In this chapter we have explored the relationship between the CoE and the EU in media policy as the EU increasingly emphasises the need to protect fundamental rights that have traditionally been the CoE’s purview. We have argued that a closer relationship between the two is important to ensure consistency between the two legal frameworks that apply to an overlapping group of Member States. But perhaps more importantly, a closer relationship can ensure that new EU media policy is grounded in the freedom of expression principles carefully developed by the CoE over the past decades, while at the same time giving more practical effect to those principles. Achieving this, however, is no simple task. It requires that the existing legal ties between EU law and CoE standards through the Charter are recognised and expanded. It also requires the EU in particular to ensure that CoE institutions are included in the bodies that will give guidance on and concretise EU media policy in the coming decade.

Footnotes

¹ Damian Tambini, ‘Media freedom, regulation, and trust: A systemic approach to information disorder’, in Artificial Intelligence – Intelligent Politics Challenges and Opportunities for Media and Democracy (Strasbourg: Council of Europe Publishing, 2020).

² Beata Klimkiewicz, ‘Introduction. Harmonizing European media policy: Supranational regulatory trends and national responses’, in Beata Klimkiewicz (ed.), Media Freedom and Pluralism: Media Policy Challenges in the Enlarged Europe (Budapest: Central European University Press, 2013), XI–XXVI.

³ Council of Europe, Committee of Ministers, ‘Recommendation CM/Rec(2022)11 of the Committee of Ministers to Member States on Principles for Media and Communication Governance’, 6 April 2022.

⁴ OECD, OECD Best Practice Principles for Regulatory Policy (Paris: OECD Publishing, 2021).

⁵ Christina Etteldorf, ‘Why the words “but” and “however” determine the EMFA’s legal basis’, Verfassungsblog, 13 June 2023.

⁶ Council Directive 89/552/EEC of 3 October 1989 on the Coordination of Certain Provisions Laid down by Law, Regulation or Administrative Action in Member States Concerning the Pursuit of Television Broadcasting Activities, 298 OJ L § (1989); European Convention on Transfrontier Television, ETS No. 132 § (1993), https://rm.coe.int/168007b0d8; Pierre Goerens, ‘Interplay between relevant European legal instruments ECTT and TVwF Directive: Competition or complementarity?’, in Susanne Nikoltchev (ed.), Audiovisual Media Services without Frontiers: Implementing the Rules (IRIS Special, 2006), available at: https://rm.coe.int/iris-spe-2006-2-en-optim-pdf/16807834a1.

⁷ Council of Europe, Committee of Ministers, ‘Committee of Ministers Declaration on the Freedom of Expression and Information’, 29 April 1982.

⁸ Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities.

⁹ Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (Codified version).

¹⁰ A Draft second amending protocol to the European Convention on Transfrontier Television (with a consolidated version) was prepared by the Standing Committee on Transfrontier Television (T-TT) to that end, available at: https://search.coe.int/cm?i=09000016805d080 a.

¹¹ For details consult the note prepared by the CoE’s Steering Committee on Media and Information Society (CDMSI), available at: https://rm.coe.int/1680707a83 and replies to the 2017/18 questionnaire available at: https://tinyurl.com/yc2a2vuh.

¹² The recommendations can be found on the dedicated website, available at: www.coe.int/en/web/freedom-expression/committee-of-ministers-adopted-texts.

¹³ Rasmus Kleis Nielsen, ‘The worst threats to journalism come from politicians. The best defence against them is serving the public’, Reuters Institute for the Study of Journalism, 28 September, available at: https://tinyurl.com/yc45wt84.

¹⁴ The CoE Platform to promote the protection of journalism and safety of journalists is a mechanism for monitoring and addressing threats against journalists and media professionals, ranging from harassment and physical attacks to legal and political pressures. The platform is a collaboration between the organisation and a network of prominent press freedom organisations, which post alerts according to their own vetting processes and standards. Available at: https://fom.coe.int/en/accueil.

¹⁵ Council of Europe (2021), ‘State of democracy, human rights and the rule of law. A democratic renewal for Europe’, Report by the Secretary General of the Council of Europe 2021, 6 and 37–48, available at: https://rm.coe.int/annual-report-sg-2021/1680a264a2; Council of Europe (2023), ‘State of democracy, human rights and the rule of law. An invitation to recommit to the values and standards of the Council of Europe’, Report by the Secretary General of the Council of Europe 2023, 8 and 37–52, available at: https://rm.coe.int/secretary-general-report-2023/1680ab2226.

¹⁶ Council of Europe (2024), ‘Compilation of promising practices on combating hate speech at national level’, Steering Committee on Anti-Discrimination, Diversity and Inclusion (CDADI) and Steering Committee on Media and Information Society (CDMSI), study prepared by Jennifer Jackson-Preece, 6, available at: https://tinyurl.com/4cj8nntv.

¹⁷ Directive (EU) 2024/1069 of 11 April 2024 on protecting persons who engage in public participation from manifestly unfounded claims or abusive court proceedings (‘Strategic lawsuits against public participation’), OJ 2024 No. L1069; Regulation (EU) 2024/1083 of the European Parliament and of the Council of 11 April 2024 establishing a common framework for media services in the internal market and amending Directive 2010/13/EU (European Media Freedom Act), OJ 2024 No. L1083.

¹⁸ EMFA p. 1, Proposal for a Regulation of the European Parliament and of the Council establishing a common framework for media services in the internal market (European Media Freedom Act) and amending Directive 2010/13/EU, 1 citing the 2021 State of the Union Address by President von der Leyen, Strasbourg, 15 September 2021.

¹⁹ Hungary voted against all three laws in the Council and at the time of writing is contesting the validity of the EMFA before the CJEU (CJEU Hungary v. Parliament and Council, C-486/24). All other Member States voted to adopt the EMFA, the anti-SLAPP directive, and the Political Advertising Regulation, with the exception of Austria and Estonia, who abstained from the Council vote on the Political Advertising Regulation.

²⁰ Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act), OJ 2022 No. L277, Art. 34(1)(b). See also, on the freedom of expression implications of Art. 14 DSA, João Pedro Quintais, Naomi Appelman and Ronan Fahy, ‘Using terms and conditions to apply fundamental rights to content moderation’ (2023) 24(5) German Law Journal 881–911.

²¹ Kristina Irion and Peggy Valcke, ‘Cultural diversity in the digital age: EU competences, policies and regulations for diverse audiovisual and online content’ in Evangelia Psychogiopoulou (ed.), Cultural Governance and the European Union: Protecting and Promoting Cultural Diversity in Europe (London: Palgrave Macmillan, 2015); Max Z. van Drunen, Natali Helberger and Ronan Ó Fathaigh, ‘The beginning of EU political advertising law: Unifying democratic visions through the internal market’ (2022) 30(2) International Journal of Law and Information Technology 181–199 at 192.

²² Bruno De Witte, ‘Non-market values in internal market legislation’ in Niamh Nic Shuibhne (ed.), Regulating the Internal Market (Cheltenham: Edward Elgar, 2006), pp. 61–86.

²³ For an analysis of the freedom of expression implications of the EU’s AI policy, see Colin Porlezza, ‘Promoting responsible AI: A European perspective on the governance of artificial intelligence in media and journalism’ (2023) 48(3) Communications 370–394 at 380; Natali Helberger and Nicholas Diakopoulos, ‘The European AI Act and how it matters for research into AI in media and journalism’ (2023) 11(9) Digital Journalism 1751–1760 at 1753.

²⁴ Case C-401/19, Poland v. Parliament and Council [2022] ECLI:EU:C:2022:297; Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC, OJ 2019 No. L130., pp. 92–125 (2019) Art. 17.

²⁵ ‘4CT Political Advertising Regulation’, 9 May 2023, available at: https://tinyurl.com/ydkbjypx Art. 9; Regulation (EU) 2021/784 of the European Parliament and of the Council of 29 April 2021 on Addressing the Dissemination of Terrorist Content Online (Text with EEA Relevance), Pub. L. No. 32021R0784, 172 OJ L (2021), Art. 3.

²⁶ Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities, OJ 2018 No. L303/69., Art. 28(b); DSA Art. 14, 34, 35.

²⁷ DSA Art. 35(1)(a-k).

²⁸ Jean-Claude Juncker, ‘Council of Europe – European Union: “A sole ambition for the European continent”’, Parliamentary Assembly, 11 April 2006, available at: https://pace.coe.int/en/files/11264/html.

²⁹ Anna-Luise Chané et al., ‘EU engagement with other European regional organisations’, European Commission, 30 April 2016, 67. Citing a statement by L. Wildhaber, President of the European Court of Human Rights, made on 7 March 2000 before the Minister’s Deputies’ Rapporteur Group on Relations between the Council of Europe and the European Union (GR-EU). Parliamentary Assembly of the Council of Europe, Communication from Committee of Ministers, Doc 8767 – 8 June 2000.

³⁰ Memorandum of Understanding between the Council of Europe and the European Union, available at: https://rm.coe.int/16804e437b.

³¹ Chané et al., ‘EU engagement with other European regional organisations’, 35–37.

³² Para. 17 of the MoU: ‘The European Union regards the Council of Europe as the Europe-wide reference source for human rights. In this context, the relevant Council of Europe norms will be cited as a reference in European Union documents.’

³³ Chané et al., ‘EU engagement with other European regional organisations’, 31.

³⁴ In Opinion 2/94 (Accession to the ECHR [1996] ECR I-521), the CJDEU found that the EU lacked competence to accede to the ECHR, following which a such a provision was included in the Lisbon Treaty. Article 6(2) TEU requires the EU to accede to the ECHR, and on the side of CoE, Protocol No. 14 was added to the ECHR explicitly enabling the EU to accede to the Convention. In 2013 an agreement was reached on a draft accession treaty, which was however found incompatible with the EU constituent treaties by the CJDEU in its Opinion 2/13 (Accession of the European Union to the ECHR, EU:C:2014:2454). A third attempt is underway. For details see Steering Committee for Human Rights, ‘Report to the CDDH Ad Hoc Negotiation Group (“46+1”) on the accession of the European Union to the European Convention on Human Rights’, 30 March 2023, available at: https://tinyurl.com/4ebshutr.

³⁵ The EU has ratified a few other CoE conventions, namely those on gender-based violence and terrorism, medicinal products, and the welfare of farmed animals. EU institutions will have to comply with these conventions when crafting or enforcing laws in these areas, most notably the DSA provisions on platforms’ obligation to assess and mitigate the dissemination of illegal content and effects on public health and gender-based violence. For a full list of the CoE conventions the EU can ratify and has ratified, see https://tinyurl.com/ycy3ykky.

³⁶ Lorand Bartels, ‘The EU’s human rights obligations in relation to policies with extraterritorial effects’ (2014) 25(4) European Journal of International Law 1071–1091 at 1078.

³⁷ The ECtHR can review Member States’ actions when they enact EU law; in theory it may also be able to review cases against Member States collectively for acts of the EU. Koen Lenaerts, Piet Van Nuffel and Tim Corthaut, ‘Fundamental rights and general principles of Union law’, in Koen Lenaerts, Piet Van Nuffel and Tim Corthaut (eds.), EU Constitutional Law (Oxford: Oxford University Press, 2021), p. 662.

³⁸ Steven Greer, Janneke Gerards and Rose Slowe (eds.), Human Rights in the Council of Europe and the European Union: Achievements, Trends and Challenges (Cambridge: Cambridge University Press, 2018), p. 238

³⁹ An ‘explicit endorsement’ of the CJEU’s case law, in the co-authored words of its president. Koen Lenaerts and Jose A. Gutiérrez-Fons, ‘The constitutional allocation of powers and general principles of EU law’ (2010) 47(6) Common Market Law Review 1663.

⁴⁰ Case C-460/20, TU and RE v Google LLC [2022] EU:C:2022:962.

⁴¹ See e.g. Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the Protection of Persons Who Report Breaches of Union Law, 305 OJ L § (2019).

⁴² The Political Advertising regulation clarifies that its definition of ‘political actor’ includes ‘[concepts defined in] international legal instruments such as those of the Council of Europe’. 4CT Political Advertising Regulation Rec. 22.

⁴³ Phil Syrpis, ‘The relationship between primary and secondary law in the EU’ (2015) 52(2) Common Market Law Review. The case for interpreting the directives and regulations at issue in this chapter in conformity with fundamental rights is strengthened by the emphasis their recitals place on fundamental rights.

⁴⁴ EMFA Art. 4; DSA Art. 34, 35.

⁴⁵ Greer, Gerards, and Slowe, ‘Human Rights in the Council of Europe and the European Union’, 238.

⁴⁶ For example, the EU has made Hungary’s access to around €10 billion of COVID recovery funds and €22 billion of EU structural funds dependent on rule of law reforms, particularly regarding corruption and judicial independence. Laura Dubois and Marton Dunai, ‘EU approves tranche of Hungary’s frozen funds’, Financial Times, 23 November 2023, available at: www.ft.com/content/6fabd355-c8ca-4ea6-b905-8a536f8d087b.

⁴⁷ Greer, Gerards, and Slowe, ‘Human Rights in the Council of Europe and the European Union’, 70.

⁴⁸ It should be noted that critiques that the EU should not reinvent the wheel in human rights policy emerge with regularity as EU policy expands to cover new human rights. Olivier De Schutter, ‘The two Europes of human rights: The emerging division of tasks between the Council of Europe and the European Union in promoting human rights in Europe’ (2007) 14(3) Columbia Journal of European Law 509–562; Gulara Guliyeva, ‘Joining forces or reinventing the wheel? The EU and the protection of national minorities’ (2010) 17(2) International Journal on Minority and Group Rights 287–305.

⁴⁹ DSA Art. 34, 35; Council of Europe, Committee of Ministers, ‘Recommendation CM/Rec(2018)1 of the Committee of Ministers to member States on Media Pluralism and Transparency of Media Ownership’, 7 March 2018, para. 2.5; Council of Europe, Committee of Ministers, ‘Recommendation CM/Rec(2022)4 of the Committee of Ministers to member States on promoting a favourable environment for quality journalism in the digital age’, 17 March 2022, para. 2.2.1, 2.2.3.

⁵⁰ Committee of Ministers, ‘Recommendation on Media Pluralism and Transparency of Media Ownership’, Council of Europe, Committee of Ministers, ‘Recommendation CM/Rec(2018)7 of the Committee of Ministers to member States on Guidelines to Respect, Protect and Fulfil the Rights of the Child in the Digital Environment’, 4 July 2018; Council of Europe, Committee of Ministers, ‘Recommendation CM/Rec(2022)16 of the Committee of Ministers to member States on Combating Hate Speech’, 20 May 2022.

⁵¹ [Editorial note: Article 17 of the EMFA proposal became Article 18 of the adopted text.] Ronan Fahy, Theresa Seipp, and Max Z. van Drunen, ‘Defining the “media” in Europe: pitfalls of the proposed European Media Freedom Act’ (2023) 15(1) Journal of Media Law 39–51.

⁵² Joan Barata, ‘Problematic aspects of the European Media Freedom Act – Old and new’, Media@LSE (blog), 2 May 2023, available at: https://tinyurl.com/mrwa3j6u.

⁵³ EMFA Art. 24, DMA Art. 5(10).

⁵⁴ EMFA Rec. 69–70, DMA Rec. 45.

⁵⁵ Council of Europe, Committee of Ministers, ‘Recommendation CM/Rec(2022)4 of the Committee of Ministers to member States on promoting a favourable environment for quality journalism in the digital age’, 17 March 2022, sections 2.1.4 Balancing relations between online platforms and media organisations and 2.2 Dissemination of quality content.

⁵⁶ Tarlach McGonagle, ‘The Council of Europe: Ensuring the freedom and independence of Europe’s media’, in Leen d’Haenaens, Helena Sousa and Josef Trappel (eds.), Comparative Media Policy, Regulation and Governance in Europe (Bristol: Intellect, 2018), p. 243.

⁵⁷ Manole and Others v. Moldova, No. 13936/02 (ECtHR 17 September 2009) para. 102.

⁵⁸ Erika De Wet, ‘The role of European Courts in the development of a hierarchy of norms within international law: Evidence of constitutionalisation?’ (2009) 5(2) European Constitutional Law Review 284–306.

⁵⁹ In recent years, the CJEU analysed the ECtHR case law on freedom of expression in several Grand Chamber judgements, in cases C-633/22, Real Madrid Club de Fútbol, AE, v EE, Société Éditrice du Monde SA [2024] EU:C:2024:843; C-460/20, TU and RE v Google LLC; C-302/20, M. A v Autorité des marchés financiers [2022] EU:C:2022:190; C-793/19 and C-794/19, SpaceNet and Telekom Deutschland [2022] EU:C:2022:702.

⁶⁰ In its judgement of Case C-66/186, European Commission v. Hungary (Higher Education) [2020], EU:C:2020:792, the CJEU noted that the ECtHR case law links academic freedom to the right to freedom of expression protected by Art. 10 ECHR. Academic freedom encompasses not only the freedom to research, teach, and disseminate knowledge but also academics’ freedom to express opinions. Moreover, the CJEU referred to CoE’s Parliamentary Assembly Recommendation 1762 (2006) on ‘Academic Freedom and University Autonomy’, which adds an institutional and organisational dimension to the concept of academic freedom, and the UNESCO Recommendation (1997), which identifies institutional autonomy as essential for the protection of academic freedom.

⁶¹ Oana Ştefan, ‘Soft law and the enforcement of EU Law’ in András Jakab and Dimitry Kochenov (eds.), The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (Oxford: Oxford University Press, 2017), pp. 201–217.

⁶² In its judgement of Joined Cases C-924/19 and C-925/19 14, FMS and Others v Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendészeti Főigazgatóság [2020], EU:C:2020:367, the CJEU referred to Committee of Ministers’ Recommendation Rec(2003)5 on measures of detention of asylum seekers in order to define the meaning of detention (para. 218), explaining that the legal regime of detention established by Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection is based, among other things, on this Recommendation.

⁶³ In the above-mentioned Case C-66/18, Commission v Hungary, the CJEU considered the content of Recommendation 1762 (2006) of the Parliamentary Assembly on ‘Academic freedom and university autonomy’ to clarify the elements inherent in academic freedom and determine whether the disputed measures constituted limitations on that freedom.

⁶⁴ In its judgement of Case C-601/15 [2016], J. N. v. Staatssecretaris voor Veiligheid en Justitie, EU:C:2016:84, the CJEU referred, among others, to Committee of Ministers’ Recommendation Rec(2003)5 to set out the grounds for detention of asylum seekers.

⁶⁵ See Opinion of Advocate General Szpunar delivered on 20 October 2020 in the case C-673/19, M and Others, para. 55.

⁶⁶ Council of Europe, Committee of Ministers, ‘Recommendation CM/Rec(2018)1 of the Committee of Ministers to member States on media pluralism and transparency of media ownership’, 7 March 2018; Council of Europe, Committee of Ministers, ‘Recommendation CM/Rec(2012)1 of the Committee of Ministers to member States on public service media governance’, 15 February 2012.

⁶⁷ See references in previous footnote and also Council of Europe, Committee of Ministers, ‘Recommendation No. R (96) 10 of the Committee of Ministers to member States on the guarantee of the independence of public service broadcasting’, 11 September 1996.

⁶⁸ In its Grand Chamber judgement on Case C-399/11, Stefano Melloni v. Ministerio Fiscal [2013], EU:C:2013:107, the CJEU clarified that national constitutional principles must give way to the primacy, unity, and effectiveness of EU law, meaning they cannot afford a higher level of protection than that provided by EU law standards.

⁶⁹ After two unsuccessful attempts, draft accession instruments were prepared for the third time in March 2023, once again making accession a realistic prospect.

⁷⁰ European Court of Human Rights, Accession by the European Union to the European Convention on Human Rights: Answers to frequently asked questions, available at: https://tinyurl.com/3wmr29va.

⁷¹ Francisco Javier Cabrera Blázquez, The Proposal for a European Media Freedom Act (Strasbourg: European Audiovisual Observatory, 2022), pp. 38–39.

⁷² Council of Europe, Committee of Ministers, ‘CM(2014)38 Co-Operation with the European Union – Summary Report’, 2014.

⁷³ Chané et al., ‘EU engagement with other European regional organisations’, 33.

⁷⁴ European Parliament, ‘European Parliament Resolution of 18 April 2023 on the Institutional Relations between the EU and the Council of Europe’, 18 April 2023.

⁷⁵ The CoE’s Steering Committee on Media and Information Society (CDMSI), acting under the authority of the Committee of Ministers, steers the organisation’s work in the fields of freedom of expression, media, and internet governance.

⁷⁶ Jörg Polakiewicz, ‘A Council of Europe perspective on the European Union: Crucial and complex cooperation’ (2021) 5(1) Europe and the World: A Law Review 1–19 at 5.

⁷⁷ The EU Whistleblower Directive (2019/1937) makes a reference to the relevant ECtHR case law and the CM Recommendation on the Protection of Whistleblowers in its recital 31.

⁷⁸ Marina Kolb, The European Union and the Council of Europe (London: Palgrave Macmillan UK, 2013).

⁷⁹ The audiovisual media authorities of the CoE Member States meet regularly through the European Platform of Regulatory Authorities, where the Council of Europe and the Council of Europe’s European Audiovisual Observatory are permanent observing members. ‘Statutes of the European Platform of Regulatory Authorities’ (2021) Art. 3(1).

⁸⁰ EU law often offers Member States considerable leeway to determine how they enforce its provisions: see, for example, Rob Widdershoven, ‘National procedural autonomy and general EU law limits’ (2019) 12(2) Review of European Administrative Law 5–34. The EU law at issue in this article is enforced by a mix of media (EMFA) and data protection (Chapter III of the Political Advertising Regulation) authorities, or unspecified authorities that Member States must empower to enforce the EU law at issue, sometimes under a new name (particularly the Digital Services Coordinator under the DSA).

⁸¹ Evangelia Psychogiopoulou, ‘Judicial dialogue and digitalization: CJEU engagement with ECtHR case law and fundamental rights standards in the EU’ (2022) 13(2) JIPITEC 145; Gráinne de Búrca, ‘After the EU Charter of Fundamental Rights: The Court of Justice as a human rights adjudicator?’ (2013) 20(2) Maastricht Journal of European and Comparative Law 168–184.

⁸² Psychogiopoulou, ‘Judicial dialogue and digitalization’; Martin Kuijer, ‘The challenging relationship between the European Convention on Human Rights and the EU legal order: Consequences of a delayed accession’ (2020) 24(7) The International Journal of Human Rights 998–1010 at 1007; Ryuya Daidouji, ‘Inter-organizational contestation and the EU: Its ambivalent profile in human rights protection’, (2019) 57(5) JCMS: Journal of Common Market Studies 1130–1147 at 1138.

⁸³ Much of the ECtHR’s case law on digital media remains focused on the responsibilities of platform users and forum operators, or the legitimacy of blocking websites. Dirk Voorhoof, ‘Freedom of expression in the digital environment: How the European Court of Human Rights has contributed to the protection of the right to freedom of expression and information on the Internet’, in Evangelia Psychogiopoulou and Susana de la Sierra (eds.), Digital Media Governance and Supranational Courts (Cheltenham: Edward Elgar Publishing, 2022), pp. 112–137. See also Wolfgang Benedek and Matthias C. Kettemann, Freedom of Expression and the Internet, 2nd ed. (Strasbourg: Council of Europe Publishing, 2020).

⁸⁴ Niklas Eder, ‘Making systemic risk assessments work: How the DSA creates a virtuous loop to address the societal harms of content moderation’ (2024) 25(7), German Law Journal 1197–1218; Joan Barata, ‘The Digital Services Act and its impact on the right to freedom of expression: Special focus on risk mitigation obligations’ (Plataforma por la libertad de información, 2021).

⁸⁵ DSA Rec. 137; see also Suzanne Vergnolle, ‘Putting collective intelligence to the enforcement of the Digital Services Act’, 2 May 2023, available at: www.article19.org/resources/report-civil-society-enforce-eu-digital-services-act/.

⁸⁶ See e.g. Political Advertising Regulation Art. 7 and 12; EMFA Art. 12, 15, 17, 20–23.

⁸⁷ Kolb, The European Union and the Council of Europe, p. 190.

⁸⁸ EMFA Art. 17; DSA Rec. 102, Art. 44.

⁸⁹ This issue is more pronounced in other areas of digital policy, where compliance with self-regulatory standards presumes compliance with legal standards. Michael Veale and Frederik Zuiderveen Borgesius, ‘Demystifying the draft EU Artificial Intelligence Act’ (2021) 22(4) Computer Law Review International 97–112 at 104; Hans-W Micklitz, ‘The role of standards in future EU digital policy legislation: A consumer perspective’, ANEC, BEUC, July 2023.

⁹⁰ Jack M. Balkin, ‘Free speech in the algorithmic society: Big data, private governance, and new school speech regulation’ (2017) 51(3) U.C. Davis Law Review 1149; Rikke Frank Jørgensen (ed.), Human Rights in the Age of Platforms (Cambridge, MA: The MIT Press, 2019).

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