EU soft-law initiatives designed to protect media pluralism: Effective instruments or unnecessary public expenditure?

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Media pluralism, as an objective in its own right, is usually sought to be achieved through instruments that fall under the umbrella of Media Law, also referred to as Information Law, Communications Law and Information and Communication Technologies (ICT) Law.[1] At EU level, there is no Media Law as such. The Member States have traditionally been argued to be better placed to formulate media policies in accordance with their own cultural traditions and societal needs. And, while the Treaty lays down the Union’s obligation to contribute to the flowering of the cultures of the Member States (and media has generally been perceived as a facet of culture),[2] its competence in this field is limited to carrying out actions to support, coordinate or supplement the actions of the Member States.[3] Accordingly, relevant initiatives that have been undertaken by the EU in this area do not intend to substitute but only to complement national policies. This article discusses these initiatives and, more particularly, the Commission’s three-step approach towards advancing the debate on pluralism within the European Union, incentive measures under Article 167(5) TFEU, the Erasmus for Journalists program and the publishing SMEs initiative. The first two are generally directed at safeguarding media pluralism and cultural diversity respectively (though action under Article 167(5) TFEU has focused on supporting the audiovisual industry) whereas the last three are aimed at supporting specifically the publishing sector.

a. The Commission’s three-step approach towards advancing the debate on pluralism within the European Union

In January 2007, the Commission undertook an initiative in order to promote discussions on how to effectively protect media pluralism in the EU. As originally envisaged by the Commission, this initiative would comprise three stages and, for this reason, it became known as “the Commission’s three-step approach towards advancing the debate on pluralism within the European Union”. As a first step, the Commission published a Staff Working Document (SWD)[4] in which it identified the main threats that media pluralism faces in the Member States. In its SWD, the Commission placed emphasis on the control that political and economic actors try to exercise over the content provided by media outlets and highlighted that in several Member States political parties and organizations are not prevented from holding broadcasting licenses or owning newspapers and that commercial forces, being the media’s main source of funding, tend to interfere with their editorial policies in order to bolster their interests.[5] Additionally, the Commission referred to concerns that have arisen in the past, but they are still pervasive and remarkable, most notably media concentration which may limit the number of independent voices finding expression within the media universe.[6] It also pointed out challenges posed by new media service providers, for instance, the manipulation by search engines of the search results they produce and their practices to guide the consumers to their advertisers’ sites.[7] After stating that it would not be appropriate to propose the adoption of a legislative instrument on pluralism,[8] and while acknowledging that a number of relevant studies had already been elaborated, the Commission noted that no research initiative had been undertaken with the objective to identify a range of parameters that could serve as a basis to measure media pluralism in the Member States.[9]

This conclusion led the Commission to procure an independent study aimed at developing a tool for assessing media pluralism in a given media landscape. [10] The outcome of this study (second step of the Commission’s three-step approach), which was published in July 2009,[11] is the Media Pluralism Monitor that was designed as a diagnostic tool for understanding risks to media pluralism.[12] The Media Pluralism Monitor is based on a wide variety of indicators, 166 to be exact,[13] covering a range of legal, economic and socio-cultural dimensions in domains that are relevant to media pluralism, for instance, media ownership and control and media types and genres.[14] The implementation of the tool requires thorough research of the particularities of a media environment that in certain cases is easy to conduct (e.g. the existence of regulatory safeguards against high concentration in the various media industries) whereas in other cases more complex analyses are required (e.g. the level of influence that bloggers exercise on public debate).[15] In the final stage of implementation, and after this data has been collected and processed, the Monitor may indicate a high risk, a moderate risk or a low risk for media pluralism in the Member State concerned.[16]

Undoubtedly, this study sets basis for a more original approach towards media pluralism. As the Commission itself noted in its SWD, no previous study had been carried out with the objective to produce an instrument that policymakers could use to assess whether media pluralism is at stake.[17] Furthermore, as previously mentioned, the Monitor is a diagnostic and not a prescriptive tool, meaning that it does not suggest which actions should be taken by the policymakers in order to address specific risk profiles. This has three clear advantages. First, the media environments across Europe are so heterogeneous that a one-size-fits-all approach is not appropriate. For instance, in small countries where it is not possible for the advertising markets to sustain more than a few media service providers, a higher level of concentration, in other words a lower level of supply diversity, may be tolerated and policies could focus on securing content diversity, i.e. diversity within media organizations. Second, by providing the Member States with the means to control whether media pluralism is in danger instead of proposing certain courses of action that they need to follow, the Commission does not exceed the competence limits that do not allow it to harmonize national policies in this field. Finally, the approach that the study follows is more holistic in that the Monitor is not limited to identifying indicators that measure what the market provides. The study adopts a broad definition of media pluralism, which correctly includes exposure diversity, i.e. the variety of sources and content to which the citizens are exposed.[18] Accordingly, the Monitor includes indicators on the basis of which exposure diversity can be measured, for instance, whether citizen activity in online media is sufficient.[19] In that regard, the study goes a significant step forward.

Nevertheless, this effort has several shortcomings that need to be pointed out. The first one relates to the broad definition of pluralism to which I have just referred. While from a theoretical perspective this definition undoubtedly encompasses all key elements of media pluralism, it has resulted in a wide set of 166 indicators which has been argued to be “too complicated to be applicable in a policymaking context”.[20] Indeed, the Monitor requires the collection of a significant amount of data and therefore considerable workforce and funds. This raises several practical questions as to its implementation that cannot be ignored. For instance, even if media regulators are willing to conduct the research that is involved, is the implementation of the tool a public expenditure priority, especially considering the current economic recession that has dictated significant budgetary cuts in the public sector?

Another important drawback is that the study does not deal with content quality standards on the grounds that there is no scientifically agreed definition that could serve as a basis for devising a group of relevant indicators.[21] However, the quality of the content provided by the various media outlets is key to answering whether a media environment is diverse or not[22] and therefore whether action to enhance media pluralism is further needed. For instance, the study identifies as a risk to pluralism the insufficient media representation of the Member State’s culture. The indicator to measure this risk is the existence of regulatory safeguards for national works in television broadcasting,[23] but not the quality criteria that these national works have to fulfill for the Member State’s cultural exposure to be considered sufficient. This means that if, for instance, several domestic “Big Brother” type of programs are broadcast because a national media act lays down the obligation to transmit national works, the tool would not detect any threat to pluralism.

Furthermore, the study contains several fuzzy indicators that make it difficult to define whether the risk under consideration has been materialized or not. For instance, the study identifies as a threat to pluralism the insufficient independent supervision of media organizations and as the key indicator the existence of regulatory safeguards for the independence and efficiency of the competent media authority.[24] Yet, the study does not define the conditions that need to be fulfilled for a media authority to be considered efficient,[25] for instance, whether the regulator needs to be subject to scrutiny by external auditors (or other public watchdogs) or whether it must provide for effective arrangements for appealing against the agency’s decisions.[26]

The most important drawback of the Monitor, however, is not related to methodological lacunae that should have been filled when the Monitor was being devised. As previously mentioned, the objective of the study was to provide the Member States with an instrument that would enable them to assess relevant threats with the matter of how to effectively protect media pluralism being “ultimately left to the discretion of Member States and their authorities who, in defining their nation’s risk appetite, are free to consider market-based, as well as regulatory, approaches to diversity”.[27] The fact that the Media Pluralism Monitor has not been implemented yet[28] illustrates the potential that an initiative of this kind may have. For this reason, it is justifiably argued that the Monitor is not likely to bring a change to the current media policy-making across the EU, at least in the near future.[29]

The final stage of the Commission’s three-step approach would be the adoption of a Communication whose objective would consist in recommending the use of the Monitor by all interested stakeholders in order to facilitate the EU institutions, NGOs and citizens to engage in dialogues with the Member States on competence-building and other remedies.[30] This Communication was expected after the study was published, however, more than three years after the group of experts submitted its findings, no relevant action has been taken yet. The Commission has not explained why its approach towards advancing the debate on pluralism has become from three- to two-step, but the fact that the Member States have not implemented the Monitor is indicative of their willingness to explore avenues that would lead to further “competence-building”, a goal that the Commission was hoping to achieve with the adoption of a Communication in this field.

  1. b. Incentive measures under Art. 167(5) TFEU

Article 167(1) TFEU lays down the Union’s obligation to contribute to the flowering of the cultures of the Member States. In that regard, the EU institutions must respect both national and regional diversity and, at the same time, bring the common cultural heritage to the fore. And, while excluding the adoption of any measures harmonizing the Member States’ cultural policies, Article 167(5) TFEU establishes the European Parliament and the Council’s duty to adopt incentive measures that support the fulfillment of this objective. This provision does not establish an explicit link between cultural diversity and media pluralism, the former being related to the preservation of national cultural identities in general.[31] Yet, pluralism, along other values such as multilingualism and equal access to art, has long been acknowledged as contributing to the flourishing of the cultures and their dissemination.[32] This provision may therefore serve as a basis to adopt EU measures that promote media pluralism, for instance, the granting of funds to local newspapers and radio stations.[33] It may also be argued that, after the Lisbon Treaty entered into force, both the measures adopted and the amount of monies dispersed under Article 167(5) TFEU thus far may increase, as the European Parliament, the institution that has engaged more than any other EU institution in the promotion of supranational pluralism-friendly initiatives, is involved in the relevant decision-making.[34]

The most widely known incentive measure that has been adopted under Article 167(5) TFEU is the MEDIA program that has been running since 1991 and is aimed at supporting the European audiovisual industry.[35] Its main objectives are to contribute to the creation of a strong European audiovisual sector reflecting Europe’s cultural richness and strengthen its competitiveness by enabling audiovisual professionals to get access to funding.[36] Despite these aspirations, however, financing under the MEDIA program has been rather limited. For instance, its latest edition, the MEDIA 2007 program (covering the 2007-2013 period) has a budget of €755 million[37] that is intended to cover professional training, development of production projects and companies, distribution and promotion of cinematographic works and audiovisual programs, including the support for film festivals and pilot projects whose development is based on the use of new information and communication technologies (!).[38] The fact that financial support under Article 167(5) TFEU has not been sufficient to meet these objectives has been pointed out recently by the EU Media Futures Forum,[39] which was established by the current Commissioner responsible for Communication Networks, Content and Technology, Neelie Kroes, in order to identify the challenges that the European media industries face in light of the digital revolution.[40]

On the basis of the above, some conclusions can be drawn as regards action taken thus far under Article 167(5) TFEU and its adequacy to advance media pluralism across the Union. First, the MEDIA program, in both its current and previous versions, has been directed at supporting the audiovisual industry with other media sectors, for instance, publishing and radio broadcasting, having abundantly been ignored; the focus of the MEDIA 2007 program on digital services sufficiently proves that this orientation is not likely to change.[41] Additionally, considering the financial crisis that the Member States are currently facing, it is unlikely that the EU institutions will decide to increase the amount of monies dispersed for the development of cultural diversity initiatives either through the adoption of new incentive measures in general or through the MEDIA program in particular instead of allocating this part of the EU budget to other projects that, under the present circumstances, are of a higher priority. Finally, even if a larger budget were to be allocated, it must always be borne in mind that measures under Article 167(5) TFEU are only complementary in nature: For instance, financing independent film-makers to enable them to market their work at the Cannes festival facilitates the exposure of original work but is simply not enough to effectively protect pluralism.

c. The Erasmus for Journalists Program

In 2009, the European Parliament proposed a preparatory action for a new program provisionally called “Erasmus for Journalists” the underlying rationale of which is that enabling journalists to get acquainted with how journalism is practiced in other Member States would be an effective way to promote media pluralism throughout the EU.[42] Following this proposal, the Commission conducted a feasibility study to explore its potential. First, it is noted that it is still not known whether this program is going to be implemented; the second part of the Commission’s feasibility study was finalized in March 2011 and no further action has been taken since.[43] Therefore, should the decision to run the program finally be made, it will take time to produce -if it proves to be successful- the desired results. Second, the program may in theory foster media pluralism as facilitating journalists to explore the political, economic and social situation in other Member States and to report on it may lead to a broader coverage of other Member States’ affairs in the national media.[44] However, there are several factors that may render such an initiative unsuccessful, for instance, excessive bureaucratic requirements set by the hosting Member State that could make participation in the program too burdensome, the participants’ foreign language skills, which in many cases will not be sufficient to allow them to work as fully qualified journalists in other Member States, and an excessive interest in large, prestigious media outlets which would result in an imbalanced coverage of the Member States’ affairs.[45] In addition to the above, both journalists and the media organizations that employ them may be unwilling to participate in the program. In the context of the current economic recession that has dictated workforce reduction as a response to significant advertising cuts,[46] it is unlikely that a journalist in Greece will (even temporarily) leave the position he holds in a newspaper to get acquainted with journalistic practices in Slovakia.

d. European publishing SMEs

Small and medium sized companies represent more than 90% of the companies of the publishing sector, including the press and other print media such as magazines and books. Yet, as the Commission itself notes, publishing SMEs are not important only in economic terms as, by promoting the diversity of published works and therefore by ensuring access to a wider array of viewpoints, they also contribute to the protection of media pluralism within the European Union.[47] This specific mission that the sector delivers has made the Commission reflect on the challenges that it has been facing over the past few years: Developments that have dramatically changed business models as well as traditional consumption habits insofar as printed publishing products are concerned, for instance, the increasing use of the Internet and the rapid evolution of free-sheet press threat “the very existence of some titles”.[48] Taking the above into consideration, the European Commission launched, in 2009, a public consultation on publishing SMEs covering a range of topics such as market access and regulation, access to finance and language-related issues.[49] Nevertheless, no further action followed the results of the consultation, for instance, the adoption of a Communication in which the Commission could lay down what types of sector-specific initiatives could be undertaken by the Member States or the Union itself in order to secure a vibrant publishing single market.

The above analysis clearly demonstrates that most of the initiatives undertaken by the EU with the aim to advance media pluralism under cultural justifications did not have a happy ending. More than three years after the Independent Study on media pluralism was published, the Member States have not implemented the Media Pluralism Monitor and have showed no signs of willingness to implement it in the future. The Erasmus for Journalists Program and the Publishing SMEs initiative still have not been and are unlikely to be put into practice, as, over the past years, the Commission has taken no further action to execute them. The incentive measures under Article 167(5) TFEU may in principle enhance pluralism provided that more monies are dispersed and more focus is placed on troubled industries (e.g. local newspapers). However, it should always be borne in mind that, pursuant to Article 6 TFEU, such measures may merely complement national cultural policies. These remarks lead to the conclusion that the initiatives that were discussed above have a rather limited potential to create an effective framework for the preservation of media pluralism across the EU.


[1] For an overview of relevant instruments adopted by the Member States see, for instance, the MEDIADEM background information report on media policies and regulatory practices in a selected set of European countries, the EU and the Council of Europe 2010, available at: http://www.mediadem.eliamep.gr/wp-content/uploads/2010/05/BIR.pdf

[2] Treaty on the Functioning of the European Union, Article 167(1)

[3] Ibid., Article 6

[4] Commission Staff Working Document on media pluralism in the Member States of the European Union, SEC (2007) 32

[5] Ibid., p. 6

[6] Ibid., p. 7

[7] Ibid., p. 16

[8] Ibid., p. 4

[9] Ibid., p. 17

[10] http://ec.europa.eu/information_society/media_taskforce/pluralism/study/index_en.htm, p. 3

[11] The Commission originally planned to have the research results in 2007. See Commission Staff Working Document on media pluralism in the Member States of the European Union, p. 19

[12] Independent study on indicators for media pluralism in the Member States: Towards a risk-based approach 2009, ix. The study is available at:

http://ec.europa.eu/information_society/media_taskforce/doc/pluralism/study/final_report_09.pdf

[13] Ibid., 92

[14] Ibid., ix

[15] An Excel file containing the indicators embedded in a risk-based scoring system may be found here: http://ec.europa.eu/information_society/media_taskforce/pluralism/study/index_en.htm For more details on how the tool is implemented see its user guide at:

http://ec.europa.eu/information_society/media_taskforce/doc/pluralism/study/user_guide_09.pdf

[16] Independent study on indicators for media pluralism in the Member States: Towards a risk-based approach 2009, 109

[17] Commission Staff Working Document on media pluralism in the Member States of the European Union, p. 16

[18] The Independent Study, (see p. 5) understands media pluralism to mean: “the diversity of media supply, use and distribution, in relation to 1) ownership and control, 2) media types and genres, 3) political viewpoints, 4) cultural expressions and 5) local and regional interests. Indicators look at both active and passive access to the media, of the various cultural, political and geographic groups in society”

[19] Ibid., p. 106

[20] Morisi 2012, 6

[21] http://wordpress.karstens.eu/media-pluralism-monitor-unveiled/

[22] The Study itself acknowledges that in mature democracies, media pluralism encompasses content dimensions. See, p. ix

[23] Ibid., p. 95

[24] Ibid., p. 93

[25] http://wordpress.karstens.eu/media-pluralism-monitor-unveiled/

[26] INDIREG, Indicators for independence and efficient functioning of audiovisual media services regulatory bodies for the purpose of enforcing the rules in the AVMS Directive” 2011, 26

[27] Independent Study on Indicators for Media Pluralism in the Member States: Towards a Risk-based Approach 2009, ix

[28] See Valcke 2011, 212; Wauters et al. 2012, 25, available at:

https://lirias.kuleuven.be/bitstream/123456789/350783/1/EMSOC_ICRI_D+1+2+2_2012.pdf and Question for written answer to the Commission Rule 117 Rui Tavares (Verts/ALE), Helga Trüpel (Verts/ALE), Niccolò Rinaldi (ALDE), Miguel Portas (GUE/NGL), Patrick Le Hyaric (GUE/NGL) and Alexander Alvaro (ALDE), available at:

http://www.europarl.europa.eu/sides/getDoc.do?type=WQ&reference=E-2011-009281&language=EN

Only the Italian regulator AGCOM conducted a voluntary test. However, AGCOM did not implement the tool to reach a conclusion on the risks for media pluralism in the Italian media landscape. It merely conducted an analysis of how it would implement the tool and discussed methodological gaps that the study left open. For more details, see CAPPELLO Maja (AGCOM), “Testing the Media Pluralism Monitor” 30th EPRA meeting, Dresden, October 2009, http://www.epra.org/attachments/712

[29] Karpinnen 2010, 151

[30] Commission Staff Working Document on media pluralism in the Member States of the European Union, p. 19

[31] Raboy 2007; Mansell 2005

[32] See, for instance, UNESCO Universal Declaration on Cultural Diversity of 2 November 2011, Article 6, available at:

http://portal.unesco.org/en/ev.php-URL_ID=13179&URL_DO=DO_TOPIC&URL_SECTION=201.html

[33] Craufurd-Smith 2004, 668

[34] The procedure for the adoption of incentive measures under the Lisbon Treaty goes as follows: “In order to contribute to the achievement of the objectives referred to in this Article: the European Parliament and the Council acting in accordance with the ordinary legislative procedure and after consulting the Committee of the Regions, shall adopt incentive measures, excluding any harmonization of the laws and regulations of the Member States”. The EC Treaty (Article 151) however, laid down: “In order to contribute to the achievement of the objectives referred to in this Article, the Council: acting in accordance with the procedure referred to in Article 251 and after consulting the Committee of the Regions, shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States”

[35] http://ec.europa.eu/culture/media/index_en.htm

[36] http://ec.europa.eu/culture/media/programme/overview/index_en.htm

[37] Ibid.

[38] Ibid.

[39] http://ec.europa.eu/information_society/media_taskforce/doc/pluralism/forum/exec_sum.pdf point 4, p. 5

[40] http://ec.europa.eu/information_society/media_taskforce/pluralism/forum/index_en.htm

[41] Decision No 1718/2006/EC of the European Parliament and of the Council of 15 November 2006 concerning the implementation of a program of support for the European audiovisual sector (MEDIA 2007), Recital (8)

[42] http://ec.europa.eu/information_society/media_taskforce/mobility/index_en.htm

[43] Ibid.

[44] Feasibility Study for the preparatory action “Erasmus for Journalists”, p. 65, available at: http://ec.europa.eu/information_society/media_taskforce/doc/mobility/erjo_part1_report.pdf

[45] Ibid., pp. 94-96

[46] For the effects of the financial crisis on the media see the relevant study conducted by Open Society, available at: http://www.soros.org/reports/footprint-financial-crisis-media

[47] European Commission, Press Release IP/09/525, available at: http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/525&format=HTML&aged=0&language=EN&guiLanguage=en For the economic importance of the sector see also the relevant Eurostat figures, available at: http://epp.eurostat.ec.europa.eu/cache/ITY_OFFPUB/KS-SF-10-004/EN/KS-SF-10-004-EN.PDF

[48] http://ec.europa.eu/information_society/media_taskforce/smes/index_en.htm

[49] http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/525&format=HTML&aged=0&language=EN&guiLanguage=en

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