Bojana Kostić and Jennifer Adams, Pen to Paper
The European Union institutions have slowly expanded their jurisdiction to address and legislate on a number of transversal issues, most recently in media freedom and digital rights. The foundational agreements supporting the creation of the European Union (EU) established a clear division of competencies between member states and EU institutions with the adoption of the EU Charter of Fundamental Rights in 2012 and the establishment of the Court of Justice of the EU (CJEU). As a result, the EU had little power or oversight on issues of media freedom and digital rights, as these fall fully within the purview of state responsibility. However, the EU has recently specifically addressed media freedoms through a horizontal policy approach with the Media Freedom Act.
Public consultation on the EU-wide Media Freedom Act opened in January 2022. The Act emphasizes the safeguarding of media pluralism and independence in the EU internal market and is designed to address all member states and the digital ecosystem between and among them. Building on the revised Audiovisual Media Services Directive and Recommendation on the protection, safety and empowerment of journalists, the Media Freedom Act (as described in the call for consultation) addresses the following:
- transparency and independence of media ownership;
- market functioning (e.g. media innovation); and
- fair allocation of state resources.
All of these topics have traditionally been dealt with through state regulation and jurisdiction. The new act adds a horizontal layer of jurisdiction on top of this existing structure; questionable at best.
At the same time, the EU Digital Services Act package (which includes the Digital Services Act and Digital Markets Act) has set the ambitious goal of regulating the digital ecosystem across the EU, and codifying internet intermediary responsibility. Even when taken together, however, the Digital Services Act package and the Media Freedom Act will do little to dismantle existing power, especially power hoarded by social media companies.
The EU, from an outsider’s perspective, seems to be struggling to find a balance between human rights protection and economic prosperity. Especially when it comes to media, there are, and have always been, clear consequences when human rights and economic growth/stability are presented in dynamic opposition, as it leads to the inaccurate assumption that one must be sacrificed in some way for the existence of the other.
Instead these regulatory proposals mostly shift responsibility back to states that often struggle to support media freedom without interfering in media independence. In recent years, a Dutch investigative journalist was killed in the center of Amsterdam, and in October 2017 and February 2018 two prominent investigative journalists were killed in Malta and Slovakia, respectively. In several Eastern European countries, Poland and Hungary in particular, trust in and safety of those working in the media has plummeted, and economic interests and political power clearly run counter to and are prioritized over media freedom and digital rights.
And it continues. Only a few days after announcing the call for consultations, the European Commission proposed a Declaration of European rights and principles to “guide the digital transformation in the EU.” The Declaration fails to outline any sort of shared vision – even an abstract framework – for ensuring those democratic principles and human rights values are codified in the processes of digital transformation.
For example, when referring to the principle of solidarity and inclusion, the Declaration only establishes that “everyone should have access to technology that aims at uniting, and not dividing people.” While access is, of course, important, it is also a precondition for meaningful inclusion. Without tackling the range of intersectional obstacles preventing the full and meaningful engagement of all, even good faith assurances of accessibility will do little to change power dominance structures online.
In the context of digital public services, private actors (e.g. social media companies) are completely omitted, while superficial provisions (“nobody is to be asked to provide data more often than necessary when accessing and using digital public services”), create dangerous loopholes by failing to address digital extractivism and manipulation as flagrant violations of digital rights.
These documents also fall prey to language so vague that it weakens the core tenants of digital rights to the simply theoretical:
- a human-centered approach – “people at the center of digital transformation”;
- freedom of choice – everyone should be able to “benefit from the advantages of artificial intelligence” (an important side note – advantages?!);
- participation in digital public space – “very large online platforms should support free democratic debate online”,
- safety and security – the document refers primarily to cybercrime and data-breaches; and environmental sustainability – “digital solutions with positive impact on the environment and climate.”
The Declaration fails to address the surveillance-based economy model and monopoly of power on the part of digital market actors and their willingness to profit off of personal data appropriation and harvesting. The EU, even with access to expertise, advocacy and data, has proposed loose regulatory acts that could worsen the harms caused by unchecked corporate digital power.
Jennifer Adams (she/her) is a consultant/researcher and advocate on gender and media for international development. She currently runs a consultancy firm, Pen to Paper, and is the co-founder of the Comms Policy Collaborative at the University of Vienna, in charge of advocacy and incubation initiatives, recruitment for policy innovation, and grant development and management.
Bojana Kostic is a long-time advocate for media freedom with an extensive background in community-led and inclusive research, focusing on harms at the intersection of law and digital technology.