The EU has ambitious plans to safeguard journalism and media freedom through a range of new acts and recommendations. As ever, it is the tricky issue of enforcement that will determine whether there is a bridge or a chasm between rhetoric and reality.
Safeguarding media freedom
Historically, news media have played a central, if imperfect, role in democracy by informing the public while holding the powerful to account. To fulfil that role, news media must be able to operate free from threats or undue influence. As indicated by the Digital News Report, Irish confidence in the news media’s independence from political and commercial influence is greater than the EU average; although, notably, a third of Irish news consumers have no opinion on this crucial matter.
In its annual review of media freedom, Reporters Without Borders highlighted the (longstanding) issues that threaten media freedom in Ireland including: the concentration of media ownership, the failure of successive governments to reform the 2009 Defamation Act, and the financial precarity facing media outlets. The EU-wide picture is characterised by the continued erosion of media freedom with increased government control over media, the murder and intimidation of journalists, and growing public hostility towards media.
To counteract these trends, EU institutions will implement a suite of new acts and recommendations including the European Media Freedom Act and the Recommendation on Safety of Journalists. At the same time, the EU is updating the rules that govern how tech companies operate within the region through the revised Audiovisual Media Services Directive, the Digital Services Act, and the Digital Markets Act. It is a busy time for media policymakers. To complicate matters, Ireland is updating the Broadcasting Act with an Online Safety and Media Regulation Bill, which will establish a new media regulator. Ultimately, this new structure will have to be updated as new EU rules and frameworks are adopted.
Proposed rules and frameworks
The European Media Freedom Act has the ambitious goal of safeguarding the pluralism and independence of the media in the EU’s internal market. A first draft is expected in Autumn 2022. However, current proposals have been criticised for their narrow focus on the economic dimension of media and the EU’s single market. For example, the Act is expected to harmonise internal market rules by establishing an EU-wide framework for direct and indirect State support to the media sector. However, as the NGO Article19 argues, focusing solely on the economic market fails to address the role of independent journalism as a public good that needs protection in its own right. This is an important criticism considering that it is questionable whether the free market can sustain a plurality of independent media. Afterall, the digital market is tipped in favour of tech companies which have captured the audience and the advertising market.
More concrete proposals for action stem from the Recommendation on “the protection, safety and empowerment of journalists”. It called on Member States to address a wide range of issues including access to information, protections for female and minority journalists, and the threat of spurious legal cases or SLAPPs (strategic lawsuits against public participation). SLAPPs aim “not to succeed in court, but to drain their targets of money, time, and energy in an effort to discourage them from reporting further on a particular person or issue”. When investigative journalist Daphne Caruana Galizia was murdered in 2017, she faced more than 40 defamation cases in her native Malta and the threat of libel action in the UK. The latter is an example of “defamation tourism”, which the EU hopes to challenge by asking national courts to dismiss crossborder defamation cases that lack substance.
The EU rules will apply to cross-border cases only, but governments are advised to provide safeguards against SLAPPs in national law. Within Europe, Ireland is highly unusual in hearing defamation cases before a jury, which tends to result in incredibly large awards. Such large pay-outs have been criticised for their potential chilling effect on media reporting and the incentivisation of SLAPPs. The Minister for Justice recently commissioned a major review of Ireland’s defamation laws, which called for the removal of juries in defamation cases.
Beyond news media, the EU is implementing new frameworks for tech companies through the Digital Services Act and Digital Markets Act. These acts will establish standards for how online platforms operate across a range of areas including content moderation and competitive practices. Tech companies will need to participate in independent audits to assess the systemic risks of their practices while providing regulators and third-party researchers with much-needed access to data. If the tech companies fail to meet their obligations, financial penalties (up to 6% of global revenue) will apply. These proposals will need to be voted into law and are unlikely to be enforced across the EU until 2024 at the earliest.
In the meantime, individual states must implement the appropriate structures and roles including a Digital Services Coordinator to oversee the compliance of the online platforms established in the state. Ireland’s Online Safety and Media Regulation Bill will likely need to be updated to reflect the requirements of new EU rules.
From an Irish perspective, one of the most notable features of the new EU packages is the move away from the country-of-origin principle. Under that principle, a company offering services across the EU is subject to laws and regulations in the country in which it is based or headquartered. Consequently, when it comes to data protection, Ireland is the lead regulator for Google, Meta, Microsoft, and other companies that have their European headquarters here. Few argue that Ireland has managed this responsibility well.
The European Commission has stepped in to prevent Ireland becoming the primary regulator for the Digital Services Act. The Commission itself will perform that role. As Johnny Ryan, a senior fellow at the Irish Council for Civil Liberties observes, Ireland had “the chance to become the key location for digital regulation, which would make us a central player in the world’s digital economy … [but]the EU clearly regards Ireland as having failed in its role as the primary regulator”. For its part, it remains to be seen whether the Commission’s enforcement will live up to the promise of a new era for tech accountability and user protections and whether calls to protect media freedom will have the desired effect of shoring up European democracies.
Eileen Culloty is an Assistant Professor in the School of Communications at DCU.
This essay originally appeared as part of the 2022 Digital News Report Ireland. The full report can be accessed Here.