‘Media pluralism test’ in European Media Freedom Act must achieve what it is set out to do

The inclusion of a ‘media pluralism test’ is a very welcome innovation in the proposal for a European Media Freedom Act, but to succeed, some changes at the Board level are needed, write Karim Ibourki and Mark Dempsey.

Karim Ibourki is a board member of the European Regulators Group for Audiovisual Media Services (ERGA) and president of the Conseil supérieur de l’Audiovisuel. Mark Dempsey is a senior EU advocacy officer at the free speech organisation ARTICLE 19.

In September 2022, the European Commission took an important step towards safeguarding media independence and pluralism in the European Union by proposing a Media Freedom Act (EMFA). Heralded as the first of its kind, it is a regulation which provides “common safeguards to protect media freedom and pluralism in the EU”. The EMFA presents a unique opportunity to address many of the mounting challenges faced by the media across the EU – from threats to editorial independence to media capture by powerful political and economic interests.

In recent years, the concentration of media ownership has been an increasing problem across many countries of the EU. Without proper supervision to guarantee editorial independence and media freedom, concentration presents a serious challenge for media plurality and independence: as the number of diverse and independent outlets decreases, media capture becomes more likely.

Uniting the free speech organisation ARTICLE 19 and Karim Ibourki, Board Member of the European Regulators’ Group for Audiovisual Media Services (ERGA) and President of the Conseil supérieur de l’Audiovisuel  is a shared interest to ensure the best possible outcome of the current negotiations with regards to the media pluralism test for media mergers, one of the main novelties of the EMFA. The concentration of economic power in the hands of a small number of players has already proven dangerous for freedom of expression and media freedom in several countries in the EU. At it currently stands, national rules that govern media mergers vary greatly. About half of the EU member states do not consider the public interest element in their assessment of mergers, and only a handful of those refer specifically to media plurality. This fragmentation harms the internal market, the business models of media outlets and EU citizens. Article 21 of the EMFA aims to change this. The introduction of a media pluralism test for media mergers lists three criteria that must be used in the assessment: the effects of the merger on the formation of public opinion and on the diversity of media players, the extent to which safeguards for editorial independence are in place and whether there are alternative avenues available to guarantee the economic sustainability of the entities involved.

The media pluralism test is a welcome and much-needed move; it acknowledges the fundamental role that diversity, independence and sustainability of the media play in a functioning democracy. It will increase the legal certainty for economic operators and create a level playing field across member states. Most importantly, it will allow citizens to benefit from access to similar quality media services, regardless of where they are in the EU, ensuring that even in smaller and less resilient media markets, the diversity and plurality of media will be the fundamental objectives that the regulators will have to consider.

An essential role for the European Board of Media Services

Article 21 is up for discussion in the inter-institutional negotiations (‘trilogues’) at the end of November, and we believe that there is room for some improvements. For example, we call for increased independence of the European Board of Media Services (‘the Board’), the successor body of ERGA. The Board must be able to issue opinions on mergers that may significantly affect media pluralism and editorial independence on its own initiative and not only upon request of the European Commission, as the current proposal states. This is vital to ensure the full independence of the Board and maintain its credibility as a body acting in the interest of the EU internal market.

The Board will have several important roles, not least to produce guidelines to ensure the three criteria outlined in Article 21 are well understood and applied consistently across borders. It will be crucial that the guidance is clear in instances of conflicts between the criteria when not all can be achieved at once.

We sincerely hope that the EMFA is concluded before the end of this current legislative term and recognise that the media pluralism test will take time to ‘bed in’. Some level of experimentation and learning will be required, but working together with independent national regulatory authorities, it is paramount that transparency is a key characteristic in what will be initially a novel exercise.

Lastly, it is important that the future European Board for Media Services is provided sufficient resources and an effective independence to properly fulfil its new duties under the EMFA. In this context, the consultations with civil society organisations like ARTICLE 19 and others will be relevant and highly valued for its members.