Striking the Balance Between Freedom Of Expression and National Security 

How the media freedom and digital service acts will improve media pluralism

1 December 2023

Tetyana Oleksiyuk

Future of Ukraine Fellow

The European Union is currently debating legislation that attempts to find a compromise between protecting the freedom of expression while ensuring national security and safeguarding a fundamental component of our democracies: the media.

Protecting the principle of freedom of expression and fair balance with other legitimate interests, such as national security, has always been a difficult challenge for democratic societies.

This challenge has become even more pronounced in the context of the rapidly evolving technological landscape, where influential online platforms carry significant power and influence.

Media Freedom Act

European institutions are diligently working to confront and mitigate this demanding task, evident through a series of proactive measures and policies aimed at preserving freedom of expression and media freedom in the rapidly evolving digital landscape.

The new European Media Freedom Act is aimed at strengthening the editorial freedom of media companies and protecting them from unjustified, disproportionate and discriminatory national measures while protecting the freedom of expression within the European media landscape.

The proposal covers a wide spectrum of rules in very different areas relating to the media sector, addressing a number of different risks to media freedom and media pluralism in the EU’s single market. As expected, media will also benefit from a more transparent allocation of state advertising expenditure and fair competition, as well as new safeguards concerning content removals on very large online platforms.

At the same time, the issues of protecting media freedom, counteracting disinformation and ensuring editorial independence should be discussed together with the new regulations on large platforms and social media.

The nitty-gritty

On 26 September, Sabine Verheyen (Chair of the Committee on Culture and Education {CULT} and rapporteur on the European Media Freedom Act {EMFA}) presented the draft report during the seminar on the “European Media Freedom Act and Digital Services Act: protecting media freedom in a safe online world” where she discussed the issue with Christel Schaldemose (member of the Committee on Internal Market and Consumer Protection {IMCO} and rapporteur on the Digital Services Act (DSA)).

They discussed the new obligations under the EMFA and DSA that have recently entered into force for the media and large platforms and explained how the two bills complement each other to promote media freedom and democratic participation. The focus of the discussion, as well as the report mentioned above, was on addressing the following issues:

Influence of large online platforms on media via content moderation

Social media platforms and search engines play an essential role in shaping public discourse; however, the moderation of content on these platforms raises questions about censorship, bias and the limits of acceptable speech.

So it is important to prevent arbitrary content moderation of the information shared by media by very large search engines, video-sharing platforms or social networks.

Safeguarding a free press is fundamental to democracy, but it must not be exploited as a loophole for activities that jeopardise national security or public health. It requires the implementation of transparent and well-defined legal frameworks, responsible journalism ethics and robust mechanisms for content oversight.

Editor’s pick: EU Strategic Foresight

It is crucial to uphold the principles of transparency, accountability and responsible reporting, ensuring that media freedom remains a cornerstone of democratic societies without compromising the broader safety and well-being of the public.

In this regard, it is worth mentioning the ongoing federal case US v. Google, in which, according to the prosecution, Google was accused of anti-competitive agreements with Apple and other companies to place its search engine first, while Google claims that its dominant market share is the result of a better product.

Misinformation and disinformation

Guarantees of the independence of the mass media, which consist of limiting the influence of the state, regardless of the editorship of the politician, should not be utilised for disseminating defective and dangerous information.

Combatting misinformation without infringing upon freedom of speech remains a complex challenge.

The EMFA and DSA aim to find the right balance involving constant dialogue among governments, tech companies and civil society, as well as imposing regulatory measures at the national and European levels.

At the same time, Euractive argued for even additional measures, saying that “while Parliament’s CULT committee added further safeguards against the use of spyware against journalists, many argued that these do not go far enough, as the approved text allows for the deployment of spyware by member states in certain cases that concern national security.”

Economic viability and oversight

This crucial element can aided by, for example, capping the advertising budget, making the audience measurement system more transparent and supporting national public service broadcasters.

An important issue highlighted in the CULT report is the proper funding of national public service broadcasters. In Ukraine, for example, the PSB – Suspilne Ukraine – has a very high trust rating among the population, as shown by the results of the study “Media Literacy Index of Ukrainians: 20-22” (78% of Ukrainians trust the Suspilne Ukraine and the information it disseminates).

At the same time, the Ukrainian government consistently allocates insufficient funds to the PSB, necessitating the non-governmental sector and volunteers to address its critical needs. Undoubtedly, Suspilne Ukraine stands as a crucial component of the information landscape and deserves maximal government support.

Primary attention was paid to article 17 of the EMFA, which CULT suggests to amend with the provisions aimed at ensuring editorial independence, stating that: “in order to guarantee independent and pluralistic media, it is of key importance that the necessary measures be put in place to create a safe environment that allows journalists, editors, editors-in-chief and media workers to exercise their activities. To that end, in addition to safeguarding the freedom of the media, it is necessary to protect freedom within the media.”

However, the challenge is that EMFA is currently not in line with the legal and economic framework of the media, which differs widely across the EU, so media operate in different markets and are regulated by different systems. The EMFA proposes changes to the Audiovisual Media Services Directive, introducing a new structure – the “Board” aimed to improve coordination between media regulators, self-regulation organisations and experts within the national countries and at the European level.

Moreover, there’s optimism drawn from the successful development of unified legislation concerning personal data protection in Europe, along with the existence of a supervisory body, the European Data Protection Board (EDPB).

Like the European Data Protection Board, the “EMFA Board” might be comprised of heads of authorised national institutions while its role may encompass fewer regulatory functions and lean more towards crafting recommendations and guidelines for the sector’s development.

Media Pluralism Test

The added value of the EMFA is the introduction of a media pluralism test for media mergers, listing 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 new approach is welcomed by Article 19 – a reputable organisation that defends and promotes freedom of expression and freedom of information worldwide. Article 19 underlines that the scope of the application of the media pluralism test should be broadened to cover all mergers in the media ecosystem, which can have an impact on media plurality and on the editorial independence of media and journalists.

This, however, leaves us with another critical question to consider: should the government intervene in all aspects of information sharing? A significant amount of important information is disseminated by individuals who aren’t professional journalists, such as bloggers and influential figures on social media, who fall outside the purview of regulatory documents. It’s essential to emphasise that excessive regulation is not a wise strategy, at the same self-regulatory instruments are not effective when it comes to large online platforms.

In the modern digital reality, the rise of large platforms poses new challenges for traditional media and freedom of expression, and the purpose of the new regulations is to increase the viability and independence of media as well as to avoid the negative influence of large platforms on media freedom.

The perspectives of implementation of both the European Media Freedom Act and the Digital Service Act are widely discussed and, in combination, provide a chance to boost the transparency of media ownership and safeguard outlets’ independence and pluralism within the sector.

_

This article is published as part of our Future of Ukraine Fellowship programme. Learn more about it here and consider contributing.

Tetyana Oleksiyuk

Future of Ukraine Fellow

Tetyana Oleksiyuk is a Future of Ukraine Fellow as well as a researcher, lecturer and advisor on national legislation and international standards related to access in the information sphere. Her work has significantly contributed to improving access to information legislation and administrative practices in Ukraine by collecting information from various sources. She is an active advisor to key stakeholders, including the Ombudsperson, Council of Europe, UNDP, representatives of official authorities, the Supreme Court of Ukraine, and civil society organisations.

Your Central European Intelligence

Democratic security comes at a price. What is yours?
Subscribe now for full access to expert analysis and policy debate on Central Europe.

Newsletter

Weekly updates with our latest articles and the editorial commentary.