DIRECTORATE GENERAL FOR INTERNAL POLICIES POLICY DEPARTMENT C: CITIZENS' RIGHTS AND CONSTITUTIONAL AFFAIRS CIVIL LIBERTIES, JUSTICE AND HOME AFFAIRS A comparative analysis of media freedom and pluralism in the EU Member States STUDY Abstract This study was commissioned by the European Parliament's Policy Department for Citizens' Rights and Constitutional Affairs at the request of the LIBE Committee. The authors argue that democratic processes in several EU countries are suffering from systemic failure, with the result that the basic conditions of media pluralism are not present, and, at the same time, that the distortion in media pluralism is hampering the proper functioning of democracy. The study offers a new approach to strengthening media freedom and pluralism, bearing in mind the different political and social systems of the Member States. The authors propose concrete, enforceable and systematic actions to correct the deficiencies found. PE 571.376 EN ABOUT THE PUBLICATION This research paper was requested by the European Parliament's Committee on Civil Liberties, Justice and Home Affairs (LIBE) and commissioned, overseen and published by the Policy Department for Citizens' Rights and Constitutional Affairs. Policy Departments provide independent expertise, both in-house and external, to support EP committees and other parliamentary bodies in shaping legislation and exercising democratic scrutiny over EU external and internal policies. To contact the Policy Department for Citizens' Rights and Constitutional Affairs or to subscribe to its newsletter please write to: [email protected] Research Administrator Responsible Sarah SY Policy Department C - Citizens' Rights and Constitutional Affairs European Parliament B-1047 Brussels E-mail: [email protected] AUTHOR(S) Petra BÁRD, Visiting Professor, Legal Studies Department, Central European University (CEU), Budapest, Hungary Judit BAYER, Professor, Law School, Department for Media and Information Law, University of Miskolc, Hungary Sergio CARRERA, Centre for European Policy Studies (CEPS), Brussels, Belgium NATIONAL EXPERTS BULGARIA: Alexander KASHUMOV, Attorney-at-law, Head of Legal Team of the non- governmental organization “Access to Information Programme”, Bulgaria FRANCE: Raymond KUHN, Professor, School of Politics and International Relations, Queen Mary University of London, United Kingdom GREECE: Petros IOSIFIDIS, Professor in Media Policy, City University London, United Kingdom HUNGARY: Judit BAYER, Professor, Law School, Department for Media and Information Law, University of Miskolc, Hungary ITALY: Serena SILEONI, Research Fellow in constitutional law, Department of Law, University of Milano-Bicocca; Italy; Giulio Enea VIGEVANI, Professor of constitutional law and media law, Department of Law, University of Milano-Bicocca, Italy POLAND: Dominika BYCHAWSKA-SINIARSKA, Director of the Observatory of Media Freedom in Poland of the Helsinki Foundation for Human Rights; Prof. Ireneusz C. KAMIŃSKI, Jagielonian University, Polish Academy of Science, an expert at the Helsinki Foundation for Human Rights ROMANIA: Manuela PREOTEASA, PhD Lecturer, FJSC, University of Bucharest, Romania; Andrei Schwartz, unaffiliated researcher LINGUISTIC VERSIONS Original: EN Manuscript completed in September 2016. © European Union, 2016 This document is available on the internet at: http://www.europarl.europa.eu/supporting-analyses DISCLAIMER The opinions expressed in this document are the sole responsibility of the authors and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorized, provided the source is acknowledged and the publisher is given prior notice and sent a copy. Policy Department C: Citizens' Rights and Constitutional Affairs _________________________________________________________________________________________ CONTENTS CONTENTS 4 LIST OF ABBREVIATIONS 6 LIST OF TABLES 7 LIST OF FIGURES 7 EXECUTIVE SUMMARY 8 1. Introduction 11 1.1. Background 11 1.2. Methodology 11 1.3. The role of digitalisation in the pluralism problem 13 1.4. Competences 14 1.5. Recommendations 14 2. Methodology 17 2.1. Defining the research question 17 2.2. Selection of countries 20 2.3. The questionnaire 22 2.4. Policy recommendations 23 3. State of the Art 25 3.1. The EU’s previous policy actions regarding media pluralism 25 3.2. The reasons behind the lack of a coordinated EU policy action 31 3.2.1. Conflicting interests 31 3.2.2. Divergent Scholarly Opinions 32 3.2.3. A moving target 32 3.3. The new quality of the pluralism problem 33 4. The concept and key elements of media freedom and pluralism 34 4.1. Freedom of expression and pluralism 35 4.2. Diversity in ownership 36 4.3. Funding 38 4.4. Online pluralism: Content offered vs. content accessed 40 4.5. Journalistic ethics, media literacy and protection of sources 42 5. European competences in freedom and pluralism of the media 44 5.1. Democracy 45 5.1.1. Existing instruments 46 5.1.2. Future possibilities to enforce EU values 48 4 A comparative analysis of media freedom and pluralism in the EU Member States __________________________________________________________________________________________ 5.2. Fundamental rights 49 5.3. Union citizenship 51 5.4. Free movement 52 5.5. Competition law 52 6. Summary of country studies 53 6.1. Classic pluralism issues 54 6.2. Impact of soft law and EU legal instruments 58 6.3. Internet concentration 58 6.4. Public-service media 60 7. Conclusions and recommendations 61 7.1. Conclusions 61 7.1.1. Key conclusions on the status of freedom and pluralism in the media 61 7.1.2. Conclusions on the findings 62 7.1.3. Feasibility 62 7.2. Reasoning of the recommended actions 63 7.3. Final remarks 66 7.4. Recommendations 67 7.5. Recommendations on legislative actions 69 7.5.1. Monitoring and Commission action on media pluralism 69 7.5.2. Legislation should be developed on state aid and subsidies granted to media outlets 70 7.5.3. Legal requirement to realise the conditions of media pluralism and freedom 72 7.5.4. Transparency database 74 7.5.5. Clarification of the rights and obligations of internet service providers 75 7.6. Educational projects 77 7.7. Follow-up and further research 78 REFERENCES 79 Media Pluralism in Bulgaria 88 Media Pluralism in France 99 Media Pluralism in Greece 111 Media Pluralism in Hungary 120 Media Pluralism in Italy 140 Media Pluralism in Poland 155 Media Pluralism in Romania 173 5 Policy Department C: Citizens' Rights and Constitutional Affairs _________________________________________________________________________________________ LIST OF ABBREVIATIONS AVMSD Audiovisual Media Services Directive CJ Court of Justice CJEU Court of Justice of the European Union CMPF Centre for Media Pluralism and Media Freedom CMP Media Pluralism Monitor ECHR European Convention on Human Rights or Convention for the Protection of Human Rights and Fundamental Freedoms ECD Directive on Electronic Commerce ECtHR European Court of Human Rights ECI European Citizens Initiative ECJ European Court of Justice ECPMF European Centre for Press and Media Freedom EPRA European Platform of Regulatory Authorities EU European Union FRA Fundamental Rights Agency ISP Internet Service Provider MEP Member of the European Parliament MP Member of Parliament MPM Media Pluralism Monitor MS Member State NRA National Regulatory Authority TEU Treaty on the European Union TFEU Treaty on the Functioning of the European Union UGC User-Generated Content 6 A comparative analysis of media freedom and pluralism in the EU Member States __________________________________________________________________________________________ LIST OF TABLES Table 1: Level of risk to pluralism in the political and the market domain in European MSs .......................................................................................... 21 LIST OF FIGURES Figure 1: Stages of the recommended monitoring process .......................................... 69 Figure 2: Simplified scheme of the notice-and-notice system ...................................... 76 7 Policy Department C: Citizens' Rights and Constitutional Affairs _________________________________________________________________________________________ EXECUTIVE SUMMARY Policy-makers have expressed concern for several decades now over the progressive curtailment of media freedom and pluralism in several Member States (MSs) of the European Union, but they have not been able to reach a consensus on precisely what actions to take. Recent political events – namely the systematic deterioration of the level of democracy in some Member States1 and the rise of political extremism, nationalism and populism throughout the EU – have prompted fears that these processes will spread virally and have sent a strong signal that supranational action is needed in order to improve the state of freedom and pluralism of the media. The Charter on Fundamental Rights of the EU explicitly calls for respect of media freedom and pluralism, among other fundamental rights. The Charter is directly applicable in cases where the Member State acts in the scope of EU law.2 MSs' obligation to ensure pluralism includes 1) refraining from interference that would distort the market and 2) ensuring that a plurality of opinions is present in the media market by enacting the necessary legislation. Research on media freedom and pluralism has traditionally focused on the growing power of transnational media companies, which tend to