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CMPF Policy Report Presentation


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European Union Competencies in Respect of Media Pluralism & Media Freedom

CMPF Summer School 2013 for Journalists and Media Practitioners

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CMPF Policy Report Presentation

  1. 1. Policy Report European Union Competencies in Respect of Media Pluralism & Media Freedom Summer School for Journalists and Media Practitioners 2013 Freedom and Pluralism of traditional and new media
  2. 2. Policy Report European Union competencies in respect of media pluralism and media freedom The report presents the phenomena of media freedom and pluralism, and in particular:  The importance of media freedom and pluralism for the democratic regime  Perspective on the measuring and evaluating of media pluralism.  Analyses major aspects of media economics and ownership of media players  Examines the development of the debate on legal instruments and jurisprudence  Aims to suggest how the legislation in force could be used
  3. 3. Social and Political Aspects of Media Pluralism and Media Freedom Alina Dobreva
  4. 4. From Aristotle… Communication and Democracy …to McLuhan
  5. 5. Normative expectations of media How to do it?  Facilitates the flow of information about public events to citizens  Exposes politicians and governments to public scrutiny  Leads to better social orientation and therefore, informed political choice  Urges people to participate in the political process  Leads to exposure to and exchange of different views (increased political knowledge, understanding, and tolerance) Legitimate democracy
  6. 6. Definition of media freedom & pluralism  Independence from government, authorities’ control & intervention; no governmental monopoly on information  framed within the media- government relations Media pluralism Media freedom  Independence from disproportionate private control and influence of 1/few economic, social and/or political power(s)  based upon the tolerance and inclusiveness in politics and society precondition s
  7. 7. Normative functions of media freedom &pluralism Opportunity (1) to provide a platform for self-expression … (2) to provide citizens with access to information (not to ‘truth’)… (3) to foster agonistic public debate and deliberation … (Czepek; McConnell & Becker) Outcome for all groups … reflecting the plurality of voices without misrepresentation … by various, easily accessible sources, presenting wide variety of viewpoints … between all groups in a society Media freedom Media pluralism
  8. 8. Media freedom “Owner” of the freedom: ordinary citizens, journalists or editors/media owners?  Current de-professionalisation of journalists – tbd  Freedom at the level of media source or freedom at the level of the individual journalist – depending on the particular media system and its emphasis on internal/external pluralism Emphasis on violations versus proactive overall view  Minimal definitions of democracy  Focus on the presence or absence of certain indicative problems, e.g., the killing of journalists  Social, political context &facilitating legislation  Focus on overall performance, higher standards of democratic functioning
  9. 9. Media pluralism  Variety, diversity and the plurality of media supply, free, independent and autonomous media: Ownership, media outlets, sources of information and range of contents, guaranteed by market rules and regulations Political and economic independence  Public sphere, general public and/or audience Actual consumption cannot be regulated, but easy access to pluralistic information should be guaranteed Led by factors beyond commercial viability and profitability Results in access and choice of opinions & representations, which reflect the citizens of the state in question; The result however, depends on social and political factors beyond media as well
  10. 10. Measuring Media Pluralism across Social & Political Contexts Andrea Calderaro
  11. 11. Measuring Media Pluralism • International Institutions (CoE, 2008 & UNESCO 2007) • Non Governmental Organizations (Ofcom 2012) • Academic Research (Valcke et al. 2009) There is no agreement about how to measure Media Pluralism
  12. 12. Challenges • Identifying the indicators: media-ownership concentration, media market competition, content diversity, freedom of journalists • Framing a comparative research design • Selection a research strategies: Quantitative/Qualitative methodologies
  13. 13. Comparing - to explore the unequal behaviour of our observed phenomenon - to identify national peculiarities - as a component of a larger transnational system
  14. 14. Standardizing Benefits • Focusing on the same national indicators • Standardize research tools • Collection of neutral empirical data • Which can easily understood in different contexts Vs Contextualizing Quantitative Vs Qualitative
  15. 15. Independent Study on Indicators for Media Pluralism in the Member States – Toward a Risk- Based Report Valcke, KU Leuven - 2009 3 level of analysis • Legal Indicators • Socio-Demographic Indicators • Economic Indicators
  16. 16. Quantitative Approach Criticism • The lens that we use to observe and collect data in one context, does not imply that is is equal valid in an other contexts (Adcock & Collier, 2001) • By pursuing a neutral data, we risk to lose information which is essential to understand the national context (Peschar 1984)
  17. 17. Qualitative methodologies • Ethnographic approaches • Interviews • Observatory participation Produce explanation, instead of dry pictures of facts Standardizing Vs Contextualizing Quantitatve Vs Qualitative
  18. 18. Concluding Benefits More powerful tool to develop a deep knowledge of local contexts, in order to understand local Media Pluralism Limits It makes a transnational comparison more difficult Benefits It generates neutral and easily comparable data Limits It risks to loose information on national peculiarities, which might be the goal of the research Standardization/Quantitative Contextualizing/Qualitative
  19. 19. Economic aspects of media pluralism and media freedom in the European Union Giovanni Gangemi
  20. 20.  With few contestants, prices can grow up, thus narrowing the access of new entrants (e.g. the TV sports rights)  Dominant firms can keep the prices low (predatory prices), making the market not profitable for potential entrants, especially because of the high initial costs  For press media marginal costs are low, as additional cost is related to just a part of the product (paper, distribution…)  For broadcasting media the marginal cost is zero, as any new viewer/listener does not have any additional cost.  On the internet, though, more viewers/listeners mean more bandwidth, and more costs Entry barriers High initial costs Low marginal costs Economies of scale Media markets tend to concentration
  21. 21. Media markets tend to concentration  Due to high initial costs and to economies of scale, big media firms tend to expand vertically.  In the media markets, vertical integration is a strategic issue as a firm could control both content production and content delivery levels.  Low marginal costs and consequent economies of scale make more profitable for a media firm to expand horizontally.  Fragmentation increases this tendency, because the same product will be available on a cross-media base in order to match the audience, as the latter is more and more spread on different means of communication. (Doyle, 2002) Vertical integration Horizontal integration
  22. 22. New context and the technological change  On the one hand it lowers entry barriers, reducing dominance, with positive effects on market plurality  On the other hand it contributes to fragment the audience, dispersing consumers and thus making the market less attractive for new entrants.  Aggregated consumers have stronger bargaining power, because they constitute an attractive group and so stimulate tighter competition (in particular when customer are well informed)  If consumers are homogeneous and aggregated they attract possible new entrants (and this reduces the incumbent market power)  If consumers are dispersed, fixed costs make entrance into the market unattractive (the entrant will probably deal only with a small proportion of consumers)  Audience fragmentation in media markets could discourage the access of new entrants Lowering of barriers to entry Long tail effect Audience fragmentation Products customization
  23. 23. Media concentration and ownership debate  While the number of channels increased dramatically, the ownership of those channels has narrowed to an even smaller few (Lessig, 2004),  it is easier to speak, but harder to be heard (Einstein, 2004),  five global dimension firms won most of the newspapers, magazines, book publishers, motion picture studios and radio and television station in the United States (Bagdikian, 2004),  more does not necessarily mean different (Murdock, 1982),  while there is indubitably greater “numercial diversity”, we are seeing a greater concentration at the level of “source diversity” (Winseck, 2008).  Media ownership is increasingly concentrated (Castells, Arsenault 2008)  There are fewer and larger companies controlling more and more (McChesney)  the media sky has never been brighter (Thierer 2005),  more competition than ever (Compaine, 2000) Pessimists Optimists Is concentration increasing or decreasing in the online media environment?
  24. 24. Dynamic of media concentration Noam u-shape effect If barriers to entry increase and economies of scale decline, in a first moment there is more concentration with less contestants, but then, due to scale economies, there will be more players. If barriers to entry drop, but economies of scale increase, then in a first moment there will be more contestant, attracted by low barriers to entry, but then competition will increase and contestants will decrease The lowering of distribution costs lead firms to allocate more resources on the first copy of the product, to keep the same profit. The increase of the costs of the first copy creates higher barriers to entry and thus could lead to a reduction of diversity Baker
  25. 25. Old and new concerns on media pluralism As internet develops, traditional media move to the online, and online media conglomerates boost their profits, notwithstanding the crisis. Though, all this is rising a new patterns of concerns about pluralism and diversity:  There is an unclear definition of relevant markets: what should be measured and how?  It is difficult to assess competition between offline and online media (level playing field).  Successful online information and content providers are not new but are mainly traditional media outlets moving online (BBC, CNN, FOX…)  New content providers are smaller and find hard to compete with traditional players.  Successful players are mainly intermediaries and aggregators, with low/no investments in new contents.
  26. 26. Tendency to concentration in the online media markets An further question is the increasing tendency to market concentration in new media (search engines, social networks…): the winner takes all. Some examples of concentration in the online media markets are 0 500 1.000 1.500 2.000 2.500 3.000 3.500 4.000 4.500 2007 2008 2009 2010 2011 Facebook MySpace 0 5.000 10.000 15.000 20.000 25.000 30.000 35.000 40.000 2004 2005 2006 2007 2008 2009 2010 2011 Yahoo! Google Google and Yahoo! revenues 2004-2012 Facebook and MySpace 2007-2012 Source: eMarketer and data provided by operators.Source: Netmarketshare. Note: figures include only revenues coming from audiovisual
  27. 27. Geographical market A final concern is about the geographical origin of new players and the role of EU industry.  The balance of trade between US and Europe has mainly taken one direction, due to internal market size, linguistic and cultural factors, general economic wealth  New operators emerging from the internet economy are almost exclusively coming from the US.  Europe struggles to establish new players able to compete worldwide.  The challenge is between local-based and well-established media firms and international globalised organisations, mainly based in the US, operating as content aggregators.  Traditional instruments such as quotas or public funding to protect local industries risk to be ineffective in the online media environment
  28. 28. The gap between US and EU audiovisual industry increases EU industry has been deeply affected by the economic crisis, while US firms keep on growing in the globalised economy. EU audiovisual firms revenues are flat, while US and Japan companies increased their turnovers. This happens despite public funding (license fee, grants, etc.). 0 50.000 100.000 150.000 200.000 250.000 2006 2007 2008 2009 2010 US EU JP BR MX +4.8% +0.5% +7.8% Source: European Audiovisual Observatory, Yearbook 2011. Note: figures include only revenues coming from audiovisual activities. They include results from the 50 leading audiovisual worldwide companies Total revenues of the audiovisual industry 2006-2010 Million€ CAGR CAGR CAGR
  29. 29. Conclusion  A greater diversity on the supply side could not correspond to a greater diversity on the demand side, and could not lead automatically to more pluralism.  There is a need for a clearer definition of relevant markets to better address both pluralism and market competition on media.  An excessive fragmentation in the EU media markets and the lack of a unified market risk to make European media outlets too vulnerable in the globalised economy.  It must be understood whether current tools to protect European industry are still effective or not.
  30. 30. Media Pluralism and Freedom: Legal Instruments for EU Intervention Elda Brogi & Paula Gori
  31. 31. June 2012. As Vice-President N.Kroes affirmed: “Currently the EU does not have the legal competence to act in this area [media pluralism] as part of its normal business. In practice, our role [of the EC] involves naming and shaming countries ad hoc, as issues arise.” A legal overview
  32. 32. - the Treaties do not confer an explicit competence to the EU on “media pluralism and media freedom” - but the EU has not been “neutral” on the issue of media pluralism and media freedom - -subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States… - the debate on EU competencies with regard to media pluralism and media freedom is a long debate which is still on-going - Media Monitor - CMPF, HLG and Media Future Forum
  33. 33. in broadcasting regulation 1974. Sacchi Case: “…a television signal must, by its nature, be regarded as provision of services” 1989. Television Without Frontiers Directive (TWFD): First harmonisation instrument for the free movement of TV services. It establishes the country of origin principle and refers only to traditional linear broadcasting services. It sets some minimum standards like the protection of minors and public order, consumer protection, the promotion of European works, the right of reply. The debate on the TVWF Directive 1999. Communication on the Future of European Regulatory Audiovisual Policy: “…regulatory policy in the sector is aimed at safeguarding certain public interests, such as cultural and linguistic diversity, the protection of minors and consumer protection…” 2005. Liverpool Conference : media pluralism still is responsibility of MS
  34. 34. The AVMS Directive Technological developments - Same legal basis as for the TWFD, namely the free movement of services - Linear services: Programmes provided by a media service provider at a scheduled time and watched simultaneously by viewers - Non-linear services: Programmes users select from a catalogue offered by the media service provider, to watch at their own convenience. However: the Directive does not define a general set of rules for the convergent services and excludes the non broadcasting-like services that do not fall in the definition of industrially run mass media (Recital 22) All media services have to respect a basic tier of obligations in some specific areas: identification of media services providers, prohibition of incitement to hatred; accessibility for people with disabilities; qualitative requirements for commercial communications; sponsoring and product placement. However: two – tier system: stricter regulation for linear services
  35. 35. Recital 5 “Audiovisual media services are as much cultural services as they are economic services. Their growing importance for societies, democracy — in particular by ensuring freedom of information, diversity of opinion and media pluralism — education and culture justifies the application of specific rules to these services” Recital 10: “…Bearing in mind the importance of a level playing-field and a true European market for audiovisual media services, the basic principles of the internal market, such as free competition and equal treatment, should be respected in order to ensure transparency and predictability in markets for audiovisual media services and to achieve low barriers to entry.” Recital 12: “…that regulatory policy in that sector has to safeguard certain public interests, such as cultural diversity, the right to information, media pluralism, the protection of minors and consumer protection, and to enhance public awareness and media literacy, now and in the future.”
  36. 36. Public service broadcasting/media Instrument to safeguard media pluralism and freedom – 2000 Communication of the EC on Services of General Interest in Europe “…the broadcasting sector has, since its inception, been subject to specific regulation in the general interest. This regulation is based on common values such as freedom of expression and the right to reply, pluralism, protection of copyright, promotion of cultural and linguistic diversity, protection of minors and of human dignity, consumer protection…” PSB is seen as an instrument to ensure the coverage of a number of areas and the satisfaction of needs that private operators would not necessarily fulfill to the optimal extent. (COM 2001/C 320/04)
  37. 37. … As a service of general interest it is covered by Article 106(2) TFEU as interpreted according to the Amsterdam Protocol on Public Service Broadcasting (1997): “… the provisions of the Treaty establishing the European Community shall be without prejudice to the competence of Member States to provide for the funding of public service broadcasters insofar as such funding is granted to broadcasting organisations for the fulfilment of the public service remit as conferred, defined and organised by MS, and insofar such funding does not affect trading conditions and competition in the Community to an extent which would be contrary to the common interest, while the realisation of that public service shall be taken into account”. two principal EC Communications (2001/C320/04 and 2009/C 257/01): set of guidelines and rules followed by the EC when it comes to decide state-aid cases in the PSBs domain.
  38. 38. Fundamental rights. Article 11 of the Charter • (1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. • (2) The freedom and pluralism of the media shall be respected.
  39. 39. Other legislation  Electronic commerce  Electronic communications  Information society services
  40. 40. What we say in the report - media pluralism is a principle that can operate and be implemented at various levels in the EU order - a list of potential instruments
  41. 41. Article 11 of the Charter and article 10 of the ECHR: Media pluralism as a general principle of the EU order (1) - Article 11, Paragraph 2 Charter explicitly states that: “The freedom and pluralism of the media shall be respected”. - art. 6 TEU says the Charter has same legal value as the Treaties - the provisions of the Charter are not to extend the competences of the Union as defined in the Treaties - the Charter is addressed both to the EU institutions, bodies, offices, agencies, with due regard to the subsidiarity principle, and to the Member States when they are implementing EU law (art. 51)
  42. 42. Article 11 of the Charter and article 10 of the ECHR: Media pluralism as a general principle of THE EU order (2) Article 52 (3) of the Charter affirms that: “In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”
  43. 43. Article 11 of the Charter and article 10 of the ECHR: Media pluralism as a general principle of the EU order (3) - Another bill of rights acknowledged by Article 6 TEU is the Convention for the Protection of Human Rights: “The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.” - Fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, are to constitute general principles of the law of the European Union
  44. 44. Article 11 of the Charter and article 10 of the ECHR: Media pluralism as a general principle of THE EU order (4) - Charter, ECHR and constitutional traditions of MS form a normative corpus that has already had, and will potentially have, a role in the interpretation and application of European law. - The two European Courts, the European Court of Justice of the European Union and the European Court for Human Rights, for instance, can play an important role in the definition and in the application of common European principles starting at “case level”.
  45. 45. Competition and cultural aspects: Article 167.4 TFEU - article 167.4 TFEU pluralism-specific considerations in competition analysis. The Commission must take cultural aspects into account in the framework of the Union’s competition policy. Articles 11(2) and 51(1) of the Charter of Fundamental Rights establish the Commission’s responsibility to respect and promote pluralism. On the basis of these provisions, European competition law needs to be applied in the spirit of the overall objectives pursued by the Treaties.
  46. 46. Pluralism and internal market harmonization Article 26 TFEU – internal market Article 114 TFEU – internal market harmonization - The European Parliament and the Council shall ... adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market - The European Union can exercise its competences whenever the proper functioning of the internal market is negatively influenced by the existence and application of diverging national provisions in any sector which is not expressly excluded from the founding Treaties
  47. 47. ownership; ownership transparency; libel; copyright... national legislation -All these differences can hamper the functioning of the internal market: their existence may be detrimental to the free movement of services or the right of establishment, since operators may find it difficult to establish or to provide services in another Member State, for instance, where dominant positions are in place (see European Citizen initiative) Pluralism and internal market harmonization
  48. 48. The implementation of AVMS and the role of NRAs (1) - AVMSD does not foresee the establishment of relevant independent National Regulatory Authorities (NRAs) - comparison with the Electronic Communications Regulatory Framework, which regulates issues which are closely related to those in the AVMS Directive: all relevant national regulatory authorities are requested to comply with independence requirements.
  49. 49. The implementation of the AVMS Directive & the role of NRAs - The AVMS Directive does not introduce any specific obligation for the Member States nor does it provide any element about the structure, functioning or role of those national bodies or about the relationship among them. - in an era of convergence, it could be reasonable to consider the establishment of the same institutional requirements both for electronic communications and AVMS (common standards on definition and treatment of similar cases; definition of new media markets).
  50. 50. New principles in the Treaties “It is forbidden to create or maintain a dominant position in media markets” “Governments and economic forces cannot exercise any undue influence on media undertakings”. This general precept would be gradually defined by the case law of the CJEU, that would indicate which behaviours could be considered acceptable and which not.
  51. 51. The European Agency on Human Rights (or another qualified body) soft law standard-setting & monitoring - another potential European level of intervention on pluralism could be through the Fundamental Rights Agency (FRA) - another qualified body, which should be mandated to monitor Member States and propose common standards, basing its work on the ample case law of the the European Court of Human Rights and the European Convention.
  52. 52. Conclusions - EU competences with regard to media pluralism appear scattered in the European legal landscape. - the European Union has few hard and soft law instruments to promote and assure media pluralism and freedom in Europe - the implementation of common principles is feasible at legislative, judiciary, administrative level - given the paramount importance of the democratic principles to be promoted, greater clarity and certainty is needed with regard to EU competences
  53. 53. Thanks !