Media pluralism is a core democratic value in Europe. Upholding it requires that media concentration is scrutinized beyond its impact on competition in the traditional economic formulation. By addressing the challenges posed by dominant media players and fostering a diverse information ecosystem, Europe aims to uphold media plurality as a democratic value and ensure that citizens can engage in informed decision-making. From this angle, the European approach to protecting media pluralism might offer an interesting comparative perspective for the United States debate, write Maciej Bernatt and Marta Sznajder.
The search for economic links between market concentration and the marketplace of ideas has been an inconclusive effort thus far. Some studies show that growing concentration in the media sector can have negative impacts, such as a breakdown in checks and balances and a concomitant increase in political corruption. Others demonstrate that a media market structure close to perfect competition decreases the quality of news media content. The rise of digital platforms and artificial intelligence and questions of revenue-sharing between media outlets and news aggregators such as Google further complicate questions on when and how to intervene to protect the marketplace of ideas.
These controversies and contradictory evidence generally search for a definitive economic equilibrium to maximize benefits to consumers, particularly the production of more reliable and cheaper information. However, there are normative ideas of democracy and rights beyond economic considerations that support regulatory interventions into media markets. We rely on our analysis of the European legal frameworks to demonstrate that protecting media pluralism is necessary, not because of the economic correlation between media market concentrations and the marketplace of ideas, but because of the normative choices that come from shared civil mores in a democratic society.
Media pluralism, in its predominant European conceptualization, is most comprehensively articulated in the EU Charter of Fundamental Rights. Media pluralism means a diversity in media ownership manifested in a dispersed and competitive market (the external dimension) and diversity in media content (the internal dimension). These two dimensions are held to be worthy of protection as self-justified values. This conceptualization contrasts with the marketplace of ideas, popular in the American tradition, that originates from economic and political liberalism and a functional definition of the public sphere. While the marketplace of ideas is purely concerned with a negative freedom (i.e., freedom from restrictive government interventions), the European conceptualization implies a necessity for a positive freedom. Thus, media pluralism is not an end in itself, but a necessary element of either one’s personal freedom or the sustainability of the public sphere.
Moreover, the EU Court of Justice has held that the protection of information pluralism may take precedence in conflicts with fundamental economic freedoms of the EU Single Market, such as the free movement of services. Indeed, media pluralism is perceived in Europe as a necessary element of deliberative democracy: It ensures that citizens have access to a wide array of information as a precondition for their meaningful participation in democratic debate.
With this in mind, the following sections elucidate the European approaches that are worth reflecting on in the United States and beyond. First, we explain how the concept of media pluralism is linked to the idea that the right of access to media is key for a democratic society to thrive. Second, we discuss two European media market cases (Orlen/Polska Press market concentration in Poland and TikTok’s role in the recent Romanian elections) that, due to insufficient regulatory scrutiny over market concentration, translated into threats to media pluralism and produced risks for democracy. Finally, we present the most recent EU regulatory answer, the European Media Freedom Act (EMFA), and its media pluralism test. The EMFA is an example of an EU legal offensive in tech and media markets which, seen jointly with the Digital Services Act (DSA) and the AI Act, presents a comprehensive European answer to contemporary media market challenges.
Media pluralism as an element of democracy: a fundamental rights’ perspective
Media pluralism as a European normative value derives from the protection of freedom of expression, safeguarded by both the European Convention of Human Rights and the EU Charter of Fundamental Rights, as well as European national constitutions. It is a key element of constitutional democracy in Europe. The normative choice to protect media pluralism in Europe relates to its special role in information sharing and public opinion shaping, necessary for free and fair elections.
Importantly, the safeguards of freedom of expression are not only about the individuals’ right to express their opinions but also their right to receive and impart information. While the U.S. approach to free speech is mainly concerned with the absence of state intervention, Europe places significant attention on the obligation of the state to safeguard individuals’ right to receive information.
As the case law referred to above suggests, the protection of pluralism within the media markets is a consequence of this obligation. Such an obligation is increasingly important today, at a time when large online media platforms hold immense power and can exert influence on access to certain voices on a platform and determine their relevance. Since there are reasons to believe that platforms fail to uphold accuracy and diversity of views, the state’s role in ensuring reliability, education, and pluralism on media platforms is justified. Exposure diversity, i.e. safeguarding the actual accessibility and equal opportunities to receive media information, is key to provide a space for the effective realization of the right to free and plural media.
Case studies of media market concentration and the right to free and plural media
Recent developments in Europe illustrate the impact that media market concentration has on individuals’ rights to free and plural media and the integrity of European democracy. The EU Media Pluralism Monitor regularly indicates that EU countries are facing threats to media plurality, with a significant majority of European states ranking as high risk. In particular, the plurality of media providers and the plurality in digital markets are concerning, both exceeding 80% risk levels. These trends are linked to increased media market concentration due to drops on the number of traditional media outlets and the power of the digital platforms, resulting in a decrease in the plurality of media content and posing risks for democracy.
A takeover of Polska Press, an owner of local media outlets in Poland, by the state-controlled major oil refiner and petrol retailer, Orlen, serves as a pertinent example. Given the deterioration in quality and the rise of partisanship of public media in Poland, this takeover was highly controversial as it further weakened media pluralism in the country. The Polish Competition Authority and the reviewing court limited their assessment to the transaction’s impact on competition. Seeing no possible unilateral effects, they cleared the merger. Moreover, both institutions refused to consider the effects of the takeover on media pluralism as such. What followed was the swift replacement of the chief-editors at local newspapers acquired by Orlen, along with the dismissal of journalists and an increase in pro-government media content in the post-transaction period. Media pluralism was adversely affected. The merger had further consequences in the 2023 national elections, as Polska Press denied opposition candidates the opportunity to publish their advertisements.
The second example concerns TikTok’s impact on the recent elections in Romania. Romania is characterized by an oligopolistic legacy media landscape with decreasing popularity, arguably caused by little diversity in viewpoint. The growing digital advertising market evidences the rise of online media platforms in the country. These factors laid the groundwork for TikTok influencers and the platform’s algorithms to promote a nationalist, pro-Russia candidate in the recent election cycle. The pro-Russia candidate unexpectedly won the first round of the presidential election in late November. After discovering various irregularities on the TikTok platform, Romania’s top court went as far as to annul the election. While this decision was viewed by some as excessive, it illustrates a proactive approach to preserving the right to free and plural media in Europe. This case also demonstrates the immense power social media platforms may wield in lieu of legacy media and how detrimental their influence can be to democracy.
EU regulatory answer
In Europe various national approaches to media ownership and concentration exist, and the degree of media protection differs, especially concerning media in the digital ecosystem. In response to this regulatory fragmentation, the EU passed a new law, the European Media Freedom Act (EMFA), which includes safeguards against political interference in editorial decisions and surveillance, as well measures to ensure the independence and stable funding of public service media, transparency of media ownership, and the allocation of state advertising. The EMFA also introduced an unprecedented harmonization of EU member states’ approaches to media mergers. This included the “media pluralism test,” which requires member states to introduce regulations that take the position that while the role of competition law is to ensure the competitive media landscape, safeguarding media pluralism in media mergers requires consideration of non-economic perspectives. This evaluation will consider various factors, including the merger’s influence on public opinion, the diversity of media services, and the online landscape, as well as the broader activities of the involved parties in other media sectors and beyond.
While the introduction of the media plurality test is not without enforcement challenges, it offers a very interesting and novel solution that bridges the gap between media market processes and the impact of concentration on media pluralism and individuals’ rights. The inclusion of an assessment, parallel to competition review, of the merger’s effects on the formation of public opinion and on the diversity of media services clearly indicates that the EU takes proactive steps to preserve media pluralism in media concentrations.
Another useful example is the Digital Services Act (DSA), under which very large online platforms and online search engines are obliged to assess the risks stemming from their services, and if needed, introduce mitigating measures. It is relevant in this context that the European Commission has opened an investigation into TikTok following the Romanian elections. The proceedings against TikTok will assess its management of risks to elections and civic discourse linked to its recommender systems and political advertisements rules. They will constitute a major test for the DSA.
To sum up, Europe’s proactive legislative measures represent a crucial step toward safeguarding media pluralism in an increasingly concentrated landscape. Their normative assumption lies in the belief that media pluralism is a core value in Europe that must be preserved independent of traditional economic considerations. Therefore, media concentration, even if it lacks a negative impact on competition, can be prohibited. By addressing the challenges posed by dominant media players and fostering a diverse information ecosystem, Europe aims to uphold democratic values and ensure that citizens can engage in informed decision-making.
Authors’ Disclosures: The authors reports no conflicts of interest. This research was funded in whole or in part by National Science Centre, Poland 2022/45/N/HS5/02552. For the purpose of Open Access, the author has applied a CC-BY public copyright license to any Author Accepted Manuscript (AAM) version arising from this submission. You can read our disclosure policy here.
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