Article 17 Media Freedom Act & the Digital Services Act: aligned or alienated?
By Doris Buijs, researcher at DSA Observatory.
On 16 September 2022, EU Commissioners Věra Jourová and Thierry Breton presented the European Commission’s proposal for the European Media Freedom Act (MFA) accompanied by a Recommendation on internal safeguards for editorial independence and ownership transparency in the media sector. The aim of the MFA is to protect editorial independence and media pluralism, mainly by increasing transparency of media ownership and avoiding media interferences. The proposal has received mixed reactions, varying from welcoming feedback, to – as with almost all directly binding EU legislation – a lot of criticism. Apart from issues around the EU’s competences to propose such a directly binding Regulation (as media law is, generally speaking, a matter of member states’ national competences), a lot of the attention focuses on Article 17 MFA. This provision obliges Very Large Online Platforms (VLOPs) to priorly inform “media services providers” about their intended suspension of the service, in case a media service provider provides content that is incompatible with the terms and conditions of the VLOP. The proposed Article 17 MFA brings us back to the discussion around the media exemption, as broadly discussed during the debates around the Digital Services Act (DSA) that has entered into force recently. A lot of opponents of the media exemption – both regarding the DSA and the MFA provision – argue that such a provision would give the media a special, privileged and problematic position. It seems like Article 17 MFA may be a compromise in comparison to the DSA media exemption proposal. Under Article 17 MFA, VLOPs shall “take all possible measures” to priorly inform media services providers about their intended “suspension of the provision of the service”, but only regarding content that is in breach of the platform’s terms and conditions, that does not contribute to a systemic risk under the DSA’s systemic risk provisions (Articles 34 and 35).
This blog post focuses on what Article 17 MFA as proposed will entail, how media services providers are defined, if this definition combined with Article 17 gives them a privileged position, and what the relationship is with Article 14 DSA (regarding the terms and conditions of platforms). We will see that it might be a bit early to compare Article 17 as it is now to the media exemption as earlier proposed in the DSA legislative process, as it does not specify what media service providers can do based on the early notification. Nor is it clear what the “suspension of the provision” entails; the whole service or only that part of the service relating to the content that is incompatible with the VLOPs’ terms and conditions? As Article 17 MFA governs suspensions based on VLOPs’ terms and conditions, Article 14 DSA comes into play, and with that possibly the European Court of Human Rights (ECtHR) case law around the prior restraint doctrine. This could influence platforms’ obligations under Article 17 MFA, too. But first, let us take a closer look at the provision itself.
Article 17 MFA – the media exemption resurrected?
Article 17 states that VLOPs shall take “all possible measures” to communicate to the media service provider a statement of reasons regarding their decision to suspend the provision of its service in relation to content provided by that media service provider that is incompatible with its terms and conditions (Article 17(2) MFA). VLOPs are only obliged to do so when that content is not contributing to a systemic risk referred to in the DSA. The reactions from civil society to Article 17 MFA were mixed. The European Publishers Council (EPC) has stated that this provision is “an effort to address one of the failures of the recently-adopted Digital Services Act”. As with the DSA media exemption discussion, those who work in the field of tackling disinformation are critical of the new MFA provision, too. Alexandre Alaphilippe of the EU DisinfoLab said: “We need to ensure that there is NO media exemption in any new technology or media legislation. The DSA already provides necessary avenues and assurances for proper media treatment. It just needs to be enforced”.
Are these critical comments, calling Article 17 MFA a “media exemption” actually justified? If we take a closer look at the text of Article 17, what exactly are the obligations for platforms? Reading the provision, it seems that VLOPs are only obliged to inform the media service provider about their intention to suspend their service, albeit accompanied by their statement of reasons. But what happens next? The Article does not provide an appeal mechanism or give media service providers some other form of procedural rights in relation to these decisions by VLOPs. Only where a media service provider considers a VLOP to frequently restrict or suspend the provision of its services without sufficient grounds, the VLOP concerned shall engage in a meaningful and effective dialogue with the media service provider, to find an amicable solution (Article 17(4)).
So, apart from the unclarities of what happens after the notification, the next question is: suspension of what exactly? Article 17(2) talks about the suspension of the provision of the service in relation to the content that is incompatible with the VLOP’s terms and conditions. Reading the text, this could imply that the suspension relates to the content concerned, so that the incompatible content will be taken offline or access to that content will be disabled, and the rest of the service will be available to the media service provider (e.g., the account will stay online, other content can be posted). But, one could also read the text as platforms suspending the provision of the entire service (because that service would be related to content that is incompatible with its terms and conditions). This could mean that entire accounts could be suspended or terminated, which is quite different from disabling access to one specific piece of content.
A complicated interplay – MFA & P2B Regulation
If the suspension of complete accounts (instead of single posts) would indeed be possible under Article 17 MFA, it might be interesting to focus on the Platform to Business Regulation (P2B Regulation) that the MFA refers to in Article 17(2). Because, where the MFA does not distinguish between restrictions of a specific piece of content and the whole service of a VLOP (e.g., suspension of an account), the P2B does.
Article 4(1) of the P2B regulation requires platforms to inform their business users via a statement of reasons about content moderation decisions specifically relating to individual goods or services (such as access to a specific piece of content). The timing of that notification should be prior to the decision, or at the time of the decision. So far, this is similar to Article 17(2) DSA, which states that platforms should give a statement of reasons “at the latest from the date that the restriction is imposed”. It is not however, entirely similar to the MFA, as Article 17(2) MFA states that the notification should be “prior to the suspension”, contrary to Article 4(1) P2B (prior or at the same time). In this regard, the MFA seems to give media service providers a slightly better position, in comparison to the P2B.
But, Article 4(2) of the P2B Regulation, states that suspension of the whole service should be priorly notified to the business user thirty days before the suspension. This would mean that the MFA may not treat media service providers better than other business users of platforms, as the MFA “only” states that (apparently, any restriction, including those relating to the whole service as provided by a VLOP), should be “priorly notified”. It is not clear what the timeframe under the MFA is for “prior notice”. Recital 31 states that the prior notice should be “as early as possible”, but it does not give a specific timeframe such as the 30 days as mentioned in the P2B.
Another aspect of the statement of reasons as mentioned in Article 17(2) MFA, is that it links to the P2B Regulation (as previously discussed), but not – quite strangely – to the provision on the statement of reasons in the DSA, which is Article 17 DSA. In fact, the MFA does use P2B content moderation definitions, such as “suspension”, “restriction” and “termination”, without defining these terms. It thus seems that the MFA builds on the P2B, rather than the DSA. The link between the MFA and the P2B Regulation is of particular interest for the statement of reasons obligation (Article 17(2) MFA), as the obligation in the P2B Regulation to provide for a statement of reasons does not encompass the obligation to state the redress possibilities. Article 17 DSA also obliging platforms to give a statement of reasons for content moderation decisions, does require platforms to inform their users about the redress possibilities (Article 17(3)(f)). As Article 17 MFA does not set out possible appeal mechanisms or redress possibilities, it will be interesting to see if these mechanisms would be incorporated into the provision and if reference will be made to Article 17 DSA.
Article 14 DSA and Article 17 MFA
As discussed, media service providers should get prior notification of intended suspensions or restrictions of their content that is regarded as incompatible with the VLOP’s terms and conditions. Article 14 DSA specifies platforms’ (not only VLOPs’) obligations regarding restrictions based on their terms and conditions. One of these conditions is that platforms should have “due regard” for freedom of expression and media freedom when applying and enforcing restrictions based on their terms and conditions (Article 14(4) DSA). The interpretation of the rights to freedom of expression and media freedom may extend to the (extensive) case law of the European Court of Human Rights (ECtHR), as explained in this blog post on the DSA’s implications for the protection of and implications for news media and journalistic content. According to the ECtHR, prior restraints call for the most careful scrutiny due to their inherent dangers for freedom of expression, as was stressed by the ECtHR in for example Yıldırım v. Turkey. This strict scrutiny is of special importance as far as the media are concerned, as news is a “perishable commodity”. A question does arise whether platforms are obliged to priorly inform media services providers based on this case law. A still-open question, but it will be nevertheless interesting to see if Article 17 MFA will still be linked to Article 14 DSA at the end of the legislative process, and how and to what extent platforms will take this ECtHR prior restraint doctrine into consideration when taking content moderation decisions regarding media services providers.
Definition of and privileged position for the media
Several discussions have been taking place for quite some time now about who is the media and how to define media. This is not an easy debate, and although the Council of Europe has made some efforts by giving a broad definition to “media” in Recommendation CM/Rec(2011)7, the notion remains much debated. The MFA legislators have touched on this debate too, by defining media services and media service providers. Article 2(1) of the MFA proposal defines media services as services that are normally provided for remuneration and with a commercial character (thereby referring to Articles 56 and 57 of the Treaty of the Functioning of the European Union (TFEU)). These services have the principal purpose of providing programmes or “press publications” (as taken from the DSM Directive) to the general public to inform, entertain or educate. Lastly, these services are conducted under the “editorial responsibility” of a media service provider. Media service providers are “natural or legal persons whose professional activity is to provide a media service and who was editorial responsibility for the choice of the content of the media service and determines the manner in which it is organised” (Article 2(3)). The definition of media service (provider) seems mostly based on the Audiovisual Media Services Directive, which also refers to Articles 56 and 57 of the TFEU and the editorial responsibility. Although the MFA does not refer to the AVMSD (maybe because the AVMSD does not include “professional activity” in its definition of an audiovisual media service), the similarity is notable. Additionally, some questions remain unanswered, such as: what does “professional activity” (Article 2(2)) entail? Does this notion also encompass NGOs or bloggers, for example, such has been acknowledged by the ECtHR?
This blog post does not try to solve the question of how to define the media, but the notion of media is still a topic of debate. As such, it is important to note that the MFA allows media service providers to self-declare whether they meet the requirements to become a media service provider under the MFA. Article 17(1) MFA states that VLOPs shall put in place a mechanism to allow media to give them a self-declared status based on which they are entitled to get prior notice from VLOPs about interference with their content. These media service providers should meet three criteria (compliance with they can self-declare):
1) they are a media service provider within the meaning of Article 2(2) MFA;
2) they are editorially independent of member states and third countries and;
3) they are subject to regulatory requirements for the exercise of editorial responsibility or adhere to co- or self-regulation that is widely recognised and accepted in the relevant media sector.
This self-declaration is especially relevant according to some civil society organisations, such as the EU Disinfo Lab: “The Commission is asking Very Large Online Platforms (VLOPs) to send an early notice to media and self-declared media before it suspends its content. It will de facto create a privileged status, even for self-declared media, which is used to spreading disinformation and propaganda.” The free expression organisation ARTICLE 19 too, positioned itself in opposition of the media exemption and the position of media under the MFA. The NGO believes that “as a matter of principle, media actors should not be granted special treatment when it comes to content moderation and welcomed that an attempt to exempt the media from the content moderation rules in the Digital Services Act was rejected.”
Complaints and Commission’s guidance
Although it remains to be seen whether Article 17(2) MFA will actually play a role as a media exemption, there might be some provisions that do give media service providers a special position. One of those is Article 17(3) in relation to Article 11 of the P2B Regulation which concerns complaints by media service providers. Those complaints should be processed and decided upon with priority and without undue delay. Although it remains unclear what this time frame would mean in practice, this approach is different from the DSA. Under the DSA, complaints by media service providers do not get priority, only notifications by trusted flaggers should be processed and decided upon with priority and without undue delay. So, for media organisations it might make more sense to make use of the complaint handling system under the MFA, as those complaints will be handled with priority. Another open question around this complaint handling framework, is if a complaint that has been decided upon under the MFA can be appealed via the out-of-court dispute settlement system as laid down in Article 21 DSA.
In short, a lot of debate around the possible special position of media service providers remains; what this position would entail and who will enjoy this possible privileged status due to the possibility of self-declaration. Some insights on how to define the status of media service providers can maybe be expected from the Commission. Article 17(6) permits the Commission to issue guidelines on the establishment of the form and details of the self-declaration by media service providers as set out in paragraph 1 of Article 17.
Reporting obligations on media content restrictions
Lastly, Article 17(5) MFA creates the obligation for platforms to make information available on the number of instances where they imposed restrictions or suspensions based on incompatibility with their terms and conditions, including the grounds for these restrictions publicly available on an annual basis (Article 17(5)). For journalism, this could be an important and useful way of getting more, precise information about VLOPs’ interferences with journalistic and news media content online. Although there are several (substantiated) claims about this type of interference, it will be useful to obtain concrete numbers and information about these interferences.
Article 17 MFA has triggered a lot of civil society pushback, relating back to the earlier, intense discussions on the media exemption in the DSA. During the legislative process of the MFA, it will be interesting to follow the possible changes to Article 17. Will the Commission clarify who oversees the functioning of Article 17, including the interpretation of the requirements as set out in Article 17(1), what the suspension by VLOPs refers to (suspension of the whole service, or “only” in relation to the content at matter?), and to watch whether some procedural handles will be added to the much-discussed provision? We will have to wait and see how Article 17 MFA will develop during the legislative process.