Contents – Autumn 2023

Gálik, Mihály:

Setting about

The launch of satellite television services in the 1980s challenged the regulation of the television industry in Europe as these services, called television without frontiers (TWF), emerged on the previously closed markets of European countries. The need for a common regulatory framework within the European Economic Community (EEC) led to the enacting of the TWF directive in 1989. Responding to technical and economic innovations in the television industry, the TWF directive was modified decade after decade. The recent proposal for regulation by the European Parliament and the Council (the European Media Freedom Act, abbreviated EMFA) is to establish a common framework for media services in the internal market and is amending directive 2010/13/EU on audiovisual services. EMFA covers all media services and as such it is representing a legal innovation within the European Union

Keywords: European Union, market, media freedom, media services, regulation

Cseres, Kati:

The role of competition authorities in safeguarding media pluralism

Despite its fundamental value in the European Union, the EU lacks an explicit competence to regulate the media. In fact, media as a field of EU policy is absent from the Treaties and the EU’s legal instruments remain limited in this area. Nevertheless, as media also function as an important economic sector of the single market, the regulation of media markets falls under the EU’s internal market and competition law competences. In the area of competition law, the Commission has direct and exclusive competence with far-reaching supervisory powers. This paper shows that competition law in general, and merger control in particular, play an essential role in controlling and preventing the accumulation of significant economic power in the media markets. It analyses how competition authorities can safeguard competitive media markets, albeit in a more indirect way than media regulators. Their role has recently been interpreted by the EU Courts that defined important principles of what qualifies as effective competition law enforcement, which is crucial to situations in which media markets are affected by rule of law backsliding.

Keywords: competition authorities, competition law, enforcement, media pluralism, merger, rule of law

Bayer, Judit:

EMFA: is an equilibrium of powers possible? The perspectives of NRA independence in the EU media landscape

The cornerstones of the regulatory model proposed by EMFA are the independent media authorities, which will be brought together in a new Board. This would link the Commission, which monitors the application of EU principles, with the sovereign media authorities in the Member States. A deficit in the independence of the authorities not only jeopardises the EMFA, but also threatens to undermine European standards. Although Article 30 of the AVMS Directive makes the independence criteria mandatory from 2020 onwards, in some states (such as Hungary) these are not met or are only formally met. This analysis recalls that there already is a methodology for assessing de facto independence instead of formal independence. It recalls the paradox of the legal regulation of independence and points out that the application of the principle of equidistance rather than a negative interpretation of independence (immunity from something) seems to be the new European direction. According to this approach, the actors would mutually control each other and counterbalance each other’s influence.

Keywords: EMFA, independence of the media, independence of NRAs, media freedom, regulatory model

Simon, Éva:

Transparency of Media Ownership in the European Media Freedom Act: Rules and Missing Points

This study analyses the requirements set in the draft European Media Freedom Act (EMFA) and its accompanying Recommendation about transparency in media ownership. Transparency in media ownership is a prerequisite for measuring media pluralism and limiting media concentration. This paper examines the possibilities for the EU legislator to create a legal framework for the establishment of a public, up-todate and accessible database, in particular in the light of the November 2022 judgment of the Court of Justice of the European Union. It argues that, in the case of media service providers, the public interest outweighs privacy and personal data protection while considering the media’s social role, and proposes concrete solutions for the legislator to ensure the adequate transparency of media ownership.

Keywords: access to information, database, data protection, EMFA, EMFA Article 6, privacy, transparency

Gosztonyi, Gergely – Lendvai, Gergely Ferenc:

A Critical analysis of Article 17 of the draft European Media Freedom Act

The presence of content from traditional media providers on online platforms is one of the most salient issues to date that Article 17 of the draft European Media Freedom Act (EMFA) seeks to regulate. However, the current version of the text is not free of flaws as yet: its harmonisation with the Digital Services Act, its use of definitions, and the ‘media fast track’ mechanism it contains require careful legislative scrutiny before the final text is adopted.

Keywords: Digital Services Act, DSA very large online platform, EMFA Article 17, European Media Freedom, Act, VLOP

Polyák, Gábor:

Regulation of public advertising in the draft European Media Freedom Act

The volume and discriminatory distribution of state advertising is one of the most serious problems of the Hungarian media system and media freedom. The original draft of the European Media Freedom Act and the amendments proposed by the LIBE Committee of the European Parliament and of the Council are important attempts to curb this uncontrolled public spending. This paper shows what the European regulatory proposal offers as a solution and how it may be interpreted in the light of the previous practice of the European institutions.

Keywords: EMFA, media freedom, public spending, state advertising, transparency

Koltay, András – Nyakas, Levente:

Question marks on the European regulation of the media in relation to the proposal of the European Media Freedom Act (EMFA)

This analysis reviews the proposal of the European Media Freedom Act (EMFA) from an EU and media law perspective. Examining the legal basis of the regulation, it presents the criteria for media regulation at the EU level and, applying it to the proposal, questions the basic objective of the proposal (i.e., the maintaining of the healthy functioning of the EU internal market) and thus the necessity and the form of regulation. Examining certain regulatory subjects of the EMFA proposal, the authors conclude that in its current form violates the principle of subsidiarity and the sovereignty of the member states. If the regulatory purpose of the proposal were to be directed at cross-border services, general guarantee rules would be acceptable without specifying the detailed rules for their implementation in the form of a directive or of a recommendation.

Keywords: EU law, EMFA, media regulation, subsidiarity, member state sovereignty

Hammer, Ferenc:

When facts somehow just don’t bite

This paper addresses three main questions. First, it shows why an assessment of the praised democratic role of investigative journalism and fake news debunking cannot be complete without an account of what happens when fact-findings have no tangible consequences. Second, it identifies a few constitutive factors of the archaeology of silence and of silencing through international and Hungarian examples, with specific attention paid to the important context of media hybridisation. And third, by offering a methodological innovation—i.e., by juxtaposing the RSF freedom of expression index and the Freedom House democracy index—it provides an empirical understanding of which countries are presumably sliding upward or downward on the freedom/democracy scale and looks into the role that the lack of consequences of free speech may play in this decline.

Keywords: democracy, hybrid media, performance of media systems, press freedom

Német, Szilvi:

”I can’t even fathom what a liberal fact-checker is”

This paper studies Hungary’s first dedicated fact-checking initiative, Lakmusz, in order to assess the public’s reactions to this project. It is based on a quantitative and content analysis of readers’ comments (N = 2,546) on two Facebook pages – those of Lakmusz and of 444.hu – where fact-checking articles by Lakmusz were posted simultaneously. Its findings suggest that the two audiences commonly challenged journalists’ verdicts on epistemological grounds; however, politicised views on their practices were more pronounced in the comment section of the fact-checking portal. Our findings also indicate that the acceptance of the genre improves when fact-checks are an integral part of the mainstream news agenda. On the downside, fact-checking articles also seem to provoke polarised political attitudes among news commenters being “in the know.”

Keywords: content analysis, fact-checking, independence, journalistic bias, mainstream media, readers’ comments