INTERNET POLICY REVIEW

INTERNET POLICY REVIEW

Between the cracks: Blind spots in regulating media concentration and platform dependence in the EU

Introduction

The European Union is venturing into uncharted waters when it comes to media regulation. In addition to a series of regulatory measures aimed at curbing the economic and gatekeeping power of platforms through the Digital Services Act and ensuring fair competition in digital markets with the Digital Markets Act, as well as pioneering the first comprehensive legislation with the European Union Act, the European Union has now focused on an issue that had previously sailed under the radar of the Commission: the protection of media freedom and pluralism, as outlined in the proposed European Media Freedom Act. This is a noteworthy manoeuvre considering the European Union's limited competences to regulate matters related to media pluralism and culture. The European Media Freedom Act comes as a response to the increasing threats to media freedom and pluralism in Europe, proposing new rules aimed at safeguarding editorial independence, media pluralism, ensuring transparency and fairness, and enhancing cooperation. The legal basis to regulate in this realm is derived from concerns about the negative impacts of diminishing media freedom and pluralism on the functioning of the European Union internal market. The Digital Services Act and Digital Markets Act also find their legal basis in Article one hundred fourteen of the Treaty on the Functioning of the European Union and focus on regulating "digital services", including online intermediaries, platforms, and gatekeeper online platforms, and preventing anti-competitive and dominant positions of power that would harm the functioning of the internal market. Among the various provisions, the Digital Markets Act includes ex-ante obligations aimed at preventing certain behaviours before any evidence of actual harm in the digital market emerges, reflecting a similar approach to controlling media concentration. For the purposes of this article, building on Gorwa's and Simon's definitions of "digital platform companies" and "platforms", we broadly define "platforms" as encompassing both one the services, platforms, and infrastructures of large platform companies, and two the corporate and business strategies of these firms. This includes major platforms such as Alphabet (Google), Meta (Facebook and Instagram), Microsoft, Amazon (AWS Cloud), ByteDance (TikTok), and Apple (iOS).

Today, platforms hold significant opinion and political power within the media, stemming from their economic, algorithmic, technological, and infrastructural capabilities, positioning them as key systemic players. Despite increased power concentrations and the growing dependence of the news media on platforms, previous reform attempts demonstrate the difficulties in adopting media concentration rules to the digital realities. This is evident, with media concentration increasing despite existing ownership regulations, and threats to editorial independence from political and commercial pressures not diminishing but growing, especially amid the media's economic crisis. This is likely due to evolving media market structures that disrupt traditional journalism business models and further bolster platforms' economic and technological power. Neither traditional media laws, nor the evolving European Union regulatory framework, has (yet) been able to adequately address these facets of media concentration. In response to this critical issue, the European Union's twenty twenty Democracy Action Plan called for effective action against media concentration and for safeguarding media pluralism, proposing strategies for addressing media concentration "in the online environment". The European Media Freedom Act serves as a complementary legal instrument, or lex specialis, to the broader Digital Services Act and Digital Markets Act, offering more targeted rules specifically designed for the media sector. The European Union's acknowledgement of the detrimental effects of media (market) concentration on both the internal market and public values, including democracy, is significant. Through the European Media Freedom Act, the European Union is making a concerted effort to tackle this issue of media concentration, a long-standing concern for scholars and industry professionals alike. The question remains, however: does the European Union regulatory framework, especially the Digital Services Act, Digital Markets Act, and the complementary European Media Freedom Act, effectively address platform dependence and digital media concentration? This article sets out to explore this very question.

Through the conceptual lens of opinion power and media concentration in the platform context and building on the work of Helberger and Seipp et al., this study employs a normative legal research method to examine how the Digital Services Act, the Digital Markets Act, and the specialised rules of the European Media Freedom Act address digital media concentration. Positioning the European Media Freedom Act rules, particularly Article twenty-two European Media Freedom Act, in a broader regulatory context with the Digital Services Act and Digital Markets Act, the aim is to pinpoint the key blind spots in effectively tackling media concentration in the context of dependence on platforms. First drawing on a literature review that identifies key blind spots in addressing digital media concentration, we employed doctrinal and normative methods to analyse how the current European Union regulatory framework - specifically the Digital Services Act, Digital Markets Act, and European Media Freedom Act - aim to address these shortcomings, ultimately assessing their effectiveness in doing so. This research contributes to the ongoing scholarly discourse on European media law and policy by examining the regulatory challenges in addressing digital media concentration, particularly as news media become increasingly reliant on platforms, and by highlighting key areas of focus for future efforts.