The activities of intermediaries differ from those of traditional media outlets in respect of the provision of news. However, the wide scope of information they distribute, their wide audience reach and their potential for highly targeted advertising have contributed to a shift of advertising and marketing revenues towards the internet. These trends challenge the traditional media business models and contribute to an increase in media consolidation and convergence.
One or a small number of media owners or groups can acquire positions of considerable power where they can separately or jointly set the agenda of public debate and significantly influence or shape public opinion, reproducing the same content across all platforms on which they are present. These trends can also lead to cost-cutting, job losses in traditional journalism and established media sectors, and the risk of financial dependence for journalists and the media, which may ultimately cause a reduction in diversity, reliability and quality of news and content, and impoverish public debate.
The media are understood as including print, broadcast and online media. The term “online media” encompasses a wide range of actors involved in the production and dissemination of media content online and any other intermediaries and auxiliary services which, through their control of distribution of media content online or editorial-like judgments about content they link to or carry, have an impact on the media markets and media pluralism.
This broad notion of media requires a graduated and differentiated approach to the application of media standards to individual actors, which should be subject to appropriate forms and levels of protection and responsibility, having regard to their specific functions in the media process, the characteristics and needs of the media markets within the jurisdiction of the States and the relevant standards of the Council of Europe.
States should ensure transparency of media ownership, organisation and financing and promote media literacy so as to provide individuals with the information and critical awareness that they need to access diverse information and participate fully in the multimedia ecosystem. As the ultimate guarantors of pluralism, States have a positive obligation to put in place an appropriate legislative and policy framework to that end. This implies adopting appropriate measures to ensure sufficient variety in the overall range of media types, bearing in mind differences in terms of their purposes, functions and geographical reach.
States are called upon to ensure that there is regular independent monitoring and evaluation of the state of media pluralism in their jurisdictions based on a set of objective and transparent criteria to identify risks to the variety in ownership of media sources and outlets; the diversity of media types. States should also ensure that bodies conducting independent monitoring and evaluation exercises have sufficient access to all relevant data and sufficient resources to carry out these tasks. States are further urged to develop and enforce appropriate regulatory and policy responses in order to effectively address any risks found.
States are encouraged to adopt regulatory and policy measures to promote the availability, findability and accessibility of the broadest possible diversity of media content. In respect of the audiovisual media, these measures could include must-carry rules, rules on due prominence of general interest content on electronic programme guides and rules on accessibility for persons with disabilities.
As media content is not only distributed, but also increasingly managed, edited, curated and/or created by internet intermediaries, States should recognise the variety of their roles in content production and dissemination and the varying degrees of their impact on media pluralism. Any regulation governing those activities should be appropriate and proportionate. Any self-regulatory mechanisms developed in this area should operate independently and transparently, be accountable to the public.
States should also ensure stable, sustainable, transparent and adequate funding for public service media on a multiyear basis in order to guarantee their independence from governmental, political and market pressures and enable them to provide a broad range of pluralistic information and diverse content. This can also help to counterbalance any risks caused by a situation of media concentration.
The relevant regulation of the media should take full account of the impact of online media on public debate, including by ensuring that the producers of media content distributed through online distribution channels and users are protected from possible anti-competitive behaviour of online gatekeepers which adversely affects media pluralism. Monitoring and enforcement of the relevant regulation should be conducted by an independent body provided with sufficient and stable financial and human resources to enable it to effectively carry out its tasks.
The enforcement of competition law, including merger controls applicable to media, should aim to ensure effective competition and prevent individual actors from acquiring significant market power in the overall national media sector or in a specific media market/sector at the national level or sub-national levels, to the extent that such significant market power adversely impacts media pluralism.
Media-ownership regulation can include restrictions on horizontal, vertical and cross-media ownership, including by determining thresholds of ownership in line with Recommendation CM/Rec(2007) of the Committee of Ministers to member states on media pluralism and diversity of media content. These thresholds may be based on a number of criteria, such as capital shares, voting rights, circulation, revenues, audience share or audience reach. Any restrictions on the extent of foreign ownership of media should be implemented in a non-arbitrary manner and should take full account of States’ obligations under international law and, in particular, the positive obligation to guarantee media pluralism.
States are furthermore encouraged to ensure procedures to prevent media mergers or acquisitions that could adversely affect the pluralism of media ownership or diversity of media content. Such procedures should involve a requirement for media owners to notify the relevant independent regulatory authority of any proposed media merger or acquisition whenever the ownership and control thresholds, as set out in legislation, are crossed.
Transparency requirements should be implemented in accordance with the right to privacy and data protection and should be limited to individuals directly involved in the ownership of a media outlet or its editorial oversight structures. Furthermore, in exceptional circumstances to be laid down in national law, where full disclosure would expose the owner to personal risk or where the owner is a minor or otherwise incapable, States should provide for an exemption from access to all or part of the information on ownership on a case-by-case basis. States should ensure that these exemptions are granted upon an evaluation of the exceptional nature of the circumstances.
Media transparency requirements should be specific and include a requirement for media outlets operating within State jurisdiction to disclose ownership information directly to the public on their website or other publication and to report this information to an independent national media regulatory body or other designated body, tasked with gathering and collating the information and making it available to the public. This body should be provided with sufficient and stable financial resources and staff to enable it to effectively carry out its tasks.
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