Ángel García Castillejo*/Spain, april 2016.
From a global perspective, and on the basis of the work undertaken within United Nations system together with UNESCO, we start from the consideration of international norms according to which freedom of expression and opinion represents a general right of all citizens. The universality of this right has been reinforced by Article 19 of the International Covenant on Civil and Political Rights (ICCPR) as well as General Comment 34 on this article by the Human Rights Committee. In 2012, this body established that both articles 19 apply to the area of Internet.
This approach considers the interdependence of freedom, pluralism, independence and security given that the state of media freedom determines the level of pluralism and independence, and that these elements cannot exist in contexts without freedom of the media. The media requires a component of independence so that society can access news made according to professional standards and decisions based on ethical processes.
There is broad consensus that media pluralism conditions the state of freedom and independence of the media. The former Representative on Freedom of the Media of the Organization for Security and Co-operation in Europe (OSCE) cautioned that «pluralism is the key that opens the door to freedom of information and freedom of expression.» This is why monopolies, be they public or private, restrict the freedom of the media through the exclusion of new potential players. The introduction of digital technology and converging trends within the media has enhanced the movement towards media concentration. This has led in turn to circumstances of strong oligopolistic concentration that not only concentrates the media, but also advertising markets and the payment systems that finance media outlets.
From Europe, and as a comparative perspective and contribution to the debate on the plurality of the media in the Americas, the Council of Europe distinguishes that the notion of pluralism can be understood «from the point of view of the concentration of media ownership, as the possibility that a large range of values, opinions and information and interests of a social, political and cultural nature may find a way to manifest themselves through the mass media. Internal pluralism is provided through opinions and information that find a vehicle of expression within a given organism in the media sector; external pluralism through a number of these organisms, each expressing their point of view.»
In Europe there is broad consensus regarding the importance of pluralism in the media for democracy and the formation of identity, and there are still very divergent opinions on how to regulate this issue. EU member states have different cultural, political and regulatory traditions, which explain the sometimes conflicting approaches regarding media pluralism. But above all, pluralism in the media in itself is a complex and multidimensional concept, which has been interpreted in different ways in different periods, geographical zones, contexts and political circles. This «clash of rationales» as Klimkiewicz calls it, is even more polarized by the ambiguous impact that recent technological and economic advances have had on pluralism within the media. It is not surprising therefore (especially in light of the failed attempt in the 1990s to align national regulations on media concentration) that the European Commission has adopted a prudent stance towards pluralism in the media in recent years. In its working paper of 16 January 2007, the Commission stressed that it would not be appropriate to submit a community initiative regarding pluralism, although at the same time recognizing the need to closely monitor the situation.
Considering that the protection of pluralism in the media has been a recurring concern of the European Parliament, urging the Commission on various occasions to propose concrete measures to safeguard pluralism in the media (European Parliament 1992, 1994, 1995, 2004, 2008 , 2011), the European Commission has adopted a much more cautious stance on the issue, especially since the failed attempt to launch a harmonization directive on pluralism and media ownership in the mid-90s (European Commission 1992). The issue was so controversial that the Commission never formally adopted a proposal. This deficit shows us the complexity of a political system and competence balances such as providing support to the EU in which the shared perspectives of the whole of the EU with the specificities of media markets in the member states are weighted. Furthermore, the dynamic process of EU development means that the successive enlargement of the body, including the accession of Central and Eastern Europe countries, which are characterized by relatively young media markets along with intense media reforms, have further reduced the feasibility and convenience of a uniform approach to pluralism in the media throughout the European Union.
The European Commission itself has repeatedly stressed that «the protection of pluralism in the media is a central task for member states» (European Commission, 2003). There is, however, considerable potential for the Union to support and, if necessary, supplement measures taken by member states on media pluralism. Although the founding treaties do not expressly envisage EU interventions to guarantee pluralism in the media, there are a number of legal grounds on which such actions could be based.
Nevertheless, it is very unlikely that the European Commission will respond to this request from the European Parliament given that it is a political and purely declaratory mandate that lacks imperative elements, along with a legislative initiative for the adoption of a directive regarding media freedom and pluralism. To date the initiatives implemented are for the monitoring and supervision of the level of plurality using instruments such as the Media Pluralism Monitor (MPM) or the Mapping Digital Media initiative that has been driven by the Commission together with the Open Society Foundations.
* Managing Partner of MEL Lawyers S.L.P. Professor of Journalism and Audiovisual Communication at Universidad Carlos III in Madrid. Professor of Publicity Law and Intellectual Property at the Blanquerna Faculty of Communication, Universitat Ramón Llull, Barcelona. Former Director of the Commission for the Telecommunications Market in Spain.