Institutionalization of the freedom of the press and media plurality in the EU

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Institutionalization of the freedom of the press and media plurality in the EU

Ewa Stasiak-Jazukiewicz, Marta Jas-Koziarkiewicz

Тема статті -- процес інституціоналізації свободи преси та плюралізму ЗМІ в межах Європейського Союзу. Представлене дослідження є переважно пояснювальним. Він використовує основоположну концепцію інституціоналізації, про яку йде мова в першій частині тексту. Огляд діяльності ЄС у сфері свободи преси та плюралізму засобів масової інформації був проведений з використанням інструктивно-правового аналізу. Певні норми, інститути, проекти та ініціативи були прийняті, призначені або впроваджені в рамках ЄС. Дослідження підтверджує гіпотезу, який передбачає, що процес інституціоналізації свободи преси та плюралізму засобів масової інформації в ЄС призводить до створення союзних та федеральних правил функціонування засобів масової інформації, доповнених міжнародними та національними правилами в окремих державах-членах. Дослідження також підтверджує гіпотезу про те, що процес інституціоналізації свободи преси та плюралізму засобів масової інформації є динамічним та відбувається у двох сферах: нормативній та аксіологічній.

Падіння соціальної довіри до європейських медіа є результатом таких проблем, як: комерційна таблоїдизація контенту, зниження якості журналістського професіоналізму, політична залежність публічних ЗМІ, зв'язок медіа-середовища з політичними силами та політичний клієнтелізм, посилення популізму в ЗМІ та нормалізуючий ефект дезінформації, що дедалі більше має наслідки в політичних дебатах. Не було прийнято рішення про регуляторне втручання в рамках УЕ, але вжито заходів для залучення зацікавлених сторін у протидії цим небажаним ефектам.

The subject of the article is the process of the institutionalization of freedom of the press and media pluralism within the European Union. The presented study is mainly explanatory. It utilizes the foundational concept of institutionalization, which is discussed in the first part of the text. An overview of EU activity in the sphere of freedom of the press and media pluralism was conducted with the use of instructional-legal analysis. Certain norms, institutions, projects and initiatives were accepted, appointed, or implemented within the framework of the EU. The study confirms the hypothesis proposing that the institutionalization process of the freedom of the press and media pluralism in the EU leads to the creation of union and federal rules of function for media, supplemented by international and national regulations in individual member states. The study also verifies the hypothesis that the process of institutionalization of the freedom of press and media pluralism is dynamic, occurring in two spheres: the normative and axiological.

Ключові слова: інституціоналізація, свобода слова, плюралізм ЗМІ, Європейський Союз Key words: institutionalization, freedom of speech, media pluralism, European Union

The issue of institutionalization has been addressed by several scholars in the social sciences. This term has been permanently written into theories of international relations, and considerations on this topic have occur in sociology, political studies, culture studies and philosophy. Institutionalization has been defined within all of the fields indicated. Scholars have drawn attention to the purposefulness of the process, which is usually constant and leads to the creation of frameworks which allow for a common analysis and problem solving [20] This concept has been utilized in analysis of social realities, specifically „to study the ongoing processes of transformation by which institutions are (re)produced in interactions” [40, p. 18]. Thus, institutionalization has been posed as „a substantive systemic theory from which to hypothesize and carry out research” [17, p. 344]. Since the 1980s, institutionalism has been one of the theoretical concepts most readily applied in political research. The active interest in this concept and the increase in studies and research projects based on its tenets have been described by Francis Fukuyama as a second invention of the wheel [18, p. 94].

The analytical possibilities offered by this term have led the authors of this study to reach for its aspects in the analysis of the freedom of press and media pluralism in Europe. The analysis of the process of institutionalization of these values allows for the observation of the role and meaning of European organizations. Their determinations of the law, formalization of structures and forms of cooperation, and consultations with agents representing media define the threshold conditions for the operation of media in Europe.

Considering the above, the process of the institutionalization of freedom of the press and media pluralism in Europe in this article has been connected to the activities of a single international organization: the European Union. The development of codependence, similarity of interests and goals of EU member states renders regulations at the national level inadequate [33, p. 267]. The EU has been the initiator of appointing regulatory subjects, or those who define threshold conditions for the operation of media, and it has also been responsible for accepting and implementing programs dedicated to media. The following analysis of the process of institutionalization of pluralism and freedom of speech is not limited only to this plane, but also takes into account the activities of the journalistic community.

institutionalization press freedom

In this study, it is crucial to examine the phenomenon of institutionalization as proposed by the fields of political studies and sociology. In the case of both disciplines, questions of institutionalization are considered fundamental, as they concern the essence of social order [29, p. 137]. In both cases the process is tied to structures, institutions, law and norms whose existence ensures the attainment of relevant social goals through affiliated resources that are stronger than individual members [24, p. 107]. This pattern was described by Bronislaw Malinowski, who noted that «everywhere and in every effective performance the individual can satisfy his interests or needs and carry out any and every effective action only within organized groups and through the organization of activities» [30, p. 45].

Sociologists have understood institutionalization as the «increase of consistency and repeatability of human activity» or, more broadly, as «an increase in the degree of regulation of human behaviour through the internalization of patterns, rules and norms, or, otherwise, the decrease of the degree of individuality, freedom and spontaneity of human behaviour» [29, p. 136].

The process of institutionalization is connected to change and evolution of a community along with the consolidation and transmission of desired standards and solutions through the transition from informal social activities to those which are regulated and sanctioned, in result contributing to the creation of increasingly complex, new connections between system elements and members of a collective. [26, p. 230]

For this reason, the concept of institutionalization has been readily used in analyses within political studies. At times, it was defined as a process characterizing the development of human societies based in a defined space and time, [19, s. 9] a process of nation-building or, more broadly, the creation of a global order.[23, p. 2]. This approach has been used especially in research concerning political parties (for example, 7; 13; 34; 1; 28; 22) and in analyses in the field of international relations (for example, 14, 31, 27, 35, 17, 25, 26). It has also often been a part of considerations dealing with European integration and the operation of the EU (21; 20; 41).

Among the definitions of internationalization based in political studies, one of the most commonly referenced is proposed by Samuel P. Huntington (as mentioned by 21; 20, 41, among others). According to this definition, «institutionalization is the process by which organizations and procedures acquire value and stability» [22, p. 393]. Jyzef Kukulka linked institutionalization to the creation of institutions, which included „the invention of legal norms and procedures for people, but also the organization of cooperative tools, and finally the appointment of specialized organisms which ensure the endurance and purposefulness of activity in the interests of the defined collective” [25].

All of the aforementioned definitions allow for the extraction of several types of institutionalization. These are:

- spontaneous institutionalization (habitual) -- associated with imitation or the routinization of behavior, often occurring subconsciously

- normative institutionalization -- encompassing the formation and creation of formal (legal) and informal norms (behavioral, moral) according to objectives resulting from the accepted system of values, existing socio-economic conditions and needs and social interests which should ensure social control;

- axiological institutionalization -- associated occasionally with the process of socialization, and thus social agreement, dissemination and internationalization of values or models of behavior accepted and recommended by institutions and organizations [see: 29, p. 137, 25, p. 194-201, 33, 17].

This typology has been utilized in the present study.

Research purpose and methodological foundation

The subject of this article is the process of the institutionalization of freedom of the press and pluralism within media in the EU. In the presented analysis, freedom of the press is understood as: freedom of expression, the right to information, right to the establishment of media subjects and freedom to choose the structure of media companies, as well as the protection of the products of journalist and media activities. [see: 6].

According to Gillian Doyle «media pluralism should be understood as diversity of media supply, reflected, for example, in the existence of a plurality of independent and autonomous media and a diversity of media contents available to the public» [15, p. 12]. Structural pluralism, or market pluralism, distinguishes itself, as it is based on the presence of many types of media ownership on the market (private, public, community), respecting the rules of free competition and the prevention of excessive concentration of media ownership, which could lead to the domination of one source of information and opinions, simultaneously threatening the manipulation of public opinion. A significant factor affecting the ability to ensure market pluralism is the transparency of media ownership. Another type of pluralism is content pluralism, concerning diverse content presented in media, political and economic independence, and social inclusion, which provides the use of media to individuals and various social groups.

In accordance with the principles of the institutionalization process (the theoretical model or institutionalization proposed by Jozef Kukulka), the overview of EU activity in the field freedom of the press and media pluralism has been conducted through an institutional-legal analysis. Within this framework, norms, institutions, projects and initiatives accepted, appointed or implemented by the EU have been identified and connected to the institutionalization process of freedom of speech and media plurality. The study has adopted the following hypotheses:

H1. The process of institutionalization of freedom of the press and media pluralism in the EU leads to the creation of union, federal rules for the operation of media, supplementing international and national regulations withing individual member states.

H2. The process of institutionalization of freedom of the press and media pluralism has a dynamic character and occurs in two spheres: normative and axiological.

H3. The process of normative and axiological institutionalization of freedom of the press and media pluralism in the EU does not occur at the same pace.

The methodological foundations allowed for the identification of developing laws and the determination of institutions established for the purpose of monitoring the progress of implementation of introduced regulations, as well as proposed procedures for the dissemination and use of best practices and all models of initiatives within the environment of European media. Analysis confirms the course of the institutionalization process in two spheres: the normative and axiological. The normative sphere includes the establishment of general legal norms, along with the definition of desirable rules of conduct. Freedom and pluralism has been subject to regulation. The axiological sphere depends on the dissemination and internationalization of values and rules of procedure. Dissemination is generally performed by institutions formed by EU initiatives, while socialization concerns the media environment, including regulatory bodies or selfregulation of media (Image 1).

The results of the analysis indicate that the institutionalization of freedom of the press and media pluralism is a dynamic process. Institutionalization in the normative sphere is carried out within the framework of media politics conducted by EU structures, defined as activities shaping the framework of legal, political and economic conditions for the functioning of media in accordance with its objectives, which are the result of the adopted system of values, existing socio-economic conditions, and needs and interests of society [36, p. 23].

Rys. 1: The process of the institutionalization of the freedom of the press and medial pluralism in the EU.

Source: Authors of the study.

The main source for the guarantee of freedom of the press and media pluralism in the EU is art. 11 Charter of Fundamental Rights of the European UnionOfficial Journal of the European Union C 303/17 - 14.12.2007. This collection of fundamental human rights and citizen duties obtained validity throught the Treaty of Lisbon of December 13^th, 2007, which entered into force on December 1^st, 2009. Due to entry of Poland into Protocol 30 declared by Great Britain, which limits the use of social laws regulated by the Charter, the legal status of the Charter in Poland has not been fully explained. According to the legal opinion published in 2008 by Legal Council in conjunction with the Council of Ministers, its normative character is limited to provisions already present in Polish law. Por.:[35, pp. 134--139].

²See. CJEU: 8 XI 2007 r., In case The Bavarian Lager Co Ltd. v. European Commission, 194/04 oraz z dnia (CFR, confirmed in art. 6 of treaties TEU and TFEU, 38, 39). Art. 6 pt. 1 of the Directive ensures freedom of speech and a right to information, while pt. 2 mentions respect for freedom of the press and the plurality of media. Moreover, freedom of the press and pluralism of media are ensured by treaties, directives (including the Audiovisual Media Services Directive, AVMS -- [9] and the Directive on copyright and related rights in the Digital Single Market [8]), resolutions (for example, EP Resolution: Towards an EU strategy on the rights of the child [43]) and case-law precedents set by the Court of Justice of the European Union (CJEU).

Freedom of the press in a democratic state is defined by its independence from political control. One of its elements is freedom of speech, which should be understood as the right of a citizen to access true information or opinions that are obtained in a reliable manner and not misleading. Another element of freedom of the speech is the right to information, understood also as the right to access documents (case law CJEU², based on treaty notes -- art. 1 TEU and TFEU, art. 15) and the right to good administration (art. 41 CRF). The boundaries of freedom of speech also include the protection of underage consumers of media content (points: 52, 53, 62, 63, 65, 66, 67 and 69 Towards an EU strategy on the rights of the child; art. 6a AVMSD) and human dignity (art. 2 TEU; art. 6.1 AVMSD), and also ban the propagation of content containing hate based on race, gender, religion or ethnic origin (art. 21 CRF; art. 6.1 tiret a AVMSD) and the commitment of crimes of terror (articles: 2.2.b, 3.1.a, 3.2.a and 4.2 Directive (EU) 2017/541 on combating terrorism [10] and art. 6.1.b AVMSD). Another example of limits on freedom of speech is the specific rule, where at least 30 percent of content offered in an audiovisual transmission must contain works by European artists (art. 13 AVMSD). Protection of works produced by journalism and media is contained in the aforementioned Directive on copyright and related rights and eleven other directives concerning copywrite laws, including: «On certain permitted uses of orphan works» [12], and «Improving the online licensing of music across the EU» [11].

Regulations of ownership structures of media companies connect both basic rights, freedom of the press and media pluralism. They are the result of competition law, which authorizes control of mergers. Pursuant to art. 167 and 173 TFEU member states are encouraged to cooperate with the creative industries, including the audiovisual sector, granting EU institutions the ability to utilize financial sources which promote such cooperation (art. 167.5 TFEU) and which provide conditions for the competitiveness of EU industry (art. 173.1 TFEU), granting the European Commission the right to initiate coordination of activities on this matter (art. 173.2 TFEU) [39]. The protection of market pluralism and the prevention of consolidation processes generally occurs at the level of national legislation, except that it must not infringe on the free market and the principles of competitiveness. The Council supplements these protections by granting the European Commission the power to monitor and eventually interfere in the process of the concentration of ownership at the community level [42]. The threats to the pluralism of media content posed by the concentration of ownership were the reason for the resolution by the European Parliament sensitizing member states to the necessity of guaranteeing competitiveness in the media market [44].

Another factor connected to the threat of the concentration of ownership in the media market is the question of the transparency of capital structures of media companies. AVMSD requires states to ensure transparency of media ownership and suggests means of access of users to information in this regard (pkt. 15 and 16) without providing concrete solutions, which each state should in any case adapt to its political, social, and even technological circumstances.

All forms of media are permissible, although various EU structures view some of their significance in different ways. Due to the historical development of EU media policy, VII 2008 r., In case M. Turco v. Concil of European Union, C-39/05 P i C-52/05 P; www.eur-lex.europa.eu (XII 2019). electronic media have garnered particular attention. The AVMSD is dedicated specifically to this type of media. Subjects of care are public broadcasters. Their activity is based on article 106.2 of the Treaties, which forbids the use of funds contrary to the norms set by the Treaties and art. 14, «Concerning services of general economic interest», SGEI. The Commission Regulation on the application of Articles 107 and 108 of the Treaties to de minimis aid granted to undertakings providing services of SGEI was formed in 2012 [46]. Protocol 29, connected to the Treaties, is dedicated to public broadcasters, granting member states exclusivity to define the mission and guarantee of funding for public broadcasters. In 2010, the EP issued the «Resolution on public service broadcasting in the digital era [45] in which pt. 18 entrusts member states to «provide appropriate, proportionate and stable funding for public service media so as to enable them to fulfil their remit, guarantee political and economic independence and contribute to an inclusive information and knowledge society with representative, high quality media available to all», while in pt. 26, «to end political interference regarding the content of services offered by public service broadcasters». Art. 30 AVMSD places the responsibility for the appointment of regulatory bodies concerning electronic media that are independent from political power and all other public subjects on member states, simultaneously recommending cooperation in this area. It can be concluded from the aforementioned documents that the European Commission cares for the activity of public broadcasters which could breach the rules of competitiveness, while the European Parliament encourages the dominance of public broadcasters, placing focus on mechanisms that guarantee their political and economic independence.

Another form of ownership drawing the attention of EU structures is community media. A study published in 2007 by the Policy Department Structural and Cohesion Policies Culture and Education EP, «The State of community media in the European Union» [37], emphasized the necessity for the legal recognition of community media as a separate category of media developing parallel to the public and private media sectors by member states and the EU itself.

The protection of the political independence of public broadcasters and the entrust- ment of media education to shape conscious and critical use of media, the support of digital distribution of audiovisual works, and the combat of exclusion of disabled persons from the ability to enjoy media offerings are among several activities undertaken to support content pluralism. [47] (art. 7 AVMSD).

The verification process of these norms by member states is entrusted to executive agencies, including the European Regulators Group for Audiovisual Media Services (ERGA).

The monitoring of compliance to the rules of freedom and media pluralism in EU candidates and states (Media Pluralism Monitor, MPM) is carried out by the Centre for Media Pluralism and Media Freedom (CMPF), founded w 2011 r. by the European University Institute (EUI) The conventions establishing EUI were signed in 1971. Its objective was the support of research development in fields relevant to the development of Europe. 23 members of the EU joined the Convention.. A few issues that are analyzed are threats to freedom of press and media pluralism, along with the development of strategy for their prevention.

The Education, Audiovisual and Culture Executive Agency (EACEA), which manages the «Creative Europe» program by supporting development, production, distribution and access to audiovisual works, has been in existence since 2013.

The drop in social trust in European media is a result of problems such as: the commercial tabloidization of content, decreasing quality of journalistic professionalism, political dependence of public media, relationships of media environments to political powers and political clientelism, an increase of populism in media and the normalizing effect of disinformation, which increasingly has consequences in political debates. There has been no decision about regulatory intervention within the framework of the UE, but there have been steps undertaken to engage concerned parties in countering these undesirable effects. An example is the «Social Media Guidelines for Journalists» which is established in the EU based on the «Code of conduct on countering illegal hate speech online» adopted in 2016 by the European commission's and Facebook, Twitter, YouTube and Microsoft. Example of initiatives to counteract the increasing hostility of politicians towards media and laws which limit the freedom of the press of the penalization of slander are European Charter on Freedom of the Press from 2009 The text is available on the website of the ECPMF at the link: https://www.ecpmf.eu/ecpmf/charter (XII 2019)., European Centre for Press & Media Freedom (ECPMF), an organization founded in 2015 by representatives of journalist associations and academic institutions, and multiple databases about the infringement upon freedom of the press in Europe, including Mapping Media Freedom.

Conclusions

The conducted analysis of EU activity supports hypothesis (H1), which states that the institutionalization of freedom of the press and media pluralism leads to the foundation of UE and federal rules for the operation of media, supplemented by international regulations (such as those prepared by the European Council, including the European Convention For the Protection of Human Rights and Personal Freedoms (ECHR) and national (constitutions), adopted or approved in individual member states.

The process of institutionalization of the freedom of the press and media pluralism has a dynamic character and occurs in both normative and axiological spheres. It encompasses the agreement, acceptance, or implementation of norms, institutions, projects and initiatives with a longer time horizon (H2). Developed, effective ways of the execution of the methods and range of implementation of EU solutions regarding the legislative bodies of member states have created effective normative institutionalization. In comparison, axiological institutionalization is occurring at a slower pace (H3). Particular insufficiency is noted where engagement from political authorities of member states is necessary. This can be explained by the concentration of their attention on national perspectives when solving the organizational and functional problems of media. Thus, axiologicalinstitutionalization is more effective in the journalistic environment.

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