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Media Freedom and Pluralism

Beata Klimkiewicz

Section 1. Media policy rationales and models

Chapter 1. Towards democratic regulation of european Media and Communication

Hannu Nieminen

Texte intégral

1Since the mid-1990s the media and communication landscape in Europe has experienced profound changes. Previously, the traditional commercial logic of the print media was contrasted with other functional logics, such as the universal service principle of telephony and the public service principle of broadcasting. As a result of the digitalization and computerization of information, the situation has dramatically changed. Today, different regulatory regimes are converging. Commercial logic, promoting a neo-liberal regulatory framework, now appears to be victorious (see, e.g. Kaitatzi-Whitlock, 2005).

2At the same time the ambitious project of European integration started after World War II appears to have run into a state of bewilderment. Even the European Union itself, in its own documents, speaks of its legitimacy crisis. One of the proposed remedies is the improvement of European media and communication policies and the development of the European public sphere. It is hoped that increasing public input and ways for citizens to participate in public debate in European issues will translate into support for the EU and the European integration process.

3The basic argument in this paper is that the commercial logic followed in the European media and communication regulatory policies contradicts the aim of opening up and strengthening the European public sphere. The basis of the EU media and communication policies should be redefined, and for this purpose an approach to European media and communications regulation is proposed that is based on the concept of citizens’ communication rights. it is normative in character and is grounded on the belief that ideas of deliberative democracy are not only theoretical but can also be applied in more policy-oriented ways. Initially, this approach is called a proposal for a democratic regulatory framework for European media and communication.

4The arguments are developed in three stages. First, the twofold crisis of the European Union—in both politics and legitimacy—will be briefly explored. Second, the ways that the European Commission tries to use the media and communication policies to solve the crisis are discussed, including the Commission’s attempts to employ the notion of the European public sphere. Third, and as the main outcome, a proposal for a new democratic regulatory framework for European media and communication will be outlined.

1.1. The twofold crisis of the European Union

5To start, it might be good to clarify the basic normative engagements behind this chapter. The basic question is, why does Europe matter, or why should it matter? The answer is simply that there are an increasing number of issues that concern all of us living in Europe. Although the problems concerning environment, energy, security, and immigration are not exclusively European in character, their global solution depends greatly on what we Europeans decide to do about them. From this follows that, although the European Union is not the same as Europe, the EU nevertheless influences our lives in a major way. And because the EU is central to how we address the problems described above, we should be concerned how and for what purposes power is used by the EU.

6Another question is connected to the characterization above: if the European Union is in crisis, what is the problem with it? This will be discussed in more detail below, but basically the problem is that Europe in general and the EU in particular are and have always been elite projects. They have concerned mostly relatively small groups of educated and influential people, and they have always had a problem connecting with wider popular sentiments. To say that Europe and the EU are elite projects is not, however, the same as to call them elitist. There are many competing projects on Europe and the EU, some of them more elitist and some less elitist. Nevertheless, they can all be characterized as elite projects.

  • 1 See e.g. Spiegel, 2005: “Brussels in Crisis.”

7Despite many achievements and continuing enlargement, the European integration project started after World War II is today in troubled waters. On the one hand, the problems are political: The EU is suffering political malaise, as is shown, for example, by the blocked process of the European Constitution. On the other hand, the EU suffers from a lack of popular legitimacy, as exemplified by the alarmingly low turnout in the European Parliament elections.1

1.1.1. The EU’s political crisis

  • 2 In 2006 the EU (with 25 Member states) had 457 million inhabitants. China had 1.288 billion and In (...)

8Although the EU, taken as a unit, has the world’s third biggest population,2 it is politically rather weak. This weakness is apparent in many areas. In global security and foreign policy, there is a lack of common policy, for example, towards the U.S.-led war in Iraq. In European security policy, there appears to be no effective means to solve the Kosovo crisis. In energy policy, there is no coherent approach to future energy sources.

9This lack of common political power is, however, inherent to the European Union. As its original aim was economic integration, i.e. to create a European single market, its basic structures were not aimed at developing and deciding on common policies. Problems started to emerge only when the main contours of the European single market were established and the primary aim was more or less fulfilled. From the early 1990s, if not earlier, it started to become clear that in order to be globally competitive, more than economic integration was needed from Europe. In the Maastricht Treaty the EU’s mandate was extended to include not only the economic area (Pillar I, European Community), but also common foreign and security policy (Pillar II) and cooperation in internal security (Pillar III, Police and Judicial Cooperation) (Treaty of Maastricht, 1991).

10Thus there has been a growing tension between the need to create more centralized decision-making structures for the EU, i.e. to transfer more binding political powers to the European Commission and other EU institutions, and the traditional sovereignty of the EU’s Member states. This tension has been exacerbated by the fact that the popular legitimacy of the European political system is still solidly based on the concept of the sovereignty of nation-states—although the national governments today are increasingly suffering a loss of popular trust as well.

11That the EU is facing an inherent political dilemma is obvious when we compare its two recent major policy challenges: the Lisbon strategy (2000) (see Lisbon European Council, 2000; Lisbon new start, 2005) and the European constitutional process, leading to the adoption of the Treaty of Lisbon in December 2008 (institutional reform, 2007).

12The Lisbon strategy was adopted by the European Council in March 2000. It set a target for the European Union “to become the most competitive and dynamic knowledge-based economy in the world” by 2010, and it recognized the need “to set a goal for full employment in Europe” within the same time frame (Lisbon European Council, 2000). The framework of the Lisbon strategy is global economic competition, in which the fear is that Europe is lagging behind not only the United States, but also the rapidly developing Asian countries. The aims and values promoted by the Lisbon strategy are measured in economic terms, such as competitiveness, profitability, growth, and efficiency. As was obvious by February 2005, the Lisbon strategy did not produce the hoped-for outcomes: “…the Commission finds the results to date somewhat disappointing and the European economy has failed to deliver the expected performance in terms of growth, productivity and employment. Job creation has slowed and there is still insufficient investment in research and development” (Lisbon new start, 2005).

13The fate of the Lisbon strategy can be compared with another major policy initiative of the European union, the attempt to anchor the EU to a constitutional basis—and in effect, to transform the EU from an inter-governmental construction to a more federal structure or to a federation proper. initially, the European Constitution was an attempt to meet two different needs: on the one hand, the need for more effective and more centralized policymaking, instrumental for the success of such initiatives as the Lisbon strategy; and on the other hand, the need to clarify the power structures and the legal basis behind the EU. The former was a response to the need for more efficiency; the latter was a response to the need for more democratic legitimacy and accountability (Eriksen, Fossum, Kumm & Menéndez, 2005).

  • 3 See comments by the NGOS and Think Tanks, Euractive 2008.

14Though it is clear that the main thrust of the constitutional process was to make the EU more transparent and democratically accountable, and to establish, at least in its initial stages, a European “rule of law,” other aspects of European developments took the forefront in the popular imagination. it is not accidental that the two strategic processes, the Lisbon strategy and the European Constitution, were conducted in parallel. In public debate the hard economic aims and values of European integration—as promoted by the Lisbon strategy—took the front seat. The original attempt at the European Constitution was not seen as representing the democratization of the EU and promoting social and cultural cohesion, but promoting centralization and command and-control type of governance, and transferring sovereignty from the nation-states to faceless Eurocrats in Brussels. Although the Treaty of Lisbon is presented as a political compromise and less than a union constitution, it has been met with the same type of criticism.3

15To sum up, the political crisis of the European Union does not essentially originate from the results of the French and the Dutch referenda to reject the European constitution. The crisis is between the two different logics or value systems that the EU attempts to nurture: market-based economic logic versus the democratic logic of social and cultural values.

1.1.2. The legitimacy crisis of the EU

16As stated above, the results of the French and the Dutch referenda on the European Constitution were certainly not the cause of the crisis, but symptoms of a much deeper problem. The European Union is very difficult to popularize. Its decision-making processes are complicated and mostly not open to democratic accountability. It is not always clear how decisions are made. and it is not only because the tripartite structure of decision-making (in which the European Commission, the European Parliament, and the Council of the European union use balancing powers) makes the development and negotiation of policies opaque, but also because the main responsibility for policy planning and advocating lies with the large army of civil servants and experts (about 23,000 in all) (European institutions, 2008).

17As a result, the European Union has remained remote to European citizens. And it seems that in the 2000s, the gap between the EU and the popular mood has actually increased. The recent results of the Eurobarometer, the official public opinion analysis institution of the European Commission, show that:

  • Support for EU membership is decreasing among the citizens of the EU countries. In autumn 2006, only 53 percent of EU citizens believed that their country’s membership in the European Union was a good thing. The percentage was 55 percent in spring 2006.
  • Only 46 percent of EU citizens viewed the European Union positively; this was clearly less than the 50 percent measured in spring 2006.
  • An overwhelming majority of citizens in the largest euro-zone countries believe the euro has damaged their national economies.4

18European citizens’ political alienation is also reflected in recent developments in the European Parliament elections. Turnout has been steadily declining: in 1979 it was 63 percent; in 1994 it was 57 percent; in 1999 it was 50 percent; and in 2004 it was 46 percent (European Parliament elections, 2004). These figures contrast sharply with voting activity in national elections: between 1945 and 2002, the mean turnout in the EU countries has been 83 percent (Voter Turnout in Western Europe, 2004).

1.2. The media and communication policies of the European Union

  • 5 EU ‘crisis’ 2005; see also EU Faces Crisis 2005; EU summit Failure 2005.
  • 6 Constitutional Treaty 2007. official closure—at least for the time being—was offered only in Decem (...)

19European heads of state reacted to the results of French and Dutch referenda with shock. “Europe is not in a state of crisis—it’s in a state of profound crisis,” the then-President of the European Union, Luxembourg’s Prime Minister Jean-Claude Juncker, reportedly said in June 2005.5 As the European Constitution process was effectively halted, in June 2006 the European Commission declared a period of reflection, which was to be used for an extensive public consultation about the future of Europe (European Council, 2005). The period was officially declared over in January 2007, but without any clear outcome.6Despite the adoption of the Lisbon Treaty in December 2008, it seems that from now on, we will be living in a permanent period of reflection, as the legitimacy of the EU is constantly tested and questioned.

20During the period of reflection, a major emphasis has been put on improving the communication and Pr activities of the Commission, as several central documents show. These include:

  • Action Plan to improve Communicating Europe (July 20, 2005) (European Commission, 2005c);
  • Plan-d for democracy, dialogue and debate (October 13, 2005) (European Commission, 2005d);
  • White Paper on a European Communication Policy (February 1, 2006) (European Commission, 2006a);
  • Period of reflection and the Plan d (May 10, 2006) (European Commission, 2006c); and
  • Communicating Europe in Partnership (October 3, 2007) (European Commission, 2007a).
  • 7 European Parliament and the Council 2007. On the consultation processes, see AVM Policies 2008.

21The deep concern raised by the results of the referenda in 2005 have been reflected in the EC’s work in many ways. One example is the preparatory process of the new audiovisual Media services directive,7 during which new kinds of extensive and multi-stakeholder consultations were exercised. In this process several new policy issues were raised for further exploration, including such topics as media pluralism (see Task Force for Co-ordination of Media affairs, 2007) and media literacy (see European Commission, 2007b).

22The following sections concentrate on three different areas of policies that appear to be either directly or indirectly initiated and affected as a result of the period of reflection: improving the European Commission’s communication and Pr work; emphasizing media pluralism in Europe; and promoting the European public sphere.

1.2.1. Improving the European Commission’s Pr work

23The documents mentioned above place great emphasis on the reform of the communication and Pr activities of the European Commission. The basic message is that the recent crisis of the European Union is rooted not in EU policies but in their ineffective communication to the wider European public. Notable obstacles to effective communication include the following three:

  • The Commission’s communication activities are criticized as insufficiently coordinated and planned. The messages were not linked to citizens’ interests and needs, but instead, “current campaigns focus on the political elite and media and fail to portray the benefits and consequences for day-to-day life in a direct and understandable manner.” Furthermore, the strategies were focused more on financing campaigns than developing dialogue and communication (see European Commission 2005c and 2006a).
  • Constant tensions between the European Commission and the Member states have been negatively reflected in the public debate: “ending the blame-game, both by Member states and the European institutions, is an important change that must take place” (European Commission, 2005d).
  • The media has not played its part in promoting the European agenda. The media coverage of European issues “remains limited and fragmented”: between the reporting of major events such as European Council meetings, there are periods when “there is no comprehensive cover of EU affairs.” regional and local newspapers “generally give little space to European issues.” in television and radio, “time devoted to political information and to European issues is squeezed still further and competition for ‘television space’ has increased” (European Commission, 2006a).

24The solution, as suggested in the documents, is rather obvious: The Commission’s communication work must be improved. It should become more professional, more resources should be allocated, and new methods and new technologies must be applied. All this is aimed at listening better to and meeting the needs and aspirations of European citizens: “The European Commission is therefore proposing a fundamentally new approach—a decisive move away from one-way communication to reinforced dialogue, from an institution-centred to a citizen-centred communication, from a Brussels-based to a more decentralised approach” (European Commission, 2006a). After a lengthy period of discussion and consultation, this approach was detailed in the Commission’s communication document Communicating Europe in Partnership in October 2007 (European Commission, 2007a).

1.2.2 More emphasis on Media Pluralism in Europe

25As stated above, according to the White Paper in 2006, one of the reasons for the lack of popular support has been the negative exposure of European issues in the media, which has hurt the image of the EU. The recent interest in media pluralism in Europe can be seen as an attempt to answer these concerns. In January 2007 the European Commission announced a “three-step approach” to media pluralism. According to this approach, “the notion of media pluralism is much broader than media ownership; it covers access to varied information so citizens can form opinions without being influenced by one dominant source. Citizens also need transparent mechanisms that guarantee that the media are seen as genuinely independent” (Task Force for Coordination of Media affairs, 2007).

26This is a new approach for two reasons. Earlier, the Commission was not willing to develop a clear policy towards the issues related to media pluralism, as they are closely related to questions of media ownership and media concentration. In the era of satellite television and the internet, these issues are increasingly transnational in character, but they have traditionally been left to the realm of national legislation (Nesti, 2007). The second reason, related to the first, is that the authorities are traditionally reluctant to regulate print media, as they can easily be accused of curbing freedom of the press.

27It is not clear where the three-step approach will lead. The first step was the publication of the Commission’s working paper in January 2007, which sets the outlines for the discussion (European Commission—DG information society and Media, 2007). The main aim seems to be to establish empirical indicators that can be used in measuring the level of pluralism in EU member countries. For this purpose, as a second step a major independent study has been commissioned. The third step will be the establishment of the indicators on the basis of a wide-scale consultation process (Task Force for Co-ordination of Media affairs, 2007). No clear indication is presented, however, of what measures would follow as a result of the study.

1.2.3. Promoting the European public sphere

28Although the main thrust of the documents presented above appears to be from many modern Pr and corporate communication manuals, the documents also include elements that go much further and indicate a deeper understanding of the crises that the EU faces. The White Paper on a European Communication Policy (2006) discusses the prospects and necessity to create the European public sphere, which is referred to with such attributes as inclusiveness, diversity, and participation (European Commission, 2006a). it must, however, be said that the development of the idea of the European public sphere is restricted almost exclusively to the White Paper, as in other documents it is only referred once or twice, without further explanation or context.

29This attempt to bring not only Habermasian vocabulary, but also normative-theoretical insights of deliberative democracy to the debate on European communication policy is not accidental but deliberate. This is further shown by several public presentations by European Commission Vice President Margot Wallström, who is also the commissioner for institutional relations and communication. echoing closely some interventions in the academic debate on the prospects for the European public sphere (see e.g. Risse, 2003; van de Steeg, 2002), she stated in January 2007: “it would be very important, from the ‘public sphere’ perspective, that issues of common interest—for example energy security, climate change, social Europe—are discussed more or less at the same time, by people across the European union, and possibly within a common framework of values” (Wallström, 2007).

30In the same speech, she also joined the debate on communication rights, central to the ideals of deliberative democracy. In defining the values and principles that should guide the EU’s communication activities, the starting point “can only be the citizens and their democratic rights,” which she listed as follows:

  • The right to full and fair information about decisions that affect their lives, wherever they are taken;
  • The right to hear and compare different opinions and points of views;
  • The right to debate issues of common interest;
  • The right to express their views and to be heard (Wallström, 2007).

31Unfortunately Margot Wallström has been a rather lonely voice among the commissioners. After the publication of the White Paper in February 2006, the concept appeared only occasionally in the EU documents, and even then without any wider democratic-normative framework. It was resuscitated in October 2007 in the Commission’s document Communicating Europe in Partnership, where a whole three-page chapter is titled “developing a European Public sphere” (European Commission, 2007a). However, the title is the only formal reference to the values and principles expressed in Wallström’s earlier speeches. The rest of the chapter deals with a set of institutional measures aimed at reinvigorating and refreshing the Commission’s Pr work, following the lines of Plan d and the White Paper of 2006.

32There appear to be two different approaches to the EU’s crises. The first assumes that what is needed is better management of the Commission’s communication and Pr activities. The other sees that the crisis is basically a result of the lack of democracy, and that the remedy should be a conscious attempt to build something called the European public sphere. In what follows, I will explore the latter path.

1.3. European public sphere and citizens’ communication rights

  • 8 Some of the EU-funded projects dealing with the European public sphere, either directly or indirec (...)

33The emphasis in the EU documents on the European public sphere does not come from nothing. In the last ten years or so, it has been a subject of increasing interest in European social and political research.8

34It is fair to say that the number of potential research projects is much bigger, as only a few project proposals in the social sciences and humanities are accepted by the European Commission. A number of projects are additionally funded by national research funds. 9As is the case in the academic world, all these projects function as factories— producing seminars, conferences, workshops, publications—resulting in a small-scale academic industry on the public sphere.

  • 10 See the whole reference for FP6 specific Programme 2006: “FP6 specific Programme ‘integrating and (...)

35Defying oversimplification, the main thrust of the projects mentioned above can be described in subsection 7.1.1. “Towards a European Public sphere” in the EU’s FP 6th’s specific Programme “integrating and strengthening the European research area.”10 In the call text the aim of the research is indicated: “The objective is to provide integrated perspectives on the roles of different social and political actors and assess their contributions towards the articulation of diverse public communicative spaces in Europe, as components of the broader public sphere” (FP6 specific Programme, 2006, p. 16).

  • 11 in regard to media economy, the reference is the following: “The role of electronic and print medi (...)

36Even if in the text some reference is given to the study of the role of media policy and media economy in relation to the conditions for the European public sphere, these issues are weakly articulated.11 What seems to be missing both from the FP6 call and the research projects presented above are approaches that would concern more directly the role of the EU’s media and communication policy, i.e. the challenges that the development of the European public sphere poses to the Europe-wide regulatory framework of media and communication.

1.3.1. Citizens’ communication rights

37In what follows, Margaret Wallström’s statements concerning the European public sphere and citizens’ rights will be taken as the starting point. The theoretical-conceptual basis behind the ideal of the public sphere will not be discussed here, as it is the subject of another debate (see, e.g. Nieminen 2006; Lingenberg 2006). Here the EPS will be adopted—as in Wallström’s speech and in the formulation of the FP6 call—as a normative goal which represents an attempt at a more democratic Europe.

38Instead, the focus here will be on the concept of citizens’ democratic rights, which were central in Wallström’s speech. We need, however, to go one step further from her formulation. Wallström’s comments can be interpreted as speaking not of citizen’s rights in general, but of rights that can more precisely be called communication rights: “The right to full and fair information […] The right to hear and compare different opinions […] The right to debate issues of common interest […] The right to express their views and to be heard” (Wallström, 2007). Following Wallström’s argumentation, the implementation of these rights is a condition for the realization of the European public sphere.

39Obviously there has to be different means to realize these rights in practice. Some of them have to do with the function of public administration and some of them with the political system more generally. Here the study will be restricted only to the role of the media, and the question is: How can we make the European media system serve citizens’ communication rights better?

  • 12 Birdsall and Rasmussen 2000; Birdsall and McIver 2002; statement on Communication rights 2003; Bir (...)

40Although the concept of communication rights has been a part of the academic vocabulary for some time now, it does not appear to have been developed very systematically. Most often the concept has been discussed in reference to the late UNESCO’s New World Communication and information order (NWICO), as well as to the more recent World summit on the information society (WSIS) (Hamelink, 2003a; Padovani, 2004; Mueller, Brenden, and Pagé, 2007). in recent years there have also been increasing attempts at an analytical definition of what constitutes communication rights, or—as the issue has also been approached—the right to communication.12

  • 13 For example,
  • 14 See declaration of the European Union (1998); see also recent EC documents on European communicati (...)

41Although communication rights have not been internationally codified and they do not have legal status as such, many scholars argue that all their essential elements have been confirmed repeatedly by the international community in international treaties and conventions by the un and its organizations,13 the Council of Europe (ECHR, 1950), and by the European union.14 Communication rights have been categorized in many different ways (CRIS, 2005, pp. 39–49). a fourfold division based on the different dimensions of communication will be applied here, namely factuality, orientation, sociability, and self-expression (see also CRIS, 2005; Nieminen, Aslama, and Pantti, 2006; Moring and Nieminen, 2006; Wallström, 2006):

  • the right to information concerns the claim for factuality and accuracy of public representations;
  • the right to orientation concerns the plurality and diversity of opinions that are publicly offered or available;
  • the right to social and cultural communality refers to the avail ability of a rich variety of cultural representations, in both art and entertainment; and
  • the right to self-expression includes access to channels and plat forms where citizens can make themselves heard and seen, and also listened to.

42The problem, however, is that although these rights have been internationally agreed and confirmed in different arenas, it has not been possible to collect them into a unified framework and adopt them as a part of international law. It is not for lack of trying: Both the NWICO process in the 1970s and the WSIS in the early 2000s attempted to do this. Both of these processes also show the difficulties in having communication rights universally recognized (see, e.g. World Press Freedom Committee, 1981; Irani, 1998; Sussman, 2001). The result is that there is no coherent international regulatory framework or institutional structure responsible for overseeing citizens’ communication rights. There are some monitoring agencies (for example, European audiovisual observatory, European institute for the Media, institute of European Media law, and EU Monitoring and advocacy Program of the open society institute) and several civic organizations (for example, Communication rights in information society [CRIS], The Campaign for Press and Broadcasting Freedom, and Campaign for the Freedom of information), but there is no single legal instrument to guarantee the use of these rights.

1.3.2. The EU’s regulatory framework

43From the point of view of citizens’ communication rights, Europe is an interesting case, as most European countries are parties in the international treaties and conventions discussed above. How would the situation in Europe appear when measured against the normative model of citizens’ communication rights? The brief answer would be: not well. As a matter of fact, the situation in European regulation of media and communication seems rather incoherent, as there are different regulatory logics applied to different branches of the media. Telecommunications have traditionally followed a different regulatory regime than electronic media (radio and television), and the print media have traditionally been dealt with differently from other media.

44Basically, we can distinguish among three different regulatory approaches that have been applied in EU’s media and communication regulation:

  • Common market principle, the normative basis of which is competition law. This has been the regulatory philosophy behind telecommunications regulation. According to this approach, the aim of public regulation is to create conditions for fair competition in the marketplace. Public intervention is allowed only to block attempts to establish monopolistic control of the markets. This would also be the best guarantee for citizens’ rights as consumers.15
  • Freedom of speech principle, which is mainly an application of laissez-faire philosophy to media and communication markets. This is traditionally the mode of regulation applied to the print media. According to this approach, all public regulation is bad, as it interferes with self-regulating free markets. The public interest is best realized when governments allow particular interests to enter freely to the marketplace of ideas.16
  • The public service principle, which has been applied to the broadcasting media in most European countries, although to different degrees and in different ways. The dominant argument justifying the public service approach has been that because the radio frequency band spectrum is (or has been) limited and not all potential broadcasters can have equal access to the scarce frequencies, access has to be determined on the basis of public interest, in contrast to commercial or political or other types of particular interests (see e.g. Mott, 1972, pp. 590–591).
  • 17 TVWF Directive 1989; regulatory Framework for Electronic Communications 2000–2002; Green Paper on (...)

45When assessing the development in EU policies from the 1980s onwards—especially the directive Television Without Frontiers (1989), the Green Paper on Convergence (1997) and the subsequent directives on electronic communications (2000–2002)—one cannot help noticing that the main thrust has been away from public service principle towards the laissez-faire approach.17

46of these three approaches, closest to citizens’ communication rights is obviously the public service principle, as it anchors its normative basis to public interest—in contrast to “fair competition” of the common market principle and “free market” of the freedom of speech principle (see, e.g. EBU, 1998; Council of Europe, Parliamentary assembly, 2004; UNESCO, 2007). The problem is, and has been for some time now, that the public service principle in media and communication has traditionally been linked only to radio and television broadcasting, and that as its main justification has remained the argument for scarce radio frequencies.

  • 18 About the process and the outcome as of autumn 2007, see European Parliament and the Council, 1997 (...)

47This argument began, however, to wear thin in the 1980s and 1990s with the development of new information and communication technologies—satellite, fiber cable, internet. Instead of channel scarcity, there appears today to be channel abundance. In the 1990s, the defenders of the public service principle in media and communications policies faced intensifying pressure from market-oriented media and communication lobbyists, as exemplified by the long and difficult negotiation and compromise haggling on the new version of EU’s Television Without Frontiers directive.18 But instead of expanding the democratic public interest argument to new fields of media and communication, public service supporters retreated to a more narrow position of cultural nationalism. in the Amsterdam Protocol (1997) the European union stated that as “the system of public broadcasting in the Member states is directly related to the democratic, social and cultural needs of each society and to the need to preserve media pluralism,” the public funding of broadcasting organizations will be allowed, but only as long as it does not compete directly with commercial actors—or as the Protocol says: “…insofar as such funding does not affect trading conditions and competition in the Community to an extent which would be contrary to the common interest” (Amsterdam Protocol, 1997; see also Amsterdam Protocol FAQ, 2005).

48From the point of view of citizens’ communication rights, instead of narrowing the public service principle, its scope should be expanded to guide European media and communication policies as a whole, including telecommunications and the print media. In this light, the Amsterdam Protocol should be rephrased: “…the European media and communication system in its totality is directly related to the democratic, social and cultural needs of European society and to the need to preserve media pluralism in Europe.”

1.4. Towards a democratic regulatory framework

  • 19 These four requirements are a free operationalization of Habermas’ conceptualization of the public (...)

49What would the communication rights perspective outlined above mean for the European media and communication regulatory framework? Basically, it would mean that the whole European media and communication system, with all its branches, would have to be assessed to see to what degree it satisfies the rights. In this respect there are four main requirements: access, availability, competence, and dialogicality.19

  • By access, we mean that citizens should have equal access to information, orientation, and other contents serving their rights;
  • By availability, we mean that relevant and high-quality content (of information, orientation, and so on) should be equally available for citizens;
  • By competence, we mean that citizens should possess the skills and abilities to use the means and information available according to their own needs and desires;
  • By dialogicality, we mean that there should be public spaces available that allow citizens to publicly share information, experiences, views, and opinions on matters of common interest.

50In practical terms this means that there should be a regulatory system that balances the social, cultural, and other inequalities in relation to access and availability, and which creates spaces for dialogue and debate. The regulatory system functions as a “filter” in two directions, both in the “input” and the “output” stages of communication. The “end product,” that is, the arena where the different voices of citizens and citizens’ groups meet on an equal basis, is media publicity (see Figure 1.1).

Figure 1.1. A scheme of the regulatory framework of the media. Regulatory framework

Figure 1.1. A scheme of the regulatory framework of the media. Regulatory framework
  • IG = interest groups, some bigger and more influential, some smaller and with minimal influence
  • Regulatory system = legislation, self- and co-regulation, civic control, market regulation
  • Media publicity = the representation of different interests balanced and equalised by the means of the regulatory system
  • C/CG = citizens, citizens groups; the regulatory system balances the availability of media contents to different citizens and their groups.

51One obvious way of assessing the realization of communication rights is to measure the media performance, that is, to what degree the “end product” fulfills the requirements set above: How well the regulatory system has been able to balance and equalize the access and availability of different interests, and how it has promoted real dialogue and debate between them. However, by studying only media publicity we do not get very far. All fundamental decisions concerning access, availability, and dialogue are made before the “end product” phase of the media process. We need more tools in order to get beyond the media publicity and to have better access to the decisive moments in media production. For this purpose, the value chain analysis can offer us such tools (see Fine, 2003; Daley & Simonian, 2005).

52In a simplified version, the basic value chain model for the media industry consists of four basic elements: content creation; editing and packaging; distribution; and reception (the terms may differ according to their usage) (see Figure 1.2).

Figure 1.2. Value-chain model of media production

Figure 1.2. Value-chain model of media production

53In each phase of the value chain, crucial decisions are made that affect the end product (a television program, a newspaper, a Web site). From our normative point of view, all these decisions have an impact on how the final media contents meet the criteria of citizens’ communication rights. Today all the phases of the media value chain are regulated through different pieces of legislation. This takes place mostly on the national level of regulation, but increasingly the media is regulated on the European level (EU) and also on a global level (WTO, ICANN, ITU) (see Ósiochrú, Cirard, and Mahan, 2002; Dupagne, 2003).

54More practically, this means that, for example,

  • in the phase of content creation, not only national legislation but more and more international contracts and conventions regulate the interpretation of copyright;
  • the phase of editing and packaging is regulated through several different legislative regimes: copyright law, criminal law (e.g. libel, indecency, secrecy), and competition law;
  • the phase of distribution is regulated by audiovisual and telecommunication directives of the European union.
  • 20 The value chain model of the media’s regulatory framework is much easier to envision on a national (...)

55Naturally several legal regimes overlap and cover many of the phases in the value chain. Thus, for example, competition law applies to all phases and so does criminal law. Their ways of application may, however, differ. By mapping out different pieces of international and national laws and acts that regulate media and communication in Europe, and by connecting them with the respective phases in the value chain model of the media, we would eventually be able to draw a picture of the European regulatory framework in its entirety, as the schematic presentation shows (see Figure 1.3). That would then allow us to make well-informed judgments on the realization of citizens’ communication rights in Europe today.20

56From the point of view of democratic regulation, especially interesting are legislative measures that are both proactive, that is, aiming at steering developments beforehand instead of only reacting afterwards; and positive, that is, supporting desirable behavior instead of just prohibiting undesirable behavior. Such measures include press subsidies, financial support for audiovisual production, various kinds of production quotas, and various programs of media literacy and education. From this perspective, relevant questions would be: What is the history of proactive measures in media and communication policies? What is their practical relevance to citizens’ rights? What are the prospects for these kinds of policies today?

Figure 1.3. Value-chain model of regulatory framework

Figure 1.3. Value-chain model of regulatory framework

57It is, however, true that the legal framework is only one—albeit the most important—part of the regulatory system. The media and communication are increasingly regulated also by different forms of self- and co-regulatory means, such as codes of conduct, ethical councils, and in-house rules, which should also be taken into account (see, e.g. self-regulation of digital Media, 2004; Co/self-regulation bodies, 2005). These self-and co-regulatory means are still mostly national. Almost no trans-national self-regulatory regime seems to have developed in any branch of media and communication, except in the area of marketing and advertising, where the international Chamber of Commerce has shown leadership (see Consolidated ICC Code, 2007).

1.5. Conclusion

58The main argument in this paper has been that if the European Union is serious about achieving genuine democratic legitimacy, its media and communication policies need radical change. The media and communication system is today as central a part of our European democracy as are the institutions of representative democracy—or even more central. European democracy needs a functional European public sphere, where topics of common interest can be discussed at the same time by citizens, sharing the same information and orientation, in different parts of Europe and in different European languages (see e.g. Risse, 2003). Today no such European public sphere exists. What is needed is a consistent all-European policy to create overall conditions for the public sphere to develop. I call this a policy towards creating a democratic regulatory framework for European media and communication.

59The argument was developed in three stages. First, the present condition of the European Union was explored and was found to be in a twofold crisis of politics and popular legitimacy. It was concluded that the origins of the crisis lie in the conflict of two different value-systems that the EU has not been able to help balance: market-based economic logic versus the democratic logic of social and cultural values. Second, the ways the European Commission attempts to use the media and communication policies in solving the crisis were discussed, as well as how the Commission has employed the notion of the European public sphere in this attempt. special emphasis was given to the endeavors by commissioner Margot Wallström and her efforts to incorporate the Habermasian sense of the public sphere into the European Commission documents.

60Third, a proposal for a new democratic regulatory framework for European media and communication was outlined. The proposal is based on the concept of citizens’ communication rights, which, although not codified, have allegedly been established through international treaties and conventions. These rights consist of four components: rights to information, orientation, social and cultural communality, and self-expression. The problem is, however, that the actualization of these rights depends on the media and communication system, which may or may not support them. That is why public regulation is needed to balance and equalize different social interests’ access to and availability of the media, and to level different barriers to critical public dialogue.

61It is not enough, however, to assess the actualization of communication rights only on the basis of media publicity, as it reduces the regulatory means to concern only media content and media distribution. Crucial decisions affecting the so-called end product (a television program, a newspaper, a Web site) are made in all preceding stages of the media production process. All these decisions have an impact on how the final media publicity meets the criteria of citizens’ communication rights.

62All phases in media production are regulated today through different legislative and self-and co-regulative means. This takes place mostly on the national level, but increasingly on European (EU) and global (WTO, ITU, ICANN) levels. What is proposed is to develop a systematic approach, based on a value-chain model of analysis of media production, that can help us create a comprehensive picture of the present regulatory framework of European media and communication. Based on this, we could then ask questions like:

  • How consistent is the European regulatory framework in general from the normative point of view? do we find contradictory elements that could then be used in our attempt to democratize the framework?
  • What normative goals do we find to serve its different components today, and how do they relate to citizens’ democratic communication rights?
  • What kind of regulatory measures would best serve citizens’ communication rights at each phase of the value chain?
  • What is the role of positive proactive measures compared to negative and reactive measures? How can we best assess the efficiency of positive proactive measures?

63These questions might also lead us to establish a set of transparent criteria for each phase in the value chain in order to ensure that the media production fulfills its democratic functions. Another question is what criteria there should be and how they should be enacted.


1 See e.g. Spiegel, 2005: “Brussels in Crisis.”

2 In 2006 the EU (with 25 Member states) had 457 million inhabitants. China had 1.288 billion and India had 1.064 billion. The United States had 291 million and Indonesia had 245 million. See GeoHive, 2007.

3 See comments by the NGOS and Think Tanks, Euractive 2008.

4 Eurobarometer 66: Public opinion in the European Union 2006; Eurobarometer 251, 2006: special Eurobarometer: The Future of Europe. The results from autumn 2007 show some increase in popular support for the EU, which may indicate that the situation might be improving. See Eurobarometer 68: Public Opinion in the European Union 2007.

5 EU ‘crisis’ 2005; see also EU Faces Crisis 2005; EU summit Failure 2005.

6 Constitutional Treaty 2007. official closure—at least for the time being—was offered only in December 2007, when the long process of creating the European Constitution was brought to an end, as the heads of the EU Member states finally adopted the Lisbon Treaty.

7 European Parliament and the Council 2007. On the consultation processes, see AVM Policies 2008.

8 Some of the EU-funded projects dealing with the European public sphere, either directly or indirectly, can be listed here as examples:

9 See e.g. European Public Sphere(s): uniting and dividing, university of Helsinki (; retrieved April 26, 2007); Media, democracy and European Culture (Europe in Transition) (; retrieved April 26, 2007).

10 See the whole reference for FP6 specific Programme 2006: “FP6 specific Programme ‘integrating and strengthening the European research area’, Priority 7: Citizens and Governance in a knowledge based society. Work Programme 2004–2006. Research Area 7: New forms of citizenship and cultural identities. 7.1. Topics for networks of excellence and integrated Projects. 7.1.1. Towards a European public sphere” (; retrieved April 26, 2007).

11 in regard to media economy, the reference is the following: “The role of electronic and print media should be examined in terms of agenda setting and generating debate and controversy in relation to cultural, societal, po­litical and economic matters, with particular emphasis on European issues; the implications of media concentration or variations for the pluralism and integrity of information could be examined in this regard.” FP6 specific Programme, p. 16.

12 Birdsall and Rasmussen 2000; Birdsall and McIver 2002; statement on Communication rights 2003; Birdsall, Rasmussen, and McIver 2003; McIver, Rasmussen, and Birdsall 2004; CRIS 2005; Hicks 2007; Padovani 2007.

13 For example,

  • On the principle of freedom: Freedom of Expression: Universal Declaration of Human Rights (1948), article 19; International Covenant on Civil and Political Rights (1966), article 19; Convention on the Rights of the Child (1989), article 13; Protection of privacy: Universal Declaration of Human rights (1948), article 12; International Covenant on Civil and Political Rights (1966), article 17; Convention on the Rights of the Child (1989), article 16;
  • On the principle of inclusiveness: Universal Declaration of Human Rights (1948), articles 19, 21, 28; International Covenant on Economic, Social and Cultural Rights (1966), articles 13, 15; Declaration of the Principles of International Cultural Co-operation (1966), article IV (4)
  • On the principle of diversity: international Covenant on Civil and Political Rights (1966), articles 1 (1), 27; Universal Declaration on Cultural Diversity (1995), article 5.
  • On the principle of participation: Universal Declaration of Human Rights (1948), articles 21, 27; International Covenant on Civil and Political Rights (1966), article 25. See also the UNESCO diversity Convention (2005).

14 See declaration of the European Union (1998); see also recent EC documents on European communication and media policies: Plan-d (European Commission, 2005d); White Paper (European Commission, 2006a); Media Pluralism (Task Force for Co-ordination of Media affairs, 2007).

15 According to Finnish scholar Eero Paukku, the market-based line of argumentation has been adopted by the European Court of Justice in its rulings concerning media-related cases. See Paukku, 2006.

16 According to Paukku, this argumentation has been followed by the European Court of Human rights. See Paukku, 2006.

17 TVWF Directive 1989; regulatory Framework for Electronic Communications 2000–2002; Green Paper on the Convergence 1997. See Kaitatzi-Whitlock, 2006.

18 About the process and the outcome as of autumn 2007, see European Parliament and the Council, 1997 and 2007.

19 These four requirements are a free operationalization of Habermas’ conceptualization of the public sphere.

20 The value chain model of the media’s regulatory framework is much easier to envision on a national scale than on an EU scale. See Moring and Nieminen, 2006.

Table des illustrations

Titre Figure 1.1. A scheme of the regulatory framework of the media. Regulatory framework
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Titre Figure 1.2. Value-chain model of media production
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Titre Figure 1.3. Value-chain model of regulatory framework
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Hannu Nieminen is Professor of Media Policy and director of the Communication research Centre CRC at the University of Helsinki, Finland. He received his Ph.D. in 1996 in the University of Westminster, London. His research interests include media and democracy, theories of public sphere, and communication policy and regulation. These themes were examined in several books and articles. His publications include Democracy and Communication: Habermas, Williams, and the British Case (1997), Hegemony and the Public Sphere (2000), and People Stood Apart: the Constitution of the National Public Sphere in Finland 1809–1917 (2006, in Finnish). E-mail:

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