Guaranteeing media pluralism and protecting minors in social media. The current legal framework
The purpose of this legal report of IBBT-ICRI KU Leuven is to provide an overview of the current regulatory framework with regards to media pluralism and minors. The first section focusses on media pluralism. Since the notion of media pluralism can cover a wide range of interpretations, it starts with a clarification of the notion. Subsequently, the regulatory measures that are in place at European level and at national level, are explored. The second section of the report is on the protection of minors. Different areas are taken into account: human rights, media law, criminal law and consumer law.
Because of its extensive work on media pluralism and because of the high moral value of its decisions, the Council of Europe (CoE) was included into the analysis. As for the European Union we saw that policies with regards to media pluralism are considered to be restricted and that they are traditionally considered to be mainly the domain of the Member States. Nevertheless, concrete regulatory measures can be found on EU level such as quota for local, independent and European productions, rules on short news reporting, the events list mechanism, must-carry obligations and merger regulation.
For the Belgian level, we decided to focus on the Flemish Community and use the Media Pluralism Monitor as the starting point for our analysis. The Media Pluralism Monitor is an instrument to assess media pluralism on the basis of several indicators. The Media Pluralism Monitor offers a broad perspective on media pluralism which combines legal aspects with economic and social aspects so that different dimensions of media pluralism are covered. In this way, not only media ownership and concentration is covered, but also cultural, political and geographical aspects are analysed. There are several safeguards in the Flemish Community with regards to media pluralism, for instance, political independence, freedom of expression, concentration measures, content obligations, and rules regarding the public broadcaster.
As in the first section, we analysed the regulatory measures that are in place at EU level, at the level of the Council of Europe and at national level. With respect to media law, the most important instrument is the AVMS Directive which regulates the protection of minors against harmful content. We have seen that there are different regimes for linear and non-linear services. It remains to be seen if the measures regarding non-linear services are sufficient to protect minors. As for harmful content on the level of the Flemish Community, the FLRTA incorporates the provisions laid down in the AVMS Directive, which are supervised by the VRM who can impose fines on broadcasters if they violate these provisions. With respect to criminal law, at EU level, we briefly discussed the recent adoption of the Directive on sexual abuse, sexual exploitation of children and child pornography. This Directive adapts and updates the Council Framework Decision of 2004. At Belgian level, the Criminal Code contains a technology-neutral article which makes it possible to prosecute a wide range of child pornography. From the perspective of consumer law, at EU level, we analysed the AVMS Directive which contains several provisions with regards to advertising and minors. The Flemish Community implemented the provisions of the AVMS Directive, but the rules laid down in the FLRTA are stricter than prescribed.
All these measures focus mainly on the supply side, meaning that the rules are applied to broadcasters and content producers. This can be explained by the fact that rules regarding media pluralism have been drafted in an era where users were mere passive consumers: they did not have much control over the content they could receive. However, this has changed drastically over the past decade due to technological developments and users are now considered to have much more control. Users are now regarded as ‘prosumers’: active consumers on the one hand (for instance, pay-TV, on demand, catch-up) and producers on the other hand (Web 2.0 applications, user-integrated-content). Further research will investigate if the traditional regulation can be transposed to this new type of consumer and to the new media environment in general and social network sites in particular, or if new measures need to be adopted.
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