Freedom of expression and state aid to media

Media 6 min read
ARTICLE 19

This policy brief contains an update of ARTICLE 19’s policy Regulation on State Aid to Print Media, published in December 2012. In the 2012 policy brief, ARTICLE 19 examined the role of state aid to print media from a freedom of expression perspective. It also recommended model legislation on this topic that is in line with international standards on freedom of expression. These recommendations only addressed subsidies for the newspaper industry.

ARTICLE 19 believes that the current context of converged media landscapes calls for an analysis of all forms of public aid to all categories of media.

In the current phase of media landscapes, whilst traditional formats such as broadcast radio and television remain important sources of information and ideas, the Internet, including mobile Internet, is taking on a position of ever growing importance as a media content distribution platform. This has led to a situation wherein distinguishing audiovisual media from print media has become more complex. Many new media actors exist only online and combine audio-visual materials with text and photographs. Simultaneously, new actors have quickly risen to dominant positions in the media landscapes: search engines and social media platforms now hold a decisive influence over the findability, visibility or accessibility of media and other content.

The same companies dominate the market of digital advertising, which increases the pressure on an important source of financing for legacy media. In reaction to attempts to levy a tax on their income to fund media organisations, tech giants have started to fund innovative journalism initiatives of their own. Concerns around the viral dissemination of intentional misinformation (“fake news”) have further strengthened the understanding that reliable and accurate journalism needs to be properly funded.

Hence, financial support provided by public authorities to private media companies can contribute to maintaining or reinforcing pluralism and diversity in the media landscape. However, it also raises the concern that the government may be trying to gain control over media outlets.

In response to these developments, in this updated brief, ARTICLE 19 puts forward recommendations on freedom of expression and all forms of public support to private media. The recommendations are focused on state actors and aim at the promotion of media pluralism and diversity and the promotion of equality, independence and transparency. They are based on the premise that, under international law on freedom of expression, States have a positive obligation to adopt such legislative framework as to enable diverse and independent media to flourish.

In this updated policy brief, we recommend that all forms of public support to private media comply with the following conditions:

  • There needs to be a clear legal basis for every form of state/public support to the media.
  • The relevant legislation must make clear that public support pursues one or various objectives of general interest, such as, but not limited to, the promotion of pluralism and diversity, support to professional ethics, support to accurate and reliable journalism, promotion of equality, innovative journalistic practices, adaptation to the digital age, or media literacy.
  • The legislation must include all applicable criteria that will preside over the allocation of public support, as well as clear information and guidelines on the applicable procedures and deadlines.
  • Time limits on the duration of state aids should be clearly set out. These limits should be sufficient to provide beneficiaries with reasonable foreseeability of resources and plan their businesses accordingly, while also allowing for a periodical verification that public aid serves its purposes.
  • The legislation must explicitly state that the allocation of public support will take place on the basis of fair and neutral criteria, that it will never be used to promote official figures, that it will be non-discriminatory and will never be based on political content or viewpoints expressed by media actors.
  • The legislation should also include a formal statement that public support shall never be used to undermine the editorial independence of media actors, as well as provide for sanctions for public officials who would violate this principle.
  • The legislation must provide for an independent body to be responsible for the allocation and oversight of direct subsidies to individual media actors; 8. Individual decisions on the allocation of public subsidies must be amenable to judicial review.
  • There must be transparency on the definition of public policy on state support to private media as well as on the allocation of public funds to media actors. Media stakeholders and civil society organisations need to be consulted during the elaboration of public policy on state aid. Public authorities, including independent bodies in charge of allocating direct subsidies, must publish annual reports on the use of public funds to support media actors.
  • Media outlets that receive state subsidies should be audited annually and make their audited accounts public.

Read the policy