A globally accepted definition of media pluralism does not exist. Rather, both concept and demand for media pluralism are shaped by the constitutional law of each state and originate essentially in the fundamental rights of freedom of the media, expression and information. The concept developed significantly after World War II in the field of broadcasting to avoid dominance of media content by states or other actors, striving for access to diverse, free and independent information for citizens. At the time, the global broadcasting landscape was still dominated by state-owned public broadcasters and the global West began to shift towards an independent and internally pluralistic organisation of public service broadcasters – in Europe driven by models from the UK, France and Western Germany which had been modelled by influences from the US. With the emergence of commercial broadcasting, dual systems began to evolve, combining the existing idea of internal pluralism with an external plurality of the media landscape. Today, the notion of media pluralism is increasingly understood in a ‘media-neutral’ way, embracing a number of aspects such as a diversity of ownership, views and information sources available, and focusing on content rather than the category of media.
Media pluralism is a fundamental rights value under Art. 10 European Convention on Human Rights which follows a protection goal-oriented approach. As the European Court of Human Rights emphasised in Informationsverein Lentia (paragraph 38), the press can only successfully fulfil its essential function as a public watchdog within a democratic society, i.e. provide the public with information of general interest, if this is based on the principle of pluralism. In this context, the state is seen as the ‘ultimate guarantor’ of pluralism adding a dimension to the fundamental right beyond a mere defensive position against state interference. Traditionally, the press and audiovisual media have been accorded particular importance but recent judgments have also emphasised the relevance of communication processes on the internet and citizen journalism in shaping public opinion.
Unlike many other constitutional texts, Article 11(2) of the Charter of Fundamental Rights of the European Union explicitly states that ‘pluralism of the media shall be respected’. The case law of the Court of Justice of the European Union (ECJ) regularly focuses on the relevance of media pluralism in relation to other fundamental rights and freedoms. Confirming its previous case law, the ECJ emphasised in Fussl Modestraße Mayr (paragraphs 54, 55) that the preservation of a pluralistic media offer ‘unquestionably constitutes a legitimate aim in the general interest, the importance of which in a democratic and pluralistic society must be stressed in particular’ and which is capable of justifying a restriction of fundamental freedoms provided for in the Treaty on the Functioning of the European Union (TFEU).
In the US, media pluralism is not included as clearly as in Europe within the constitutional framework. In the context of the protection of free speech under the First Amendment the US Supreme Court has in certain cases pointed out that media pluralism is a value included in the scope. In Turner Broadcasting (paragraph 663), for example, a case involving traditional broadcasting, it acknowledged that assuring public access to a multiplicity of information sources is a governmental purpose of the highest order. Such public access promotes central values and it has long been a basic tenet of national communications policy to ensure the widest possible dissemination of information from diverse and contrasting sources because this is essential to public welfare. Nonetheless, this is a relatively narrow application of the principle in fundamental rights terms.
Besides the fundamental rights dimension, in competition law safeguarding media pluralism has several points of reference.
At EU level, this includes Article 106(2) TFEU, which allows exemptions from the competition rules for ’undertakings entrusted with the operation of services of general economic interest’ insofar as their application would obstruct the performance of the tasks of such undertakings. This allows state financing of public service media to safeguard pluralism, which would otherwise be prohibited under state aid rules. However, additional conditions were explicitly laid down for the broadcasting sector in the Communication from the Commission on the application of State aid rules to public service broadcasting setting out conditions on the scope of entrustment, monitoring and transparency of state or state initiated funding.
The legal implication of media pluralism is even more obvious in the field of anti-trust law. Media concentration rules describe special measures that take into account the fact that the media industry is different from other industries due to their importance not only from an economic but a cultural perspective. While ordinary concentration law aims at preventing dominant market power of single entities and thereby relies solely on economic market assessment criteria, special rules under media concentration law aim at preventing dominant opinion power of single entities and assess the effects of mergers or the change of shareholding structures (also) in relation to the preservation of a pluralistic information and media landscape. In order to prevent individual actors from exerting a dominant and thus unilateral influence on the information and media landscape in a particular reception area, such rules, for example, set limits to ownership of media companies, often in a cross-ownership dimension covering different type of media.
In the EU, merger control of a Union-wide dimension is the exclusive responsibility of the European Commission. This extends to mergers of media companies. Although the control of market dominance can have an indirect effect on ensuring pluralism, because power over markets can also mean power over opinions, perpetuation of media pluralism is yet not an assessment criterion for the Commission. Rather, it is a matter of economic assessment based on criteria of competition and consumer protection. However, Article 21(4) of the Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings provides that Member States may take appropriate measures to protect legitimate interests, one of them being the plurality of the media, which can then supplement the applicable competition law assessment.
A majority of EU Member States have implemented rules on media concentration that impose limits on media ownership, but these vary significantly. There are limitations of audience reach, restrictions on market shares and cross-media ownership limitations, some of them being tied to licensing obligations in broadcasting law or addressed in national competition law with special rules for the press.
However, EU Member States are not completely free when establishing media concentration rules. As the ECJ highlighted in Vivendi (paragraphs 57 et seq.) in light of an Italian rule on revenue limits in the electronic communications sector, Member States are bound to the principle of proportionality when taking measures to reach the legitimate aim of safeguarding media pluralism, i.e. national legislation has to be appropriate and necessary in order to achieve this objective and the aim must not be able to be achieved by a measure that is less intrusive or limits fundamental freedoms to a lesser extent.
In the US, mergers of media companies are examined under the Sherman Antitrust Act of 1890 and the Clayton Antitrust Act of 1914 which do not constitute limitations of the First Amendment protection, but are rather protecting the marketplace of ideas, as underlined by the US Supreme Court in Associated Press (paragraph 326 et seq.). Furthermore, there are specific rules on media ownership concentration limiting merger possibilities for example under the Newspaper Preservation Act of 1970 or Section 7 of the Clayton Act. The FCC sets limits on the number of broadcast stations one entity can own. The former cross-ownership ban hindering companies from owning a daily newspaper and a broadcasting station in the same market were, however, revoked in 2017.
Although media content on the internet is considered relevant for opinion-forming from a constitutional perspective and intermediaries such as social media are an important source of information for large parts of the population in today’s media environment, media concentration rules still regularly cover only traditional providers such as television, radio and press and do not (yet) extend to the online context, which many voices see as highly problematic against the background of a continued relevance of media pluralism.