In the MPM2020 round of implementation, Protection of freedom of expression shows a worsening trend when compared to MPM2017. While freedom of expression is, in general, well protected, in terms of constitutional and legal safeguards that are for- mally compliant with international standards, freedom of expression is sometimes chal- lenged. The following challenges have been flagged: the criminalisation of defamation, given that imprisonment or exorbitant fines are potentially disproportionate measures and the consequent chilling effect on journalists; the use of strategic lawsuits against public participation (SLAPPs) often employed to intimidate journalists; high damages requests; the dubious efficiency of the judiciary, or its political capture.
In the online sphere, both public and non-public actors have a key role to play in en-
and do not provide sufficient data to evaluate their filtering/removal/blocking of online content practices and, consequently, their impacts on freedom of expression online.
The European Union has developed and fostered a set of measures that constitute a first attempt to tackle, for instance, hate speech and online disinformation in a multi-dimen- sional and holistic way, bearing in mind the democratic values that are at the core of the EU, including the integrity of electoral processes.
Transparency of public administration is still not fully guaranteed in the countries that are analysed in the MPM2020, as the indicator on Protection of right to information reports a medium risk within the Basic Protection area. Poor implementation of legislation on freedom of information and minimal or inexistent protection for whistle- blowers, result in a risk for many EU member states.
The murders of Ján Kuciakand Marina Kušnírova in Slovakia, in 2018, and the killing of Lyra Catherine McKee in Northern Ireland, in 2019, have sadly confirmed that the safety of journalists is an issue in Europe. The investigations into the murder of Daphne Caruana Galizia, in 2017 in Malta, only resulted in the identification of the suspected mastermind of the crime in 2019. The increasing risk for the indicator on the Journalistic profession standards and protection is justified by the rising number of cases of attacks and threats to journalists as a consequence of their work, threats that occur both on- and offline, by the deteriorating working conditions for journalists, by the lack of initiatives on behalf of the state to guarantee an enabling environment for journalists to work in without fear. Governments are, instead, sometimes actually hindering conditions for journalism, and some of them do not seem to do enough to bring the perpetrators to justice. Recent EU-funded projects (A Europe-wide response mechanism for violation of press and media freedom64) and the Council of Europe Plat- form to promote the protection of journalism65 and the safety of journalists, are remark- able initiatives for the protection of journalists and for countering impunity.
This indicator also shows that, despite the 2014 decision of the Court of Justice of the European Union (Digital Rights Ireland, and Seitlinger and Others66), in which the Court repealed the Data Retention Directive, half of the EU Member States still have national laws that establish data retention obligations for Electronic Telecommuni- cations Operators and Internet Service Providers which are not fully in line with the guidance provided by the CJEU. The same logic applies to the need for Member States’
law "to reconcile the rules governing freedom of expression and information, including journalistic [...] with the right to the protection of personal data"67; although, in this case, most EU Member States have already transposed such rules into their national
64 https://ec.europa.eu/digital-single-market/en/news/pilot-project-europe-wide-response-mechanism-violal- tion-press-and-media-freedom
65 https://www.coe.int/en/web/media-freedom
66 Court of Justice of the European Union. Joined Cases C-293/12 and C-594/12 (Digital Rights Ireland and Seitlinger and Others)
67 Recital 153 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)
laws, implementing and transposing, respectively, the provisions of the GDPR68 and of Directive (EU) 2016/680,69 a few EU Member States still have to properly address this issue in their national legislation.
Media authorities are increasingly becoming key actors in regulating media, including online, in Europe. Competition and data protection authorities can also play a role in this regard. Regulators can play a crucial role in defining the standards for media policies in a media environment that is being dramatically and constantly changed by new digital markets and services. Their independence from economic and political interests should, therefore, be guaranteed. The indicator on Independence and the ef- fectiveness of the media authority highlights, instead, that not all the authorities can be considered to be free from influences, both due to the manner of appointment of their boards and when implementing their remit.
The Indicator on Universal reach of traditional media and access to the internet reflects the increasingly high standards of coverage and connectivity in the European Union, and the importance of access to the internet and good connectivity allowing access to quality content on the web. It addresses some geographical inequalities.
Recommendations
The results of MPM2020 in the area of Basic Protection confirm the trends of previous MPM implementations, namely a gradual deterioration of principles and pre-conditions of a plural and democratic media system:
• States have a positive obligation to guarantee an enabling environment for jour- nalists, as expressed by the European Court of Human Rights in its case-law.
• States also have a duty to deploy all means to avoid impunity for crimes that are linked to journalism.
• The governments must not only refrain from any unjustified interference with individuals’ freedom of expression, but must also proactively protect the individual’s right to freedom of expression in the case of any kind of intimidation.
• Anti-SLAPP laws may be useful regulatory tools that can boost a favourable environment for participation in public debate by all citizens, enabling them to express and impart opinions and ideas without fear.
As far as self-regulatory policy solutions to limit the dissemination of disinformation and hate speech online have been fostered at the EU level,
• It is of utmost importance that online platforms are transparent and accountable for the measures they deploy to limit some specific content, the reasoning behind content moderation and the effective outcome of these efforts.
• It must be stressed that the effectiveness of the self-regulatory instruments that are in place rely upon the good will and practices of the signatories.
• The assessment of content moderation should be better structured and based on common reporting standards and measurements, in order to overcome the diversity of reporting in terms of speed and scope, as well as differences across platforms and operators. On top of this, reporting activities should allow easier comparisons and should also be checked through non-biased data repositories.
• It is also essential that national regulatory authorities are involved, preferably within a multi-stakeholder governance that involves all relevant actors, in the process of analysing and monitoring platforms’ practices, and that they can equally rely on reporting practices that follow similar standards across Europe.
It is a matter of fact that, amongst media authorities, some are less equipped to study and evaluate the data and dynamics of the online media sphere.
• ERGA should work as a means through which to share best practices and to support a common standard to be used to monitor the implementation of the self-regulatory codes on online content moderation.
• The Independence of the media authorities is of paramount importance in the new digital environment and it must be fostered, firstly, at the national level, but also through formal or informal peer review systems at the EU level.
• Media authorities also should be able to co-ordinate with other independent authorities that are relevant in the governance of the online media sector, such as communication authorities, competition authorities and data protection authorities.
A closer institutional cooperation between these bodies is recommended, as the media sector is increasingly intertwined with data protection regulation, essential facilities regulations and competition policies.