Key takeaways of ALIA’s White Paper on the regulation of tomorrow's media

What happened?

Electronic media in Luxembourg are currently regulated by the Law of 27 July 1991 on electronic media  (the “Electronic Media Law”). This law adopts a channel-specific regulatory approach encompassing radio broadcasting, satellite broadcasting, cable broadcasting and television but also on-demand media services and video-sharing platforms (on certain items concerning the last two media).

So far, the Electronic Media Law has been amended thirteen times, primarily to incorporate European directives and without undertaking a global reassessment of the law. Today, the discrepancy between the practices of the public and the new forms of electronic media on the one hand, and the content of the law and the powers of the ALIA¹  on the other, is striking. ALIA in particular calls for a thorough overhaul of the Electronic Media Law.

In that respect, ALIA organised a colloquium entitled “Face aux défis de la digitalisation, quelle réforme de la loi sur les médias électroniques ?” in April 2023 and released a white paper on 2 October 2023 (the “White Paper”) for the attention of Luxembourg’s political forces, which underscores and summarises the observations made during the event.

Key Takeaways of ALIA’s White Paper:²

In its White Paper, ALIA presented eight key points for an in-depth update of the Electronic Media Law:

1. Defining the values governing programme content: ALIA calls for a dedicated article to be inserted in the Electronic Media Law outlining a clear set of values that should be respected by all content broadcast across electronic media. According to ALIA, these values should include pluralism and independence of information, freedom of expression, consumer protection, protection of minors, and human dignity.
2. Introducing the principle of technological neutrality: Given the diversity of formats used by electronic media producers and information disseminators, ALIA advocates for a shift from channel-based regulation to content-based regulation. To achieve this, ALIA suggests a common legal framework applicable to all electronic media while limiting specific rules only to situations where it is objectively justified.
3. Expanding ALIA’s surveillance mission to the Internet: ALIA recommends extending the scope of its surveillance mission to cover social media networks. In addition, ALIA calls for an improved regulation of vloggers’ activities (blogs mostly made of videos) and video-sharing platforms.
4. Elevating Media Education: ALIA proposes to better define the scope of its role as coordinator for media education in the Electronic Media Law. As a reminder, the Electronic Media Law currently only defines ALIA’s educational role in its article 35(2)(j) as “encouraging the development of media education for citizens of all ages in all sectors of society”. Furthermore, ALIA advocates for increased resources to facilitate independently educational initiatives and demands that the Electronic Media Law includes as an obligation for public services engaging in media education to report to ALIA.
5. Combatting Harmful Content: Emphasising the rise of harmful online content, ALIA advocates for regulatory control over content published online regarding discrimination, hate speech and protection of minors. ALIA also addresses fake news and proposes to integrate fact-checking tools into the Electronic Media Law.
6. Providing a legal Framework for Gaming: ALIA advocates for the establishment of a legal framework for online gaming, emphasising the potential risks tied to the inadequate protection for minors, the prevalence of hate speech, and the occurrence of scams within gaming platforms. Additionally, ALIA suggests implementing age qualifications for online gaming and proposes to be granted a monitoring role to oversee and address these concerns.
7. Revisiting Political Information Oversight: ALIA proposes an extension of its surveillance mission to encompass both pre-election and reserve periods (i.e. 3-week periods preceding an election during which the dissemination of certain information related to the election is restricted). This expanded surveillance mission would include media not qualifying as public services and all media channels employed by political parties. In addition, when regulating such media, ALIA also calls for certain additional criteria to be taken into account, such as the accomplishment of public service missions or the receipt of public financing.
8. Reforming ALIA's Structure: ALIA advocates for a reform aimed at ensuring its independence and autonomy from the Government, increasing its resources and concentrating regulatory powers within ALIA. This proposed reform entails, among other things, granting ALIA regulatory powers comparable to other independent authorities such as the CSSF and the ILR, a significant increase in both human and financial resources and clarification and expansion of its attributions.

What Is Next?

The Coalition Agreement, signed on 16 November 2023 by Luc Frieden in his capacity as formateur of the new Government and the chairmen of the CSV and DP delegations, mentions that the Government will reform the regulations applicable to the electronic media and ALIA’s powers. The political will expected by ALIA seems to be there.

It should be noted, however, that the draft Bill 8309 dated 14 September 2023 aiming at implementing certain aspects of the Digital Services Act (Regulation (EU) 2022/2065) designates the Autorité de la Concurrence (Luxembourg Competition Authority) as the Digital Services Coordinator, which will be responsible for all matters relating to the supervision and enforcement of the Digital Services Act in Luxembourg. The future will tell what role ALIA will play in relation to the distribution of illegal content on the Internet. As for the White Paper, it underlines that ALIA intends to play an advisory role on any provisions of the Digital Services Act that fall within its area of expertise.