KEY FINDINGS
1
Traditional media wear four hats at once. The opinion shows legacy outlets built into the system as protected beneficiaries (Article 18 EMFA), platform-paid fact-checking providers, potential “trusted flaggers,” and reviewers of whether other outlets deserve protection — protected party, paid service provider and gatekeeper, all in one sector.
2
Competitors now vet competitors. The fact-checking networks platforms are told to consult — EDMO and EFCSN — are financed by the Commission and deeply connected to legacy press agencies (AFP, dpa…), which end up screening their own rivals’ media status.
3
A gate held by incumbents. The media privilege opens only to those under “widely recognised” regulatory or self-regulatory oversight — for most online media, a door the established players control. Press licensing, abolished in Europe’s constitutions, returns in co-regulatory disguise.
4
Same sentence, two legal regimes. A recognised broadcaster gets advance notice, 24 hours to reply and a priority appeal; an independent commentator, scholar or think-tank writing the identical words gets nothing — and may be flagged and labelled by a Commission-funded verifier. There are trusted flaggers; there are no trusted defenders.
The clock is running. The Commission’s trusted-flagger consultation closes 10 July 2026 (extended from 26 June). Ordo Iuris will file its submission.
Brussels is tightening the last bolt on a machine years in the making — and almost no one is watching. A new legal opinion by Jerzy Kwaśniewski, President of the Ordo Iuris Institute, pulls the three moving parts into view: the Digital Services Act, the European Media Freedom Act, and the Code of Conduct on Disinformation no longer read as separate files. Together they form one system that decides what Europeans may say, read, and share online — and that quietly sorts speakers into first and second class.
The state never censors directly; that is the design’s alibi. It simply tells platforms they lose their legal shield once they “know” of illegal content, then backs the rules with fines of up to 6% of global turnover. Under that threat, platforms delete content at the slightest doubt. The vague “systemic risks” of Articles 34–35 — “negative effects on civic discourse and electoral processes” — are defined by no statute and policed by the same European Commission that wrote them.
The most striking finding concerns the traditional media. Far from being the victims of this machine, they sit at its controls, on both sides of the counter. Article 18 EMFA hands recognized legacy media outlets a real privilege: reasons before a takedown, a day to reply, and priority complaints. But the door is held by incumbents, and the Commission-funded fact-checkers who help decide who gets through are co-founded by the very press agencies often competing for the same audience as those taken down. The referee, in short, is on the payroll of one of the teams.
Even this privilege, however, comes with a trapdoor: it evaporates wherever a platform acts on potential harm to minors, illegal content or… “systemic risks.” “Systemic risks,” meaning things like “any actual or foreseeable negative effects on civic discourse and electoral processes, and public security” (Article 34(1)(c) of the DSA) are precisely where the political temptation to silence is strongest. This means that when it comes to the potential effects of free speech on civic discourse and the outcome of elections, even big, renowned media outlets can see their posts taken down without warning.
The Charter of Fundamental Rights of the European Union promises free expression to “everyone.” This architecture quietly rewrites “everyone” as “the accredited.”
Yet the machine is more fragile than it looks. President Nawrocki’s veto of 9 January 2026 stopped Poland’s implementing bill in the name of free speech; the Code’s fact-checking chapter has been hollowed out by the exit of major platforms; and the consultation is still open. The European standard worth defending is the old one: freedom is also for ideas that “offend, shock or disturb.”
The full argument is set out in Jerzy Kwaśniewski’s essay for Brussels Signal — read the essay on Brussels Signal.
Source of cover photo: iStock
