“Must-carry”, Special Treatment and Freedom of Expression on Online Platforms: A European Story

This paper examines the role of "must-carry" obligations in the regulation of online platforms, arguing that these obligations are better understood as special treatment rules rather than direct analogues of traditional broadcasting regulation. By analysing the development of such rules within the European Union, particularly through the Digital Services Act (DSA) and the European Media Freedom Act (EMFA), the paper explores how these provisions aim to safeguard freedom of expression, ensure access to trustworthy information, enhance media pluralism, and regulate platform behaviour. The analysis extends to national-level laws and court decisions in Germany, The Netherlands, the United Kingdom, and Poland, illustrating how these countries have grappled with similar challenges in applying and contextualizing special treatment rules. Through a detailed examination of these frameworks, the paper critiques the risks of these rules, including their potential to entrench power imbalances, amplify state narratives, and complicate efforts to counter disinformation. Additionally, the paper highlights the broader implications of granting privileged status to legacy media and political actors, questioning whether such measures align with democratic principles and the rule of law. Ultimately, the paper argues that while these rules may offer a response to platform dominance, their implementation risks undermining the equality of speech and shifting the focus of freedom of expression toward a privilege for select groups.