Stressing the role of free press President of the European Commission von der Leyen commented as follows in her 2021 State of the Union address: “Media companies cannot be treated as just another business. Their independence is essential. Europe needs a law that safeguards this independence – and the Commission will deliver a Media Freedom Act in the next year.”
As announced and amidst the flood of legislation related to the European Data and Cybersecurity Strategy these past months, the Commission put forward on 16 September 2022 a proposal on the European Media Freedom Act (“EMFA”).
The EMFA consists of a regulation (“Regulation”) and a recommendation (“Recommendation”) aimed at strengthening media independence and pluralism. Whereas the Regulation is a binding legislative act, the Recommendation is not binding and thereby less intrusive as it proposes only voluntary measures for media companies on editorial independence and media ownership transparency – both delicate aspects of the fundamental principle of freedom of press.
All in all, the EMFA comes with both, rights and duties for various media players. In the following, we will present the key aspects of the EMFA for media stakeholders.
More rights for media users – requirements for developers and manufacturers
Media users in the Union shall have, in accordance with their fundamental right to information, the right to plurality of content related to news and current affairs. To implement this right, users of audiovisual media services shall for instance be able to easily change the default settings of any device or user interface to customise the audiovisual media offer according to their interests or preferences. This obligates manufacturers and developers of such devices and interfaces to provide appropriate functionality.
Editorial freedom of media outlets
The EMFA aims to guarantee effective editorial freedom of media service providers. To achieve that editorial independence, the Regulation sets out duties addressing both Member States and media outlets. On the one hand, Member States shall respect editorial freedom by not interfering or influencing policies and decisions by media outlets in any way. Governmental surveillance (e. g. searching premises or deployment of spyware) of media outlets, journalists and their family members are subject to high requirements to consider the fundamental rights involved.
On the other hand, media outlets providing content related to news and current affairs are obligated under the Regulation to take measures that they deem appropriate to guarantee the independence of individual editorial decisions. In this regard, the Recommendation proposes non-obligatory internal safeguards to attain editorial independence.
Media privilege for media outlets on very large online platforms
On top of the duties for very large online platforms under the Digital Services Act, the EMFA sets out further duties for such platforms to award media outlets a privileged status in relation to content removal. Very large online platforms shall therefore provide a functionality for media outlets to submit a declaration of their status as an editorially independent media outlet which is subject to a regulatory mechanism related to editorial standards.
If a very large online platform frequently removes content from a privileged media outlet without sufficient grounds, the outlet can request to engage in a dialogue with that platform to find an amicable solution. Also, the watchdog of the EMFA shall regularly organise a structured dialogue between very large online platforms, media outlets and representatives of civil society to discuss best practices related to content removal of privileged media to protect society from, inter alia, disinformation and foreign information manipulation.
Transparency of ownership and funding of media outlets
Further, the EMFA aims to achieve public transparency on ownership of media outlets. Media outlets providing content related to news and current affairs shall therefore disclose information concerning direct, indirect and beneficial ownership which could result in certain compliance rules for media companies. The Recommendation further proposes non-obligatory best practices for media outlets and Member States on media ownership transparency.
Assessment of media market concentrations
The EMFA presents requirements for the well-functioning of media market measures and procedures. Most importantly in this regard is the obligation for Member States to assess media market concentrations, as such concentrations can significantly endanger media pluralism and editorial independence. The assessment shall be distinct from the competition law assessments including those provided for under merger control rules.
Hence, Member States shall provide in their national legal systems certain rules for these assessments such as requiring parties of a media market concentration to notify a national regulatory authority of that concentration. It remains to be seen how this will affect the national landscape of existing law on media market concentration. In the absence of national assessments, certain European bodies can draw up opinions on the impact of a media market concentration, where it is likely to affect the functioning of the internal media market.
Previous European watchdog replaced by new watchdog
Under the EMFA, the existing European watchdog established under the Audiovisual Media Services Directive (“AVMS Directive”) shall be replaced and succeeded by the European Board for Media Services (“Board”). The Board shall be composed of representatives of national regulatory authorities referred to in the AVMS Directive.
It shall be tasked with supporting the Commission in the effective and consistent application of the EMFA framework by, inter alia, exchanging information and best practices between national regulators and provide various opinions on questions related to the Regulation. However, neither the Commission nor the Board shall have the right to impose fines for direct violations of the EMFA.
Reactions of the media sector
Since the announcement of the EMFA, the media sector has shared a multitude of opinions on the planned legislation. Many media organisations welcomed the EMFA for its goals to strengthen the free and pluralistic media system and the commitment to protect journalists and editorial independence. However, these organisations criticise in various matters that the Commission’s provisions were not extensive enough.
Contrary, other media actors consider the EMFA to be already too extensive as media policy is usually regarded as national prerogative. According to them, it is not required that the press must be supervised by a European watchdog. The EMFA would de facto override the principle of editorial freedom of publishers. Also, the media exemption related to content removal on very large online platforms would increase the risks of disinformation.
Now that the Commission has proposed the EMFA, the European legislators consisting of the European Parliament, the Council and the Commission will discuss and negotiate the text of the Regulation. It remains to be seen whether the legislators will incorporate the mentioned concerns of the media sector which partly had been addressed by the Regulatory Scrutiny Board in its opinions on the Commission’s impact assessment this summer. Therefore, media stakeholders should keep a close eye on this legislation, as, upon adoption, it could have a considerable impact on the European media landscape and present new challenges.
We would like to thank John-Markus Maddaloni (Research Assistant) for his valuable contribution to this article.