Even though the competence of the EU to regulate media freedom and media pluralism was the subject of a heated debate and despite stormy negotiations among EU policymakers, the European Media Freedom Act (EMFA) is coming!
On 15 December 2023, EU policymakers reached a political agreement on the Regulation that had been proposed by the Commission in September 2022 and that aims at promoting media freedom, media pluralism and editorial independence in the EU (for more details, see our previous blogpost).
While the text still has to be finalised at a technical level, most likely adding numerous finesses in terms of expected impact on media players, we will give a first glimpse on some of the initial points in question as well as the respective agreements found.
Art. 17 EMFA – Media content moderation by VLOPs
During the negotiations a strong controversy revolved around the so called “media exemption” or “media privilege” in Art. 17 EMFA.
In the end, the decision was made in favour of such a privilege: Media service providers will have to be notified if a VLOP (Very Large Online Platform designated under the Digital Services Act) intends to delete or restrict their content on the grounds of incompatibility with its terms and conditions. The respective notification will have to include the reasons for deleting or restricting the visibility. Moreover, before the deletion or restriction can take effect, media service providers are to be given an opportunity to reply within 24 hours. In case of a crisis as referred to in the DSA the response period may be shortened.
In this context, the legislators have also addressed the link to content moderation responsibilities under the DSA: According to the EU Commission’s Q&A for the EMFA, the warning procedure is not supposed to come into play when content moderation decisions are based on responsibilities under the DSA, especially with regard to removing illegal content, protecting minors as well as mitigating disinformation.
To qualify for the respective protection of Art. 17 EMFA, media entities will have to be “transparent about their ownership, editorially independent from Member States, political parties, third countries or entities controlled or financed by third countries”.
Furthermore, complaints that are lodged by media service providers must be handled with priority by VLOPs.
Nonetheless, the “media exemption” continues having strong critics. There are voices suggesting the exemption makes platforms host content by force or has them negotiate with media over their hosted content. Some, as already seen in the legislative process of the DSA, fear the 24-hour must-carry obligation for media content may provoke disinformation. Others in turn, see the freedom of press at stake, in particular that the provision could actually have the opposite effect and allow more restriction of content by media service providers. In any event, fundamental conflicts between VLOPs and the media are being predicted.
Art. 21 EMFA – Media market concentration assessment
In the meantime, it was reported that the assessment of media market concentration (for more details, see our previous blogpost) could remain a mere possibility under the EMFA. This was presumably due to the wording in the Council’s General Approach speaking of “allowing” an assessment as opposed to the Commission’s proposal that wanted to “ensure” assessing a concentration.
However, the Commission reiterates in its Q&A that the Regulation “will ensure that Member States provide in national law for an assessment of such media market concentrations that could have a significant impact on media pluralism and editorial independence”. The Commission further specifies that “Member States will have to lay down criteria set out in advance that take into account several elements, including effects on the formation of public opinion, safeguards for editorial independence, economic sustainability and possible commitments that may be offered by the parties to the concentration”. All of this rather suggests an obligatory assessment. However, it remains to be seen what the technical negotiations will exactly entail.
In any case, the scope of affected media players has been broadened when the Commission now not only addresses concentrations involving at least one media service provider but also adds those concentrations that comprise a mere “online platform providing access to media content”.
Art. 8 to Art. 13 EMFA – European Board for Media Services
The EMFA stipulates that the former European watchdog European Regulators Group for Audiovisual Media Services (ERGA) will be replaced by the European Board for Media Services (Board).
The Board will be composed of national media authorities or bodies and it will be assisted by a Commission secretariat. In this regard, observers warn that the Board must remain independent of the Commission in order to uphold the requirement that the media be independent of the state (in Germany the so called “Gebot der Staatsferne”) and ask for further clarification on this point.
The Board will advocate the application of the EU media law framework. Among other things, it is supposed to be involved in the assessment of media market concentrations through issuing opinions on the impact of concentrations likely to affect the functioning of the internal market for media services. What is striking here, is that the relevant national regulatory authority or body must take utmost account of the Board’s opinion. Furthermore, the Board comes into play regarding media content moderation of VLOPs when arranging structured dialogues between VLOPs, the media and civil society. This applies for instance when the media considers a decision of a VLOP regarding media content moderation under Art. 17 EMFA to be insufficient. The media may then request an opinion from the Board.
Art. 4 EMFA - Protection of journalists against surveillance software
Another major point of controversy was the surveillance of journalists.
Under the EMFA journalists will be protected from having to disclose their sources or confidential communications, including by detainment, sanctions, office searches and especially by intrusive surveillance software.
Initially, some of the member states had advocated for an exemption allowing the spying of journalists and their sources for reasons of safeguarding “national security”. Said initiative was controversially discussed and a number of voices raised concerns that this could turn the protection of journalists on its head by explicitly allowing for spying. Rumors had that the proposed wording even put the agreement on the EMFA as such at risk.
However, a compromise seems to have been reached. According to Q&A released by the Commission, ultimately, any measures regarding the surveillance of journalists will only be permitted in case of “an overriding reason of public interest” thus, rejecting the exemption of “national security”. Moreover, the measures have to be proportionate, in compliance with Union law and the Charter of Fundamental Rights as well as subject to prior authorisation by a judicial authority or an independent and impartial decision-making authority. Also, the use of intrusive surveillance software needs to be justified for “investigations of serious crimes” and surveillance measures are to be “regularly reviewed by the judiciary or an independent and impartial decision-making authority”. Additionally, journalists are given the right to an effective remedy and the right to judicial protection. Even so, players are still concerned that this compromise may pose a threat to the freedom of press.
Following the approval of the political agreement, EU policymakers are currently holding a series of technical negotiations in order to fine-tune the rules and provide further legal certainty to the affected media players.
Once a final text is agreed by EU policymakers, the Parliament’s Culture and Education (CULT) Committee would need to approve the final deal which is envisaged for Q1 2024. Final approval by the Parliament's plenary as well as formal endorsement by the Council is envisaged to take place by the end of Q1 / beginning of Q2 2024.