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The European Partnership for Democracy submitted a contribution to the European Media Freedom Act (EMFA) proposed by the European Commission on 16 September 2022. Below, we provide a summary of the main points that should be taken into account to ensure an effective implementation and truly improve the media environment across the EU. 

We welcome the EMFA as an important step to strengthen the free and pluralistic media system and a commitment to protect journalists and editorial independence in the European Union. Open procedures and transparent, objective criteria for public funds provided to media service providers are crucial and will increase the transparency of a large portion of state advertising paid to the media sector. If the EMFA is drafted well, it will be a major win for democratic societies all over the world. Here are the main areas that would benefit from further modifications.

Editorial and journalistic sources protection

As currently drafted, Article 4 of the EMFA is a step forward in editorial and journalistic sources protection. However, its current wording contains specific provisions that may limit or even reverse its beneficial purposes. EU legislators need to ensure that the EMFA is a piece of clear legislation (written, accessible, and publicly available) with guarantees of foreseeability and guarantees against arbitrary application. Following the so-called “principle of legitimate aim, necessity and proportionality”, the proposal should ensure that no surveillance measure is applied arbitrarily. Journalists and journalistic sources are vital actors for democracy. Hence, special safeguards against surveillance to both these categories must be included as well. The high level of threats women and LGBTQ+ journalists receive online also requires the promotion of an equal working environment, to ensure all media workers are protected from threats in online contexts such as gender-based disinformation, doxxing and other forms of privacy violation, cyber-stalking, cyber-harassment and smear campaigns.

Safeguards for the independent functioning of public media service providers

The obligation for governments to provide adequate financial resources to public service media (PSM) and a transparent and non-discriminatory appointment of members of PSM’s governing Boards are a step in the good direction towards vital safeguards for the independent functioning of PSM. For truly independent PSM, we call for: further clarification to prevent Member States from avoiding their obligations, and more obligations for PSM management boards to ensure their pluralism.

European Board for Media Services

The EMFA envisions the European Board for Media Services as the key institution that will implement its provisions. It is supposed to be fully independent of governments and any other public or private entities so that it can effectively and impartially uphold freedom of expression across the EU. To guarantee its independence and efficiency, the Board should be independent from the Commission, and  issue  enforceable opinions, in order for them to have real legal power.  Furthermore,guidelines should be set to ensure media plurality. Structured dialogue should also be strengthened to include civil society, professional organisations and academics as key experts.

Media in the digital environment

We are concerned with the fact that the so-called “media privilege” has found its way back into the proposed legislation.  The EMFA proposal suggests that media service providers should be identified based on self-declaration. This approach may establish fast-track and non-transparent procedures and open the door to rogue actors whose sole interest is to distort democratic public discourse by spreading disinformation, misinformation and propaganda. If the EMFA is adopted as proposed, the system established under the Digital Services Act (DSA), including content moderation rules and a complaint mechanism, would be fragmented and more difficult to enforce. This is why we proposed to reject Article 17 altogether, as no media should receive preferential treatment.

Transparency of ownership requirements for a well-functioning media market

A healthy, well-functioning and pluralistic media sector requires full transparency on who owns and exercises influence over media. This implies transparency of the whole chain of ownership of media and of all financial relations between media, governments and public bodies. The EMFA currently endorses transparency in principle but does not deliver in practice. The harmonisation of the type of information that should be disclosed by all media actors (traditional and online) across EU Member States is needed to secure the role of investigative journalists and human rights organisations as watchdogs that can detect relationships affecting the way media report. The proposal should be strengthened with the establishment of an EU-wide registry of media ownership data, fully and freely accessible to citizens through online. The database should enable analysis of cross-media ownership, cross border media ownership, of audience measurements and media concentration levels. Only full transparency can help democracy flourish.

Allocation of state advertising

Article 24 is a welcome protection against the abuse of state advertising by governments seeking to reward media friendly to their ideologies, reported among others by the 2022 edition of the Media Pluralism Monitor. However, the proposal must be strengthened to ensure no loopholes are left in the text through which media loyal to regimes can continue to receive money while independent media suffer. We recommend that the rules proposed are expanded to include local government expenditure, and public media subsidies and to close down back-door government support for media. This implies introducing rules governing the allocation of all kinds of resources by the state to media service providers, concrete procedures and safeguards for awarding media service providers with funding, regular reporting obligations for the parties involved, and making data available in a user-friendly manner online. 

We will talk about this soon in our paper on Transparency of State Funding in the EMFA Proposal. 

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