What is still missing from the European Media Freedom Act
Topic: Media support
Author: Lucie Smith
Over the past few months, the European Media Freedom Act (EMFA) proposal has been frequently discussed in both the European Parliament and the Council. Just before the August hiatus, the Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE), the Committee for opinion, took its vote while the lead Rapporteur Sabine Verheyen (EPP) and the Shadow Rapporteurs agreed on general compromise amendments. These discussions will now resume and even intensify as the lead Committee on Culture and Education (CULT) will vote on its report in early September with the plenary vote scheduled for October. With this article, the European Partnership for Democracy (EPD) provides an overview of the proposal as it stands ahead of these negotiations and sheds light on some of the obstacles that still need to be overcome.
Protection of journalists
Article 4 of the EMFA, which includes the majority of provisions aimed at safeguarding the independence and the protection of journalists, has been a sticking point lately. This is due to the fact that within the Council’s final mandate for negotiations with the Parliament, the list of crimes for which surveillance can be deployed was increased, and an exemption from the protection of journalists from spyware was added.This carve out would allow Member States to spy on journalists if this was deemed necessary in the name of protecting national security. EPD and 79 other organisations argued against this move, stressing that these changes will legalise the use of spyware against journalists instead of protecting them.
Ahead of the vote in LIBE, we again supported the call of 36 organisations to include robust safeguards for journalists and a complete ban of the use of spyware against them. Unfortunately, while the LIBE opinion improves the protection of journalists, it did not opt for a total ban of spyware. As the use of spyware (Article 4.2) falls under the exclusive competence of LIBE, the CULT Committee must include this part of LIBE’s opinion in its final report. EPD will continue advocating for strengthened safeguards for journalists ahead of the vote in plenary.
While the EMFA provides an obligation for the information on media ownership to be made public, EPD has argued from the beginning that the proposed requirements are not sufficient to truly shed light on the tangled webs of media ownership. While the Council has improved Article 6.1 by extending its scope to all media service providers, not only those providing “news and current affairs content”, it has not required that more information be made available. In this respect, the LIBE opinion was more far-reaching because it mandates several additional types of information to be made public by media service providers, including data concerning the ownership structure related to the media service provider’s parent and sister companies. It also restricts the beneficial ownership of media for persons holding certain prominent public functions, such as heads of State or ministers, which would help ensure politicians do not exercise undue influence over media.
EPD urges the CULT Committee to introduce rules on the transparency of media ownership, including the report into an EU-wide media ownership database, that will provide meaningful change and allow civic watchdogs to continue to do their work.
The role of the European Board for Media Services (the Board)
While the majority of lawmakers agree that the European Board for Media Services (the Board) must be independent from the Commission, less consensus can be found on how to achieve this and where to draw the line. If the Board will be fully independent from the Commission, its actions and decisions will be influenced solely by the Board’s members who come from national regulatory authorities. This might prove problematic, especially in instances where the Board is asked to provide expertise on guidelines, such as on the prominence of media services of general interest, which would necessarily include providing a definition of such media services. EPD believes that decisions on these issues should be left to elected lawmakers.
Furthermore, the opinion of the LIBE Committee envisions a Non-Audiovisual Media Expert Group to act as an advisory body to the Board. The Expert Group would be filled with experts according to procedures and requirements laid down in the Board Rules of Procedure, which is proposed to be adopted by the Board (composed of national regulatory authorities) after a non-binding consultation with the Commission. While in theory this would enable independent voices familiar with the sector to provide guidance to the Board, the process of choosing the members of this Expert Group must be duly clarified to avoid the possibility of national authorities nominating “experts” with a political agenda.
The much discussed Article 17 aims to introduce a system in which media that declare themselves as such would benefit from certain privileges on very large online platforms (VLOPs), such as providing a statement of reasons prior to a suspension of media’s content taking effect. As EPD stressed before, instead of restricting the VLOPs’ influence over media content on their platforms, the text only gives the VLOPs more power. The structural dependency of media on VLOPs is indeed a problematic phenomenon, but the solution offered in the Commission’s proposal will not solve it and the Council’s final text only exacerbates the problem.
According to the Council’s mandate for negotiations with the Parliament, the ‘media privilege’ would not only apply to the suspension of content but also to the restriction of its visibility. As a response to criticism about potential rogue actors taking advantage of the system, the Council proposed more information on independence and compliance with legal requirements to be provided by the media during their self-declaration. However, this model still creates an inequality of freedom of speech, does not deal with the problematic question of who would be in charge of controlling these self-declarations, and threatens to fragment the horizontal rules introduced by the Digital Services Act (DSA).
In the upcoming debates, EPD will therefore continue to strive for Article 17 to be deleted and this harmful model removed.
Transparency of state advertising
One of the most discussed issues with the EMFA provisions on state advertising was the exemption from transparency requirements for territorial entities of less than 1 million inhabitants. Thankfully, this threshold was lowered by the Council and later even removed altogether by the LIBE Committee. The Committee also suggested amendments to the provisions on emergency messages that would ensure that state authorities cannot deliberately evade transparency by using emergencies as a pretext.
However, further issues remain. In order for meaningful transparency to be achieved, we have called for the monitoring of state aid provision to media service providers, shorter frequency of data publication, and the introduction of national registers of media ownership . Additionally, an EU-wide database of information on state advertising would be of a great benefit as it would provide the public, journalists and civil society with cohesive and centralised data.
The above-mentioned topics are of the utmost importance in the fight for an effective European Media Freedom Act. The entire regulation, including its provisions on media concentrations and public service media, will have a tremendous impact on the media market in the Union. This is why EPD will continue to advocate for a strong EMFA which can improve media freedom and pluralism across Europe.
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