https://www.accessnow.org:443/faq-how-the-eu-plans-to-protect-media-freedom/
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FAQ: how the EU plans to protect media freedom

A free, independent, and diverse press is essential for holding democracies to account. As public watchdogs, the media’s ability to provide accurate, independent, and reliable information is vital for allowing the public to scrutinise political leaders, make informed political choices, and exercise their fundamental rights and freedoms. But around the world, media freedom is increasingly restricted or subject to state interference. 

To address this worrying trend, the European Commission proposed the European Media Freedom Act (EMFA) in September 2022. This FAQ dives into why such a proposal is needed, how it would strengthen media independence and safeguard media pluralism, and what happens next. 

Q: Why do we need legislation to defend media freedom and pluralism in the EU? 

A: Until recently, media policy was a matter for individual Member States to manage independently from EU institutions. But concerns have grown about the rule of law, state interference in countries such as Hungary and Poland, the spread of government propaganda, and the gatekeeping of public information and content. This year’s Media Pluralism Monitor warned that very few European countries have efficient mechanisms to protect editorial autonomy, and noted that media freedom and pluralism in five EU Member States are considered to be at ‘high risk’ regarding their political independence from state interference. 

The Commission’s effort to regulate media is not without controversy, with EU Member States holding a wide range of views on the topic. Some countries, such as Germany, worry that the new law would lower their current national standards or undermine their regulatory system, while countries like Hungary object to giving the EU regulatory and investigative powers that would expose their unjustified interference with or manipulation of the media.   

Q: What is the European Media Freedom Act? 

A: The EMFA is a legally binding Regulation. It establishes both rights and obligations for a wide range of media players grouped under the umbrella term of ‘media service providers’. It is complemented by a set of recommendations for voluntary measures on editorial independence and transparency around media ownership. The EMFA seeks to safeguard the media’s essential role of supporting democracy by: 

  • Protecting media from any interference with their editorial freedom; 
  • Preventing spyware being used against journalists and their families;
  • Demanding transparency about ownership of media ownership; 
  • Ensuring stable funding for public service media; and 
  • Creating new transparency obligations for state advertising. 

The EMFA also addresses the relationship between media service providers and Very Large Online Platforms (VLOPs), as defined in the EU’s main content moderation rulebook, the Digital Services Act (DSA), which underlines the mutual relationship of these two regulations.    

Q: Who does the EMFA protect, and how? 

At the core of the Act is the right of every individual to receive a plurality of news and content. This is only possible when governments and related businesses respect the editorial freedom of media service providers, and do not seek to interfere in or influence media policies and decisions. In practice, this also means that individuals should be able, for instance, to customise what they see based on their interests or preferences.  

To safeguard editorial independence, Member States shall respect editorial freedom by not interfering in or influencing media policies and decisions in any way. The EMFA suggests a number of safeguards and obligations for both media service providers and Member States – here are the most important ones. 

  • No government surveillance of media service providers (Article 4)

Member States are prohibited from engaging in any form of government surveillance of media service providers, including searching media outlets’ premises or deploying spyware against journalists. Given the frequency with which NSO Group’s Pegasus spyware technology has been used against journalists, this is a groundbreaking measure. When spyware has to be used for national security reasons, the EMFA provides some fundamental rights safeguards, as prescribed by the legally binding EU Charter.  

  • Mandatory transparency around ownership and funding of media (Article 6)

Under the EMFA, media outlets reporting on current affairs and creating newsworthy content will have to disclose information about their direct, indirect, and beneficial ownership that could influence their editorial decisions. This measure seeks to uncover potential conflicts of interest and to protect objective reporting that shapes participation in the public discourse and how people form opinions. 

  • Platforms’ privileged treatment’ of media content (Article 17)

The EMFA also addresses how media content is treated by VLOPs. Firstly, it will be up to VLOPs to create a system allowing media providers to submit self-declarations proving their editorial independence. Secondly, if VLOPs frequently remove media content without sufficient grounds, media service providers can request to engage in a dialogue with VLOPs to find an ‘amicable solution’. 

Worryingly, this resembles the so-called media exemption proposed during the DSA negotiations, which we opposed and which was ultimately rejected. While the EMFA’s equivalent is more nuanced, we are still concerned by its content. Firstly, there is no evidence that large VLOPs remove considerably more media content than user-generated content. Secondly, the DSA already addresses platforms’ non-transparent content moderation policies and opaque algorithms that create systemic risks for fundamental rights. There is no need for an additional media exemption to achieve the same goal.  

  • Checks and balances on media market concentrations (Article 21)

For the first time, the EMFA establishes common rules on media market concentration in the EU. This aims to address any impact on diversity of opinions that may be seriously diminished by the concentration of economic resources in the media sector. Under the EMFA, Member States will have to assess their media market concentration using novel assessment criteria dubbed a ‘media pluralism test’. Any mergers that may impact media pluralism and editorial independence will have to be assessed against this new set of criteria, which are distinct from classical competition law tools, such as competition law assessments under the EU merger control rules.  

Q: What happens now? 

A: The EMFA promises to reverse the trend of deteriorating media freedom in the EU. European co-legislators will start negotiating the details of the proposal next year, which is likely to be challenging given the varied interests of Member States, media service providers, and media freedom advocates.  

As the legislative process unfolds, Access Now will continue to defend fundamental rights online, by scrutinising the relationship between online platforms and media service providers, and opposing any use of spyware against journalists or other members of the media. 

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