European media companies offering their services online should be able to enjoy the protections of Article 18 of the European Media Freedom Act (EMFA), which seeks to create a space for traditional media in the online ecosystem by creating guarantees for their content on digital platforms. These guarantees should exist regardless of the size or editorial line, and they should exist even in the absence of an adequate regulatory framework in a Member State.

Liberties has used the European Commission’s consultation on Article 18 of the EMFA, which closed on 23 June, to advocate for strong guidelines that clearly spell out the protections afforded to online media outlets. The guidelines must explicitly clarify that the lack of co-regulation or self-regulation in a Member State cannot disqualify a media service provider from benefitting from the Article 18 safeguards. This means that a media company maintains the right to use the declaration functionality – stipulating that it is indeed a media service provider and is editorially independent from Member States, political parties, third countries and entities controlled or financed by third countries, among other things.

If the declaration functionality is made contingent on the existence of formal regulatory structures, this would unjustly disadvantage media outlets operating in contexts where such frameworks have been deliberately eroded through government interference or never properly instituted. Moreover, VLOPs should be advised that they must not interpret the declaration too narrowly, thereby allowing Big Tech wide discretion in which declarations to allow or not.

The guidelines must therefore permit a flexible and context-sensitive understanding of editorial oversight, grounded in functional rather than formal criteria. They must also explicitly prevent discriminatory exclusion of smaller, independent, or non-traditional media, especially those critical of state authorities or operating in shrinking civic spaces.

Flagging and transparency

Liberties also used this opportunity to urge EU officials to use the guidelines to clarify several other critical points that arise from Article 18. The ability to raise concerns regarding false or misleading declarations during the review process should remain open to all individuals and organisations, and must not be confined to a narrow category of ‘recognised’ actors. A closed flagging system, restricted to entities pre-selected or approved by VLOPs or regulatory bodies, risks silencing independent voices and undermining the role of public interest watchdogs.

It is also essential that the declaration system be accompanied by comprehensive transparency obligations. At a minimum, the following information must be made publicly accessible:

• The criteria and process used by VLOPs to verify or dismiss a media service provider’s declaration;
• The content of the declaration itself and any supporting documentation provided;
• The full record of interactions between VLOPs and media service providers, including dates of submission, approval, rejection, or challenge;
• The full record of raising concerns of specific declarations, including dates of submission, approval, rejection or challenge;
• The legal basis invoked for any removal or demotion of content from declared media service providers, whether requested by the platform or a third party;
• Any mechanisms or correction procedures available to both media service providers and third-parties.

Without these measures, oversight bodies, civil society organisations, researchers, and affected individuals would find it extremely difficult to assess whether the declaration mechanism is being implemented fairly—or to challenge potential instances of abuse.

Civil society is a valuable resource

The success of EMFA in fostering media freedom and pluralism partly depends on sustained engagement with press associations and freedom of expression advocates. The guidelines should require regular consultation with civil society organisations that specialise in media freedom, access to information, and digital rights. Such engagement must be embedded throughout the lifecycle of the declaration mechanism—during its initial design, subsequent updates, and in the review of contentious cases.

Civil society input is essential to provide a necessary counterweight to potential state or corporate influence and to ensure alignment with the EMFA’s overarching commitment to fundamental rights.

Read Liberties’ full submission here.