On 16 September 2022, the European Commission presented a new draft law – the European Media Freedom Act (EMFA) – with the aim of creating uniform media rules across the European Union.
The EMFA proposal addresses pressing issues, such as political interference in editorial decisions, surveillance of journalists and their sources, funding of public service media and ownership transparency.
Although we welcome the initiative, there is still much room for improvement. In our policy paper we have identified several shortcomings and offer recommendations on how to make it a more robust and effective Regulation.
Here are several concerns, among others, that we have with the proposed EMFA, as well as our recommendations to fix these issues.
Protection of journalists and their sources
Journalists perform a key function in our democracies by informing people about matters of public interest. They sometimes put themselves and their sources at risk when they investigate wrongdoings of politicians or other powerful people.
The proposal prohibits authorities from pressuring journalists to disclose information on their sources. However, authorities can easily circumvent the ban when they see a “public interest” – which is not defined by the text.
The proposal also bans the deployment of spyware - a direct reaction to the Pegasus scandal. However, the ban overlooks other forms of surveillance techniques.
Our recommendations to the Commission:
- Close loopholes for the protection of journalists and their sources; clearly define “public interest”.- Give independent courts the sole authority to order the disclosure of a source’s identity.- Widen the scope to include other forms of surveillance beyond spyware.
Public service media
Public service media (PSM) provides impartial information and diverse opinions and promotes social cohesion and cultural diversity. The proposal includes more transparent appointment procedures for board members and management heads, and ensures that the people appointed to those roles are qualified. However, it overlooks other forms of management bodies, such as newsroom directors, who also have a crucial influence on the public discourse.
The proposed EMFA also asks member states to provide PSM with more financial resources. However, the wording is vague, making it easy for member states to circumvent their obligations.
Our recommendations to the Commission:- Extend the rules for appointment procedures to include all forms of management bodies.- Clarify the proposal to ensure that PSM have sufficient, stable, predictable funding on a multi-year basis to fulfill their mission.
Many media outlets and newspapers belong to large conglomerates or publishing houses owned by wealthy people. These people can theoretically dictate what the media should cover or what kind of narrative to convey. They thus have a strong influence over the public sphere. Despite the risks, the media ownership landscape is currently still obscure.
The Commission says it wants to improve transparency on media ownership, but it only requires minimal reporting obligations. If we want proper transparency, we need more detailed, publicly accessible and up-to-date information.
Our recommendation to the Commission:- Member states should task national regulatory authorities to develop national online databases that contain details about the entire beneficial ownership chain. We also need an EU-level database that draws upon the national databases.
National regulatory authorities
National media regulators (NMRs) play a key role in the enforcement of media laws, making them a precondition for media freedom and pluralism. With the European Media Freedom Act, they will be given more competencies and have an increased workload.
As a result, the Commission proposes to increase their financial resources, but without properly committing member states to act.
Our recommendation to the Commission:- Include more binding language on the financial resources allocated to NMRs.
The European Board for Media Services
The Commission proposes to set up a new European body, the European Board for Media Services, to replace the existing body, the European Regulators’ Group for Audiovisual Media Services (ERGA).
We are very concerned about the Board's dependency on the Commission. The proposal suggests that the Board must first agree with the Commission before it can invite experts and observers to its meetings. It is also required to provide opinions on a variety of issues “upon request of the Commission”. Furthermore, the secretariat, which is to execute the tasks of the Board, is provided directly by the Commission.
Our recommendations to the Commission:- The Board should be more autonomous and be able to act on its own initiative.- The secretariat must be independent from the Commission.
The digital chapter
Many news outlets have been struggling financially in the past decade due to a loss of readership and ad revenue. At the same time, very large online platforms (VLOPs) have been thriving. Their role as gatekeepers, who more or less decide what kind of content users are consuming, makes them powerful actors in the distribution of information.
The Commission wants to support media outlets that provide trustworthy information, by asking VLOPs to give verified media outlets a privileged status that will increase their visibility on users' news feeds. The verification process is flawed, however, and could be abused by rogue media actors to spread their propaganda and disinformation more easily.
Our recommendation to the Commission:- Reconsider the media privilege and instead focus on enforcing existing rules that prevent disinformation and other risks linked to freedom of information and expression.
Allocation of state advertising
Member states are spending millions each year on state advertising, money much welcomed by struggling media outlets. However, in most countries, there are no rules that ensure a fair and transparent distribution of state advertising.
The Commission proposes to introduce reporting obligations for authorities in territorial entities with over one million inhabitants. This is despite the fact that only a few cities in the EU reach that threshold.
Our recommendations to the Commission:- Lower the threshold of inhabitants and introduce an advertising spending limit over which advertisers will have to comply with reporting obligations.- Complement the minimum reporting requirements with a detailed explanation of the public authorities on the choice of the beneficiary.
EMFA must be viewed as new tool
The European Media Freedom Act provides the EU with a great opportunity to strengthen and promote media freedom and pluralism across Europe. Ahead of the upcoming European Parliamentary elections, and in the context of a general worsening situation for media freedom and the safety of journalists in the EU, legislators should view the EMFA as a tool to not only support and safeguard media freedom, but to protect European democracy itself.
See all of our concerns and recommendations in our new policy paper.
Previously on Liberties
Liberties' Comment on the European Commission’s European Media Freedom Act Proposal
European Media Freedom Act: Joint Statement By Media Freedom & Journalist Groups