Countdown to Elections: How will the European Media Freedom Act shape press freedom in the EU?

–

Will the European Media Freedom Act serve as an opportunity to enhance the public’s access to accurate and reliable information, or will it cast a dark shadow over the EU’s global reputation as a safe haven for press freedom?

The European Media Freedom Act (EMFA), approved on March 13th 2024, is the new body of rules aimed at protecting pluralism and media independence in the European Union: a necessary reaction to promote transnational public debate on issues crucial for democracy in the European space. Drafted in response to the increasing violations of press freedom, the regulation aims at protecting the key concept at the heart of journalism, the secrecy of journalistic sources. Yet, it risks becoming the text that legitimises its systematic violation, and with the upcoming EU elections looming on the horizon, the stakes are higher than ever. 

The freedom of the press is fundamental in any democracy. Independent media uncovers the truth, it holds power accountable, it informs voters and helps shape public opinion. Media freedom and pluralism are further enshrined in the Charter of Fundamental Rights of the European Union. On a global scale, the EU remains a stronghold for free and independent media, but media companies are confronting falling revenues, increasing threats, the emergence of online platforms and a patchwork of different national rules. 

Over the past three years, the rule of law reports prepared by the European Commission and the Media Pluralism Monitor have pointed towards the increasing politicisation of the media. Growing concerns regarding the poor protection of journalists in face of increasing pressure and threats, obscure media ownership operations and the lack of independence of media regulators in several EU countries have emerged. 

Against this background, the EMFA was created to combat political interference in editorial decisions for both public and private service media providers, as well as to protect journalists and their sources and guarantee media freedom and pluralism.

What will the new rules change? 

The objective of the European Media Freedom Act is the harmonisation of national laws in the 27 Member States, with the provision of guarantees – in the area of surveillance of journalists and secrecy of sources – that still do not exist in the national legislation of many European countries like Hungary, Greece, Malta and Poland. 

The EMFA will require the Member States to respect the editorial freedom of media outlets and to improve the protection of sources. In addition, television, radio and print channels will have to openly declare their owners and shareholders so that citizens can easily identify who holds editorial responsibility. Users will also get the right to customise their media offer: they will be able to modify the default settings of the interface that controls access to services, aligning it with their individual preferences. This means individuals will be able to tailor their media consumption to suit their specific tastes and needs, enhancing their overall user experience.

Public service media will be guaranteed stable and adequate funding in order to safeguard editorial independence against political interference. It also requires Member States to assess the impact of media market concentrations on media pluralism and sets new requirements for the allocation of state advertising to media to ensure its transparency and non-discrimination. 

Article 4: Member States’ authority over spyware and challenges to journalists’ rights

A crucial element of the EMFA is article 4, which seeks to protect media outlets, journalists and their families from the use of spyware. In recent years, some Member States have shown little attention, if not total disregard, for the confidentiality of sources, especially against the background of using tools such as spyware. These are digital products which enable the covert surveillance of natural or legal persons by monitoring, extracting, collecting or analysing their data. Pegasus is the most notorious spyware, having gained much attention in recent years for its use against journalists, politicians, lawyers, activists. But there are dozens, perhaps hundreds of them, part of a billion-dollar industry that is booming and about which too little is still known because of the climate of secrecy and opacity that surrounds them.

In this regard, the EMFA seeks to protect the media landscape through article 4, which states that Member States will not be able to “install spyware in any device or machine used by media service providers or, where applicable, by their employees or family members, unless the use is justified, on a case-by-case basis, on grounds of national security”.

In other words, in the case of national security needs, spyware may be installed on journalists’ devices within the limits of article 52 of the Treaty of Nice. The passage is crucial: the text  seeks to provide journalism with the necessary guarantees for its functioning, but at the same time opens the way for the violation of sources on the basis of public interest, investigations involving serious crimes (a shortlist of crimes considered to be of particular concern by European jurisprudence) and matters of national security. The exemptions based on the “grounds of national security” reasons might put journalists under a strict control, allowing authorities to detain them, search their offices, and listen to their conversations without clear evidence of serious crimes.

The European Parliament’s approval of the EMFA, considering that the text allows for the possibility of intercepting journalists, appears to be politically linked to the need to be able to exert a certain amount of control for the upcoming European elections. Presumably, the rationale behind the document aims at mitigating the influence exerted by foreign powers upon journalists, aiming to uphold their integrity and independence.

The implementation of dialogue with very large online platforms (VLOPs)

Building on the provision of the current Digital Services Act (DSA), the new rules will also protect media content online, offering safeguards against unjustified removal of media content by Very Large Online Platforms (VLOPs) such as Instagram, Facebook or X. VLOPs will have to make a declaration in which they certify that they are editorially independent of any State (both Member States and non-EU) and that they operate in accordance with co- and self-regulatory mechanisms. For the sake of transparency, they will be obliged to make public the number of times in which they have imposed some form of restriction on their platforms to the detriment of content offered by multimedia service providers on an annual basis. Additionally, VLOPs will have to explain the reasons on the basis of which they have imposed such restrictions.

However, the controversy arises as the EMFA seeks to undermine the DSA, which provided extremely stringent rules for VLOPs such as the obligation to remove all online content that could be considered illegal and to restrict all advertising related to sensitive topics or information.

In particular, article 17 of the EMFA provides an exemption to all those media that are ready to declare themselves as “independent”, preventing large digital platforms from removing their content and thus giving rise to important changes in terms of information protection for users. The so-called “special status” will not be conferred on all media. Media will have to self-declare their special status on the platforms, demonstrating that they adhere to officially recognised editorial standards or comply with legal requirements. This mechanism places VLOPs in a tough spot: they will have to decide whether to leave harmful content online or spend significant amounts of time and resources dealing with media services. 

Indeed, such exemptions will lead to a bargaining situation in which the most influential media and platforms will have to negotiate the visibility of their content. VLOPs will be in a position of both strength and weakness: deciding on the status of an exorbitant number of media.

Will the EMFA guarantee Media Freedom in the upcoming elections? 

Without a free press and information, and without the protection of journalists, the concepts of democracy and elections are at risk. The EMFA’s success will depend on the proper enforcement of the rules. National media regulators will be entrusted with the role of enforcement and supervision, with the support of the European Regulators Group for Audiovisual Media Services (ERGA), which will also coordinate efforts at the European level. It is an interesting and powerful idea, with the ability to reinforce democratic standards, but in countries where governments still have an enormous influence on national media regulators, the law could become inefficient.

Surely, a European regulation on media freedom is a good step forward. Both in terms of the content of the articles, which touches on various problems concerning the autonomy and independence of information; and in terms of the attention that has been devoted to preventing the advancement of democratic backsliding. As is well known, in fact, one of the main threats to democracies is disinformation, and the issue touches on the entire universe of communication through its various dissemination platforms. However, doubts remain on the spectrum of the exceptions contained in article 4 and article 17 that, if actually implemented, will potentially jeopardise the fair distribution of information and democratic debate in the run-up to the European elections.

Ludovica Colosimo is a master student at the Institute of European Studies

(Edited by Luka Krauss)