EU institutions agree new rules for media sector

The main EU institutions found a political agreement on Friday (15 December) on the European Media Freedom Act, a new law meant to promote freedom and diversity in the media sector, though the deal comes with some controversial caveats.

The European Media Freedom Act (EMFA) is a draft law to promote media pluralism in the EU. The representatives of the European Commission, Council and Parliament concluded the negotiations on the file with a provisional agreement reached at a political meeting on Friday.

Up to the last moment, EU policymakers clashed on the issue of the protection of journalists from surveillance, including spyware, with member states pushing for a controversial carveout for national security.

“I heard from many sides: there cannot be any common law for media at the European level because there is no media single market. We have 27 separate markets. But the truth is that if the media fail as the protectors of democracy in one, two, three countries, we will have horrible trouble at the European level,” Commission Vice-President Věra Jourová said at the press conference following the political deal.

Protection of journalists

The media law includes measures meant to prevent the surveillance of journalists, including freelancers, just for doing their jobs and the protection of the identity of their sources, including with the deployment of spyware.

The only exceptions maintained in the agreement relate to authorities’ investigations of a pre-determined list of serious crimes like terrorism and murder and prior authorisation by a judge or independent authority. The journalists affected will be informed ex-post and could challenge the surveillance in court.

The most controversial part of this topic was a so-called national security exemption. However, the reference to national security was removed in favour of wording stating that the law respects the EU countries’ national responsibilities as established in the treaties.

Rights of recipients of media services

EU countries will have to respect the right of the recipients of media services to access a plurality of editorially independent media content and ensure that framework conditions are in place to safeguard a free and democratic public discourse.

New media duties

The European Parliament wanted to extend the article that news media services should ensure the independence of editorial decisions to all media outlets but faced strong opposition from the Council.

However, the text’s preamble will clarify that this obligation applies to all media content with the potential to influence public opinion significantly.

Public service media

The Media Freedom Act introduces measures to ensure that public service media are functionally independent of political influence, notably by establishing safeguards for the hiring and dismissing of management positions.

Media ownership

The agreement includes an obligation for member states to develop national media ownership databases. At the same time, MEPs had to drop an article that would have prevented people with prominent public functions from owning any press publication or broadcasting service for the duration of their term.

State advertising

The media law mandates that the allocation of public funding to purchase advertising should follow transparent, objective, proportionate and non-discriminatory criteria made available to the public.

Initially, the Council pushed for an exemption for local or regional authorities with less than 100,000 inhabitants. Still, parliamentarians opposed it on the principle that it risked creating a significant loophole in terms of transparency.

The compromise was that these public bodies would only have to publish part of the information to avoid an excessive administrative burden.

Market concentration

EU countries must provide substantive and procedural rules in their national legal frameworks that allow for an assessment of media market concentrations, including those concerning online platforms, that could impact media pluralism and editorial independence.

Media exemption

The EU Parliament obtained a provision requiring online platforms deemed ‘systemic’ under the Digital Services Act (DSA) to give media outlets a 24-hour grace period for suspending content moderation decisions affecting their editorial content.

To benefit from this safeguard, media outlets must be editorially independent of political parties and foreign countries. A shorter ‘appropriate time period’ timeframe was introduced for crises envisaged under the DSA’s crisis response mechanism.

Importantly, this so-called media exemption will not apply when the content has been restricted or suspended to comply with EU legal requirements on illegal content, systemic risk mitigation and minor protection.

European Board for Media Services

The Media Freedom Act replaces the European Regulators Group for Audiovisual Media Services with the European Board for Media Services, a new body formed by national media regulators to ensure the consistent application of the law, including by issuing influential opinions on sensitive matters such as market concentrations.

A contentious point around the Board was ensuring independence from the European Commission since the EU executive will provide the staff for its secretariat. The secretariat is to act under the sole instructions of the Board when carrying out tasks under this regulation.

However, earlier this week, Euractiv reported how nine European countries, including France and Germany, pushed better defining the administrative tasks of the secretariat in a Memorandum of Understanding, together with other measures meant to curtail the Commission’s influence.

[Edited by Nathalie Weatherald]

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