Spanish presidency prepares to close most of EU media law in next negotiation round

The Spanish presidency has requested a revised mandate on the European Media Freedom Act (EMFA) ahead of the next interinstitutional negotiating session when most of the upcoming media legislation is expected to be closed.

The EMFA is a legislative proposal to increase media independence and pluralism. The bill is currently at the last phase of the legislative process whereby the EU Council, Parliament and Commission meet in so-called trilogue formats to hash out the final provisions.

The next political trilogues are scheduled for 29 November and 15 December, when the negotiators are expected to reach a final deal. Before each political meeting, the Spanish presidency of the EU Council, representing member states in the negotiations, needs a revised mandate to assess the countries’ flexibility on the respective topics.

The revised mandate will be adopted at the ambassador level on 22 November. A preliminary discussion occurred on Wednesday (15 November) at the Audiovisual and Media Working Party, a Council technical body.

Ahead of this internal technical meeting, the Spanish presidency shared a note with national delegates, seen by Euractiv, detailing where a compromise has already been reached and enquiring about possible flexibility on the remaining chapters.

National security exemption

The most controversial point of the negotiations is a broad national security exemption, introduced in the Council’s text upon insistence from France, on protecting journalists and their sources from surveillance and interference.

The plan is to agree on the rest of the text by the next trilogue and keep this highly contentious issue for the last political meeting in December.

For the presidency, some additional safeguards might be needed to reach a deal with MEPs, in particular, “accepting including the obligation of prior judicial authorization and periodic review to deploy intrusive surveillance software”.

State advertising

Regarding the allocation of state advertising, the presidency reports that the Parliament is ready to concede on the 15% cap for the total public budget that could not be assigned to a single outlet. In exchange, MEPs are asking to include online platforms in the scope of this provision.

The Parliament introduced an obligation for public authorities to publish the criteria and procedures for allocating such funds. In turn, the presidency is pushing to exempt regional and local authorities below 50,000 inhabitants, but parliamentarians have pushed back.

Funding and ownership transparency

The European Parliament has introduced significant additional obligations on news media providers. The presidency has proposed to concede on disclosing state advertising revenues, including from third countries, and ownership information.

At the same time, the Council is seeking to limit the scope of these provisions to news affairs outlets, leaving out entertainment media such as Netflix. Still, a parliamentary official says that is a ‘red line’ for MEPs. For the presidency, an alternative would be to re-introduce an exemption for micro-enterprises.

The presidency also seems open to the idea of the Parliament creating national media ownership databases, admitting there is necessary flexibility left to member states.

In turn, the dispositions on editorial independence are set to be closer to the Council’s mandate. The presidency will also ask the MEPs to drop the additional article restricting media ownership as it is considered to go against the legal basis of the regulation.

Media exemption

The parliamentarians introduced a measure that allows media outlets to contest content moderation decisions of very large online platforms under the Digital Services Act (DSA) that concern their editorial content.

In this area, the Parliament is pushing to maintain the general principle even with different wording, while the presidency is concerned with finding a balanced approach and clarifying the relation with the DSA should be clarified.

At the same time, the presidency considers it ‘reasonable’ to include provisions related to generative AI.

Safeguards for public media

According to the note, provisions regarding public service media have been largely agreed upon at the technical level.

“The duration of their term of office shall be sufficient for the effective independence of public service media,” referring to the members of the public media’s management board.

Board members’ dismissal can only occur exceptionally and based on pre-determined, objective criteria set out in national law and will be subject to judicial review.

Market concentrations

The Council got its way in assessing media market concentration as a mere possibility rather than an obligation for national authorities.

In addition, the text has been changed to allow the parties concerned in mergers to not notify the relevant national authorities of such concentration, leaving it up to the regulators to ask for information – even though most of these transactions are not public.

The elements to be considered in this assessment are the diversity of media services and offers on the market, the Commission’s finding in the annual rule of law reports on media pluralism and any commitment from the involved parties.

[Edited by Nathalie Weatherald]

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