The European Media Freedom Act (EMFA) presents a unique opportunity to develop a common framework that protects and supports media freedom, independence and pluralism across the European Union. ARTICLE 19 strongly supports the process of developing the EMFA.
Here, we make several recommendations on how the EMFA proposal can be strengthened so that the final text of the Regulation can live up to its stated aims.
Protection of journalists and journalistic sources from surveillance (Article 4)
Protection of journalists and journalistic sources is a basic condition for media freedom. The lack of sufficient guarantees for such protection can undermine the media’s ability to provide accurate and reliable information to the public. Article 4 of the proposed EMFA is a welcomed recognition of this principle. However, it does not go far enough.
At the moment, the proposed rules must be strengthened in order to be effective. In particular, the scope of the protection is too narrow: under the current proposal, Member States are only prohibited from surveilling journalists in certain specific conditions; we believe this prohibition should apply in general. The EMFA should also unambiguously guarantee source protection.
Additionally, we are concerned about the lack of guarantees of judicial review of possible interference into the rights in Article 4. Any decisions on whether a disclosure order, sanction, search, seizure, surveillance or inspection that can be justified in the name of public interest or national security should be previously authorised by a judge or an independent adjudicatory body. Such interference can be authorised if it is necessary and must be proportionate to the aim sought. Proposed Article 4 does not impose those criteria.
Content of media service providers on very large online platforms (Article 17)
Article 17 creates a special process with regards to how content from media service providers is handled by very large online platforms – effectively privileging it over content from other users, including, among others, citizen journalists, even though they may engage in vital journalistic activity. Such carve-outs can lead to different standards, where the speech of some actors is more valued than others, simply because of who they are.
Moreover, Article 17 relies on a self-declaration system which media service providers can use to access this privileged process – with no guarantees against abuses and misuses.
ARTICLE 19 does not believe that creating exemptions for media service providers is the answer to the challenges posed by the power that the very large online platforms have over information flows and the visibility of content. Rather, we have long advocated for the use of pro-competitive regulatory interventions aimed at decentralising this power and opening the market to additional players. We call for more clarity about the problem Article 17 is trying to fix and we encourage legislators to be more ambitious in finding adequate solutions.
Structured dialogue (Article 18)
According to Article 18 the Board is tasked to regularly organise a structured dialogue between providers of very large online platforms, representatives of media service providers and representatives of civil society (CSOs).
ARTICLE 19 welcomes the European Commission recognition of the role CSOs can and must play in the discussion of these topics. Nevertheless, we note that the procedural rules that will be set for this dialogue are going to be key.
First, CSOs capacity to participate will vastly depend on funding’s availability, which cannot be expected to remain on the CSOs’ shoulders. Moreover, guarantees should be put in place to ensure that the small and local media will be adequately represented. Safeguards are also needed to make sure that various stakeholders’ voices will be equally listened to. Indeed, it is essential to avoid a situation in which the dialogue becomes a ticking box exercise or worse an opportunity for VLOPs and big media service providers to agree on solutions, approaches and policies that are oriented towards the maximisation of profits and/or harm public goals. The presence of CSOs at the table must not be used to legitimise such results.
In addition, we believe that the scope of the discussions should be left open, in order to include other topics on which a dialogue among the stakeholders can be helpful and fruitful, and in particular the structural dependency existing between VLOPs and media service providers, as well as the resilience of the media more generally.
Right of customisation of audio-visual offer (Article 19)
When people use online platforms, their exposure to diverse content is determined by the design and default settings on the interfaces of the devices used to access content, as well as of the recommendation systems that curate content. Indeed, those factors hugely impact users’ behaviour and their exposure to diversity.
Article 19 gives users more ability to personalise and change the default settings on interfaces and devices. At the same time, it leaves recommender systems untouched and it does not compel providers to allow alternatives for users who want to change these systems’ default settings.
We believe that the right to customisation should be expanded to include recommender systems. Moreover, EMFA should be more ambitious and provide minimum standards for the alternatives to the default settings, in accordance with data protection, as well as exposure diversity and other public interest goals. Manufacturers and developers should also be compelled to provide fair and non-discriminatory access to players willing to offer their own recommender systems on platforms or devices.
Media pluralism test (Article 21)
The EMFA proposal to introduce a media pluralism test in media mergers has a potential to fill a gap in what is a heavily fragmented regulatory landscape across the EU. Such a test can help keep high concentration of media markets in check, and protect plurality, independence and freedom of the media – yet, about a half of the EU Member States do not consider this public interest element at all.
Article 21 is therefore an important step to prevent further damage to media diversity and independence. However, for it to function properly, a number of key elements need to be strengthened.
Article 21 should provide more guidance with regard to the criteria for the assessment: how to prioritise them and resolve any potential conflict, ensuring that the right to pluralistic, diverse and independent information is not sacrificed to purely economic logic.
More guarantees are also needed to ensure that national regulators will apply the test not only in cases where the merger might affect the functioning of the EU internal market for media services, but also in cases relating solely to national markets.
Lastly, the test should be applied to all mergers which can impact on media plurality or editorial independence of media and journalists. At the moment, Article 21 applies only to concentrations ‘involving at least one media service provider’. Yet, in the media ecosystem, a variety of mergers can have a detrimental impact on media pluralism such as those concerning advertising, which remains the main revenue source for the media sector.
The European Board for Media Services
For EMFA to fulfil its goals of improving and harmonising media freedom, plurality and independence across the EU, the Commission proposes to set up the European Board for Media Services (the Board) – an independent advisory body, gathering and coordinating representatives of the national regulatory authorities.
For the Board to properly perform its role, it needs to be independent in two key ways: Board members need to be independent from their respective national governments and the Board itself must be independent from the European Commission. This is why ARTICLE 19 is concerned by the decision to have the Secretariat of the Board based within the European Commission. We believe an agency-based Secretariat would better guarantee the Board’s functional, operational and financial independence.
Furthermore, in many instances, the current EMFA proposal requires the Board to act ‘in agreement’ with the European Commission – including when it comes to selecting experts and observers who can be invited to the Board meetings. In our view, the Commission should not have the influence over which voices and perspectives are being heard by the Board. The same formulation is used for the adoption of the Board’s rules of procedures – a provision which is incompatible with international standards on functional independence.