European Commission’s proposal for an EU Media Freedom Act

What happened?

On 16 September 2022, the European Commission unveiled the EU Media Freedom Act Package, which includes two significant proposals:

• A proposal for a Regulation establishing a common framework for media services in the internal market (European Media Freedom Act, “EMFA” or “EFMA Proposal”) and amending Directive 2010/13/EU (the “revised Audiovisual Media Service Directive”).
• A proposal for a Commission Recommendation on internal safeguards for editorial independence and ownership transparency in the media sector (the “Recommendation”).

These proposals are expected to affect various types of media service providers and public service media providers in the European Union (the “EU”) and create a pluralistic and independent EU information space while further developing the European internal media market. The choice of a regulation that will be directly applicable in all Member States (instead of a directive) shall guarantee the implementation of uniform rights and obligations for users and providers throughout the EU and improve legal certainty. However, this would only cover the proposal for an EMFA Regulation and not the Commission Recommendation, as this text is a non-binding voluntary based instrument for companies in the media sector. Thus, compared to the Digital Media Act (DMA), Digital Service Act (DSA)¹and General Data Protection Regulation, the Commission’s Proposals follow a multi-layered and flexible approach for strengthening and protecting the media pluralism and independence in the EU.

The EFMA will impose rights and duties for recipients of media services and media providers and a framework for regulatory cooperation and enforcement in the media internal market. The EFMA aims to protect the media pluralism and media independence in the European information space and ensure that recipients of media services have access to transparent independent media services and the right to customise their media offers.

What is the context?

The Commission’s EFMA Proposal is part of a general trend aimed at implementing rules at EU level to further protect media pluralism and media independence for recipients of the media services and journalists within the EU information space, and to regulate and supervise more strictly the activities of the various providers of digital and traditional media services. The Commission’s EFMA Proposal has a general scope and is designed to complement existing sector-specific legislation.²

Entities targeted by the EMFA Proposal and the Commission Recommendation

The EFMA Proposal and the Commission Recommendation would apply to all entities providing media services in the EU irrespective of their place of establishment as long as the recipients of their services have their places of establishment or residence in the EU. This would apply thus to third-country media service providers.

The proposal determines recipients of media services in the Union as natural persons who are nationals of Member States or benefit from rights conferred upon them by Union law and legal persons established in the Union (Recital 6). Likewise, a media service is defined under Art. 2(1) of the EFMA Proposal “as a service defined by Articles 56 and 57 of the Treaty, where the principle purpose of the service or a dissociable section thereof consists in providing programmes or press publications to the general public, by any means, in order to inform, entertain or educate, under the editorial responsibility of a media service provider”.

What would be the key obligations imposed by the EMFA Proposal?

The EMFA Proposal key obligations can be summarised in 8 points, as follows:

• The protection of the editorial independence by the Member State, through ensuring transparency of ownership by publicly disclosing such information and taking measures with a view to guaranteeing the independence of individual editorial decisions.
• No use of spyware against media, thereby including strong safeguards to protect media, journalists and their families.
• Obligations regarding independent public service media concerning their funding that should be adequate and stable to ensure editorial independence, the appointment procedure of the head and governing board and the plurality of information and opinions to be provided.
• The Member States for media market concentrations on media pluralism and editorial independence will give Media pluralism impact assessment tests. Any national measure affecting the media would need to be justified and proportionate.
• State advertising will have to comply with new requirements of transparency and non-discriminatory use of the allocation. This includes the enhancing of transparency and objectivity of audience measurement systems, thus affecting the media online advertising revenues.
• For protection of media online content, the Proposal includes safeguards against the unjustified removal of media content produced according to professional standards. Therefore, large online platforms that intend to take down certain legal media content considered to be contrary to the platform’s policies will have to inform the media service providers about the reasons, before any such take down takes effect.
• The EFMA Proposal introduces a new user right to customise your media offer on devices and interfaces in order to reflect their own preferences. Thus, implicitly, this new right creates new obligations for device and interface service providers to create this customisation in the hardware products.

In parallel, the Recommendation sets out a catalogue of proposed measures for editorial independency and media ownership transparency, divided into 2 sections:

•  For editorial independency:
  • Media service providers are encouraged to lay down internal rules and these rules are to be recognised and endorsed by the owners and management of the media company. These internal rules would contain, non-exhaustively, rules ensuring the integrity of the editorial content, prevent or disclose conflicts of interest or complaint mechanisms.
  • Other mechanisms are recommended for the protection of the editorial staff independence against any form of undue interference, including for instance a right of opposition to sign articles or other content which have been modified without their knowledge or their will, clauses protecting the editorial staff from disciplinary sanctions or arbitrary dismissals when they refuse assignments against professional standards.
  • The establishment of internal ethics bodies or structures are recommended.
  • Media service providers are encouraged to foster the involvement of members of the editorial staff in governance and decision-making processes. This involvement is fostered in information rights, consultation rights, participation rights, or a combination thereof.
  • They are encouraged to improve the sustainability of their services and long-term investment in content product, such as with new business models adapting new consumption habits, transparent algorithms, corporate governance structures, re-invest revenues, or profit strategies.

• For media ownership transparency:
  • In this case, media service providers are encouraged to ensure that detailed, comprehensive and up-to-date information on their ownership is easily and directly accessible to the public.
  • This information includes; (a) whether and if so to what extent their direct or beneficial ownership is held by the government, a state institution, state-owned enterprise or other public body, (b) the interests, links or activities of their owners in other media or non-media businesses, (c) any other interests that could influence their strategic decision-making or their editorial line, (d) any changes to their ownership or control arrangements.

Compared to its bigger brothers (the GDPR, DSA and DMA), the EFMA does not compile a range of sanctions or penalties in the event of non-compliance of the provisions.

Implementation of strengthened supervisory framework

Like the DSA Proposal, the EFMA Proposal provides in its Chapter III that the enforcement of the EFMA would be monitored at Member State level and at EU level.

At Member State level, the audiovisual media services national regulatory authorities or bodies shall be responsible for the application and enforcement of the EFMA. The national regulatory authorities or bodies will have powers of investigations, with regard to the conduct of natural or legal persons, for carrying out their tasks under this Regulation. Particularly, the power to request such persons to provide, within a reasonable time period, information that is proportionate and necessary for carrying out the tasks.

At EU level, the EFMA Proposal provides for the establishment of the European Board for Media Services (“the Board”, an independent advisory body composed in particular of the representatives of audiovisual media services national regulatory authorities or bodies. The Board would support and advise the Commission through technical expertise on regulatory, technical or practical aspects and promote cooperation between the national regulatory authorities and bodies. It would issue opinions and mediation to the authorities and bodies and promote the development and implementation of guidelines and reports on topics addressed by the EFMA.

Such tasks remind those of the European Data Protection Board set up under the General Data Protection Regulation (“GDPR”) and those of the European Board for Digital Services under the Data Service Act (“DSA”). The Board would also assist the Commission in drawing up guidelines with respect to factors to be taken into account when applying the criteria for assessing the impact of media market concentrations.

What’s next?

The EU Media Freedom Act and its Recommendation will be discussed by the members of the European Parliament and the Council of the EU. Given the impact on the media sector, the EMFA Proposal will certainly be highly debated and further amended (just as the DMA, DSA, or GDPR in its time). We expect the legislative process to be lengthy and the final text will not be voted on for several months.

For more information on this EFMA Proposal and its future implications, please contact our dedicated ICT, IP, media and data protection team.