European Media Freedom Act agreement ‘step in right direction’ for press

Agreement on the EMFA (67 pages/ 1,054 KB) was reached on 15 December 2023 following the act’s initial proposal by the Commission on 16 September 2022. The agreement means that the act will now be adopted into EU law.

Media expert of Pinsent Masons Michelle Seel said: “As a response to the changing landscape of the media field - for example, digital transformation - there is need for more EU legislation. The EMFA is a very comprehensive act that responds to the ongoing digital changes in the media landscape and fits well within the current legislative media/digital framework”.

The agreement comes after numerous revisions of the Audiovisual Media Services Directive (AVMSD) and new regulations such as the Digital Markets Act (DMA) and Digital Services Act (DSA). The EMFA includes rules to protect media pluralism and independence within the EU as well as aim to ensure cross-border operation between media.

The act consists of multiple elements which are relevant within the larger framework of upcoming legislation related to the increased digital landscape. It focuses on user rights within the use of online digital media, for example allowing for content customisation, setting out a range of obligations for media businesses.

The act’s framework protects independent media, journalists and users. For example, provisions will provide safeguards for journalists and other media outputs against political interference as well as rules to protect user rights to receive plurality of news with respect of editorial freedom. This means consumers have the right to access various media output free from bias.

Media service providers will also benefit from new safeguards against the unjustified removal of their online content by very large online platforms (VLOPs), such as search engines, as designated by the DSA. “This obligation should not undermine the measures a VLOP can take against the dissemination of illegal content, for that reason, a statement of reasons should only be provided when the content is not contributing to a systemic risk. The platform should still be able to remove/restrict visibility of content that poses a systemic risk without undue delay. Moreover, there has been some negative feedback about this obligation implying this could enhance spreading of disinformation and have VLOPS negotiating with the media or allow for more restriction”, Seel added.

These safeguards refer to content that the VLOP considers incompatible with their terms and conditions but is not contributing to systemic risk. For example, dissemination of hate speech or impacting the fundamental rights such as media freedom. VLOPS must first inform the media service provider of their reasons for doing so before taking down or restricting access to content under the DSA. This protection will only apply where the media service provider complies with the transparency and independent ownership requirements under the act.

Data law expert Wouter Seinen of Pinsent Masons said: “The good news is that the platforms will not be asked to verify a user’s claim that they are media. The bad news is that some 20 different platforms will each have to maintain their own list. It would have been better if the government would run a central database of media services providers and offer the platforms and API to check whether a use is media or not.”

The EMFA also contains rules to ensure the independence of public media services, for example, the ability to appoint board members and secure adequate and stable funding. A new board will replace the European Regulators Group for Audiovisual Media and will work to promote application of this regulation, issue opinions and coordinate national regulatory measures, and will organise structured dialogue between VLOPS and the media sector.

Seel added: “Apart from the digital changes within the media landscape, this comprehensive act is also of importance now that independent media serves as a public watchdog and is a crucial pillar of our democracy, and the freedom of media is under serious threat in several EU member states.”

As part of their agreement, the European Parliament and Council opted to exclude an exemption on the grounds of national security to the general ban created by the act on deploying spyware against journalists. Some EU member states had said they would seek to take advantage of this exemption where there were threats to national security. Many journalism organisations had protested the inclusion of this exemption.

Seel added: “Since I believe the national security exception would undermine media freedom, I consider its exclusion a big win for independent media and step into the right direction”.