A European Media Freedom Act worthy of its name?

Amid a sea of online misinformation, in a ‘polycrisis’ world reliable public-interest journalism has never been more essential.

Today, the sustainability of free media is threatened in many European Union countries. Pluralism is lacking, with the rise of the platforms to information monopolies accelerating the shrinkage of the space for independent and public-interest journalism. Media are increasingly captured and controlled by politicians—or subjected to ‘fake news’ smears in the style of the former United States president, Donald Trump. Journalists’ protection of sources is meanwhile under attack via increased state surveillance.

These worrying trends have been documented in the annual rule of law reports by the European Commission and, more specifically, the Media Pluralism Monitor published since 2013-14, giving an excellent analysis of the risks to core media values. The Florence Centre for Media Pluralism and Media Freedom, responsible for the monitor, rightly concluded that ‘times were ripe to give the European Union new tools to protect and foster journalism as a public good in a digital environment’.

Growing misinformation

The European Media Freedom Act (EMFA), proposed by the European Commission last September, attempts to regulate the information ecosystem. This is dominated by the—mostly American—very large online platforms and poisoned by growing misinformation and conspiracy campaigns, threatening Europe’s democracies and European integration more broadly.

The recently adopted Digital Services Act and the Digital Markets Act aim to create a safer digital space, where the fundamental rights of users are protected, and to establish a level playing-field for businesses. The EMFA proposes a new set of rules to promote media pluralism, transparency and independence across the EU. It is based on the Audiovisual Media Services Directive, but extends the scope to the publishing and online-media service providers.

The proposed regulation includes, among other things, safeguards against political interference in editorial decisions and surveillance of journalists. It puts a premium on the independence and stable funding of public-service media, as well as on the transparency of media ownership and the allocation of state advertising.

It also sets out measures to protect the independence of journalists and disclose conflicts of interest. Finally, the act would create a new independent European Board for Media Services, composed of national media authorities and based on the work of the European Regulators Group for Audiovisual Media Services (ERGA).

Many publishers’ groups—in particular from Germany and France—have engaged in aggressive lobbying against the EMFA. Labelling it a ‘media un-freedom act’, they claim that the tradition of self-regulation is threatened and that the commission has no standing on media-content issues. Attempts by German members of the European Parliament—the rapporteur of the leading Committee on Culture and Education, Sabine Verheyen, and her German shadow, Petra Kammereverth—to weaken the draft regulation by transforming it into a directive however failed.

Intrusive surveillance

But the Council of the EU under the Swedish presidency in the first half of this year did see a backlash on media freedom and journalists’ protection of sources, permitting the deployment of ‘intrusive surveillance software’ against media service providers on broad ‘national security’ grounds. Eighty media-freedom and human-rights organisations, including publishers, broadcasters and trade unions, sent an open letter to the members of the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs, which has the lead on this EMFA article, to come up with a much stronger position. Journalists in Europe’s capitals woke up to (and wrote about) the potential harm of allowing states to spy on journalists for ‘national security’ reasons.

Just think: governments are proposing to legalise spying on European journalists at the very time when the Media Pluralism Monitor shows their extreme vulnerability in terms of digital security. Lobbying by many nongovernmental organisations, including the European Federation of Journalists, has led to a strengthened position within the European Parliament without any national-security exemption. But an absolute ban on the deployment against journalists of spyware and similar intrusive technologies is not among the amendments adopted by the civil-liberties committee.

The EFJ and the wider ‘EMFA Coalition’ will enhance their lobbying before the final vote in the plenary, to insist on an absolute ban on the use of spyware against journalists. Such technologies obtain unchecked and unlimited access to the individual’s communications, photos, contacts and online-behaviour data, jeopardising the confidentiality of their sources and citizens’ access to quality journalism.

Trilogue negotiations

The parliament’s culture committee has improved on the draft text from the commission by adding additional binding rules on media-ownership transparency, the independence of public-service media and their financial stability. It has also given additional tasks to the European board.

The plan now is that the culture committee will adopt the compromise text on September 7th, with a plenary vote on the whole text in early October. This would allow the ‘trilogue’ negotiations among the commission, parliament and council to take place under the current Spanish residency, with completion under the Belgian presidency before the parliamentary elections next year.

The EFJ and its partners will continue to fight for a more ambitious act worthy of its name. But it is an uphill battle: too many actors are not interested in binding rules on sensitive issues such as editorial independence, transparency and the protection of journalists.

Media moguls

So let us put this in context. Regulation to sustain media freedom and pluralism has been a slowly but steadily evolving project in the EU. It started with the Television without Frontiers Directive in 1989, followed by a green paper on media concentration in 1992.

Though media concentration was already seen then as a high risk, no legislation was however adopted. Aggressive lobbying by the media moguls of the time—Rupert Murdoch, Leo Kirch and Silvio Berlusoni—convinced the United Kingdom, Germany and Italy to vote against it.

Today we are living in times of unprecedented pressures on public-interest journalism. This act will not solve all the many challenges ahead but, together with other EU initiatives, it would be a small but important step in the right direction.