EU member states must not water down critical legislation protecting media independence and pluralism.
After 15 months of intense and often volatile debate, the European Media Freedom Act (EMFA) has entered the ‘trilogue’ negotiations leading to a final text. The European Parliament having made substantial improvements to the initial version from the European Commission, organisations representing journalists and wider civil society are urging the parliament to hold firm in the haggling with the commission and the Council of the EU representing the member states.
The commission launched the EMFA with lofty claims that it would provide the rules and the tools to roll back media capture by political powers, protect media independence and pluralism, and end the misuse of spyware against journalists across the union. Its text, while strong on principles, often fell short on clear obligations and methods of implementation—vital to provide a statement of intent with the necessary teeth to protect journalism against political interference and rights violations.
The parliament, having done much to correct these weaknesses, is under sustained pressure to shred many of these improvements. This stems from those member states on the one hand afraid to upset publisher groups which have lobbied hard against any limitations of their ability to operate and, on the other, those where political capture of media has become so commonplace that they fear the EMFA would weaken their influence over mainstream journalism.
Safeguards on spyware
Drilling down into the detail, article 4 of the proposed regulation sets out to limit the use of spyware. The parliament inserted extensive safeguards on the conditions under which this might be permissible. While these fall short of the standards on protection of sources set by the case law of the European Court of Human Rights, they would establish key protections, including a requirement ex ante for independent judicial approval—whereas the council would insert the caveat that article 4 be ‘without prejudice to Member State responsibility for national security’.
Article 5, which seeks to protect the independence of public-service media (PSM), should also adhere to the parliament’s position, which would effectively shield PSM from interference by governments and ensure adequate, predictable and sustainable funding. The negotiators should avoid the weak language proposed by the council, inviting member states to ‘aim to’ guarantee the independence of PSM, in favour of a positive obligation as set out by the parliament.
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Article 6 would impose ownership transparency obligations on the media. This is vital if the public is to know who has a controlling interest and how that—and conflicts of interest—might align an editorial position with corporate or political goals. Yet while the parliament provides for an oversight mechanism to ensure transparency, verify declarations and make information publicly available, on national and EU-wide databases, the council merely asks that news and public-affairs media make limited information accessible.
Uncensored access to a wide range of data, including from small and medium enterprises, is essential to bring political interference and conflicts of interest to light. Otherwise, media are being asked to act in good faith but with no consequences for withholding information.
The EMFA’s accompanying recommendations encourage media to meet the highest editorial standards by setting down rules that ‘protect media integrity and independence from undue political and business interests’. Best practices might include editorial statutes, journalistic codes and self-regulation.
The EMFA’s article 6, paragraph 2, attempts to reinforce this by obliging news media to guarantee editorial independence, which the parliament correctly spells out as the professional responsibility of editors and editors-in-chief. The council, however, insists on removing reference to editors altogether, opening the door for publishers to dictate editorial decisions to the newsroom. This would severely undermine editorial independence in principle and the parliament’s position should be maintained.
Article 21 provides for a pluralism test for mergers to prevent excessive concentration of media ownership—also threatening independence and increasing the likelihood of media capture. Only a handful of EU countries consider media pluralism when assessing mergers and an EU-wide test would not only protect it across the bloc but create a more coherent internal market for media as well.
For Article 21 to work effectively, though, the test as prescribed with its three criteria must be applied to cross-border and internal mergers: it must specifically assess pluralism and independence rather being merely generic. And the new European Board for Media Services (EBMS) must be provided with sufficient independence to oversee the EMFA, including the power to initiate its own assessments and the necessary resources to fulfil its duties.
Abuse of advertising
Article 24 seeks to end the abuse of state advertising by governments to reward favourable media coverage and punish critical media. On November 12th, the newly re-elected prime minister of Slovakia, Robert Fico, threatened, in a ten-minute video tirade against critical journalists he labelled ‘enemy media’, to instruct officials to withdraw state advertising funds from their organisations. Three years ago, the then Austrian chancellor, Sebastian Kurz, resigned after allegations of misusing state funds to pay for positive news stories.
The EMFA would require governments to distribute funds in an objective, proportionate and transparent manner. The parliament sought to remove an exemption for local governments of populations under one million. While the council has proposed reducing this threshold to 100,000, a dangerous loophole remains through which governments—national and local—could redirect state funds to reward their allies in the media.
As the trilogue negotiations enter their final days all sides should do what is required to realise the ambition to protect media freedom and pluralism. The shared goal is groundbreaking legislation that ensures journalists are fully protected and the public’s right to know is guaranteed. Press freedom is a crucial pillar of the public sphere, on which Europe cannot afford to compromise.
A version of this appeared earlier on VoxEurop. It benefited from input from a coalition of media-freedom and civil-society groups.