Open letter to Ministers on the European Media Freedom Act
Ahead of the upcoming Education, Youth, Culture and Sport Council on 16 May, we would like to draw you attention to our views on the European Media Freedom Act, an ambitious, but also highly complex and sensitive proposal which touches upon all media, including the press sector.
As you appreciate, Democracy can only flourish when the press is able to perform their function without fear of retribution. A robust and free press is also essential to counter the power and influence of social networks which for commercial reasons push content that brings the most attention, and can channel opinions to any direction with impunity, including by removing or blocking access to lawfully published press content under the legal liability of publishers. The current draft does not adequately address these two essential areas.
We are calling you to proceed cautiously in your negotiations and consider the following points:
Ensure the proper functioning of the entire media ecosystem. For this Member States must be required to uphold the rule of law and to guarantee the independence of their political institutions, free of corruption, and to ensure the independence of the judiciary. The EMFA is an opportunity to establish much clearer, enforceable obligations on the Member States to tackle the abuse of power and could have a direct link to the recently adopted Rule of Law Conditionality Regulation.
Significantly enhancing the safeguarding of journalistic sources (Article 4.2). Media and journalists are united at this point with a recent joint statement. Any derogations should be narrowly interpreted, and the use of spyware must remain extremely restricted. Otherwise, sources may hesitate to approach journalists with evidence, leading to a severe impact on freedom of expression and democracy.
Clarify that the role of both the European Board for Media Services and national regulators will not be extended through this regulation to include any monitoring or supervision of the press or its editorial functions. To effectively fulfil its advisory role, the Board should maintain full independence from the European Commission.
Safeguarding editorial independence is essential for delivering high-quality journalism. The goal of fostering editorial independence needs to be reconciled with the legitimate rights and interests of private media owners. This means that while the media service provider determines the overall editorial direction, independent editorial decisions will be made by the editor. It should be clarified that the Regulation supports national self-regulatory models and reflects the difference in the traditions of the Member states, without intervening in the daily operations of the media companies. As the EMFA emphasises independence from governmental interference, this crucial safeguard should logically extend to regulators involved in the Board, including the European Commission.
Strengthen the position of media service providers with transparent, standard procedures put in place for very large online platforms (VLOPs) which distribute media content (Article 17). Concrete prior notification obligation with transparent, standard procedures when VLOPs are distributing editorial content should be in place. Legitimate editorial media should have the opportunity to challenge VLOP decisions based on concrete, reasonable, and justified grounds.
Decisions on mergers and acquisitions, should rest with competition authorities. Approvals should be granted when they enable the survival of media outlets, facilitate growth, attract investments, and foster a vibrant sector (Article 21), while adhering to existing competition rules. As neither the EU Merger Regulation nor the current merger control regime for platforms take into account the dominance of the digital advertising market by the platforms, or that platforms exercise editorial control by moderating, ranking and even removing media content, competition authorities should make sure that both platforms and public service media companies are included in any assessment of media concentration. Finally assessing media ownership should take into account the diversity of titles within a media group.
Transparent allocation of economic resources. Firstly, of state funding for public service media must also ensure fair competition with private and independent media. This should not imply any arbitrary extension of their remit of operations. Secondly the allocation of state adverting should happen with transparent procedures and apply to all media providers receiving state advertising expenditure, including online platforms, which more and more are becoming recipients of it.
While recognising the progress made by the council working party, we call upon Ministers to focus on three aspects to deliver a balanced EMFA:
strengthen the text to address existing harms arising from state interference and surveillance of journalists
clarify that the press will remain an exclusive competence of Member States, and
state explicitly that the Board will have no role when it comes to the press. It is essential that press publishers and editors remain answerable only to readers, national constitutions, the general law and to self-regulation all of which all can be tested in court.
Most importantly of all, it must be ensured that the EMFA will not lead now, or in the future, to a process of harmonisation of Press Regulation within the EU.