Views of the European Publishers Council on controversial proposals for a European Media Freedom Act
The EMFA is an ambitious, but also highly complex and sometimes controversial initiative, particularly where it touches on the press sector.
Democracy can only flourish when the press is able to perform their function of holding governments and other concentrations of power to account without fear of retribution, especially from those very governments which are under editorial scrutiny. 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 key principles which underpin media freedom, including editorial independence and the importance of protecting journalists in their professional tasks, deserve the utmost protection and these fundamental principles are ones that our members are proud to uphold.
In order for press freedom to flourish, and to ensure the proper functioning of the entire media ecosystem, it is essential that Member States are 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. Furthermore, the European Commission, as the Guardian of the Treaties must ensure the proper monitoring of applicable law already in place, including the right to withhold funding from States which interfere with editorial independence and do not respect the rule of law, and to bring infringement proceedings against Member States in breach of their Treaty obligations. Only once the fundamental pillars in support of press freedom are in place can we enjoy the benefits of professional journalism and editorial freedom which are essential to democracy.
Therefore, the EPC welcomes the opportunity the EMFA brings to establish clear, enforceable obligations on the Member States to tackle the abuse of power of governments, officials and politicians. In particular we welcome that, under article 4, Member States are prohibited from interfering in any way with the editorial policies and decisions of media companies, or from impeding journalists in their work, deploying spyware or from hounding and even arresting journalists or members of their families for simply carrying out their work.
We do not doubt the noble objectives of the European Commission in bringing this legislation forward. However, the EMFA presents some challenges for press publishers in the European Union, which could perversely undermine the very freedoms that the Commission seeks to strengthen. This is because, unless the EMFA is amended to clarify that the press will remain an exclusive competence of Member States, for the first time in our history since the last European dictatorships were toppled in 1974, and the fall of communism in 1989, the responsibility and legal liability for maintaining the fundamental principles which deliver press freedom will move solely from press publishers and editors – answerable to readers, national constitutions, the general law and to self-regulation which all can be tested in court, to an unpredictable hybrid of statutory and self-regulation.
While the EMFA’s goal is to set a framework of key principles protecting editorial independence at the EU level, the EPC requests that it must be made explicit that the main responsibility for regulating and scrutinising the press is at national level. We have four key priorities to achieve this:
In order to target the noble objectives of the EMFA to where intervention is needed, the co-legislators should revise the structure of the EMFA to develop a risk-based approach (i.e. that the Regulation is applied only where it is needed) to the application and enforcement of the EMFA. This would bring benefits to the media ecosystem as a whole by allowing for resources to be targeted properly to help the most vulnerable European media markets.
Such an approach should also be linked directly to the application of the recently adopted Rule of Law Conditionality Regulation, where Member States only receive funds from the EU if they respect the rule of law and EU values.
Obligations on platforms should be strengthened to replace a vaguely formulated prior notification obligation with transparent, standard procedures when distributing editorial content.
Most importantly of all, we must ensure that the EMFA will not lead now, or in the future, to a process of harmonisation of Press Regulation within the EU.
Please take a moment to consider the legal, professional and financial responsibilities of press publishers today in the European Union today, by which they stand or fall:
A press publisher is responsible for overseeing the entire operation - from the initial concept and design, to the financing, production and management of a newspaper or magazine, in print or online and for the making available to the public of the final published edition, and any updates thereafter.
Importantly, the publisher creates an editorial brand. The publisher also determines the journalistic and political orientation which is reflected in editorial statutes and guidelines, represented in a brand. The impact of a publisher’s brand on public opinion depends on its popularity and regular readership, which in turn influences the levels of support from advertisers. The publisher is responsible for the staff, the financial health and strategic direction of the enterprise including decisions regarding any future investments, mergers or acquisitions. Publishers take full responsibility to ensure their staff are trained and fully equipped to hold those in authority to account - at home or abroad, paying for insurance and protection for journalists in the field, especially when they face dangerous situations.
Crucially, the Editors in Chief ‘go on the record' and defend their journalists in court, if necessary, whether they publish in print or online, unlike social networks, or anonymous bloggers and commentators.
We are fully supportive of the independent media/press councils as they uphold editorial integrity and protect journalists against undue influence from both economic and political interests. We support their further development in all European Member States in order to foster media self-regulation across the EU.
A fundamental tenet of press freedom is a press free from political interference and government surveillance, supported by constitutional protections upheld by an independent judiciary. We welcome therefore the measures in the EMFA to put an end to state interference in editorial freedom, and the undermining of the rule of law.
We also welcome the proposed transparency obligations - on media ownership, on state advertising, on audience measurement and the proper functioning of publicly funded broadcasters, and we support measures to enhance the protections for journalists, their sources and their families, all of which are long established principles at EU and Council of Europe levels.
We welcome recognition by the European Commission of the crucial role played by press publishers in holding governments, powerful organisations and individuals to account, and the role of a free press in upholding good governance and efficient public services in a democracy and as key stakeholders, the EPC looks forward to engaging with the co-legislators on the details of the proposal.
To ensure the integrity of such a regulation, it will be necessary to make sure the issues are addressed in a balanced and proportionate way, in full respect of the principles of subsidiarity and proportionality, in order to be both effective, but also legitimate.
Given the different legal traditions across the European Union, some EPC members might bring additional matters to the table during the legislative process to complement those reflected in our position paper.