The European Media Freedom Act was proposed by the European Commission in September last year with the aim of introducing a new set of rules to protect media pluralism and independence in the EU. Here, Joan Barata, Senior Legal Fellow at Justitia’s Free Speech Project, writes about the recently proposed amendments to the Act and the problems that these pose.
On 16 September 2022, the European Commission released a proposal for a Regulation establishing a common framework for media services in the internal market, also known as the European Media Freedom Act (EMFA). As mentioned in a previous publication, this proposal aims to tackle fundamental issues at the EU level connected to the exercise of the right to freedom of expression by media actors and media organizations. Subsequently, the Rapporteur of the European Parliament Committee on Culture and Education (CULT) issued, on 31 March 2023, a draft report that introduces a few significant amendments affecting relevant sections of the proposal.
This post will briefly highlight some of the most problematic aspects introduced in the report by these amendments.
Problematic issues regarding State advertising, public service media, third-country providers, and national regulatory bodies
Firstly, regarding State advertising, the proposal introduces a series of limits and conditions to prevent the use of this type of communication as an instrument to distort pluralism and disseminate political propaganda. In its latest version, the EMFA will apply to the placement, publication or dissemination of State advertising “in any media service or online platform that provides media services”. The second phrase is potentially confusing as online platforms, as defined by the Digital Services Act (DSA), do not provide media services. If a platform performs media activities, that element of the service would need to be separately considered as media, i.e., as something different from the core hosting service. In case the amendment intends to refer to platforms that provide online intermediary services to third-party media organizations, this means that the EMFA would not apply to State advertising disseminated through other types of platforms. Was this the actual intention of the legislator when introducing this amendment? Quite doubtful.
Secondly, regarding public service media providers (PSM), it is important to note that amendments included in the report eliminate previous references to independent authorities or bodies that monitor compliance to their mission and other legal obligations by PSM organizations. Instead, article 5.4 now merely refers to monitoring “mechanisms” (sic). Without prejudice to the fact that each Member State may have different types of monitoring mechanisms in this area, the elimination of any requirement for independence in the performance of such task may legitimize the exposure of these organizations to different types of political control.
Thirdly, the original proposal envisaged the possibility of the adoption of special measures against media services providers from outside the EU, in cases when they “prejudice or present a serious and grave risk of prejudice to public security and defence” (article 16.1). The vagueness of this provision was already problematic, particularly in light of the already existing general prohibition established by the EU Council Regulation 2022/360 of 1 March 2022 regarding the broadcasting and distribution of a series of Russian channels, which uses of a very broad and general assessment of the information provided by the mentioned outlets rather than considering specific and properly analyzed pieces of content. New references added to the provision in question to also include the “defence of public health” or the protection against “violation(s) of human dignity of individual persons,” may end up triggering and legitimizing restrictions incompatible with human rights standards.
Fourthly, the proposal includes a series of references to “structurally and functionally independent” national regulatory bodies (article 4.3), and to the European Board for Media Services, which shall replace and succeed the European Regulators Group for Audiovisual Media Services (ERGA) that was established by the Audiovisual Media Services Directive (article 8). Therefore, the EMFA appears to alter the model already present in most Member States, based on a balance between statutory regulation (for audiovisual services) and self-regulation (for the press and other forms of media and journalism), without prejudice to the role for the judiciary, particularly in cases of conflicts between individual rights. According to the provisions included in the proposal, States are now supposed to introduce a new level of media monitoring, consisting of national regulatory bodies, i.e., administrative authorities with general competence over all types of media. Even though the powers of these mandatory independent authorities are defined and circumscribed by the text of the proposal, the creation of such bodies at the national level might trigger the introduction of new restrictions and administrative controls over traditionally less-regulated media modalities, thus affecting the exercise of the right to freedom of expression in some EU States.
Article 17 and the moderation of media services content
All this being said, the most problematic and confusing aspects of the proposal remain particularly concentrated in article 17, regarding moderation of media content by online platforms. According to article 17, very large online platforms (VLOPs) shall provide a functionality allowing media service providers to declare their status according to the definition included in the draft. Media service providers must prove they are “editorially independent from Member States and third countries”, and that they are “subject to regulatory requirements for the exercise of editorial responsibility in one or more Member States, or adhere […] to a co-regulatory or self-regulatory mechanism governing editorial standards […] widely recognised and accepted in the relevant media sector in one or more Member States”.
According to amendments introduced in the report, in cases of “unjust” declining of the mentioned declarations, media service providers shall be able to request a “clarification” from national regulatory authorities and “consult” the aforementioned Board. The specific nature of such processes and their outcome is not clear at all in terms of obligations or consequences for the parties, and thus creates significant legal uncertainty. It needs to be kept in mind that the criteria used to define media status are significantly open to interpretation and difficult to assess, regarding both the idea of editorial independence and the requirements for the recognition of co-regulatory or self-regulatory mechanisms, and they might also depend on the regulatory and professional media culture of each State. It is therefore hard to expect that such issues will be properly addressed through the clarification and consultation processes.
There is also a new specific obligation for platforms to “respect the right to freedom of expression and freedom of the media” and to ensure the “fair and non-discriminatory distribution” of media services. Regarding the former, it is important to emphasize that respecting the right to freedom of expression of online platforms’ users is a horizontal principle established in different sections of the DSA (in line with applicable international human rights standards), which does not differentiate between dissimilar types of subjects. Even more confusing is the reference to fairness and non-discrimination applicable only to users that provide media services. Does this mean that platforms cannot recommend specific media services based on users’ preferences? Does recommending or giving visibility to a specific media provider create an unfair or discriminatory treatment vis-à-vis others? Enforcing such a broad and aspirational declaration in practice appears to be an almost impossible mission.
According to the new amendments included in paragraph 2, if media content contributes to a systemic risk, as per article 26 DSA, platforms shall proceed in line with their own rules and enforce their risk mitigation measures (article 27 DSA) independently from whether the user is a media provider or not. It is important to underscore that systemic risks are defined in article 26 and must be assessed based on very broadly defined standards. These criteria are also dependent on largely different political approaches and sensitivities within the European Union. As a consequence, it is also likely that platforms end up demoting or restricting otherwise legal “borderline content”, which could be connected to the harms mentioned in the article. In this context, it is thus difficult to anticipate when and how a violation of terms of service by a media service provider will not be directly or indirectly connected to these risks.
In cases not included in the exception above, platforms will have, according to the latest amendments, a “must carry” obligation for 48 hours before suspending the media service, in order for the latter to reply to the statement of reasons regarding an alleged violation of the terms of service. This means providing a very privileged treatment to a piece of content based only on the user that posted it and independently from the public interest of the publication. The arbitrariness and discriminatory nature of this limitation becomes particularly clear when we think, for example, of cases where a self-promotion social media post by a commercial or a public broadcaster may receive a more cautious treatment, when it comes to possible restrictions or suspensions, than the content posted by a big human rights organization reporting about possible crimes against humanity.
The most shocking new element in this particular area is, however, located at the end of the paragraph in question, which establishes that as long as a problematic piece content is legal, it must remain available: “A provider of a very large online platform shall not restrict or suspend the provision of its online intermediation services in relation to content or services provided by a media service provider where that media service provider has reasonably demonstrated that the content or services in question are in accordance with the national law of the Member State concerned”. The provision does not clarify the conditions according to which a media service provider demonstration becomes “reasonable” and to what extent the platform’s assessment is also relevant in this context. In any case, the incorporation of such obligation will force platforms to keep pieces of content that might seriously violate their terms of service (for example, certain types of disinformation or use of derogatory terms) inasmuch as they have been published by “traditional” media entities and do not contradict national legislation. This would enact, once again, an unjustified privilege that other relevant users (individual journalists, NGOs, political parties, global businesses in public interest areas) will not enjoy.
New amendments to paragraph 3 establish that complaints filed by media service providers under Article 11 of Regulation (EU) 2019/1150 of 20 June 2019 on fairness and transparency for business users of online intermediation services, must be processed and decided upon with priority and no later than 24 hours. In case the platform fails to adhere to that time limit, it shall make visible or reinstate the content or service without undue delay. Without prejudice to the fact that the overlap between the provisions of the future EMFA and the mentioned Directive may create, in some cases problems of interpretation and enforcement, it is important to underscore in this context that the 24-hour delay to analyze potentially sensitive complaints may create the counter intended effect of triggering “preventive” negative decisions from platforms, based on the need to avoid the distribution considered as problematic by the latter.
Last but not least, the EMFA proposal incorporated a provision establishing that where a media service provider “considers” that a VLOP frequently restricts or suspends the provision of its services without sufficient grounds, the VLOP shall “engage in a meaningful and effective dialogue with the media service provider, upon its request, in good faith with a view to finding an amicable solution for terminating unjustified restrictions or suspensions and avoiding them in the future”. In a previous publication, I already warned that no details or specific indications are established regarding the nature and scope of such amicable solutions. The provision also seems to presume that frequent restrictions or suspensions would be unjustified per se and therefore need to be avoided by platforms in any case. Therefore, it may open the door to non-transparent agreements between these two types of powerful actors with the aim of creating special conditions for the dissemination of traditional media content in detriment of other types of equally legal and protected speech. Complaints on failed “amicable solutions” are to be reviewed by the Board. A proposed amendment incorporating a new paragraph 4a to the mentioned article 17 establishes in addition that should the parties fail at finding an amicable solution, the media service provider may lodge a complaint with the Board, which will issue an opinion on that complaint. The process and criteria according to which the Board will assess such complaints remain unknown. The provision also misses the need to establish minimum safeguards or standards to avoid non-transparent or arbitrary resolutions in this area. The direct or indirect consequences of not following the Board’s opinion are also difficult to anticipate from this ambiguous language.
As the EMFA proposal discussions continue to unfold, new and problematic issues affecting the right to freedom of expression continue to arise. Further and thorough consultations are still needed in order to guarantee that the future EU-wide media freedom act is fully aligned with European and international human rights standards and does not create unnecessary constraints or legitimizes Member States’ disproportionate regulations.
This post represents the views of the author and not the position of the Media@LSE blog nor of the London School of Economics and Political Science.