What to watch out for during trilogues on EU media flagship law  

By: Benedetta Zimone, Anne-Marie Brennan and Miquel Sánchez

Breakfast discussion on the European Media Freedom Act, ahead of the plenary vote (Source: Miquel Sánchez)

The flagship European Media Freedom Act (EMFA) proposal aims to become a crucial legislative work to protect media and journalists across Europe. Pluralism, independence, and media freedom are some of the core values that are highlighted in this law as they are considered to be some of the principal cornerstones for a stable democracy. 

During a final briefing breakfast on EMFA with a large group of organisations representing civil society in the European Parliament, concerns were raised over some of the provisions of the act, mainly regarding surveillance and media autonomy. The panellists stressed that risks for the profession remain a part of the draft, calling for the MEPs’ attention around several amendments.  

The articles discussed were Article 4 regarding the rights of media service providers, Article 5 concerning the Independence of public service media, Article 6 (1) and 24 which cover Media ownership transparency, Article 6 (2) for the duties of media providers and finally, Article 21 on the assessment of media market concentrations.

The current democratic backsliding in several EU countries is a serious peril for the generations to come, but the EMFA can be used as a legal and powerful tool for defending democracy in the media framework.  

Particularly, Article 5 states the importance of having an independent public service media (PSM) completely autonomous from the state, obtaining a pluralistic media market, and promoting media freedom. 

As the Head of the European Broadcasting Union (EBU) in Brussels, Wouter Gekier pointed out that this Article gives the PSM the right to have full autonomy, which is indeed, a “vital and healthy principle”. 

However, Gekier also expressed his concerns about Article 5 paragraph 3 regarding the independent functioning of public service media providers. More precisely, he indicated his scepticism in paragraph 3, in which it is stated that the member states shall guarantee that Media providers have satisfactory and secure economic resources. He pointed out that this part of the text is not clear and strong enough. Nevertheless, as a final remark, he emphasised the great job that the European Union is conducting to achieve a valid and final text, crucial for a  better democratic European scenario. 

Additionally, during the briefing, the Hungarian and Polish cases were raised as a concern. The two Eastern European countries have already been slammed for undermining media freedom and media pluralism by the European Union, and are currently subjected to infringement procedures.

The influence of politics on broadcaster’s operations is an increasing phenomenon in European countries, advocacy groups warned. Nevertheless, speakers and the mediators also reported the Slovenian plight. The journalistic Slovenian associations started to ask for an independantilisation and the depoliticisation of the media public services after the last national parliamentary elections won by the Freedom Movement. 

The campaigners highlighted this event, with an outlook of hope, as a step forward in a more democratic situation for the Slovenian state where democratic values such as freedom of speech, media freedom, and media pluralism were under attack.

Journalists’ lack of protection from spyware

The proliferation of spyware targeting journalists has grave repercussions for the profession, threatening the essential role of a free press in society and undermining their capacity to hold governments and actors in power into account.

During the breakfast, media organisations and advocacy groups expressed their concern around the effectiveness of EMFA protecting journalists against spyware use by EU member states. The increasing use of surveillance by states towards the media was discussed in relation to Article 4 of the act. 

Chloé Berthélémy, Senior Policy Advisor from European Digital Rights (EDRi), described the threat that spyware poses to the work of journalists as “unprecedented”. 

“The European Union (EU) cannot leave [spyware] safeguards to the discretion of states,” she said.

Instead of safeguards, media organisations and advocates are “calling for an unconditional prohibition of the use of spyware against journalists,” as stated in their open letter to Members of the European Parliament (MEPs). 

“[Safeguards] will not be strong enough to stop the use [of spyware] by member states,” Berthélémy said. 

She also made reference to the recent arrest of French journalist Ariane Lavrilleux, and the need for scrutiny towards France to prevent the progression of this practice.

She argued that “[the situation in France] poses a lot of questions around this type of free pass that was used for persecuting a journalist for doing her daily job.”

Echoing similar concerns, Greek MEP Georgios Kyrtsos of Renew Europe, former journalist and publisher, described Greece as having “the worst record [in the EU] as far as media freedom is concerned”. 

He raised concerns around the “big distance [that is] separating the correct proposals and [their] application” to ensure journalists’ protection from state surveillance. 

The director of European Federation Journalists (EFJ), Renate Schroeder, also said that the EMFA proposal should be implemented effectively. “We have to see how enforcement will work… that’s why we’re asking for evaluation.”

The EMFA was first unveiled by the commission in September 2022. In early October, during the plenary session in Strasbourg, the proposal was adopted by the European Parliament with 448 in favour, 102 against and 75 abstentions. 

MEPs and EU member states are currently engaged in inter-institutional negotiations to finalise the text.

The Media Pluralism Test

During the breakfast meeting, media organisations and civil society also assessed certain provisions of the proposed regulation and asked for more requirements for the “Media Pluralism Test” (MPT).

The MPT is a tool used to assess the level of media pluralism in a given media landscape. Media pluralism refers to the diversity and variety of media sources, ownership and content available in a particular country or region. It is an essential aspect of a democratic society, as it ensures that citizens have access to a wide range of information and opinions, fostering a well-informed public discourse.

Media market concentrations have been found to potentially have a positive impact on media plurality, particularly in situations where small media outlets lacking resources can be supported by large media corporations. 

However, if taken to extremes and not effectively regulated, concentration can significantly affect the media landscape and its diversity, the experts said.

According to several MEPs closely following the legislative process, there is a consensus that it is necessary to regulate media concentration since self regulation has proven ineffective to safeguard media from abuses in certain countries. 

One example is Poland, where media concentration has been a major problem. In this country, a few entities have acquired significant control over the country’s media landscape in recent years.

While it is recognised that, in certain cases, consolidation can lead to economies of scale, greater efficiency in content production or better access for European media companies to global markets, the dominance of these large corporations poses a threat to media plurality.

Mark Dempsey, campaigner from Article 19, a leading organisation advocating for the defence of freedom of expression and information, presented some insights during the EMFA Breakfast on the importance of assessing the level of media pluralism in the EU and ensuring a diverse range of voices and perspectives are represented in the media landscape.

Negative effects include the restriction of diverse viewpoints and perspectives, as well as the suppression of competition and innovation. 

When a handful of large companies own a significant stake in the media landscape, their own interests can take precedence over the public interest, resulting in biassed reporting and a lack of accountability. 

Moreover, the consolidation of ownership can lead to homogenisation of content and the marginalisation of local and minority voices. So where should the limit be set?

Dempsey emphasised the need to strengthen media regulation to prevent media ownership concentration and promote media diversity, stating that “diverse and independent media are crucial for adequate media plurality”.

To achieve this goal, “media plurality tests” need more requirements to be able to assess the level of diversity and competition in the media landscape, he also said. The aim would be to identify any potential risks or threats to media pluralism and to take appropriate measures to mitigate them. 

In order to approach this debate, it is necessary to refer to Article 21 of the EMFA, which states that “member states shall provide, in their national legal systems, substantive and procedural rules which ensure an assessment of media market concentrations that could have a significant impact on media pluralism and editorial independence”.

This provision aims to ensure that media ownership is diverse and not concentrated in the hands of a few powerful entities, obliging member states to take into account the structure of the market, the level of media pluralism and the potential impact of media mergers on the media landscape. 

It also includes a list of criteria that member states should consider when assessing media mergers, such as the number of media outlets owned by a single entity, the market share of each media outlet and the level of diversity of local and regional media. 

Article 21 of the EMFA aims to impose restrictions on the “smoking gun” that is media concentration –  in a bid to discourage consolidation of media ownership and promote a more diverse and independent media landscape. 

However, media organisations have been calling for more requirements for the media pluralism test and more guidance on assessing media mergers. 

The EU media advocacy group, which encompasses AEJ Belgium and other media organisations, organised a briefing breakfast in the European Parliament on 27 September. The main goal of the 90-minute session on September 27th is to discuss, highlight concerns and respond to outstanding questions on: 

  • Rights of media service providers, including the right to protection from surveillance (Article 4); 
  • Independence of public service media (Article 5); 
  • Media ownership transparency & transparency and fairness of state advertising (Article 6.1 & 24); 
  • Duties of media service providers (Article 6.2); 
  • Right of customisation of audiovisual offer (Article 19), as well as the assessment of media market concentrations (Article 21); 

Find the invitation here.

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