Work on the European Media Freedom Act (EMFA) is nearing completion. Member States have already reached an informal agreement, which is expected to be formally adopted by the EU Parliament and Council in the near future. The aim is to increase the level of protection of media freedom and pluralism in the European market and to harmonise the regulations in force in individual Member States. Publishers and journalists have high hopes for the EMFA, but there is no shortage of critical voices.
Why the idea of the European Media Freedom Act
The increasing politicisation of the media observed in various Member States has focused the EU legislator on the need for greater protection of the independence of the media, including of media companies.
In response, the EMFA aims to protect the independence of journalists and the public media, to ensure transparency in the ownership structure of media companies and to prevent concentration in the media market via a so-called ‘media pluralism test’.
Safeguarding journalistic independence
The protection of journalistic independence under the EMFA is primarily manifested in the restriction of Member States’ ability to interfere with and to influence the functioning of editorial offices.
The EMFA also prohibits those in power from taking sovereign action to expose a journalistic source and from using spyware against publishers, editors or journalists.
But these restrictions are very limited. In fact, the listed activities can be carried out if they are justified by an ‘overriding reason of public interest’ (in the case of refusal to reveal the source) or on grounds of national security (in the case of spyware).
Concerns are therefore justified that such restrictions, expressed in the form of vague general clauses, may in practice result in a significant weakening of the protection of journalistic independence, which was intended to be one of the main values protected by the new regulation.
EMFA vs. the public media
The EMFA emphasises the public service nature of state-owned media, which are therefore obliged to provide audiences with access to pluralistic information and opinion.
They should also ensure transparent and objective procedures and criteria for the selection of management board members of state-owned media companies. National law should also limit the possibility of the early dismissal of a board member to exceptional situations.
European Board for Media Services to fight media monopolies
The EMFA is also to set up the European Board for Media Services, a new independent body composed of representatives of national authorities or regulators.
The main purpose of this specialised body is to assist the European Commission with implementing the EMFA. However, it seems that one of the most important tasks of the Board will be to give opinions on national cases of concentration in the media market that may affect its functioning, media pluralism and editorial independence.
The EMFA requires Member States to ensure that their national legislation allows for a transparent and objective assessment of concentrations in the media market. National authorities will be obliged to consult the Board and take its views into account as far as possible when their decisions are likely to affect the functioning of the EU internal market.
One might be tempted to theorise that one of the main objectives of the EU legislator under the EMFA is to prevent the emergence of media monopolies in the EU. The introduction of the new regulations can also be linked to the current situation in individual Member States, where there is an increasing concentration of such entities.
Will the EMFA guarantee media freedom and pluralism in the EU
The assumptions behind the EMFA and the desire to strengthen pluralism and media freedom at the level of EU legislation are undoubtedly correct.
However, the EMFA has been criticised for attempting to harmonise national legislation too far in an area which, due to history and tradition, is often unique in a given Member State. Doubts have also been expressed about the vague restrictions on the protection of journalistic independence, which could be open to abuse.
Given the large number of regulations referring to general clauses, the EMFA’s real impact on media freedom and pluralism will only be known once it enters into force. The CJEU will undoubtedly play an important role in its interpretation, as cases concerning the application of the EMFA in individual Member States will be referred to it.
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