FULL INTERVIEW: European Media Freedom Act – Does it protect media pluralism and independence in the EU?

Photo: EPA-EFE/STEPHANIE LECOCQ

1. The Commission’s legislative proposal on the EMFA has been eagerly anticipated since its announcement in the 2021 State of the Union speech. What is your initial assessment of the proposal’s strengths and weaknesses?

Leon Willems: First of all, it is important to understand the context of the Media Freedom act and why it is necessary. At Free Press Unlimited we welcome the actions of the EU commissioners to develop a more pro-active safeguarding of media freedom and especially providing existential guarantees for the independent media to survive at the EU level. We see the need for an EU wide improvement of the viability of the independent media, which remains under threat, in many EU countries, especially economically, which is why it makes sense for the EU to step into this terrain.

The EMFA and the Commission’s initial ambition with this introduction of this piece of legislation is a significant step in addressing media freedom in the EU. And more specifically, in promoting media independence and pluralism. Values which are directly linked with the right of access to reliable information and the viability of (smaller) independent media.

The EU faces ever-increasing danger to media pluralism through the shrinking concentration of media ownership. The proposed impact assessment on Member States under the EMFA is therefore, in essence, an important first step in safeguarding media plurality. It enforces member states to evaluate plurality of the media landscape and assess the vulnerability of the media sector. It is unclear what the consequences of such an assessment are and how the EU will enforce Member States to address negative outcomes. Without consequences this article remains empty of effect but we welcome the step since media pluralism is under-defined and under-addressed throughout the union.

In the proposed EMFA we do see other areas that need fundamental improvement. Although we welcome the provisions on the allocation of state advertising, We do call for a broader definition of state funding in order to effectively regulate all sorts of state funding. Initially the EMFA was supposed to regulate all sorts of state aid, instead of focussing solely state advertising.  On top of that, the 1 million inhabitants threshold for local governments for this provision seems redundant and impractical. For a country like the Netherlands for example, where not one city or town has more than 1 million inhabitants, these transparency rules would not apply to any local government.

The proposed universal standards in terms of audience measurement on platforms is said to be an antidote towards inflated circulation numbers and fake and robot accounts, which in turn could provide for more advertisement transparency on the platform. Providers of audience measurement are obliged to share information with the media. It is a step towards standardization which national regulators should take on as an urgent responsibility. Fin-tech and add-tech algorithms add to the obscurity and unclarity audience measurement. Standardization would be a huge step forward for fair market principles that the EU Member States should embrace.

Lastly, in regard to the newly appointment “Board” (European Board for Media Services), it is still unclear how this will work in practice. We stress the need for more clarity here, as this will be an important monitoring and supervisory institution. Especially when nomination and guarantees for independence of the Board members is concerned.

Oliver Money-Kyrle: The EMFA is a welcome attempt to address the media freedom crisis that has grown increasingly apparent in parts of the European Union over the past decade.

The threat of media capture, particularly the political form of media capture first developed in Russia and Turkey and then adapted and perfected within the European Union by Hungary’s Fidesz government, is a systemic menace to democracy not just in the countries where it is practiced but, left unchecked, to the EU’s entire political space.

Politically driven media capture is where the party in power abuses the economic and regulatory levers of the state to gain control over the media. Obvious examples include taking over public service media, placing political allies into regulatory bodies, directing advertising funds to favoured media and creating a hostile economic climate for independent publishers and journalists.

Less obvious but equally egregious methods include, providing favourable bank loans to business allies to purchase media and using state contracts in other industries such as construction, energy or agriculture, to finance industrial oligarchs who also possess significant media holdings. And perhaps most brazenly in Poland using the state-controlled energy giant, PKN Orlen, to purchase, and effectively nationalise, huge swathes of regional media.

The EMFA has been launched to provide the commission with the legal tools to intervene against such abuses of power through media capture.

In doing so it identifies many of the key issues to be addressed including calling for enhanced media ownership transparency, strict criteria for, and transparency of, the distribution of government advertising funds, and enhanced protection against politicised appointments to public service media.

This, on its own, is ground-breaking and very welcome.

It also has an extensive section devoted to the creation of an EU-wide regulatory Board to enhance cooperation between national media regulators and to intervene on issues of media concentration and actions that may damage “media pluralism and editorial independence”.

Unfortunately, the current text of the EMFA fails to back up its aspirations with sufficiently enforceable rules that can prevent or undo media capture where it has become entrenched. There is no enforcement mechanism on ownership transparency, there are loopholes in state funding and the powers of the new Board are limited to issuing opinions which can be shrugged off by national regulators that disagree.

Two other important initiatives include

• tightening rules against the surveillance of journalists following the spyware scandals in Hungary and Greece where the phones of investigative journalists, unpopular with those in power, were infected with Pegasus and Predator allowing either intelligence agencies or ‘rogue actors’ to monitor their communications and compromise their sources.
• developing a mechanism to regulate, and presumably ban, media outside the EU that may be controlled by third countries that pose a threat to ‘public security and defence’, an obvious attempt to address primarily Russian but maybe also Chinese disinformation.

The commission is hampered by the lack of a clear legal basis to legislate on media issues and has justified the action on the grounds of strengthening the single market. As a result the EMFA perhaps lacks an overarching vision that would place the legislation within a broader human rights framework.

The Commission has a tricky balancing act to perform facing resistance from member states whose governments are reluctant to relinquish the electoral advantages of captured media, suspicion from member states with a healthy media environment and outright hostility from publishers’ groups that present any attempt by the EU to regulate media as an assault on their freedom to publish.

It is left to journalists, media freedom groups and broader civil society organisations to make the case for a strong EMFA.

2. Media and democracy are strongly intertwined, and so the EMFA introduces new requirements for the allocation of state advertising to media to enhance transparency and objectivity. Will the new transparency obligations help to shield the media from state interference?

Leon: Not enough. Even though we welcome transparency obligations introduced by the EMFA, we were concerned to see that these obligations only apply for state ‘advertising’, and not for other forms of funding and broader state ‘aid’.

Initially the EMFA was supposed to regulate state ‘aid’ to media, in order to effectively shield media from any type of (financial) state interference. However, this initial ambition has been narrowed down to solely state ‘advertising’. Even though, in reality, there are many other ways that states can influence the media through funding. Especially for local and smaller media organizations that rely heavily on state funding and are vulnerable to state pressure and influence.

To address this form of politically driven media capture, we have previously advocated for state funding to be indirect and to be distributed in a transparent manner. Best practices concerning indirect funding for example include different forms of tax credits for news subscribers, benefits for employers in regard to the employment of local journalists and credits for advertising costs.

The EMFA has missed an opportunity here to address this fundamental issue of media capture through state aid.

Furthermore, it is important to emphasize that media capture often happens through corporate middlemen under state influence. The proposal does not include financial transparency of the media sector itself regarding its funding origins.

Oliver: IPI has been reporting on the abuse of state advertising to aid media capture for years. This practice is not confined to Hungary or Poland but has proliferated across many EU member states including Austria where, in 2021, Chancellor Kurz was forced to resign for allegedly using government funds to buy positive media coverage.

The EMFA requires public funds for advertising to be awarded according to ‘transparent, objective, proportionate and non-discriminatory criteria and through open, proportionate and non-discriminatory procedures’. Furthermore public authorities are required to provide detailed annual reports on the distribution of advertising. The process will be overseen by the national regulators.

All of this is very welcome, however, it also needs significant strengthening to remove loopholes, and expanding to cover all forms of state funding for media.

The text exempts the advertising spent by local governments of territorial entities of under one million inhabitants. Left as it is governments looking for a workaround are likely to redirect advertising funds through local authorities and out of reach of the transparency requirements.

Benchmarks that limit the proportion of advertising expenditure to favoured media or that guarantee advertising is distributed across the media without discrimination are absent with the details of the distribution criteria left to member states to develop.

Inevitably governments and regulators that have already been ‘captured’ are unlikely to develop sufficiently robust criteria. Media stakeholders and civil society must have a role in this process guided by clear minimum standards.

But perhaps more importantly the EMFA fails to address the indirect funding of media through other state contracts.

The 2008 financial crisis led to the departure of mostly German publishers from the Central and Eastern European with their titles often bought up by business oligarchs from other industries who grew rich off and depended upon state contracts. Construction, energy, finance, or agrochemicals, are all key sectors whose leading companies invested in media to protect their business interests and to exercise political influence. The awarding or refusal of state contracts has become a highly effective backdoor mechanism for ensuring media owners remain close political allies of the ruling party.

For the EMFA to really tip the balance against media capture it must stop media owners from participating in and benefiting from public tenders for non-media related state contracts.

3. In a digitalised world, the European Commission is increasingly making efforts to regulate large online platforms, such as Twitter and Facebook. Are the EMFA’s provisions far-reaching enough to ensure that quality journalism has a place in today’s digitalised media environment?

Leon: No. We would have loved to have seen stronger and further reaching regulation in regard to platforms. The threat to media pluralism and independence posed by Big Tech is one of the most pressing issues of today. The digitalisation and the shift of advertising advertising income from media organizations to platforms, has eroded tradition business models of (independent) media, thereby severly affecting the viability of quality journalism.

On top of that, there exists a huge power imbalance between platforms and publishers, which have distorted media markets. The EMFA had the opportunity to level the playing field between these actors by regulating these platforms ensuring that journalists are paid for their work. Lessons here could have been drawn from the Australian News Media Bargaining Code of 2021, which aims to reduce the power imbalance between Big Tech and journalists. It requires social media companies to create a collective bargaining agreement aimed at paying for content shared on their platforms.

Oliver: Indeed, the EMFA has reopened a debate from the Digital Services Act about whether, and how, media should be protected from platform decisions to remove content they consider to be either illegal or in breach of their terms and conditions.

As a network of editors and journalists we believe journalists should not be subjected to arbitrary content removal. However, we also recognised that a blanket media exemption would undermine the efforts of the DSA to fight disinformation, not least because many of the leading disinformation actors present themselves as media.

Article 17 proposes a compromise whereby media, editorially independent of the state, and subject to regulatory requirements, such as co-regulation or self–regulation mechanisms governing editorial standards, be granted enhanced levels of protection from content removal, including a dedicated disputes resolution mechanism.

Whether or not this proposal will be sufficient to satisfy both the needs of media and robust enough to tackle disinformation remains to be seen.

There is also provision for a structured dialogue between platforms, publishers and civil society that, if approached constructively, may be a useful forum for resolving differences and developing policy as the communications environment evolves.

But much of this is a distraction from the broader issue of how to undo the damage caused by the platforms’ dominance of advertising revenue that media had previously depended upon to ensure a supply of quality journalism. This crisis has decimated the media economy leading to the growth of news deserts, particularly local news and investigative reporting leaving space for disinformation to flourish.  Reducing the dominance of a handful of very powerful platforms may be a more effective approach.

The economic crisis has also weakened media independence and making news services vulnerable to investors seeking to use it for influence rather than profit.

We believe that the EMFA, by focusing on media capture and bringing down the economic barriers that media capture creates, can provide a crucial boost to Europe’s media economy. Captured media sectors are only profitable for government propagandists. Rolling back this market distortion is vital for making independent journalism profitable and sustainable again.

The irony is that the publishers use the economic argument to oppose the very tools that are necessary to boost the media economy.

They argue that ownership transparency and limits on market concentration would impose burdensome costs and unacceptable restrictions on their ability to conduct business.

They further add that consolidation has been essential for the survival of media and for maintaining media pluralism. They explain that any one publishing house can include a range of titles serving a range of audiences with their own editorial positions and policies. Media pluralism therefore should not be measured by the number of publishers but by the range and diversity of the offerings within publishing houses.

It is a seductive concept but collapses quickly on contact with the reality of propaganda media in captured climates.

A more robust EMFA that genuinely stops the abuse of economic and regulatory powers of government would significantly improve the economic climate for independent media and public service journalism.

4. Put yourself in the shoes of the European Commission. If you could redraft the legislative proposal, which key elements would you change?

Leon: As mentioned before, a stronger focus on the role and responsibility of the platforms would have been welcomed.

The EMFA could have created a level playing field by enabling a fair market by addressing the power imbalance between platforms and media, and by ensuring that journalists are paid for their work. This is one of the most pressing issues at hand: the effect of Big Tech in terms of the financial crisis that the (independent) media now is in. And which is something that is inextricably linked to achieving media freedom.

At Free Press Unlimited we define the viability of independent media as follows:

“Media viability is the capacity of media to operate under sound political, legal and economic conditions in order to flourish independently and exist long-term. Independent media should reflect a diversity of views so that citizens trust journalism to represent the full range of audience interests, including the needs of underserved groups. Free Press Unlimited and its partners believe that professional standards, editorial independence and financial stability are needed to serve public interest and are crucial elements in media’s viability.”

The EMFA introduces a new provision where media is able to “self-declare” itself as a media organisation, thus leading to certain obligations between platforms and these self-declared media. Not only is the self-declaration of media in itself problematic – will there be an independent assessment of these declarations, will that be done by the platforms themselves? – but the article also seems hard to enforce in practice.

Self-regulation works in some countries of the EU as safeguards for editorial independence. We doubt strongly that it is useful in regulating the economic relationships between the platforms and the independent media. It is clear that the independent media sector is the weak partner in this relationship and should be protected more clearly and decisively.

Oliver:

1. Media ownership transparency would be enforceable and monitored by independent regulatory authorities to a methodology established by the European Board and accessible in a Europe wide database.
2. All financial relations between the state and media, including their parent or sister companies, would be fully transparent.
3. Media owners, and companies with controlling interests in media over a certain size, would be restricted from benefiting from state contracts outside of the media sector
4. Media companies must be banned from operating through offshore accounts so often used to conceal the true owners and financers.
5. The one million inhabitant loophole on state advertising should be closed, clear limits on advertising established, and distribution criteria to be developed and monitored by media stakeholder groups.
6. While the Board is limited to issuing opinions on media takeovers in national markets, takeovers involving transnational companies with cross border implications should be subject to a European review and approval that examines the impact on media pluralism and editorial independence.
7. Replicate criteria for non-politicised appointments to PSM for NRAs.

5. Looking ahead, how do you anticipate the interinstitutional negotiations on the EMFA to unfold? Who will be the movers and shakers in the European Parliament and Council, and which battles will have to be won?

Leon: This is tricky to predict. This is a rather unpredictable process, as there are many joint and vocal stakeholder groups active at the moment (i.e. publishers of mostly Western and Northern European countries), which are against the EMFA in the current form. They have started a tough lobby and it seems they do have strong contacts within the EU institutions.

It also depends on what will remain standing in terms of regulation after the legislative process of amendments and assessment by the Parliament. In terms of lobbying, we’re at the start of an important trajectory here. We are concerned about the lack of engagement of Member States and their pushback against regulating the market.

Oliver: As mentioned earlier, resistance to the EMFA comes for three main sources, member states that have incubated and are now exporting the problem of media capture, member states with relatively healthy media sectors who are wary of the EU stepping into the new territory and publishers groups who see any regulation as a threat to their freedom to conduct business and to publish.

The Parliament and the European Commission have a very good understanding of the problems that the EMFA needs to address, but it will be in the Council where the key battles are most likely to be held.

6. In your views, what can the industry do to ensure that the proposal will be translated in a law that is fit-for-purpose?

Leon:  Join the discussion and advocate for better regulation of a fair and stabile market for independent journalism. Market regulation is what the EU is here for. Existing solutions that have worked in the national context of EU member states in the 20th century do not work any longer in the 21st century. Which is why we call for publishers and media corporations to enter into dialogue with their audiences and bond with press freedom advocates for a more productive, pro-active and collaborative engagement in this regard.

Join existing efforts and enter into dialogue with industry allies, such as European press freedom organizations. The EMFA will introduce legislation that will have quite an impact on the industry. It is now essential to ensure that this legislation actually leads to effective guarantees for media freedom.  Ultimately, we all need to ensure that it is a law that effectively protects against politically driven media capture, media concentration and sustainability of the (independent) media.

Oliver: Debate within the industry is polarised between those who view all regulation as a threat to media freedoms and those that believe only strong regulation can save media freedom. We need a much more constructive dialogue that recognises the legitimate concerns of the different sides to shape a media freedom act that can genuinely address media capture while ensuring safeguards against regulatory overreach.

 

About the stakeholders

Leon Willems is Senior Advisor International Partnerships at Free Press Unlimited, a Netherlands based Press Freedom organisation working in over 40 countries globally. He initiated the International Coalition of Civil Society Organisations for the Safety of Journalists, which serves as a consultative group for the UN Plan of Action for the Safety of Journalists and the issue of Impunity, led by UNESCO. Free Press Unlimited is also one of the world’s leaders in emergency support to journalists in danger and is currently carrying out a cold case investigation project into the murder of journalists, a Safer world for the Truth.

Free Press Unlimited promotes collaborative journalism for social justice and social accountability, fostering cooperation between Civil Society actors, journalism and government actors. Mr. Willems led Free Press Unlimited for 10 years, and his expertise includes strategy development, policy implementation and innovation.  Investigative journalism work includes the creation of Publeaks, Money Trail and investigating with Tempo.

Oliver Money-Kyrle has been working in media freedom for over twenty years joined. He joined IPI in September 2019 first as Turkey campaign coordinator and then as Head of Europe Advocacy and Programmes. He leads IPI’s advocacy around EU legislation including the Rule of Law mechanism, the safety of journalists’ recommendations, the Anti-Slapp directive and now the EMFA. He has been particularly focused on media capture faced by IPI’s members in central and Eastern Europe and how the EMFA can address it.

The International Press Institute (IPI) is a global network of editors, media executives and leading journalists who share a common dedication to quality, independent journalism. Its mission is to defend media freedom and support independent journalism wherever they are threatened.

Whitehouse Communications is an independent issues-led communications agency and expert in providing human rights and equality advice for a range of organisations. We specialise in public affairs, policy analysis, media relations, crisis communications, stakeholder engagement and events management and have offices in London and Brussels covering our clients’ communication needs at the local, national and European level.

For more information, please contact Viviana Spaghetti, at [email protected]