The International Press Institute (IPI) today published its detailed position on the draft proposal for European Media Freedom Act (EMFA). IPI submitted its position on January 23, 2023, as part of the European Commission’s Public Consultation.
Overall, IPI and our global network welcome the proposal for the EMFA as a crucial move to address serious threats to media freedom and pluralism in the European Union.
IPI and its European members are particularly focused on how the EMFA can effectively counter the threat of media capture, a system of media control that has become entrenched in countries such as Hungary and whose elements are being replicated in other countries across the EU. The failure to address media capture and the broader rule of law crisis in Hungary has encouraged other illiberal-minded governments to take advantage of weak regulatory frameworks for protecting journalists’ freedoms and abuse the powers of government to establish control over public and private media.
In recent years the European Commission has come to recognize the gravity of the threat media capture poses to European democracy and we welcome the Media Freedom Act as a sincere effort to respond to new forms of restricting independent journalism in Europe with a balanced regulatory approach that protects media and journalists.
The success of the EMFA will be measured, in part, by the extent to which its ambitions can be backed up by sufficiently concrete tools to stem the forces of media capture.
In order to do so, the law should address the key mechanisms of media capture that IPI’s monitoring and research have identified including:
– Turning public broadcasters into government propaganda
– Capturing and instrumentalising media regulatory bodies with political appointees
– Abusing state resources, including state advertising funds, to distort the media market in favour of pro-government media
– Creating a circle of loyal oligarchs to run private media in the government’s interest.
With this in mind IPI:
– Broadly welcomes Article 5, which aims to safeguard the independent functioning of public service media.
– Calls for stronger regulation to provide similar safeguards for the independence of National Regulatory Authorities
– Welcomes efforts to improve transparency of media ownership and to increase protections for media pluralism and editorial independence.
– Welcomes efforts to end the abuse of state advertising to distort the media market and reward loyal coverage while also calling for these terms to be expanded to include all forms of state subsidy
– And lastly calls for the EMFA to close the back-door funding of media oligarchs who are rewarded for their media’s loyalty to government through public contracts to sister companies operating in other industries.
Addressing the abuse of state regulatory and economic powers as a key driver of media capture will help level the economic playing field for independent media, boosting their sustainability, while also improving the overall economic and investment climate for quality journalism across the EU. This will fulfill key demands of the media industry and enhance the operation of the EU’s single market by improving the climate for local and cross-border watchdog journalism that exposes corruption and abuse of power in the public interest.
Public Service Media: Article 5
Public broadcasters are often the first target of governments seeking to take control over the media. This is achieved by first taking over the boards of public service media and then, once achieved, populating the broadcasters with editors appointed to enforce a rigorous party editorial line. Where governments are successful, public financing flows rapidly to the broadcasters. Where the political capture of public media does not succeed, governments respond by withholding funds and freezing budgets so that broadcasters are more dependent on government largess.
We therefore welcome the EMFA’s twin approach to both protecting the independence of supervising boards and calling for adequate funding of Public Service Media.
We recommend that the MFA goes further to:
– Extend the provisions of Article 5 paragraph 2 to include all forms of management bodies in PSM, and not limit it to the Boards.
– Ensure that those appointed to management positions are demonstrably qualified for the role.
Independence of National Regulatory Authorities or Bodies and the European Board for Media Services
The Audiovisual Media Services Directive (AVMSD) Art 30 outlines provisions for the independence of National Regulatory Authorities (NRAs). Despite the directive, political capture of media regulators has continued apace and demonstrates the limitations of EU wide regulation without the necessary enforcement powers.
The Media Pluralism Monitor of the Centre for Media Pluralism and Media Freedom (CMPF) reveals that in over half of EU Member States, the appointment of heads of the National Media Regulators is considered at either high or medium risk.
The EMFA is an opportunity to strengthen the safeguards for the independence of National Regulator Authorities, something that is essential if the EMFA is to confront media capture.
The European Board for Media Services (EBMS), to be established by the EMFA as a replacement to the current European Regulators Group for Audiovisual Media Services (ERGA), is important to improve the regulatory framework at the European level through co-operation of national media regulators.
Much of this is welcomed by IPI.
We however make the following recommendations:
- Improve the independence of the EBMS from the European Commission and national governments by, among other things,
- Enabling the board to initiate its own actions and opinions without a prior request of the European Commission
- Establishing strong criteria for the independence of the NRA’s that will join the board, including a mechanism for reviewing and potentially suspending those that are demonstrably politically captured.
- Introduce a mechanism for the public (civil society and media stakeholders) to take complaints about media freedom violations directly to the Board
- Ensure the structured dialogue (Art 18) is both meaningful and guarantees the involvement of a broad range of media stakeholders and civil society groups including professional organizations and academia.
- Expand the focus of the structured dialogue beyond reviewing the application of Art 17, to include consultation on and review of all elements of the EMFA and the role and performance of the EBMS.
- Expand the tasks of the EBMS to include under Article 12 (h)
- developing guidelines on assessing media ownership and media pluralism, and a ‘media plurality test’ to be used by national regulators in assessing media take-overs
- developing criteria for distribution of public funds through advertising and media subsidies that ensure they are insulated from political interference
Abuse of state economic power to distort the media market
Central to media capture is the misuse of economic levers to reward clientelist media while creating a hostile economic environment for independent journalism.
IPI therefore welcomes Article 24, which introduces demands for ‘transparent, objective, proportionate and non-discriminatory’ criteria for the allocation of state advertising as well as the monitoring and reporting of such expenditure. This is a very significant move that can help end the abuse of publicly funded advertising as a key tool of media market distortion in many EU member states.
However, for it to be truly effective the EMFA should
– Firstly, close the loophole that exempts local governments with populations of under one million from the transparency provisions.
- Political capture of media is often more pronounced at the local level where local governments can exert much greater influence on media that are more dependent on public advertising for survival due to the smaller market size.
- National governments seeking to get around the transparency obligations may simply redirect funds through local governments to avoid accountability.
- The argument that the administrative cost for reporting on local governments is too burdensome is unconvincing since local governments are usually legally obliged to maintain records of all such expenditure.
– Secondly, strengthen the process for compliance nationally. The EMFA foresees national regulators as responsible for elaborating, implementing and monitoring these rules, which raises a key concern about how effectively regulators that are already politically captured are likely to apply them. In order to ensure the rules are applied robustly, the EMFA should require:
- that the EBMS develop model criteria for advertising distribution as part of its tasks defined under Article 12 (h)
- that media stakeholders and civil society be consulted by the national regulators in the elaboration of the criteria and monitoring of the expenditure.
- that the distribution criteria and transparency reports be reviewed by the EBMS with the input of civil society groups specialized in monitoring media relations with government
– Thirdly, Article 24 should be expanded to cover all forms of state support for media including media subsidies. As in the case of state advertising, the EBMS should develop, under Article 12 (h) best practice models for Member States in the application of public media subsidies.
Lastly, while Article 24 can help neutralize a key lever for governments to influence and control media it does not address the backdoor funding of media owners through other companies they may own and operate in industries receiving state contracts or subject to state regulation.
Many media in central and eastern Europe, but not exclusively, are owned by companies whose main source of wealth is held in industries dependent on close ties with the state, such as energy, agrochemicals, construction, finance, etc. Such companies often invest in media not for profit but for influence. This situation risks distorting the news environment by creating an incentive for media owners to adapt their coverage in order to curry favour with the government. Where media capture is most pronounced, those companies offer clientelist propaganda media in return for guaranteed profits in other industries.
Such distortions have already been observed in the media markets of several EU member states, Hungary, Poland, Bulgaria, Czechia, etc as well as several candidate countries.
To end this backdoor fuelling of media capture, IPI proposes the introduction of a new article that would close access to public tenders in industries outside of media for companies which own media over a certain threshold.
Media ownership transparency and protecting media pluralism
Several articles in the EMFA are designed to address media ownership and media pluralism.
Some publishers are concerned about the EMFA’s focus on ownership and pluralism, afraid that it represents a dangerous restriction on their freedom to operate as any other business. They further argue that consolidation in media markets has been vital to the survival of many smaller media.
These are important concerns that the EMFA must take account of. However, it is also clear that preserving a pluralistic media landscape with as wide a range of owners and editorial lines as is economically viable is central to the struggle against media capture.
Furthermore, while in some countries a variety of diverse editorial positions can co-exist within one media holding, it is also clear that in others, where media capture is entrenched, dominant media groups have abused their positions to limit diversity of views in support of government positions.
The EMFA must walk a careful line in these areas but establishing safeguards for media pluralism is important for combating media capture and securing a vibrant economic environment for independent media.
The first step in building confidence and trust in the industry must be full transparency of ownership, including beneficial ownership, and of all economic relations with the state.
IPI therefore welcomes Article six of the EMFA that calls on media service providers to provide the public with details of their owners, beneficial owners and potential conflicts of interest.
IPI believes however that this should be strengthened in the following ways.
– The EMFA ownership transparency provisions must be comprehensive, enforceable, and verifiable.
– The data should be freely accessible to the public and automatically transferred onto a Europe-wide database to enable analysis of cross media ownership, cross-border media ownership, of audience measurements and media concentration levels.
– Changes in media ownership should be made in real time and not left pending the publication of an annual report.
– National Regulatory Authorities and bodies responsible for media ownership monitoring should be granted the appropriate information gathering powers and financial resources to ensure media owners do not withhold or provide erroneous information. The accompanying Recommendation (or the EBMS) might be updated to provide models of enforcement powers with potential penalties for companies that deliberately conceal, withhold or misreport information.
– The Board should establish a common methodology for consistent monitoring and reporting on media ownership across the EU. This can be introduced under ARTICLE 12 h ‘establish EU wide ownership monitoring methodology and coordinate national monitoring in accordance with Art 6 of this regulation’
– The ownership transparency methodology should include the four areas outlined in the EMFA recommendations Article 20 a – d including
- a) Whether and to what extent beneficial ownership is held by government, state institutions, state enterprises or other public bodies
- b) Owners’ interests in other non-media businesses
- c) Any other interest that could influence strategic decision making or the editorial line
- d) Any changes to ownership and or control arrangements
– The EBMS should publish an annual report on media ownership that accompanies the database with a review of its main findings and conclusions
– There should be an annual review mechanism, (possibly as part of an expanded structured dialogue outlined in Art 18) with media stakeholders, academia and civil society organizations to improve the methodology and its implementation. Established civil society organizations and academia conducting media monitoring should be tasked to independently review the methodology and data and make recommendations to the Board and national regulators.
Article 6.2 encourages media service providers to adopt measures which they deem appropriate to protect the independence of individual editorial decisions. IPI welcomes this as a balanced approach that establishes and underscores editorial independence as a core principle of independent journalism. We note that these provisions are ultimately voluntary and grant a wide berth in terms of the type of measures to take and therefore do not limit the property rights of publishers. IPI recommends distinguishing between individual editorial decisions to be protected here, and the right of publishers to set the ‘overall editorial line’ in agreement with their editors.
Article 21: Assessment of media market concentrations
IPI broadly welcomes Article 21 as an effort to ensure competition authorities are required to consider the impact of any media takeover not just on concentration from a market efficiency viewpoint, but also on media pluralism and editorial independence more broadly.
IPI supports placing a requirement on competition authorities to consider media pluralism and editorial independence by consulting with the media National Regulatory Authorities and appropriate academic and civil society expertise on media pluralism.
Art 21 correctly recognizes the important role consolidation can have in helping maintain media that may otherwise be economically unsustainable (Art 21.2.c.) and puts in safeguards to ensure this is taken into account in any impact assessment on media pluralism. Nevertheless, in IPI’s view, requirements on competition authorities to better scrutinize mergers and takeovers in the media sector with respect to their impact on pluralism is important for at least two reasons: first because excessive concentration can harm the public’s interest in a diverse and pluralistic news landscape; and second because the consolidation of media in the hands of oligarchs dependent on close economic relations with the state is a hallmark of media capture and requires countermeasures to protect the existence of an independent press.
The EBMS, assisted by the European Commission, should issue guidelines on public interest tests of media mergers (Art 21.3) with the input of civil society actors.
Article 17: Content of media service providers on very large online platforms
As an organization that represents editors and working journalists, IPI advocates for the protection of journalists against the arbitrary removal of their reporting from social media platforms. Therefore, in general IPI welcomes the intention of Article 17 of the EMFA, which places certain obligations on social media platforms in relation to the removal of content published by media outlets.
There are concerns that disinformation actors posing as media or journalists may take advantage of the self-declaration mechanisms to claim protections under Article 17. The draft law contains some guardrails against this possibility. In principle, we would recommend strengthening these by adding that self-declared media must also fulfil the ownership transparency requirements outlined in Article 6.
We note that the EMFA does not appear to provide for a mechanism for assessing the self-declarations. Such a mechanism would raise concerns, as assessing eligibility for the privileges under Article 17 would be difficult and highly problematic if left to platforms. The structured dialogue foreseen under Article 18 is welcome in this light.
Article 4: Rights and duties of media service providers:
IPI welcomes this article and the protection of media from interference in editorial policies or decisions.
IPI also welcomes the effort to address the threat of spyware to the work of journalists and the impact on their protection of sources. However, to achieve this adequately the article needs significant strengthening to ensure it meets standards on protection of sources already established by Article 10 of the European Convention on Human Rights and the case law of the European Court of Human Rights by endorsing the following principles:
Principle of legality: the law must be clear (written, accessible, publicly available) and specify the narrow circumstances in which surveillance measures may be authorised, to fulfil the principle of foreseeability.
Principle of ex-ante judicial authority: there should be a mandatory requirement for judicial ex-ante assessment of any use of spyware or surveillance practices targeting journalists and their professional and private networks of acquaintances (4.2.b and 4.2.c). There needs to be a decision ex ante by a judge or another independent authority, in line with EU rulings on mass surveillance. Such activity operation should be subject to periodic supervision and independent ex post facto review in a reasonable short period of time.
Principle of subsidiarity: For the approval of surveillance to prevent or prosecute serious crime, it must be ascertained that the information sought is crucial and that all other legal means to get that information have been exhausted.
Principle of legitimate aim, necessity and proportionality: No surveillance measure should be applied arbitrarily. Surveillance should be limited to what is demonstrably necessary to achieve the legitimate aim. It should consider the sensitivity of the information accessed and the severity of the human rights infringement.
Journalist and journalistic sources as vital actors for democracy: Given the role of public watch-dog of the press, both journalists and journalistic sources should have special safeguards against surveillance.
Include indirect surveillance: There should be an explicit prohibition of both direct and indirect surveillance (4.2.b and 4.2.c). By indirect surveillance we mean “forms of surveillance that do not target an individual journalist, rather people that belong to their network of acquaintances, which may include colleagues, family members, friends, and other individuals who share their physical and/or digital spaces. It also comprises opportunistic or unintended forms of surveillance, including mass surveillance. The current formula “journalists, colleagues, and their family members” contained in the original proposal should be expanded to include a journalists’ network of professional and private relationships. The definition of what “indirect surveillance” means should be included in the form of an illustrative list in article 2.
There should be an explicit prohibition of surveillance and editorial interference not only by Member States, but also by non-state and quasi-state actors (4.2). The EMFA should require Member States to commit to protect journalism from both physical and digital surveillance perpetrated by non-state and quasi-state actors.
Positive measures to protect journalists: Article 4 should also envision encryption as a legitimate tool to support professional secrecy and legal professional privilege, in direct reference to the articles 7, 8 and 11 of the Charter of Fundamental Rights and according to the “Council Resolution on Encryption – Security through encryption and security despite encryption” of the 24th November 2020.
  https://cadmus.eui.eu/bitstream/handle/1814/74712/MPM2022-EN-N.pdf?sequence=1&isAllowed=y
 such as the Centre for Media Pluralism and Media Freedom (CMPF) and the Euromedia Ownership Monitor or the, Media and Journalism Research Center
This position statement by IPI is part of the Media Freedom Rapid Response (MFRR), a Europe-wide mechanism which tracks, monitors and responds to violations of press and media freedom in EU Member States, Candidate Countries, and Ukraine. The project is co-funded by the European Commission.