- The Proposal for the Regulation relating to European Media Freedom Act (EMFA) is accompanied by a Recommendation which is already to be considered. The EMFA addresses a variety of different issues with very diverse provisions and several institutional mechanisms attached. Ensuring practical coherence with existing EU and national laws is therefore a key concern.
- Regulating the media sector, characterized by its dual nature of cultural and economic components, needs careful attention not only of the principle of limited conferral of powers, but especially subsidiarity and proportionality in the relationship between EU and Member States. Rules have to be clear, precise, effective and necessary on EU level, which is why invoking only the single market clause as legal basis raises concerns not only about the allocation of competences, but also the choice of legal instrument.
- The proposed substantive rules have some definitional ambiguities that make it difficult to assess the intended scope and actual impact. This concerns, for example, the concepts of editorial decision in Art. 4 in contrast to Art. 6 or the concept of independence of the privileged media service providers in Art. 17.
- Questions about the formulation of the provisions extend to their enforceability and thus the possibilities of protection for media service providers and recipients as is the aim of the proposal. For example, in Art. 5, 6, 17 and 20, it is not clear to what extent monitoring of compliance shall take place or how different appeal bodies interact with national regulatory authorities and bodies or the newly established Board, as the EMFA does not contain a specific allocation of supervisory tasks or a sanctioning regime.
- The coordination of supervisory measures, both within the EMFA and the AVMSD, is of particular importance in today’s media landscape. The independent Board is assigned an important role, although concerns arise in the interplay with the powers of the Commission.
Background and overview
The media and information landscape in its constantly changing state as well as recent international crisis situations demonstrate the sensitivity and importance of the media sector and its regulation for the formation of public opinion, but also highlight protection gaps in light of guaranteeing democratic principles and fundamental rights. There are concerns when analysing national frameworks within the EU especially with regard to a sufficient protection of the independent functioning of media regulatory authorities, media pluralism in light of media ownership developments as well as potential political influence on the media. The EMFA aims to establish EU-wide harmonised rules to tackle these issues and overcome fragmentations in the national regulatory frameworks that the Commission identified. A wide range of rules covered by the Proposal must be considered in the overall concept of regulatory initiatives at EU level that the EMFA is integrated into. They also necessitate a detailed consideration of the potential impact on fundamental rights and demand particular precision and clarity. This applies not only to the substantive rules but also the institutional system, as only an effective cross-border enforcement framework justifies the creation of rules within a Regulation that has EU-wide unified binding value. This requirement is to be considered in light of the allocation of competences between the EU and its Member States when regulating a sector which is characterised by its twofold nature of an economic and cultural dimension.
The aim of this background analysis is to present selected parts of the Proposal which are especially relevant and have been intensively debated since it was put forward. With that, the main problems that should be addressed in the further steps of the legislative procedure are identified.
Legal basis and coherence
The EMFA is based solely on the single market clause of Art. 114 TFEU. This requires further assessment in light of the objectives it follows not only to counter risks and barriers to the internal (media) market, but explicitly of protecting freedom of the media, media pluralism and editorial independence. The principle of limited conferral of powers, but even more so in view of the cultural competence of the Member States (Art. 167 TFEU) and the principles of subsidiarity and proportionality, limit harmonisation measures to clearly demonstrated distortions of competition on the single market and must aim in fact at the elimination or avoidance of those hindrances.
While introducing coordination and cooperation structures for an improved (cross-border) enforcement of the law, which then is realized by national regulatory authorities, does not raise any concerns in general, the actual design of this needs to be assessed in view of the roles of the different actors. More importantly, the substantive rules of the EMFA need to be reviewed in light of the assumed internal market dimension, because they would also address purely local, regional or national offerings, including public service media for which structural decisions are left to the Member States according to the ‘Amsterdam Protocol’ to the Treaties. The rules and limitations on the allocation of powers need to be considered not only for the legal basis, but also for the type of legislative instrument chosen which impacts remaining margins of manoeuvre for the national level. This is also relevant for the interplay of the EMFA with other legal acts framing the dissemination of content. Although the Proposal shall not affect relevant secondary legislation recently adopted in this field, for the case of a collision in practice, the EMFA does not provide precise indications of a priority of rules. Besides its relation to competition law, the relationship to the AVMSD is of particular relevance which is not addressed in the Proposal outside of the amendments to the Directive that would come with the EMFA.
Recommendation (EU) 2022/1634 on internal safeguards for editorial independence and ownership transparency in the media sector, which accompanies the EMFA proposal, can have an important political significance even without being legally binding. However, overlapping elements will cease to apply after entry into force of the EMFA irrespective of its status of implementation.
Selected substantive issues
The definitions are key for the application of the EMFA and therefore require a precise and clear formulations oriented at the aims of the Regulation, as well as uniform use within the EMFA and consistency with other legal acts. This applies in particular to the definition of media service providers, as it determines the scope of application. In contrast to developments in international media and communication governance and recent jurisprudence of the CJEU und the ECtHR, the proposal contains a rather traditional approach to this definition that applies uniformly to all substantive rules and does not distinguish between levels of protection in individual provisions. This background analysis discusses several aspects of the EMFA in this regard, focussing on Art. 2, 3, 4, 5, 6, 17, 20 and 21.
For example, Art. 6 contains duties for the special category of media service providers that provide news and current affairs content, because of their special relevance for public opinion forming, although other content can also be relevant for this purpose in a democratic society. Art. 6(1) extends information obligations to such providers in relation to media ownership and is intended to ensure transparency for the public. However, there is no link to the tasks of regulatory authorities, the establishment of a (central) database or the existing provision in Art. 5(2) AVMSD. Art. 6(2) contains an obligation to take internal measures to guarantee the independence of individual editorial decisions within the media service providers. While Recommendation (EU) 2022/1634 offers a clearer idea of the structures that the EMFA would be expecting from providers, with its broad formulation the EMFA leaves the decision mainly up to the providers to assess what measures are necessary and appropriate and how these impact the internal allocation of responsibilities between providers and editors.
Art. 17 contains a rule on the protection of editorial content by media service providers on VLOPs by prioritising media content, which has already been created subject to editorial responsibility obligations, in the content moderation by VLOPs. However, only an obligation to justify moderation decisions and an aim for advanced notification are stipulated, but no further limitations in the decisions by VLOPs are introduced. It is questionable to what extent this would efficiently further the position of media service providers in comparison to the DSA and Regulation (EU) 2019/1150.
The EMFA builds in institutional terms on the national regulatory supervisory authorities established under the AVMSD, in particular transferring the level of independence ensured therein to the EMFA, without, however, assigning dedicated enforcement or sanctioning powers. In that sense it follows the approach under the AVMSD leaving the institutional and procedural design to the Member States, including the obligations under Art. 30(4) AVMSD to provide adequate resources and enforcement powers including for the cooperation work on EU level. In contrast to the approach chosen in the AVMSD, a central role is foreseen for the Commission. It is vested with a wide range of powers to issue opinions and guidelines, the scope and legal effects of which are not always clear from the specific provisions. An example of this is in particular Art. 15(2) empowering it to issue Guidelines not only concerning the application of the EMFA but also the national rules implementing the AVMSD which could lead to tensions with Member States competences and the tasks of independent national regulatory authorities.
The European Board for Media Services (EBMS) which shall replace and succeed the ERGA established under the AVMSD, is created by the EMFA as new cooperation body on EU level and tasked with, essentially, coordination issues, including developing best practices and issuing opinion in matters of cross-border relevance. The independence of the EBMS is ensured separately by establishing criteria similar to those in the GDPR for the respective cooperation body. However, concerns may arise from the fact that the EBMS is dependent on a request or agreement with the Commission in many of its activities and does not have a general right of initiative based on its own considerations. This dependence may be reinforced by the Commission also providing the secretariat as in the past, although the competences of this new Board are significantly expanded compared to ERGA’s role.