The European Media Freedom Act (EMFA)

What is the European Media Freedom Act?

The Media Freedom Act addresses the fragmented national regulatory approaches related to media freedom, pluralism, and editorial independence. It improves the functioning of the internal market for media services, and prevents the emergence of obstacles to the operation of media service providers across the EU.

The Media Freedom Act complements the Digital Services Act (DSA) and the Digital Markets Act (DMA), which establish harmonised rules for online services. The Act addresses sector-specific problems which the DSA and DMA do not fully address.

The Act also establishes a clear, legally binding framework for national regulatory authorities, that deals with providers that systematically engage in disinformation, including information manipulation and interference, and abuse the internal market freedoms, including by state-controlled media service providers financed by certain third countries.

In particular, the Media Freedom Act addresses the following:

1. National restrictions related to sources and communications of journalists as service providers, affecting the production and provision of media services.

2. Interference in the operation of media service providers, including their editorial decisions, and diverging approaches to protection of editorial independence.

3. The risk of state interference in public service media, to the detriment of a level playing field in the single market and quality of public service media.

4. The market operations of rogue operators (including media service providers that are state-controlled, be it financially or editorially, by certain third countries) that create tensions in the application of the free movement rules within the Union.

5. Given the increasing digitalisation of media service distribution, the risks to free provision of media services on very large online platforms, to the detriment of a level playing field in the internal market.

6. National media market measures affecting the operation of media service providers restricting the free movement in the Union, thereby fragmenting the internal market and leading to legal uncertainty; the same applies to national rules and procedures for the assessment of the impact of media market concentrations on media pluralism and editorial independence.

7. Opacity and possible biases in audience measurement systems and methodologies, leading to market distortion, to the detriment of the level playing field in the internal market.

8. Unfair and un-transparent allocation of state advertising expenditure to media service providers, to the detriment of other media service providers, including those established in other Member States.

The European Media Freedom Act also complements the EU competition rules, which:

- do not directly address the impacts that market concentrations have on media pluralism or independence, and

- State aid rules, which are applied on a case-by-case basis (often ex post) and do not sufficiently address the problems created by the unfair allocation of state resources to the media service providers.

The Media Freedom Act strengthens the role and cooperation between media regulators, including in matters affecting the EU’s information space, and complements the actions taken to develop the EU’s toolbox on Foreign Information Manipulation and Interference.

26 March 2024 - The Council has adopted the European Media Freedom Act (EMFA).

Next steps: The regulation must be signed and published in the Official Journal of the European Union. It will enter into force 20 days later.

The regulation responds to rising concerns in the EU about the politicisation of the media and the lack of transparency of media ownership and of allocation of state advertising funds to media service providers. It seeks to put in place safeguards to combat political interference in editorial decisions for both private and public service media providers, protect journalists and their sources, and guarantee media freedom and pluralism.

13 March 2024 - The European Parliament has voted in favour of the European Media Freedom Act (EMFA).

Under the new law, adopted by 464 votes in favour to 92 against and 65 abstentions, member states will be obliged to protect media independence and all forms of interventions in editorial decisions will be banned.

Authorities will be prohibited from pressing journalists and editors to disclose their sources, including by detaining them, sanctions, office searches, or by installing intrusive surveillance software on their electronic devices.

Parliament added sizeable safeguards to allow the use of spyware, which will be possible only on a case-by-case basis and subject to authorisation by a judicial authority investigating serious crimes punishable by a custodial sentence. Even in these cases, subjects will have the right to be informed after the surveillance has occurred and will be able to challenge it in court.

To prevent public media outlets from being used for political purposes, their heads and board members should be selected through transparent and non-discriminatory procedures for sufficiently long terms of office. It will not be possible to dismiss them before their contract ends, unless they no longer meet the professional criteria.

Public media will have to be financed using transparent and objective procedures, and the funding should be sustainable and predictable.

To enable the public to know who controls the media and what interests may influence reporting, all news and current affairs outlets regardless of their size will have to publish information about their owners in a national database, including if they are directly or indirectly owned by the state.

Media will also have to report on funds received from state advertising and on state financial support, including from non-EU countries.

Public funds to media or online platforms will have to be allocated via public, proportionate and non-discriminatory criteria. Information on state advertising expenditure will be public, including the total annual amount and the amount per outlet.

MEPs made sure to include a mechanism to prevent very big online platforms, such as Facebook, X (formerly Twitter) or Instagram, from arbitrarily restricting or deleting independent media content. Platforms will first have to distinguish independent media from non-independent sources. Media would be notified when the platform intends to delete or restrict their content and have 24 hours to respond. Only after the reply (or in the absence of it) may the platform delete or restrict the content if it still does not comply with its conditions.

Media will have the option to bring the case to an out-of-court dispute settlement body and request an opinion from the European Board for Media Services (a new EU board of national regulators to be set up by the EMFA).

15 December 2023 - The Council and the Parliament agree on the European Media Freedom Act (EMFA).

This agreement must be officially endorsed by the Council and the Parliament. It will then be formally adopted by both institutions, hopefully before the summer of 2024.

The proposed regulation responds to rising concerns in the EU about the politicisation of the media and the lack of transparency of media ownership and of allocation of state advertising funds to media service providers. It seeks to put in place safeguards to combat political interference in editorial decisions for both private and public service media providers, protect journalists and their sources, and guarantee media freedom and pluralism.

The provisional agreement clarifies the responsibility of the member states to guarantee the plurality, independence and proper functioning of public media providers operating within their borders.

The provisional agreement also sets out the obligation for member states to guarantee the effective protection of journalists and media providers in the exercise of their professional activity.

It broadens the scope of the requirements on transparency, both for transparency of ownership which is proposed to apply for all media service providers and for the transparency of state advertising where the possibility of national exemptions for small entities is significantly reduced.

The provisional agreement provides clearer rules on the relationship between very large online platform providers (VLOPs) and media service providers that adhere to regulatory or self-regulatory regimes of editorial control and journalistic standards in member states, with the aim to ensure that content provided by media service providers is treated with extra care.

October 4, 2023 - The European Parliament adopted its position on the European Media Freedom Act (EMFA).

The European Parliament approved with a large majority (448 in favour) the text that the Parliament will use as its mandate for negotiations with the EU Council and the European Commission.

What is next?

The first round of inter-institutional negotiations between the European Parliament, the Council, and the European Commission, (trilogues) will begin the 18th of October 2023, with a view to finalising the text of the Act by the end of 2023.

European Media Freedom Act (EMFA) - Benefits for journalists and other media professionals.

Journalists and editors will be better protected from undue interference in editorial decision-making and, in the case of public service media, have assurances that their employer is equipped with adequate and stable funding for future operations, in accordance with their public service mission.

The Act also makes it clear that the use of spyware against media, journalists and their families is prohibited. In the same vein, the proposed rules clarify that journalists should not be prosecuted for protecting the confidentiality of their sources.

The Act prohibits the use of spyware against media, journalists and their families. This is the rule. The Act narrows down any possible exceptions to this rule on the ground of national security, which is a competence of the Member States, or in case of investigations of a closed list of crimes, such as terrorism, child abuse or murder. In such cases, the Act makes it very clear that it should be duly justified, on a case-by-case basis, in compliance with the Charter of Fundamental Rights, in circumstances where no other investigative tool would be adequate. The Act therefore provides in this respect concrete new guarantees at EU level.

Any affected journalist would have the right to seek effective judicial protection from an independent court in the respective Member State. Additionally, every Member State will have to designate an independent authority to handle complaints of journalists concerning the use of spyware against them. These independent authorities will issue, within three months of the request, an opinion regarding compliance with the provisions of the Media Freedom Act.

We have two interesting definitions in Article 2 of the EMFA:

1. ‘Spyware’ means any product with digital elements specially designed to exploit vulnerabilities in other products with digital elements that enables the covert surveillance of natural or legal persons by monitoring, extracting, collecting or analysing data from such products or from the natural or legal persons using such products, in particular by secretly recording calls or otherwise using the microphone of an end-user device, filming natural persons, machines or their surroundings, copying messages, photographing, tracking browsing activity, tracking geolocation, collecting other sensor data or tracking activities across multiple end-user devices, without the natural or legal person concerned being made aware in a specific manner and having given their express specific consent in that regard;

2. ‘Serious crime’ means any of the following criminal offences listed in Article 2(2) of the Council Framework Decision 2002/584/JHA 58:

(a) terrorism,

(b) trafficking in human beings,

(d) illicit trafficking in weapons, munitions and explosives,

(e) murder, grievous bodily injury,

(f) illicit trade in human organs and tissues,

(g) kidnapping, illegal restraint and hostage-taking,

(h) organised or armed robbery,

(i) rape,

(j) crimes within the jurisdiction of the International Criminal Court.

According to Article 4, Rights of media service providers:

1. Media service providers shall have the right to exercise their economic activities in the internal market without restrictions other than those allowed under Union law.

2. Member States shall respect effective editorial freedom of media service providers. Member States, including their national regulatory authorities and bodies, shall not:

(a) interfere in or try to influence in any way, directly or indirectly, editorial policies and decisions by media service providers;

(b) detain, sanction, intercept, subject to surveillance or search and seizure, or inspect media service providers or, if applicable, their family members, their employees or their family members, or their corporate and private premises, on the ground that they refuse to disclose information on their sources, unless this is justified by an overriding requirement in the public interest, in accordance with Article 52(1) of the Charter and in compliance with other Union law;

(c) deploy spyware in any device or machine used by media service providers or, if applicable, their family members, or their employees or their family members, unless the deployment is justified, on a case-by-case basis, on grounds of national security and is in compliance with Article 52(1) of the Charter and other Union law or the deployment occurs in serious crimes investigations of one of the aforementioned persons, it is provided for under national law and is in compliance with Article 52(1) of the Charter and other Union law, and measures adopted pursuant to sub-paragraph (b) would be inadequate and insufficient to obtain the information sought.

Which is the link between the Media Freedom Act and the Digital Services Act, when it comes to media content moderation?

The European Media Freedom Act builds on the Digital Services Act. It offers additional protection against the unjustified removal by very large online platforms (above 45 million users in the EU) of media content produced according to professional standards.

Such platforms will need to take all possible measures to communicate the reasons for suspending content to media service providers before the suspension takes effect. The procedure includes a series of safeguards to ensure that this early warning procedure is in line with other priorities of the Commission, such as the fight against disinformation.

Any complaints lodged by media service providers must be processed with priority by those platforms. The proposal provides for a meaningful and effective dialogue between the parties to avoid unjustified content removals and for obligatory annual reporting by very large online platforms.

These provisions are accompanied by a structured dialogue organised by the European Board for Media Services between very large online platforms, the media sector and civil society to foster access to diverse offers of independent media on very large online platforms and to monitor adherence to self-regulatory initiatives aimed at protecting society from harmful content, including disinformation and foreign information manipulation and interference.

European Media Freedom Act, factsheet from the European Commission.

2021 - State of the Union Address by President von der Leyen.

"Honourable members,

Allow me to finish with one of the freedoms that gives voice to all other freedoms – media freedom.

Journalists are being targeted simply for doing their job. Some have been threatened, some beaten and, tragically, some murdered. Right here, in our European Union.

Let me mention some of their names: Daphné Caruana Galizia. Ján Kuciak. Peter de Vries.

The details of their stories may be different but what they have in common is that they all fought and died for our right to be informed.

Information is a public good. We must protect those who create transparency – the journalists. That is why today we have put forward a recommendation to give journalists better protection.

And we need to stop those who threaten media freedom. Media companies cannot be treated as just another business. Their independence is essential. Europe needs a law that safeguards this independence – and the Commission will deliver a Media Freedom Act in the next year.

Defending media freedom means defending our democracy."