Preamble 11 to 20
(11) In the digital media market, video-sharing platform providers or providers of very large online platforms could fall under the definition of media service provider. In general, such providers play a key role in the organisation of content, including by automated means or by means of algorithms, but do not exercise editorial responsibility over the content to which they provide access.
However, in the increasingly convergent media environment, some video-sharing platform providers or providers of very large online platforms have started to exercise editorial control over a section or sections of their services. Therefore, where such providers exercise editorial control over a section or sections of their services, they could be qualified as both a video-sharing platform provider or a provider of a very large online platform and a media service provider.
(12) The definition of audience measurement should cover measurement systems developed as agreed by industry standards within self-regulatory organisations, like the Joint Industry Committees, and measurement systems developed outside self-regulatory approaches. The latter tend to be used by certain online players, including online platforms, that self-measure or provide their proprietary audience measurement systems to the market without abiding by the commonly agreed industry standards or best practices.
Given the significant impact that such audience measurement systems have on the advertising and media markets, they should be covered by this Regulation. In particular, the capacity to provide access to media content and the ability to target their users with advertising allow online platforms to compete with the media service providers whose content they distribute.
Thus, the definition of audience measurement should be understood as including measurement systems that enable the collection, interpretation or other processing of information about the use of media content and content created by users on online platforms that are primarily used to access such content. That would ensure that providers of audience measurement systems that are intermediaries involved in content distribution are transparent about their audience measurement activities, fostering the ability of media service providers and advertisers to make informed choices.
(13) State advertising as defined in this Regulation should be understood broadly as covering promotional or self-promotional activities, public announcements or information campaigns undertaken by, for or on behalf of a wide range of public authorities or entities, including national or subnational governments, regulatory authorities or bodies and entities controlled by national or subnational governments.
Such control can result from rights, contracts or any other means which confer the possibility of exercising a decisive influence on an entity. In particular, ownership of capital or the right to use all or part of the assets of an entity, or rights or contracts which confer a decisive influence on the composition, voting or decisions of the organs of an entity are relevant factors, as laid down in Article 3(2) of Council Regulation (EC) No 139/2004.
However, the definition of state advertising should not include official announcements that are justified by an overriding reason of public interest, such as emergency messages by public authorities or entities which are necessary, for example, in cases of natural disasters or health crises, accidents or other sudden incidents that can cause harm to individuals. When the emergency situation has ended, announcements pertaining to that emergency which are placed, promoted, published or disseminated in return for payment or for any other consideration should be considered state advertising.
(14) In order to ensure that society reaps the benefits of the internal market for media services, it is essential not only to guarantee the fundamental freedoms under the Treaties, but also the legal certainty which is needed for the enjoyment of benefits of an integrated and developed market. In a well-functioning internal market, recipients of media services should be able to access quality media services which have been produced by journalists in an independent manner and in line with ethical and journalistic standards and which, therefore, provide trustworthy information.
That is particularly relevant for news and current affairs content, which comprises a wide category of content of political, societal or cultural interest at local, national or international level. News and current affairs content has the potential to play a major role in shaping public opinion and has a direct impact on democratic participation and societal well-being. In that context, news and current affairs content should be understood as covering any type of news and current affairs content, regardless of the form it takes.
News and current affairs content can reach audiences in diverse formats, such as documentaries, magazines or talk-shows, and can be disseminated in diverse ways, including by uploading it to online platforms. Quality media services are also an antidote against disinformation and foreign information manipulation and interference.
Access to such services should also be ensured by preventing attempts to silence journalists, ranging from threats and harassment to censorship and cancelling of dissenting opinions, which could limit the free flow of information into the public sphere by reducing the quality and plurality of information. The right to a plurality of media content does not entail any corresponding obligation on any given media service provider to adhere to standards not set out explicitly by law.
(15) This Regulation does not affect the freedom of expression and information guaranteed to individuals under the Charter. The European Court of Human Rights has observed that in such a sensitive sector as the audiovisual media sector, in addition to its negative duty of non-interference, the public powers have a positive obligation to put in place an appropriate legislative and administrative framework to guarantee effective media pluralism.
(16) The free flow of trustworthy information is essential in a well-functioning internal market for media services. Therefore, the provision of media services should not be subject to any restrictions contrary to this Regulation or other rules of Union law, such as Directive 2010/13/EU, which provide for measures necessary to protect users from illegal and harmful content. Restrictions could also derive from measures applied by national public authorities in compliance with Union law.
(17) The protection of editorial independence is a precondition for exercising the activity of media service providers and their professional integrity in a safe media environment. Editorial independence is especially important for media service providers which provide news and current affairs content, given its societal role as a public good. Media service providers should be able to exercise their economic activities freely in the internal market and compete on an equal footing in an increasingly online environment where information flows across borders.
(18) Member States have taken different approaches to the protection of editorial freedom and editorial independence, which is increasingly being challenged across the Union. In particular, there is a growing interference with the editorial decisions of media service providers in several Member States. Such interference can be direct or indirect, from the state or other actors, including public authorities, elected officials, government officials and politicians, for example to obtain a political advantage.
Shareholders and other private parties who have a stake in media service providers might act in ways which go beyond the necessary balance between their own business freedom and the freedom of expression, on the one hand, and editorial freedom of expression and the information rights of users, on the other hand, in pursuit of an economic or other advantage. Given the societal role of the media, such undue interference could negatively affect the public opinion-forming process. Moreover, recent trends in media distribution and consumption, including, in particular, in the online environment, have prompted Member States to consider laws which aim to regulate the provision of media content.
Approaches taken by media service providers to guarantee editorial independence also vary. As a result of such interference and fragmentation of regulation and approaches, the conditions for the exercise of economic activities by media service providers and, ultimately, the quality of media services received by citizens and businesses are negatively affected in the internal market. It is thus necessary to put in place effective safeguards enabling the exercise of editorial freedom across the Union so that media service providers can independently produce and distribute their content across borders and recipients of media services can receive such content.
(19) Journalists and editors are the main actors in the production and provision of trustworthy media content, in particular by reporting on news or current affairs. Sources are tantamount to ‘raw material’ for journalists: they are the basis for the production of media content, in particular news and current affairs content.
It is therefore crucial that journalists’ ability to collect, fact-check and analyse information be protected, in particular information imparted or communicated confidentially, both offline and online, which relates to or is capable of identifying journalistic sources. Media service providers and their editorial staff, in particular journalists, including those operating in non-standard forms of employment, such as freelancers, should be able to rely on a robust protection of journalistic sources and confidential communications, including protection against undue interference and the deployment of surveillance technologies.
Without such protection, the free flow of sources to media service providers could be deterred and, thus, the free exercise of the economic activity by media service providers could be hindered to the detriment of the provision of information to the public, including on matters of public interest. As a result, journalists’ freedom to exercise their economic activity and fulfil their vital ‘public watchdog’ role could be jeopardised by such obstacles, thus affecting access to quality media services negatively.
(20) In order to avoid circumvention of the protection of journalistic sources and confidential communications and guarantee adequate respect for one’s private and family life, home and communications in accordance with the Charter, safeguards should also apply to persons who, because of their regular private or professional relationship with media service providers or members of their editorial staff, are likely to have information that could identify journalistic sources or confidential communications.
That should include persons living in a close relationship in a joint household and on a stable and continuous basis and persons who are or have been professionally involved in the preparation, production or dissemination of programmes or press publications and who are only targeted due to their close links with media service providers, journalists or other members of the editorial staff.
The protection of journalistic sources and confidential communications should also benefit the staff of media service providers, such as the technical staff, including cybersecurity experts, who could be targeted given the important support role they provide to journalists in their daily work, which requires solutions to ensure the confidentiality of journalists’ work, and the resulting likelihood that they have access to information concerning journalistic sources or confidential communications.
Note: This is the final text of the European Media Freedom Act (EMFA) - Regulation (EU) 2024/1083 of 11 April 2024.