Preamble 41 to 50
(41) Without prejudice to the powers granted to the Commission by the Treaties, it is essential that the Commission and the Board cooperate closely, enabling the Board to advise and support the Commission on matters related to media services within its competence. The Board should actively support the Commission in its tasks of ensuring the consistent and effective application of this Regulation and the implementation of Directive 2010/13/EU.
For that purpose, the Board should, in particular, advise and assist the Commission on regulatory, technical or practical aspects relevant to the application of Union law, promote cooperation and the effective exchange of information, experience and best practices and draw up opinions in the cases provided for in this Regulation, taking into account, where relevant, the situation regarding media freedom and media pluralism in the media markets concerned.
Such opinions should not be legally binding but should serve as useful guidance for the national regulatory authorities or bodies concerned and could be taken into account by the Commission in its tasks of ensuring the consistent and effective application of this Regulation and the implementation of Directive 2010/13/EU. By making their best effort to implement the opinion of the Board or by properly explaining any deviation therefrom, national regulatory authorities or bodies should be considered to have done their utmost to take the opinion of the Board into account.
(42) In order to effectively and independently fulfil its tasks, the Board should be assisted by a secretariat devoted to the activities of the Board. The Commission should provide the secretariat.
The secretariat should be adequately resourced for the performance of its tasks. Without prejudice to the Commission’s institutional and budgetary autonomy, it is important that the Commission take into account the needs communicated by the Board, in particular in relation to the qualifications, expertise and profile of the secretariat’s staff for the effective performance of its tasks.
The secretariat should also be able to rely on the expertise and resources of national regulatory authorities or bodies. That would be key to assisting the Board when it is preparing its deliverables. Therefore, the secretariat should include an appropriate number of staff seconded by national regulatory authorities or bodies in order to benefit from their skills and experience. In its mission of contributing to the independent execution of the tasks of the Board, the secretariat should follow only the instructions of the Board when supporting the Board in the fulfilment of its tasks under this Regulation.
The secretariat should provide substantive, administrative and organisational support to the Board and assist the Board when it is carrying out its tasks, in particular by conducting relevant research or carrying out information-gathering activities.
(43) Regulatory cooperation between independent media regulatory authorities or bodies is essential to making the internal market for media services function properly. However, Directive 2010/13/EU does not provide for a structured cooperation framework for national regulatory authorities or bodies.
Since the revision of the Union framework for audiovisual media services by means of Directive (EU) 2018/1808 of the European Parliament and of the Council (13), which extended its scope to video-sharing platforms, there has been an ever-increasing need for close cooperation among national regulatory authorities or bodies, in particular to resolve cross-border cases. Such a need is also justified in view of the new challenges in the Union media environment that this Regulation seeks to address, including by entrusting national regulatory authorities or bodies with new tasks.
(44) Aware of those challenges and in order to respond to the need for closer cooperation in the field of audiovisual media services, in 2020, ERGA agreed on a Memorandum of Understanding which set out non-binding mechanisms for cross-border cooperation to strengthen the application of Union rules relevant for audiovisual media services and video-sharing platform services.
Building on that voluntary framework and in order to ensure the effective enforcement of Union media law, to avoid the raising of additional barriers in the internal market for media services and to prevent the possible circumvention of the applicable rules by rogue media service providers, it is essential to provide for a clear, legally binding framework for national regulatory authorities or bodies to cooperate effectively and efficiently with one another within the established legal framework. Such a framework is crucial for upholding the country of origin principle, which is a cornerstone of Directive 2010/13/EU, and for ensuring that national regulatory authorities or bodies are able to exercise oversight over relevant media service providers.
The objective should be to ensure the consistent and effective application of this Regulation and the implementation of Directive 2010/13/EU, for instance by ensuring a smooth exchange of information between national regulatory authorities or bodies or enabling queries related to jurisdiction issues to be quickly addressed. Where national regulatory authorities or bodies exchange information, all relevant Union and national law on the exchange of information, including relevant data protection law, should be respected.
Such cooperation and, in particular accelerated cooperation is of key relevance to support actions to protecting the internal market from rogue media service providers, while ensuring compliance with fundamental rights, in particular the freedom of expression. In particular, accelerated cooperation is needed to prevent media services which have been suspended in certain Member States under Article 3(3) and (5) of Directive 2010/13/EU from continuing to be provided via satellite or other means in those Member States and thus to contribute, in compliance with Union law, to the ‘effet utile’ of the relevant national measures. The opinions of the Board will be important for the effective functioning of the cooperation mechanism.
(45) Due to the pan-European nature of video-sharing platforms, national regulatory authorities or bodies need to have a dedicated tool to protect users of video-sharing platform services from certain illegal and harmful content, including commercial communications. In particular, without prejudice to the country of origin principle, a mechanism is needed to allow any relevant national regulatory authority or body to request its counterpart to take necessary and proportionate actions to ensure the enforcement of obligations on video-sharing platform providers under Article 28b(1), (2) and (3) of Directive 2010/13/EU.
That is key to ensuring that audiences and, in particular, minors are effectively protected across the Union when accessing content on video-sharing platforms and that they can rely on an appropriate level of transparency when it comes to online commercial communications.
Mediation provided by and opinions of the Board would be conducive to ensuring mutually acceptable and satisfactory results for the national regulatory authorities or bodies concerned. Where the use of such a mechanism does not lead to an amicable solution, the freedom to provide information society services from another Member State can be restricted only where the conditions set out in Article 3 of Directive 2000/31/EC of the European Parliament and of the Council have been fulfilled and the procedure set out therein has been followed.
(46) It is essential to ensure consistent regulatory practice, the consistent and effective application of this Regulation and the implementation of Directive 2010/13/EU. For that purpose and to contribute to ensuring a convergent implementation of Union media law, the Commission should be able, when needed, to issue guidelines on cross-border matters covered by both this Regulation and Directive 2010/13/EU.
When deciding whether to issue guidelines and in light of the relevant discussions with the contact committee established by Directive 2010/13/EU for matters related to that Directive, the Commission should consider, in particular, regulatory issues which affect a significant number of Member States or regulatory issues with a cross-border element.
In view of the abundance of information and the increasing use of digital means to access the media, it is important that prominence be ensured for content of general interest in order to help achieve a level playing field in the internal market and compliance with the fundamental right to receive information under Article 11 of the Charter.
Given the possible impact of the national measures taken under Article 7a of Directive 2010/13/EU on the functioning of the internal market for media services, guidelines by the Commission would be important to achieve legal certainty in that field. It would also be useful to provide guidance on measures taken under Article 5(2) of Directive 2010/13/EU to ensure the public availability of accessible, accurate and up-to-date information related to media ownership and on the duty of media service providers to make certain up-to-date information easily and directly accessible to the recipients of their services.
When preparing its guidelines, the Commission should be assisted by the Board. The Board should, in particular, share its regulatory, technical and practical expertise regarding the areas and topics covered by the relevant guidelines with the Commission.
(47) National regulatory authorities or bodies have specific practical expertise that allows them to effectively balance the interests of the media service providers and recipients of media services, while ensuring respect for the freedom of expression and safeguarding and promoting media pluralism.
That is key when it comes, in particular, to protecting the internal market from media services from outside the Union, irrespective of the means by which they are distributed or accessed, that target or reach audiences in the Union where, inter alia, in view of the control that could be exercised by third countries over them, they could prejudice or pose a risk of prejudice to public security.
A risk of prejudice to public security could relate to a public provocation to commit a terrorist offence, as set out in Article 5 of Directive (EU) 2017/541 of the European Parliament and of the Council, and systematic international campaigns of foreign information manipulation and interference with a view to destabilising the Union as a whole or particular Member States.
In that regard, the coordination between national regulatory authorities or bodies to face together possible public security threats stemming from such media services needs to be strengthened and given a legal framework to ensure the effectiveness and possible coordination of the national measures adopted in accordance with Union media law.
(48) It is necessary to coordinate the national measures that could be adopted to counter public security threats by media services originating from or established outside of the Union and targeting audiences in the Union, including the possibility for the Board, in consultation with the Commission, to issue opinions on such measures, as appropriate, in particular where a situation affects several Member States.
In that regard, risks to public security need to be assessed in light of all relevant factual and legal elements, at Union and national level, including any existing assessments of how the media service concerned is disseminated or received on the territory of the Union. The objective should be to allow for a more coordinated approach for the national regulatory authorities or bodies concerned in relation to restrictions on the distribution of such media services, without prejudice to the competence of Member States or their national regulatory authorities or bodies in accordance with Union law.
In that regard, the national regulatory authorities or bodies concerned should be able to take into account the opinions of the Board when considering taking measures against a media service provider. That is without prejudice to the competence of the Union under Article 215 TFEU.
(49) In order to further support national regulatory authorities or bodies in their role of protecting the internal market for media services from rogue media service providers, the Board should draw up a list of criteria concerning media service providers established or originating from outside of the Union.
Such a list would help the national regulatory authorities or bodies concerned in situations where a relevant media service provider seeks jurisdiction in a Member State or where a media service provider already under the jurisdiction of a Member State appears to pose a serious and grave risk to public security. Elements to be covered in such a list could concern, inter alia, ownership, management, financing structures, editorial independence from third countries or adherence to co-regulatory or self-regulatory mechanisms governing editorial standards in one or more Member States.
(50) Very large online platforms act for many users as a gateway for providing access to media content and media services. Media service providers that exercise editorial responsibility over their content play a key role in the distribution of information and in the exercise of the right to receive and impart information online. When exercising such editorial responsibility, media service providers are expected to act diligently and provide information that is trustworthy and respectful of fundamental rights, in line with the regulatory requirements or co-regulatory or self-regulatory mechanisms to which they are subject in the Member States.
Therefore, also in view of users’ right to receive and impart information, where a provider of a very large online platform considers that content provided by such media service providers is incompatible with its terms and conditions, it should duly consider media freedom and media pluralism, in accordance with Regulation (EU) 2022/2065, and provide, as early as possible, the necessary explanations to media service providers in a statement of reasons as referred to in Article 4(1) of Regulation (EU) 2019/1150 of the European Parliament and of the Council and Article 17 of Regulation (EU) 2022/2065.
To minimise the impact of any restriction to that content on users’ right to receive and impart information, very large online platforms should submit their statement of reasons prior to the suspension or restriction of visibility taking effect.
In addition, they should provide the media service provider concerned with an opportunity to reply to the statement of reasons within 24 hours of receiving it, prior to the suspension or restriction of visibility taking effect. A shorter timeframe could apply in the event of a crisis as referred to in Article 36(2) of Regulation (EU) 2022/2065 in order to take into account, in particular, an urgent need to moderate the relevant content in such exceptional circumstances.
Note: This is the final text of the European Media Freedom Act (EMFA) - Regulation (EU) 2024/1083 of 11 April 2024.