Smile Diplomacy: From Putin to Macron

Smile Diplomacy: From Putin to Macron

The aim of the European Media Freedom Act is to protect media pluralism and independence in the EU single market, where media can operate more easily across borders without undue interference.

The Act will complement existing measures on the audiovisual market, setting clear rules and safeguards to ensure greater independence, transparency and cooperation between media market operators and thereby promote their economic development across borders.

  1. What are the benefits of the European Media Freedom Act for media companies in general?

The European Media Freedom Act will strengthen the editorial freedom of media companies and protect them from unjustified, disproportionate and discriminatory national measures, protecting the pluralism of European media landscape. Media companies will also benefit from fairer and more transparent allocation of state advertising expenditure.

This common set of rules for all EU media players will allow for greater legal certainty and more predictability in media market concentrations, making it easier for media market players to expand their operations across the European internal market. Media companies will be able to benefit from fair competition and better return on investment in the digital environment through, for example, new audience measurement transparency rules and new safeguards concerning content removals on very large online platforms.

  1. What are the benefits of the European Media Freedom Act for public service media providers?

Public service media play a special role in ensuring that citizens have access to information. However, because of their source of funding, public service media are particularly exposed to the risk of political interference.

This is why the Media Freedom Act pays particular attention to public service media and the challenges they face. The Regulation proposes that funding provided to public service media should be adequate and stable, thus ensuring editorial independence. The Regulation also stipulates that public service media providers shall provide a plurality of information and opinions, in an impartial manner. Finally, to ensure greater independence from partisan political influence, the head and the governing board of public service media will have to be appointed in a transparent, open and non-discriminatory manner and can be dismissed only in very specific circumstances.

  1. What are the benefits of the Media Freedom Act 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 accompanying recommendation sets out a catalogue of best practices to strengthen editorial independence and encourages the involvement of journalists in media companies’ decision-making as well as training opportunities.

The Regulation and Recommendation complement the measures to protect journalists issued by the Commission so far, such as the Recommendation on the safety of journalists and the proposed Directive to protect journalists and rights defenders from abusive litigation (anti-SLAPP).

  1.  What are the requirement for the media themselves?  

The Act includes a series of new rights to protect the media and it also comes with a very targeted set of responsibilities. The Act includes some specific requirements for media providing news and current affairs content, as these media play a particularly important role in informing citizens and shaping public opinion.

First, those media have to be transparent about their ownership. This requirement builds on existing EU legislation applying to companies in general (company law and anti-money laundering rules).

Second, those media shall also take the measures that they deem appropriate with a view to guaranteeing the independence of individual editorial decisions and to disclosing any actual or potential potential conflict of interest.

The media have full freedom in deciding which measures are the best fit according to their business model, size and other specificities. However in order to bring more transparency and trust, and in the public interest, the Act requires them to take those important principles – transparency related to owners, actual or potential conflict of interest and the independence of individual editorial decisions – into account. 

This is not about regulating how media organise themselves. The overwhelming majority of media already have relevant measures in place.

It can be noted that the new Board has no role in monitoring those rules and is not a new oversight body for the press sector.

  1. How will the Act regulate the use of spyware against journalists?

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.

  1. What is the role of the European media freedom watchdog? How will the Board operate in practice?

The Commission proposes to set up a new European Board for Media Services comprised of national media authorities. The Board will replace and succeed the European Regulators Group for Audiovisual Media Services (ERGA) established under the EU’s Audiovisual Media Services Directive (AVMSD). The Board shall act in full independence when performing its tasks.

The Board will:

  • promote the effective and consistent application of the European Media Freedom Act and the broader EU media law framework;
  • provide expert advice on regulatory, technical or practical aspects of media regulation;
  • deliver opinions on national measures and media market concentrations which are likely to affect the functioning of the internal market for media services, including by having an impact on media freedom and pluralism;
  • promote cooperation and the effective exchange of information, experience and best practices between national media regulators.

The Board will play a specific role in the fight against disinformation, including foreign interference and information manipulation. It will coordinate national measures related to media services provided by media service providers established outside of the Union that target audiences in the Union and present risks to public security and defence.

The Act also foresees a mechanism of mutual assistance in case one regulatory authority needs the help of another to address risks to the internal market or public security.

It should be noted that regarding the oversight of the rules related to public service media providers, it is up to each Member State to designate one or more independent authorities or bodies that may be different from media regulators. This approach aims to take into account national specificities related to the oversight of public service media.

The Board is not responsible either for the oversight of other provisions of the Act related to the rights and duties of media service providers, including press publications.

  1. How will the media market concentration assessment work?

The Media Freedom Act does not prevent or set specific thresholds for media market concentrations. It does however provide a framework regarding national rules and procedures for assessing media market concentrations that could have a significant impact on media pluralism and editorial independence.

The objective of the proposal is to ensure a well-functioning internal media market. Without prejudice to applicable competition rules, the Regulation will ensure that Member States will assess media market concentrations that could have a significant impact on media pluralism and editorial independence. This will be done on the basis of criteria set out in advance that take into account a number of elements, including effects on the formation of public opinion, safeguards for editorial independence and economic sustainability.

The Board will be able to issue opinions on draft assessments done by national regulatory authorities regarding media market concentrations that may affect the functioning of the internal market. It could also issue an opinion in cases where there is no such national assessment or consultation of the Board by a national authority or body. 

  1. How will the European Media Freedom Act regulate national measures affecting the media?

The Media Freedom Act requires that any national measures (legislative, regulatory or administrative, e.g. granting a licence or authorisation) which can affect operations of media service providers in the internal market should be justified, proportionate, reasoned, transparent, objective and non-discriminatory.

The Board will be able to intervene, upon request of the Commission, by issuing opinions on national measures, including legislative proposals adopted at national level. The Commission would also have a possibility to issue its own opinions on such measures.

In case of breach of the law, the Commission will be able to intervene, using the powers granted by the Treaties, including by launching infringement procedures.

  1. How will the European Media Freedom Act address state advertising and why is this important?

State advertising is an important revenue source in the media sector, and market players should benefit from equal opportunities in accessing it.

With regard to advertising by public authorities (at national or regional level, or local authorities of cities with more than 1 million population) and state-owned enterprises, the European Media Freedom Act requires that the allocation of such state advertising to media is transparent, objective, proportionate and non-discriminatory. The objective is to minimise the risks of public funds and other state resources being leveraged to serve partisan interests and to promote fair competition in the internal media market. Public authorities and state-owned enterprises will have to publish yearly information about their advertising expenditure allocated to media service providers, including the names of the media service providers from which advertising services were purchased and the amounts spent (annual amount and amount per provider).

  1. What 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. The proposal 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.

  1. What are the links between the Act and the Audiovisual Media Services Directive (AVMSD)?

The European Media Freedom Act builds on the revised Audiovisual Media Services Directive (AVMSD), which coordinates certain aspects of Member State regulation on audiovisual media services. In particular, the proposal strengthens the cooperation of national media regulators, including with regard to the provisions of the AVMSD. Notably, the European Media Freedom Act establishes a framework for cooperation and mutual assistance among media regulators and introduces a new mechanism to facilitate the enforcement of the AVMSD obligations of video-sharing platforms. In addition, the European Regulators Group for Audiovisual Media Services (ERGA), which was established under the AVMSD, will be replaced and succeeded by the European Board for Media Services, which will take on the tasks of ERGA under the AVMSD and new tasks under the proposal. The proposal and the accompanying Recommendation also build on the provisions of the AVMSD on transparency of media ownership.

At the same time, the proposed European Media Freedom Act introduces a number of new provisions going beyond the AVMSD, for example, on audience measurement systems, state advertising and the protection of journalistic sources. It also has a broader scope and is not limited to audiovisual media.

  1.  What is the new right of customisation of the audiovisual media offer?

The Regulation introduces a right of customisation of the media offer on devices and interfaces used to access audiovisual media services, such as connected TVs. This means that users will be able to change the default settings and adapt them to their own preferences. It will apply, for example, to hardware (e.g. remote controls) or software shortcuts, applications and search areas.

When placing such devices and user interfaces on the market, manufacturers and developers will need to ensure that they include a functionality enabling users to freely and easily exercise this right.

The rules will not affect the Member States’ ability to ensure the appropriate prominence of audiovisual media services of general interest (Article 7a of the revised Audiovisual and Media Services Directive).

  1.  Why and how does the European Media Freedom Act address audience measurement?

Audience measurement is of key importance for the media and advertising ecosystems, as it helps the calculation of advertising prices, and thus further allocation of advertising revenues and the related planning, production or distribution of content by media service providers.

Building on the Digital Markets Act, the Regulation requires that the providers of audience measurement tools provide media service providers and advertisers with detailed information on the methodology used. The Media Freedom Act will also oblige regulatory authorities to encourage the drawing up of codes of conduct among providers of audience measurement tools to foster transparency, inclusiveness and non-discrimination.

With the new audience measurement rules, media companies will be able to benefit from fair competition and a better return on investment in the digital environment.

  1. Why is the Commission presenting both a Regulation and a Recommendation?

The European Media Freedom Act takes the form of a Regulation comprising common rules and safeguards that will be directly applicable across the European Union once adopted by the European Parliament and the Council. The Regulation is accompanied by a Recommendation that provides a catalogue of voluntary best practices collected from media companies and other media stakeholders and to be discussed with them in order to further support editorial independence. The aim is to help increase the resilience of the media against pressure. It also includes recommendations to media companies and Member States enhancing media ownership transparency. The Recommendation will apply immediately and is expected to lead to positive developments in the internal media market in the short term. In addition, a combination of a Regulation and a Recommendation allows taking into account specificities of media regulation and self-regulation at the EU level and in the Member States.

  1. When will the European Media Freedom Act enter into force?

As the next step, the European Parliament and the Member States will discuss the Commission’s proposal for a Regulation under the ordinary legislative procedure. Once adopted by the co-legislators, the Regulation will be binding in its entirety and directly applicable in all Member States. Most provisions will apply 6 months after the entry into force of the Regulation. Provisions concerning the European Board for Media Services will apply already 3 months after the entry into force to lay the ground for a successful implementation.

  1.  How will the European Media Freedom Act be enforced in Member States?

The Media Freedom Act is a Regulation which means it is directly applicable in all Member States. This means that any alleged breaches can be brought before national Courts. The European Board for Media Services, together with the European Commission, will ensure the consistent application of the European Media Freedom Act and the wider EU media law framework. In the context of national measures affecting the operation of media service providers, the Board’s opinions will be an important element in any decision on whether a Member State has infringed the Act. In the most serious cases, the Commission would be able to intervene, using the powers granted by the Treaties, including launching infringement procedures.

The Recommendation accompanying the legislative proposal is non-binding. However, the Commission will monitor the implementation of the Recommendation by Member States and hold discussions regarding stakeholders’ actions to follow it up in relevant fora.

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