European Federation of Journalists. European Media Freedom Act (EMFA):

It has been said this is a historic act as the European Media Freedom Act, called “EMFA”  is the first European regulation dealing with all media. The European Federation of Journalists (EFJ), together with other media freedom groups, the European Broadcasting Union (EBU) and civil society organisations, has worked hard for over two years to get an ambitious act. A future-proof act against the growing attacks against journalism, journalists and media workers, against media capture, conflict of interest and for transparency of media ownership, of state advertising and protections for journalists’ editorial independence.

Even though the final Act is not as ambitious as advocated for and some provisions may lack legal certainty and clarity, the EMFA is a very important new European legislation. With its high symbolic value for journalists and media in the EU, it can contribute to protect journalists and media from undue political as well as economical influence.

Now, it is key to raise awareness of the EMFA, its objectives and the new obligations at national level to ensure that this groundbreaking regulation can fully unfold. To make the implementation and enforcement as effective as needed, transparent and inclusive cooperation is important from the European Commission, Member States and the new European Board for Media Services (EMBS), which will replace the European Regulators Group for Audiovisual Media Services (ERGA). In this respect, it will be essential that national stakeholders, including journalists’ organisations, have the legal expertise, ressources, and the will to implement the minimum standards set out by the EMFA in the most ambitious way. Article 1.3 of the EMFA says, and it is important to remember, that Member States can adopt more detailed or stricter rules to safeguard media freedom and pluralism in the many fields covered by the regulation, including those mentioned here below.

Introduction by Renate Schroeder, EFJ Director.

The European Federation of Journalists (EFJ) asked some experts, with whom it works closely with, what is important to consider when it comes to the protection of sources and protection from spyware (Article 4); independence and financial sustainability of Public Service Media (Article 5); and transparency of media ownership.

Based on the guarantees of the text, how will journalists be able to protect their sources from now on?

The protection and confidentiality of sources is a crucial topic for journalistic freedom and safety, even more since this right has been severely curtailed in some EU Member States. Article 4 of EMFA states that it is forbidden for Member States to use any method, such as detention, sanctions, office searches, installation of invasive surveillance software on journalists’ equipment, or other coercive measures against journalists and media providers to disclose their sources or confidential correspondence. An interference with the protection of journalistic sources (POJS) can only be justified under very strict conditions, scrutinised in advance by judicial or other independent authorities.

The EMFA sets a minimum framework for the protection of journalistic sources (POJS, meaning that EU member states can still, and should, take further steps to protect the journalists’ sources. The EMFA introduces new monitoring and evaluation mechanisms to ensure the respect of the EMFA standards regarding POJS. These standards are based on Article 10 of the European Convention of Human Rights (ECHR) and Article 11 of the Charter of Fundamental Rights, and the relevant case law of the European Court of Human Rights (ECtHR) guaranteeing a robust protection of journalists’s sources.

The EMFA guarantees effective judicial protection in case of any interference with the POJS or confidential communications. Member States shall also entrust an independent authority or body with relevant expertise to assist those persons invoking their POJS. Where no such authority or body exists, those persons may seek assistance from a self-regulatory body or mechanism.

This expertise was provided by Dirk Voorhoof, Professor em. Ghent University / Human Rights Centre and Legal Human Academy.

To what extent does the EMFA ensure the independence of Public Service Media (PSM)?

The mission of Public Service Media (PSM) is to inform, educate and entertain everyone and everywhere. Being financed and controlled by the public, PSM are there for the benefit of society as a whole. With the proliferation of disinformation and hate speech in today’s highly digitised world, PSM as an independent, trusted source of news and information have never been more important. However, for PSM to be able to truly fulfil their important social, cultural, and democratic role, they must be independent from any political influence, including through financial pressures. While some countries have in the past been reluctant to apply international standards in that regard, such as those established by the Council of Europe, the EU has now put in place binding safeguards that will shield PSM from undue political and economical influence. Although the Member States remain responsible for defining the scope and detailed organisation of their PSM, the EMFA requires governments to establish a framework that ensures the editorial and functional independence of PSM.

To prevent the politicisation of PSM management structures, for instance, the EMFA requires Member States to ensure that the “procedures for the appointment and the dismissal of the head of management or the members of the management board (…) aim to guarantee the independence of [public service media].” The EMFA stipulates in this respect that appointments of the head of management or management board members must be made on the basis of clear criteria laid down in advance. Only extraordinary circumstances, which also need to be clearly defined in advance, may result in their dismissal prior to the conclusion of their term of office.

Importantly, the EMFA tackles the risks stemming from the underfunding of PSM. Member States are required to put in place procedures that guarantee adequate, sustainable and predictable funding so that the public service media can fulfil their remits and are capable to innovate and further develop.

This expertise was provided by Thomas Bergmann, Senior EU Policy Advisor, European Broadcasting Union (EBU).

What are the new breakthroughs regarding the transparency of media ownership?

Transparency in media ownership is key to informing the public about possible political interference and allowing regulators to prevent media ownership from being excessively concentrated in the hands of too few owners, resulting in a hindrance to the democratic debate.

However, the EMFA has failed to provide strong safeguards regarding transparency in media ownership. The text requires the name and contact information of the direct and indirect owners who have the ability to influence operations and decision-making to be disclosed. Publication of their names as beneficial owners and the total amount of state advertising received each year are also required. Media freedom experts largely agreed on EMFA’s lack of firmness of this article that leaves room for hiding ownership structure and possible economic or political influence from the public.

The European Parliament previously recommended broad disclosure of information on the political affiliation and other beneficial owners of media enterprises in order to foster accountability and transparency. Compared to the EP version, the final version of EMFA shows a significant regression.

National regulatory authorities or other competent bodies should develop media ownership databases containing up-to-date and easily accessible information about beneficial owners with limited data sets. Furthermore the Commission should provide guidance on making information on the ownership structure of media services providers accessible and establishing an EU-wide database of media ownership. The EMFA missed the opportunity to introduce strong transparency requirements, but strong implementation rules supported by proper enforcement could create meaningful transparency of beneficial media ownership across the EU.

This expertise was provided by Eva Simon, Senior Advocacy Officer at Civil Liberties Union for Europe.

In what way will the measures on editorial independence offer journalists greater freedom in their daily work?

Article 6 dealing with duties of media service providers and in particular editorial independence are in our view not strong enough. First, only media organisations providing news and current affairs are concerned and the wording is not precise. It says “they shall take measures that they deem appropriate with a view of guaranteeing the independence of editorial decisions”. Second, the text talks about “editorial decisions” but it is very open at what level. In some countries it may however be a useful tool to enforce editorial statutes or guidelines.

The Commission Recommendation (EU) 2022/1634 of 16 September 2022 on internal safeguards for editorial independence and ownership transparency in the media sector is a useful best practice catalogue which should help to motivate media to establish self regulatory bodies and editorial statutes, ombudspeople etc. But there is no obligation.

The article also demands from media service providers to “ensure disclosure of any actual or potential conflict of interest that may affect the provision of news and current affairs content. Again it only talks about disclosure and does not prohibit such conflict of interest.

Positive in the recitals is the fact that it says: “Editorial independence is especially important for media service providers providing news and current affairs given its societal role as public good.”

This expertise was provided by Renate Schroeder, EFJ Director.

This is the first of a series of contributions regarding the EMFA and its implementation process. The EFJ thanks its esteemed contributors, Professor Dirk Voorhoof, Thomas Bergmann, EBU and Eva Simon, Civil Liberties for their valuable input.