Why the European Media Freedom Act is a groundbreaking step for Europe

On 16 September 2022, the European Commission published its eagerly awaited proposal for a Media Freedom Act (EMFA). In the coming days and months, a lot will be said about its content. In this brief post we reflect, instead, on process: how and why this piece of legislation even came to light, and what it means for the future of media freedom and pluralism in Europe.

The Commission announced its intention to reinforce the European Union’s policy framework for strengthening media freedom and media pluralism in the 2020 European Democracy Action Plan. Nine months later, in her September 2021 State of the Union Address, Commission President Ursula von der Leyen announced the delivery of the Media Freedom Act. Although the drafting work has been particularly intensive in the past two years, the law is a result of decade-long efforts to protect media pluralism as one of the core values on which the EU is founded. Notably, this is a policy area in which the EU has had no explicit competencies.

The EU is based on the rule of law and every action taken by the EU needs to be founded on treaties. These set out policy areas in which the member states have conferred their competences to the EU and thus also power to act. The media policy, as well as media pluralism, is still primarily in the hands of individual member states.

More than the market dimension

The most solid ground on which the EU can base its intervention in media policy is the establishment and functioning of the internal market. This is further justified with the importance of the media sector for an inclusive and sustainable post-pandemic recovery and for the green and digital transition of the EU economy, and especially considering the increasingly transnational dimension of digital transformation and competition. The stated objective of the EMFA proposal is thus to improve the functioning of the internal media market, suggesting that it should primarily deal with the market dimension of media pluralism.

However, the media is not and cannot be seen as any other business. In addition to their market dimension, media services contribute to education, cultural development and inclusiveness of society, protection of fundamental rights such as freedom of expression and access to information. When acting in an independent and plural manner they contribute to informed citizenship, which is essential for the functioning of both democracy and the economy.

This dual nature of the media services is acknowledged in the EMFA proposal. And one of the Commission’s main reasons motivating the need for a European media freedom act is the inability of the media to fulfil their social role by providing quality service produced independently and in line with journalistic standards if they are increasingly facing interference in their editorial decision making. As Vera Jourova, the Vice President of the European Commission for Values and Transparency, declared at the public presentation of the Media Freedom Act proposal, “This is a proposal for the times we live in, not for the times we would like to live in.”

The Media Freedom Act’s evidence base

Jourova’s assessment, as well as the process of initiating and drafting EMFA, was significantly informed by the Media Pluralism Monitor (MPM), a regular scientific monitoring of the risks to media pluralism in EU member states and candidate countries. The MPM is run by the Centre for Media Pluralism and Media Freedom, based at the European University Institute’s Robert Schuman Centre for Advanced Studies. Since 2020, the Monitor has also been used as a key information source for the media freedom angle of the European Commission’s annual rule of law reports.

Over the years of its implementation, the Monitor has stressed that no country under its purview is free from risks to media pluralism. The Monitor employs a broad definition of media pluralism, which means that EU member states and candidate countries may be found vulnerable to risks relating to one or several dimensions. These include:

• protection of fundamental rights, status and safety of journalists, and well-functioning of the media authorities;
• market plurality and competition enforcement in both media content production and its increasingly algorithmic distribution;
• independence and autonomy of newsroom operations and transparency and fair criteria in the allocation of state support and resources to the media; and
• social inclusiveness and access to the media for vulnerable social groups, as well as media literacy.

The most recent MPM assessment, covering the year 2021, showed that the media market is at greatest risk from high levels of concentration. Media organisations and journalists struggle to remain afloat, and their sustainability is affected by the dominance of online platforms in the digital advertising market and these platforms’ increasing presence in news delivery. This economically fragile position of media and journalists makes them more susceptible to both political and economic pressures, with negative effects for professionalism and editorial independence – as noted above – and in turn for the social role of the media in guaranteeing a healthy democracy.

Regulatory next steps

EMFA comes in the form of regulation. This means that, if adopted by the European Parliament and the Council, the Act’s set of rules aiming to safeguard media pluralism and freedom will apply automatically and uniformly to all EU countries. The initiative has in general been welcomed across the EU and by most stakeholders, but some concerns have been voiced, so lively negotiations over its content should be expected in the coming months.

The key component of the proposal is the transformation of the European Regulators Group for Audiovisual Media Services (ERGA), established by Directive 2010/13/EU, into the European Board for Media Services. The new body, composed of representatives of national authorities, has a broader scope of action and additional tasks, among these giving opinions on media market concentrations that could have a significant impact on media pluralism and editorial independence.

This step towards strengthening the role of, and cooperation among, national media authorities has been consistently built through the EU’s anti-disinformation policy and the Digital Services Act, but in the EMFA proposal it takes a concrete form for the first time. While this cooperation among national authorities is indeed a necessary and logical step, it will require, above all, that the authorities be effectively independent from political and commercial influences to fulfil this sensitive role assigned by EMFA. Moreover, they will need adequate human and financial resources to be effective when dealing with new and broader remits.

 

Iva Nenadić is a Research Fellow of the Centre for Media Pluralism and Media Freedom (CMPF) and a member of the European Digital Media Observatory (EDMO) at the EUI. She is a Lecturer in media policy, internet governance, and computational propaganda at the University of Zagreb’s Faculty of Political Science.

Elda Brogi is a Part-time Professor at EUI, Scientific Coordinator of the Centre for Media Pluralism and Media Freedom (CMPF) and a member of the executive board of the European Digital Media Observatory (EDMO). Brogi teaches Communication Law at the University of Florence.