After 15 months of intense and often volatile debate, the European Media Freedom Act (EMFA) is entering its final weeks of negotiations with a coalition of journalists and civil society groups calling on the European Parliament to hold firm on key issues as it negotiates the final text with the European Council – which represents the EU member states – and the Commission.
With the Parliament having made substantial improvements to the original Commission text, there is much at play in the final negotiations – the so-called trilogue.
The Commission launched the EMFA with lofty claims that it would provide the rules and the tools to roll back media capture, protect media independence and media pluralism, and end the misuse of spyware against journalists across the bloc. Its first text, while strong on principles, often fell short on clear obligations and methods of implementation vital to move it from a statement of intent to a tool with the necessary teeth to protect journalism against political interference and rights violations.
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The European Parliament, having done much to correct these weaknesses, is now under sustained pressure to shred many of these improvements from member states afraid to upset Publisher groups who have lobbied hard against any limitations of their ability to operate on the one hand, and from other member states where political capture of media has become so commonplace that they fear the EMFA would weaken their influence over mainstream journalism, on the other hand.
Key issues currently at stake include:
- Article four, which sets out to limit the use of spyware against journalists, has been vastly improved by the European Parliament which included extensive safeguards on the conditions under which the use of spyware may be permissible. While its version still falls short of the standards on protection of sources set by the case law of the European Court of Human Rights, it nevertheless sets in place key protections including, and most importantly, the requirement for an ex-ante independent judicial approval. We also call for the removal of the Council’s reference to Article 4 being “without prejudice to member state responsibility for national security” and placing it in the recitals where clarification of meaning belongs.
- Article five, which seeks to protect the independence of public service media (PSM), should also take up the European Parliament’s position which would effectively shield PSM from interference by governments and ensure adequate, predictable, and sustainable funding. The negotiators should avoid weak language proposed by the Council which asks that member states “aim to” guarantee the independence of PSM, but rather ensure that a positive obligation is imposed on member states as set out by the Parliament.
- Article six imposes ownership transparency obligations on media, which is vital for the public to know who has the controlling interest in the media and how that, and potential conflicts of interest, might shape the editorial line to further their corporate or political interests. This is enormously welcome. The crucial difference between the Council and Parliament versions are that the Council sets out the principle of transparency and asks only news and public affairs media to make limited information accessible to their audience, while the Parliament provides for an oversight mechanism to ensure the transparency, to verify the declarations and then make the information publicly available on both national and EU-wide databases. Only uncensored access to a wide scope of data, including those from small and medium enterprises (SMEs), can allow potential political interference and conflicts of interest to come to light. Without these implementation elements media are being asked to be transparent as a matter of good faith with no consequences for withholding information.
- The EMFA’s accompanying Recommendations encourage media to set the highest editorial standards by setting down rules that ‘protect media integrity and independence from undue political and business interests’. Best practices might include editorial statutes, journalistic codes and self-regulation. The EMFA’s Article 6, paragraph 2, attempts to reinforce this by obliging news media to guarantee editorial independence which the Parliament correctly spells out as the responsibility of editors and editors in chief. The Council, however, insists on removing reference to editors altogether, opening the door for publishers to dictate editorial decisions to the newsroom. This would, in our view, severely undermine editorial independence in principle and in practice and we urge for the Parliament’s position to be maintained.
- Article 21 provides for a media pluralism test for mergers to protect media pluralism from excessive concentration of ownership reducing media plurality and independence and increasing the likelihood of media capture. Only a handful of EU countries consider media plurality when assessing media mergers and an EU wide media plurality test would both create a more coherent internal market for media as well as protect media plurality across the bloc. For Article 21 to work effectively, the test as prescribed with its three criteria must be applied to both cross-border and internal mergers. Furthermore, any assessment must include a media plurality and independence assessment rather than a watered down ‘generic’ assessment. Finally, the European Board for Media Services (EBMS) must be provided with sufficient independence to oversee the EMFA including the power to initiate its own assessments without the need of a request to do so from the European Commission and with the necessary resources to fulfil its duties.
- Article 24 seeks to end the abuse of state advertising by governments who use it to reward positive media coverage and punish critical media. On November 12, the newly re-elected prime minister of Slovakia, Robert Fico, threatened, in a ten-minute video tirade against critical journalists he labelled ‘enemy media’, to instruct his people in government to withdraw state advertising funds. Three years ago, the Austrian Chancellor Sebastian Kurz resigned after allegations of misusing state funds to pay for positive news stories. The EMFA requires governments to distribute funds in an objective, proportionate and transparent manner. The European Parliament improves on this in several areas, most importantly it removes an exemption for local governments of populations under one million. While the Council has proposed reducing this threshold to 100.000, we believe that any exemption provides a dangerous loophole through which governments – national and local – can redirect state funds to reward their allies in the media.
As the trilogue negotiations enter their final days we urge again all sides to adopt measures that do justice to the Act’s ambitions of protecting media freedom and pluralism. Our shared goal is for groundbreaking legislation that ensures journalists are fully protected and the public’s right to know is guaranteed. We all know that much is at stake, and press freedom is a crucial pillar that Europe cannot afford to compromise on.
International Press Institute (IPI)
European Federation of Journalists (EFJ)
Civil Liberties Union for Europe
Krzystof Bobinski, Polish Society of Journalists, Warsaw
Dirk Voorhoof, Human Rights Centre UGent/Legal Human Academy
Association of European Journalists (AEJ)