European Media Freedom Act* (Questions & Answers)

Questions & Answers: European Media Freedom Act

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

The European Media Freedom Act will strengthen the market and editorial freedom of media companies and protect them from unjustified, disproportionate, and discriminatory national measures, enhancing free movement of services and protecting the pluralism of the European media landscape. The Act recognises explicitly the right of media service providers to exercise their economic activities in the internal market without restrictions other than those allowed pursuant to Union law. Member States must respect the effective editorial freedom and independence of media companies.

Other benefits for media companies include, for example, fairer and more transparent allocation of state advertising expenditure. The new rules for EU media players will also 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, the audience measurement transparency rules and new safeguards concerning content removals on very large online platforms.

2. 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 or governance, public service media are particularly exposed to the risk of political interference.

This is why the European Media Freedom Act pays particular attention to public service media and the challenges they face. The Regulation demands that funding procedures for public service media should guarantee adequate, sustainable and predictable financial resources and that public service media providers should be editorially and functionally independent. The Regulation also stipulates that Member States shall ensure that public service media providers provide a plurality of information and opinions, in an impartial manner. Finally, to ensure greater independence from partisan political influence, the head of management or the members of the management board of public service media will have to be appointed based on transparent and non-discriminatory procedures and criteria laid down in advance and they can be dismissed before the end of their term of office only in exceptional circumstances.

3. What are the benefits of the European Media Freedom Act for journalists and other media professionals?

Editorial decisions will be better protected from undue interference and, in the case of public service media, journalists will have assurances that their employer is equipped with adequate, sustainable, and predictable funding for future operations, in accordance with their public service remit.

The Act also provides strong safeguards for the confidentiality of journalistic sources and communications, including in relation to the use of intrusive surveillance software against media, journalists and those in regular or professional relationships with media or journalists .

The recommendation on internal safeguards for editorial independence and ownership transparency in the media sector, which accompanied the Commission proposal released in September 2022, has additionally set out a catalogue of best practices to strengthen editorial independence while encouraging the involvement of journalists in media companies' decision-making as well as offering training opportunities.

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

4. What are the requirements 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, to the benefit of users.

First, media service providers must be transparent about their ownership, including beneficial ownership. This requirement builds on existing EU legislation applying to companies in general (company law and anti-money laundering rules). It entails, among other things, the development of national media ownership databases. Media service providers must also disclose the total annual amount of state advertising allocated to them, in addition to advertising revenues received from public authorities or entities of third countries.

Second, the Act includes some specific and proportionate requirements for media providing news and current affairs content, as they play a particularly important role in informing citizens and shaping public opinion. The Act leaves to media service providers a very broad discretion. Indeed, they shall take the measures that they deem appropriate with a view to guaranteeing the independence of editorial decisions and to disclosing any actual or potential conflict of interest that may affect the provision of their content.

5. How will journalists be protected against surveillance?

Member States are prohibited from forcing journalists to disclose their sources or confidential communications, including by detainment, sanctions, office searches or by installing intrusive surveillance software on their devices.

By way of derogation, any such measures will only be permitted if justified on a case-by-case basis ‘by an overriding reason of public interest' and if the measures are proportionate, in compliance with Union law and the Charter of Fundamental Rights, and subject to prior authorisation by a judicial authority or an independent and impartial decision-making authority. On top of those strict conditions, in order to use intrusive surveillance software, it will also need to be justified for investigations of serious crimes. Surveillance measures will have to be regularly reviewed by the judiciary or an independent and impartial decision-making authority.

The right to an effective remedy and the right to judicial protection will apply.

Member States can always provide even more protective measures for the journalists.

Journalists will be able to go to court to defend their rights under the Media Freedom Act.

6. What is the role of the European Board for Media Services ? How will the Board operate in practice?

The European Media Freedom Act provides for a European Board for Media Services comprised of national media authorities or bodies, assisted by a Commission secretariat. 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.

Where the Board considers matters beyond the audiovisual media sector, it shall consult representatives from the relevant media sectors operating at national or Union level. This pertains, in particular, to issues related to press publications and radio and it may involve, for example, journalistic associations and media or press councils.

The Board will, among other things:

• Promote the effective and consistent application of specific parts of the European Media Freedom Act and of the AVMSD.
• Provide expert advice on regulatory, technical, or practical aspects of media regulation.
• Deliver opinions on the impact of media market concentrations likely to affect the functioning of the internal market for media services or on certain regulatory or administrative measures taken by Member States.
• Promote cooperation and the effective exchange of information, experience and best practices between national media regulatory authorities or bodies.
• Facilitate cooperation between media service providers and Very Large Online Platforms (as defined in Digital Services Act) hosting their content through, for example, structured dialogue. The Board will also play a specific role in the fight against disinformation, including foreign interference and information manipulation. It will coordinate relevant measures by the national regulatory authorities or bodies related to the dissemination of or access to media services originating from outside the Union or provided by media service providers established outside of the Union that target or reach audiences in the Union and present serious risks to public security.

The Act also provides for a mechanism for cooperation in case one regulatory authority needs the assistance 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 or put in place mechanisms free from political influence by the government. This approach aims to take into account national specificities related to the oversight of public service media, while guaranteeing the necessary independence and effectiveness of the competent authorities.

7. How will the media market concentration assessment work?

The European Media Freedom Act provides a framework regarding national rules and procedures for assessing media market concentrations that could have a significant impact on media pluralism and editorial independence of media service providers in the internal market.

The objective is to ensure a well-functioning internal media market. Without prejudice to applicable competition rules, the Regulation will ensure that Member States provide in national law for an assessment of such media market concentrations that could have a significant impact on media pluralism and editorial independence, including where the concentration involves at least one media service provider or one online platform providing access to media content. Member States will have to lay down criteria set out in advance that take into account several elements, including effects on the formation of public opinion, safeguards for editorial independence, economic sustainability and possible commitments that may be offered by the parties to the concentration.

The Board will be able to issue opinions on draft assessments or draft opinions by national regulatory authorities or bodies regarding media market concentrations that are likely to affect the functioning of the internal market for media services. The relevant national regulatory authority or body must take utmost account of the opinion, which will be made publicly available. It could also issue an opinion where the national authorities have not conducted a media pluralism assessment or have not consulted the Board.

8. How is the European Media Freedom Act impacting national measures that affect media pluralism or editorial independence of media service providers?

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

The Board will be able to intervene, upon its own initiative or upon request of the Commission or upon a duly justified request of a media service provider, by issuing opinions on national regulatory or administrative measures which are likely to significantly affect the operation of media service providers in the internal market. The Commission also has a possibility to issue its own opinions on such measures.

9. How is the European Media Freedom Act addressing state advertising?

State advertising (i.e. public funds allocated for promotional or self-promotional messages, public announcements or information campaigns by public authorities or entities) is an important revenue source in the media sector, and market players should benefit from equal opportunities in accessing it.

The European Media Freedom Act requires that the criteria and procedures for the allocation of such state advertising to providers of media services and online platforms (and supply or service contracts with them) comply with principles such as proportionality and non-discrimination.

Furthermore, public authorities or entities will have to publish yearly information about their advertising expenditure allocated to providers of media services and online platforms, including the names of the providers from which advertising services were purchased and the amounts spent.

The objective is, first, to minimise the risks of public funds and other state resources being leveraged to serve partisan interests and, second, to promote fair competition in the internal media market.

The allocation of state advertising will be monitored by national regulatory authorities or bodies or other competent independent authorities or bodies in the Member States.

10. 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 (DSA).

The Regulation offers additional protection against the unjustified removal by VLOPs (above 45 million monthly active users in the EU and designated under the DSA) of media content deemed incompatible with their terms and conditions. To benefit from this protection, the media has to be transparent about their ownership, editorially independent from Member States, political parties, third countries or entities controlled or financed by third countries. VLOPs will need to communicate to media service providers the reasons for suspending or restricting the visibility of the aforementioned content before the suspension or restriction of visibility takes effect.

Moreover, prior to the restriction or suspension taking effect, the media service providers will be given an opportunity to reply within 24 hours, or within a shorter timeframe in crisis situations referred to in the DSA. This early warning procedure does not apply when content moderation decisions by the VLOPs are adopted in execution of their responsibilities under the DSA and the AVMSD, notably their obligations to diligently act to tackle illegal content, protect minors and take measures to mitigate systemic risks stemming from their services, such as disinformation.

Any complaints lodged by media service providers must be processed with priority by those platforms. The European Media Freedom Act provides for a meaningful and effective dialogue between the parties to avoid unjustified content removals and for obligatory annual reporting by VLOPs.

To support effective implementation, the European Board for Media Services will organise a structured dialogue between VLOPs, the media sector and civil society to discuss experience and best practices in the application of the rules, to foster access to diverse offers of independent media on VLOPs and to monitor adherence to self-regulatory initiatives aimed at protecting society from harmful content, including disinformation and foreign information manipulation and interference.

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

The European Media Freedom Act builds on the Audiovisual Media Services Directive (AVMSD), which coordinates certain aspects of Member State regulation on audiovisual media services. In particular, the European Media Freedom Act strengthens the cooperation of national media regulators, including regarding the provisions of the AVMSD. Notably, it establishes a framework for cooperation 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 by the European Board for Media Services, which will be responsible for the tasks of ERGA under the AVMSD and for the new tasks provided for in the Act. The Board will forward its deliverables to the Contact Committee established by the AVMSD.

At the same time, the European Media Freedom Act introduces several new provisions going beyond the AVMSD, for example, on audience measurement systems or media ownership transparency. It also has a broader scope and is not limited to audiovisual media.

12. What is the new right of customisation of the media offer?

The Regulation introduces a right of customisation of media offer on devices and interfaces used to access media services providing programmes. This means that users will be able to change the relevant configuration, including default settings, and adapt them to their own preferences. This will apply, for example, to connected TV home screens and menus, car audio systems, in addition to software shortcuts providing and controlling access to media services, including remote controls.

When placing such devices and user interfaces on the market, manufacturers, developers and importers will need to ensure that they include a functionality enabling users to exercise this right freely and easily at any time. They must also ensure that the visual identity of the available media service providers is consistently and clearly visible to the users.

The rules exist in parallel to the Member States' ability to ensure the appropriate prominence of audiovisual media services of general interest and the obligation to ensure that audiovisual media services provided by media service providers are not, without the explicit consent of those providers, overlaid for commercial purposes or modified (Articles 7a and 7b of the revised Audiovisual and Media Services Directive).

13. 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 influences the allocation of advertising revenues, as well as pricing, purchases or sales of content, which in turn has an impact on planning, production and distribution of content.

Building on the Digital Markets Act, the European Media Freedom Act requires that the providers of proprietary audience measurement systems who do not follow the standards widely agreed within the industry provide media service providers, advertisers and authorised third parties with detailed information on the methodology used. The Act will also oblige such methodology and its application to be independently audited once a year. Providers of proprietary audience measurement systems will also be required to provide, upon request, to each media service provider information on the audience measurement results. Regulatory authorities, furthermore, must encourage the parties concerned to draw up codes of conduct to foster transparency, inclusiveness, and non-discrimination.

With the new audience measurement rules, media companies will be able to limit risks of inflated or biased audience data and subsequently benefit from fair competition and a better return on investment in the digital environment.

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

Following the political agreement, European Parliament and the Council will have to formally adopt the Act. Once officially adopted and published in the Official Journal of the European Union, the Regulation will be binding in its entirety; it will be applicable in all Member States after 15 months. However, some specific provisions will have a different date of entry into application, for instance: 12 months as regards the provisions on regulatory cooperation between media regulators and 36 months regarding the customisation right.

*Updated on 21/12/2023