THE EUROPEAN MEDIA FREEDOM ACT
MASTER OF NONE BUT BETTER THAN NONE
OLGA BATURA & MAŁGORZATA KOZAK
The European Media Freedom Act: Master of None but Better than None
Olga Batura & Małgorzata Kozak 1
The Evolution of the EU Law Approach to Media
The evolution of EU law in relation to media pluralism and freedom of expression is marked by a combination of the economic aspect of internal market laws, the gradual inclusion of protection of fundamental rights in the scope of EU law, and technological progress in media market. Analysing the role of fundamental rights within the EU legal framework unearths a complex and often strained – sometimes described as ‘anxious’2 or even a ‘love-hate’ 3 – relationship between fundamental rights and economic freedoms of the internal market. The acknowledgment of fundamental rights as an essential component of the general principles of law by the Court of Justice of the EU (‘Court of Justice’ or ‘the Court’) dates back to 1969.4 However, the primarily economic nature of European integration and the supranational quality of the EU’s legal system mean that these fundamental rights are often interpreted through the lens of the internal market’s principles and ‘economic rationality’. 5
Consequently, since the beginning of the European integration, the rulings of the Court of Justice6 on broadcasters’ freedom to offer services7 assessed the compatibility of national laws on broadcasting, program retransmission, and advertising with (the current) Article 56 TFEU. In these rulings, the Court of Justice determined that EU law prohibits constraints on cross-border television services but refrained from advancing further harmonisation
1. Dr. Olga Batura specialises in the regulation of electronic communications and is a Senior Fellow at the Institute for Information, Telecommunications and Media Law at the University of Münster.
Dr. Malgorzata Kozak is Assistant Professor of European Law at Utrecht University School of Law and Centre for Shared Regulation and Enforcement in Europe – RENFORCE. Małgorzata Kozak, ‘The Media Pluralism Principle, The Financing of Public Broadcasters, and EU Law’ German Law Journal 25(1), 2024, pp. 111-127
2. Sybe de Vries, Xavier Groussot & Gunnar Thor Petursson, Balancing Fundamental Rights with the EU Treaty Freedoms: the European Court of Justice as ‘tightrope walker’, Eleven international publishing 2012, p. 10.
3. Antoine Bailleux, Les interactions entre libre circulation et droits fondamentaux dans la jurisprudence Communautaire: Essai sur la figure du juge traducteur, Facultés universitaires Saint-Louis 2009, p. 26.
4. Judgment of 12 November 1969, Case 29-69 Stauder v. City of Ulm, EU:C:1969:57.
5. Daniel Augenstein, ‘Engaging the Fundamentals: On the Autonomous Substance of EU Fundamental Rights Law’ German Law Journal 14 (10), 2013, p. 1918.
6. Judgement of 26 April 1988, Case 352/85 Bond van Adverteerders and others, EU:C:1988:196; Judgment of 25 July 1991, Case C-288/89 Stichting Collectieve Antennevoorziening Gouda and others, EU:C:1991:323; Judgment of 25 July 1991, Case C-353/89 Commission v Kingdom of the Netherlands EU:C:1991:325.
7. Judgment of 30 April 1974, Case C-155/73, Sacchi, EU:C:1974:40, para. 6.
measures. Those developments resulted in the adoption of the ‘Television without Frontiers’ Directive8 (now the Audiovisual Media Services Directive (AVMSD)).9 The AVMSD promotes free movement of media services and pursues some social and cultural policy objectives, such as removing state restrictions on the production and distribution of media content.10
Finally, the adoption of the EU Charter of Fundamental Rights, especially Article 11, has underscored the inclusion of freedom of expression within the scope of EU law. Understood in the context of Article 10 of the European Convention on Human Rights, Article 11 ECFR encompasses media plurality, with States serving as ultimate guarantors of the freedom of expression, which can only be restricted if deemed necessary.11 Media plurality was connected to the public’s entitlement to access diverse information, grounded in the principle of pluralism.12 The European Parliament has long been striving to safeguard media plurality and diversity through regulatory measures at the EU level. However, these efforts have primarily focused on preserving media plurality amidst growing sector consolidation and rapid technological advancements. Yet, the progress has been hampered by the Commission’s reluctance towards such regulation and its preference to leave media plurality related issues at the discretion of the Member States, presenting ongoing challenges in this area. With the adoption of the European Media Freedom Act (EMFA) in April 2024, this has changed.
Media plurality was connected to the public’s entitlement to access diverse information, grounded in the principle of pluralism
8. Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities [1989] OJ L298/23.
9. Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services [2010] OJ L95/1.
10. Perry Keller, European and International Media Law, Oxford University Press, 2011, pp. 121, 128.
11. See also Judgement of 17 September 2009, Case Manole and others v Moldova App, no 13936/02, ECtHR, para. 101; referring to Article 10 ECHR and Recommendation No. R (96) 10 of the Committee of Ministers to Member States on the Guarantee of the Independence of Public Service Broadcasting, 11 September 1996.
12. See Judgement of 24 November 1993, Case Informationsverein Lentia and Others v Austria, no. 13914/88; 15041/89; 15717/89; 15779/89; 17207/90, ECrtHR, para 53; Mario Oetheimer, Freedom of expression in Europe: case-law concerning Article 10 of the European Convention of Human Rights (Council of Europe, 2007).
The EMFA is the first EU-level legislation specifically focused on protecting media pluralism
The EMFA is the first EU-level legislation specifically focused on protecting media pluralism. At the same time, the sole legal basis for the EMFA is the internal market competence (Article 114 TFEU). On the one hand, this points to the attempt to integrate EU’s economic objectives with its non-economic values, namely the respect for freedom, democracy and human rights (Article 2 TEU). On the other hand, the central concern of the EMFA lies in the realm of culture, as transpires from the EMFA’s explanatory memorandum and preamble. The EMFA focuses firmly on safeguarding media pluralism and freedom, editorial independence, and high journalistic standards - all of which are cultural topics. Because of this, the absence of links to the culture clause of Article 167 TFEU and the lack of reasoning on the selection of the legal instrument of Regulation raise questions.13
As we previously discussed,14 undoubtedly, the EMFA has a noble cause but tries to combine (too?) many instruments. While some of them will be conducive to the regulation’s objectives, others could become counter-effective.
Enhanced Protection of Journalism and Editorial Independence by the EMFA
The EMFA uses many tried and proven tools characteristic of other legal instruments for establishing and functioning the internal market. The further strengthening of independent national regulatory authorities created by the AVMSD and reinforced by its amendments in 2018 is of particular importance.15 The independence requirements of Article 30 AVMSD develop a direct effect through Article 7 EMFA. Also, national media regulators obtain far-reaching competence to request ‘information and data that are proportionate and necessary for carrying out the tasks’ under Chapter III EMFA, which includes provisions on allocation of public funds for state advertising and supply or service contracts, audience measurement, media privilege on very large online platforms and control of media market concentrations. Another measure typical16 of many recent internal market instruments is the creation of the European Board for Media Services – a replacement for the European Regulators Group for Audiovisual Media Services (ERGA) created by the AVMSD. The Board shall advise and support the European Commission by providing technical expertise, promoting cooperation and information exchange,
13. For example, Christina Etteldorf, ‘Why the Words “But” and “However” Determine the EMFA’s Legal Basis’, VerfBlog, 13 June 2023: Lennart Lünemann, ‘Why EU Member States with low risks to media pluralism are so reluctant to support the European Media Freedom Act - Centre for Media Pluralism and Freedom (eui.eu).
14. Olga Batura, & Małgorzata Kozak, ‘Jack of All Trades is a Master of None: European Media Freedom Act Proposal’, EU Law Live Weekend Edition 142
15. See Article 30 of the codified version of the Directive 2010/13/EU of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services, OJ L 095/69.
16. Many boards, bodies and offices have been created recently by EU sectoral legislation. For instance, the Digital Services Act created the European Board for Digital Services. The AI Act launched the creation of the AI Office.
The further strengthening of independent national regulatory authorities created by the AVMSD and reinforced by its amendments in 2018 is of particular importance
and drawing opinions on pertinent issues under the EMFA (Article 13 EMFA). Article 14 EMFA establishes a structured cooperation mechanism between media regulators from different countries regarding cross-border issues.
Strengthening national media regulators and providing them with mechanisms for effective cooperation and coordination of their efforts will undoubtedly lead to greater consistency in applying EU law across countries. Strong independent regulators are indispensable for well-functioning markets, which – following EMFA’s logic – also includes media pluralism in media markets. As indicated by Bayer and Cseres, the EMFA is based on the assumption that ‘each Member State has a fully independent NRA that is capable of effectively enforcing media law, including the EMFA when adopted’,17 but in reality, it is not the case everywhere.
These commonly used institutional measures are supported by some novel regulatory approaches tailored to the specifics of media markets. Considering the central role of public service media in many EU countries and their dependency on the government budget, Article 5 EMFA introduced several safeguards for their independent functioning. Public funds for state advertising are an important revenue source for many broadcasters and may be used to exert political influence. Greater transparency around this issue provided by Article 25 EMFA, ensures public control and helps citizens to contextualise the information they receive through sponsored announcements. Editorial freedom and independence are necessary for public service media and private media companies to guarantee plurality of views and information. In addition to the general obligation to respect editorial freedom and independence (Article 4(2) EMFA), Article 6 EMFA contains specific rules to disclose information about direct and indirect owners of media outlets, which are one of the main tools in this regard. To increase the effectiveness of the EMFA provisions, the European Commission issued an accompanying Recommendation on editorial independence and ownership transparency18 that suggested specific internal mechanisms for editorial integrity and independence, safeguards to promote the participation of journalists in decision-making in media companies and access to information about ownership and control of media companies.
17. Judit Bayer & Kati Cseres, Without Enforcement, the EMFA is Dead Letter: A Proposal to Improve the Enforcement of EMFA, VerfBlog, 13 June 2023.
18. Commission Recommendation (EU) 2022/1634 of 16 September 2022 on internal safeguards for editorial independence and ownership transparency in the media sector, OJ L 245/56.
One more novel measure is the requirement to ensure the protection of journalistic sources and confidential communications, which includes the prohibition of surveillance of journalists (Article 4(3)-(6) EMFA). The protection is extended to freelancers and staff of media companies that may have access to journalistic sources or confidential information due to their professional or regular relationships with the media company or its staff. Together with the anti-SLAPP Directive,19 these measures provide a stronger and more consistent framework for protecting journalists in Europe.
Assessment of Media Market Concentrations
The main new measure aimed at ensuring media pluralism and editorial independence is the assessment of media market concentrations (Article 22 EMFA) in the light of media pluralism. This assessment has been previously discussed and criticised20 at the legislative proposal stage. Unfortunately, most of the previous points of criticism remain valid. The EMFA does not clarify the relation between the assessment of media market concentration and the competition law assessment of concentrations (e.g. whether the latter should take any account of the results of the former, the timing of the two assessments in relation to each other). The EMFA also does not determine the nature of the outcome of the assessment of media market concentrations and what implications it should have for merging companies. The scope of the new procedure is potentially too broad due to the broad definition of media service providers, which includes any online platform provider that provides access to media content (the EMFA does not define ‘media content’).
The EMFA does not clarify the relation between the assessment of media market concentration and the competition law assessment of concentrations
19. Directive (EU) 2024/1069 of the European Parliament and of the Council of 11 April 2024 on protecting persons who engage in public participation from manifestly unfounded claims or abusive court proceedings (‘Strategic lawsuits against public participation’), OJ L 2024/1069.
20. Olga Batura & Małgorzata Kozak, ‘Jack of All Trades is a Master of None: European Media Freedom Act Proposal’, EU Law Live Weekend Edition 142
In addition, the EMFA does not contain any de minimis rules that would exclude smaller concentrations from the assessment – and does not require Member States to introduce such rules. Member States must introduce national rules that allow the assessment of all media market concentrations that could have a significant impact on media pluralism and editorial independence (Article 22 (1) EMFA). It could be argued that the de minimis rule is encoded in the phrase ‘significant impact’. Yet, firstly, it is not clear what the threshold for ‘significant’ impact is. Secondly, the impact needs to be measured within a certain context (e.g. market), which is not indicated in the EMFA. Thirdly, arguably, for editorial independence, any merger would have a potentially significant impact due to the change of the ownership and control of the media company.
The media market concentration procedure also raises questions regarding the competences and responsibilities of various authorities. By contrast to the competition law assessment, media market concentrations that are likely to affect the functioning of the internal market for media services are not transferred to the European Commission but are dealt with by the ‘concerned’ national regulator (Article 22 (4) EMFA). The EMFA does not specify what this concerned regulator is (e.g. how to determine who is in charge if merging companies are situated in different Member States). The European Commission may issue an opinion only if the national regulator provided no assessment in the case where the media market concentration may affect the functioning of the internal market (Article 23 (1) EMFA). Yet it is not clear why and in what circumstances the national regulator may decide not to provide an option, considering that it is under an obligation by the EMFA to do so. Moreover, the abovementioned concerns about the independence of some national regulators remain valid. EMFA does not address those concerns.
Consequently, it remains open how the consistent application of EMFA will be ensured. It depends on Member States having the same understanding of media pluralism, which currently does not exist, and how it is to be assessed. The Study on Media Plurality and Diversity Online documents divergences in national approaches to media pluralism. For example, restrictions on market share can be found in 15 Member States,21 and regarding measuring media plurality, the study identifies 142 different methods for measuring media concentration throughout the Union.22 Of the 27, only 12 Member States actually monitor media pluralism,23 and of these, only Belgium and Poland refer to the HHI index.24
21. European Commission, Directorate-General for Communications Networks, Content and Technology, Parcu , Brogi, Verza et al., Study on media plurality and diversity online – Final report, Publications Office of the European Union, 2022, https://data.europa.eu/ doi/10.2759/529019, p. 208.
22. idem, p.243.
23. idem, p. 244.
24. idem, p. 245.
Defining the ‘Given Market’ under the EMFA
Because – at least partially – the EMFA is a market regulation, the question of the relevant market definition that should be considered for the assessment of media market concentration is topical. For instance, if this assessment is distinct from the competition law assessment of concentrations,25 does it mean that a different definition or a different mechanism for the definition of the relevant market should be used? Presumably, to distinguish itself from EU competition law, instead of ‘relevant market’, the EMFA preamble uses the term ‘given market’ in this context (Recital 67 EMFA). However, in the absence of clear criteria for market definition, it is difficult to imagine what the ‘given market’ may be: the whole country (e.g. for national newspapers or broadcasters), a specific region (e.g. for regional publications or radio) or even just one city or a city district? Due to the absence of de minimis rules, all scenarios are theoretically possible because Recital 68 EMFA states that ‘the possible impact on the formation of public opinion in significant parts of a given media market’ can be assessed.
Considering the above stipulations, it becomes less clear when a media market concentration is ‘likely to impact the functioning of the internal market’. The cross-border effect that Recital 67 EMFA stipulates (i.e. ‘significant influence on the formation of public opinion in a given media market with potential effects on audiences in the internal market’) can make it easy to achieve due to rich linguistic diversity in the EU. For example, Englishlanguage media services are consumed all over the EU. At the same time, there are also small linguistic minorities living at the border regions of just two or three countries (e.g. Rusyns).
Conclusion
The EMFA is a welcome yet not-fully-thought-through attempt to marry the achievement of EU’s economic objectives with promotion of its non-economic values. Some of EMFA’s measures (e.g. strengthening media regulators, protection of journalists) are likely to be effective to foster healthier media ecosystem in Europe. Other measures (e.g. new assessment of media market concentrations) are less likely to reduce the fragmentation of the internal market, which is one of EMFA’s objectives. The EMFA leaves a lot of leeway to Member States, lacks clarity of terminology and instructions and does little to address the consistency in the application of the principles it outlines
The EMFA leaves a lot of leeway to Member States, lacks clarity of terminology and instructions and does little to address the consistency in the application of the principles it outlines
25. Recital 64 EMFA states that Member States should provide for rules and procedures in national law to allow for the assessment of media market concentrations. Such rules and procedures should be independent from competition law assessments.