Regulation (EU) 2024/1083 of the European Parliament and of the Council of 11 April 2024 establishing a common framework for media services in the internal market and amending Directive 2010/13/EU (European Media Freedom Act) came into force in May. What does it bring with itself?
During her speech to the European Parliament, Ursula von der Leyen, President of the European Commission, announcing the regulation, justified its necessity with the words: “When we defend media freedom, we defend our democracy”. These are also the goals indicated in the explanatory memorandum of the EC’s proposal with the draft of this regulation, i.e. to prevent the risk of state interference in public media, the lack of transparency and possible bias in audience measurement systems and methods leading to market distortions, or the unfair and non-transparent distribution of state advertising spending among media service providers. The regulation is also intended to respond to the increasing role of foreign factors in threats to media freedom, resulting, among other things, from the dominant role of global companies in domestic markets.
At its core, the regulation aims to introduce common rules for properly functioning the internal market for media services.
One of the most critical aspects of the Regulation is the definition of the rights and obligations of media service providers. The EU legislator has opted for balance, setting the burdens on member states and providers reasonably evenly. The rights that states must guarantee to suppliers are listed first. The Regulation grants suppliers editorial freedom in the broadest sense, guarantees the independent operation of media service providers with a public mission, and obliges states to protect journalistic sources and the confidentiality of communications effectively. Of the obligations imposed on service providers, the two most important are: sharing relevant information, such as the company’s ownership structure, available to service recipients and guaranteeing editors the freedom to make individual editorial decisions.
The EMFA also establishes a framework for cooperation between national authorities or regulatory bodies of member states. An authority to which a request for cooperation has been made, can refuse it only after justifying. As a complement, the Regulation requests expedited cooperation when the freedom to provide or receive services in the internal market is threatened.
Also crucial to the Regulation are the provisions in Article 22 relating to assessing concentrations in the media market. Article 22 stipulates what national regulations should be, stating that they must be characterized by transparency, objectivity, and proportionality and meet the non-discrimination requirement. They must also establish the obligation of parties involved in a concentration in the media market to notify the competent national authorities or bodies of the concentration in advance and indicate which national authorities or regulators are qualified to evaluate such a concentration.
Although, of course, the Regulations’ keynotes are the protection of media pluralism and independence in the EU and the prevention of political interference, the Regulation introduces or instead expands on other regulations and a set of other democratic standards. In Article 4, we find a commitment by member states to protect media service providers from the use of “intrusive surveillance software about a physical, digital device, machine or tool used by media service providers, their editorial staff or persons,” simply a ban on espionage directed against the media. Protecting secrecy and confidentiality is one of the most important values in the axiological grid of the Media Freedom Act.
The EMFA also imposes obligations on providers of audience measurement systems, indicating that the methods they use should comply with “the principles of transparency, impartiality, inclusiveness, proportionality, non-discrimination, comparability and verifiability.” Measurement system providers should present to stakeholders how their measurement methods are constructed without prejudice to corporate secrecy. Recognizing the problem of the state’s influence on the media, EMFA drafters also established restrictions for state advertising contracts, stipulating that contracts entered into on the subject should be transparent, objectively proportionate and non-discriminatory, and be made known to the public knowledge.
Perhaps the most far-reaching effect of the regulation, however, is establishing a new EU-level body, the European Board for Media Services, to replace the European Regulators Group for Audiovisual Media Services (ERGA). It will include representatives of national authorities or regulators, each member state with one vote. The Council’s main tasks are drafting opinions on cases of concentration in the media market, mediation in case of disagreement between national authorities or regulators, and dialogue between providers of very large Internet platforms or representatives of media service providers.
The operation of the regulation in practice will be possible to assess only from the perspective of a few years. Nevertheless, one can certainly already positively assess the actions of EU legislators, who recognize the importance of the media for a properly functioning democracy, including the European Media Freedom Act and the recently passed anti-SLAPP directive.