The EU Council completed on Monday (5 December) the first revision of the European Media Freedom Act at the technical level, with significant work still to be done on fundamental aspects of the proposal.

The meeting of the Audiovisual and Media Working Party was meant to clarify the last two articles of the proposal – on its relation with the Audiovisual Media Services Directive and its entry into application.

That completes the Czech EU Council presidency’s work on the file, summarised in a progress report adopted by the EU minister at Education, Youth, Culture and Sports Council on 29 November.

Published in September, the proposed Media Freedom Act is designed to boost transparency of media ownership and safeguard outlets’ independence and pluralism within the sector.

The proposal has elicited varied reactions, with vocal pushback from publishers and civil society, somewhat reflected in the issues raised by the member states, and the work will land on the desk of the Swedish presidency of the EU Council as of January.

Legal basis

The Act’s reference to the internal market basis has caused controversy, given that media is generally regarded as a national competence.

The initiative rests on the article of the EU treaties that allows the European Commission to adopt legislation to guarantee the functioning of the internal market basis, as the proposal is technically intended to regulate the provision of media services within the single market.

During Council discussions, several member states expressed interest in better understanding the legal grounding of the regulation, questioning whether some of the issues the Media Freedom Act deals with are actual EU competence.

In this regard, the member states requested the Council Legal Service, a very influential body inside the institution, to review the proposal’s legal basis, which it has started doing.

Scope and definitions

Several points were also raised regarding the regulation’s scope and the definitions on which it hinges.

Some EU countries raised questions about the relationship between the Act and the Audiovisual Media Services Directive (AVMSD), the framework that coordinates national-level regulation of audiovisual media.

In particular, delegations queried why the AVMSD is not included in the list of legislative acts that will be affected by the Media Freedom Act, given that it will implement many foundational changes to the directive’s provision, notably by reforming the European Regulators Groups for Audiovisual Media Services.

Some member states also called for more detailed – though not necessarily stricter – rules to be added to specific provisions and for the minimum harmonisation approach to some aspects of the regulation to be expanded and cover a broader range of areas, while still allowing member states to adopt additional rules, for instance on state advertising.

On definitions, clarification was called for by several member states on whether the term “editor” would apply solely to editors in chief or also to other editors.

Some governments also asked for greater clarity on the criminal offences included in the Act’s provisions on serious crime, with some calling for the list to be expanded and others seeking greater clarity on their interaction with national criminal procedure.

Media Service Providers

Member states are also seeking further information about potential conflicts between the provisions in the Act that prohibit the use of spyware against journalists and bodies of national criminal law.

As the proposal bans national governments from using such surveillance technologies or taking related punitive measures against the employees or family members of media service providers, member states called for greater clarity in defining these groups.

Discussions also concerned the necessity of exempting micro-enterprises from the obligations imposed on media service providers, with some member states arguing that it would reduce administrative burdens and others noting that removing it would increase ownership transparency and editorial independence more broadly.

Oversight 

The regulation is also set to replace the existing European Regulators Group for Audiovisual Media Services (ERGA) with a new oversight body, the European Board for Media Services.

Some observers have raised concerns over this point, and the Commission has been keen to emphasise its independence. As part of the Council discussions, several member states called for explicit clarification in the text that the Board can operate on its own initiative.

In addition, the EU countries inquired about the practicalities of coordinated action between national authorities and the relationships between the Media Freedom Act and the sanctions imposed on Kremlin-backed outlets Russia Today and Sputnik earlier this year in response to Moscow’s invasion of Ukraine.

State advertising

Member states also reviewed the fact that the Act’s transparency requirements on state advertising expenditure apply only to authorities and entities of areas with more than one million inhabitants. Several EU countries supported the removal or lowering of this threshold to increase transparency.

[Edited by Luca Bertuzzi/Zoran Radosavljevic]

Source: Euractiv.com