In September last year, the EU Commission presented the European Media Freedom Act (EMFA), an acknowledgement on the highest level that the independence, viability, and pluralism of quality news media needs to be safeguarded as a crucial democratic element.

It is far from a given that policy-makers, especially at the European level,  deal with the news media environment. Throughout the second half of the 20th century, the news was seen as a for-profit business – at times a quite lucrative one – that was beneficial both for its consumers and producers. Newspapers were operating in a so-called two-sided market, where the price of the product was kept affordable by selling part of the audiences’ attention to advertisers. Costly investigations were often made possible because big businesses indirectly paid for them. Quality control was dealt with internally: self-regulation, ethical codes and journalists’ pride in the profession made it possible to keep reporting standards high, and in many newsrooms editorial work was strictly separated from commercial activities.

Of course, the news media of the past was far from perfect. Women and minorities were marginalised in news production, the famous objectivity (or the “view from nowhere”) was often just the gaze of the white middle-class male in disguise, and already the last decades of the 20th century saw increased monopolisation in the media market that threatened the plurality of viewpoints. Then in the 2000s, a new set of problems emerged that shattered the fundaments of the industry.

With increased internet penetration, the lucrative business of the past turned into a loss-making one. Especially research-based, in-depth journalism became increasingly hard to sustain at a time when willingness to pay for news declined and advertisers opted to spend their money on microtargeted social media ads rather than buying a page in a daily newspaper. In turn, cheaper forms of news production emerged, from political talk shows to clickbait journalism, with the aim of capturing as much as possible from the decreasing news media advertising basket.

These changes, in turn, created a fertile ground for political polarisation, capture by vested interest groups (when media outlets that are independent on paper are in practice under someone’s control) and the spread of disinformation, shattering public trust in the watchdogs that were supposed to hold the powerful accountable.

Change of course

In its aim to promote a healthy media environment, the EU’s proposed EMFA breaks with a taboo in European politics, which used to see media regulation as a national prerogative that eurocrats were not supposed to touch. This doesn’t mean that the EU completely disregarded the issue of media in the past: EU law-makers have dealt with issues related to broadcast media services and protections for journalists, while prominent projects such as the Rule of Law Report and the Media Pluralism Monitor regularly assess the health of media landscapes. But overall, the EU’s involvement has remained limited so far.

In its aim to promote a healthy media environment, the EU’s proposed EMFA breaks with a taboo in European politics.

To overcome this obstacle, the EMFA approaches the issue of media freedom from the point of view of the functioning of the EU internal market: the presence of diverging media regulations in member states, it claims, would run the risk of disrupting the single market. Even if some scholars and EU member state governments are sceptical about the soundness of this argument, the consensus around it seems strong enough to turn the Act into reality.

Now the question is whether the EMFA can effectively address the challenges of the media landscape.

State capture, privacy and regulation

The stated aim of the law is to harmonise media rules in the internal market, while also supporting the independence of newsrooms and journalists. One of its most important elements is increased transparency, as the EMFA makes it mandatory to make it public who is behind a media outlet and who finances it, contributes to a better understanding of the audience share of news outlets and requires governments to be transparent on the allocation of state advertising.

This latter issue is among some of the most common ways to capture media. As news outlets are struggling to survive, revenues from advertisers can become crucial, and governments can exploit this situation by placing ads in outlets that provide favourable coverage, as happened in Greece during the pandemic with the “Petsas List”. The EMFA aims to put an end to this practice by making sure that every outlet can have access to state advertising and that the public knows how taxpayers’ money is allocated to the media.

In recent years, several EU governments have been involved in the use of spyware against journalists. In Hungary, the government was found to have hacked the phones of journalists who were working on investigations of public interest. The EMFA would introduce greater protections for journalists and their sources, but this provoked pushback from France and other member states in the EU Council.  

The draft law also emphasises the need for editorial independence, not just from political groups, but also from news publishers. This is another crucial issue: even in Germany, where media is generally considered free from outside influence, there was a serious scandal when proof was revealed that the publisher of the country’s most influential media outlet – the tabloid Bild – asked its editor-in-chief to change the outlet’s editorial line in favour of one political party in the run-up to the 2021 Bundestag elections.

In addition, the text highlights the need for public service media to provide independent, high-quality content; it introduces a media plurality test that assesses what impact company mergers may have on the pluralism of information; and it provides for the creation of a new European Board for Media Services, which would reinforce cooperation between regulatory authorities across Europe.

The establishment of an EU-level independent authority would also prevent the kinds of controversies that accompanied the Council of the EU’s sanctioning of RT, Sputnik and other Russian propaganda outlets in the wake of Russia’s full-scale invasion of Ukraine. Apart from its possible political bias, the Council’s decision was considered hardly enforceable, arbitrary, at odds with freedom of expression and a possible pretext for authoritarian leaders who looking for justifications for their repressive measures.

Controversial “media exemption”

One of the more controversial aspects of the EMFA is related to the spread of disinformation. The proposal would provide a privileged position for news media disseminating content on online platforms such as Facebook or Twitter. Unless explicitly illegal, news media content would be shielded from unilateral takedowns by the platforms.

This measure aims to reduce the power imbalance between news media and social media. The latter represents the main gateway for news consumption for large parts of the audience, but their algorithms and content moderation decisions can pose a risk to the business models of news outlets and for the users’ exposure to trustworthy content.

This so-called “media exemption” vividly shows how complex the fight for media freedom can become – with a seemingly justified action possibly leading to a range of new problems. While the publishers welcome the measure, pointing out that quality media already abide by strict editorial standards which should shield them from further platform scrutiny, its critics mention that (apart from the notion that speech shouldn’t be banned or privileged simply based on who communicates it) some purveyors of disinformation are news media providers. Besides tabloids, there are formerly reputable outlets and public service media in Europe, such as Poland’s TVP, that have been repeatedly caught spreading untrue, misleading and harmful content.

At the same time bloggers, citizen journalists or experts sharing valuable information may not be able to be treated by social media algorithms as trustworthy content providers.

No silver bullet

At the time of publishing the text of the proposal, one of the first points of criticism was that many of the measures in the EMFA were too soft for what is expected from European regulation. Despite being binding in member states, the law’s provisions could only have a limited effect in countries such as Hungary – where Orbán’s illiberal government has a constitutional majority, and the independence of the judiciary is compromised – but also Greece and Italy, where Prime Ministers Kyriakos Mitsotakis and Giorgia Meloni made headlines for their disregard for press freedom.

Governments that wish not to comply with the EMFA or find creative ways to bypass (at least some of) its provisions may do so with ease, as the text itself often reads as a set of “principled but legally unenforceable expectations”, as legal scholar Gábor Polyák put it. Nor could the law impose countermeasures where damage to media freedom has already been done – for example, when hundreds of media outlets were concentrated under a government-controlled conglomerate in Hungary or when Poland’s state oil company PKN Orlen overtook many of the country’s local media outlets.

The EMFA would contribute to ensuring the right to pluralistic media, and signal the importance of protecting independent news media. Combined with some other (proposed) EU policies and laws on fighting disinformation, regulating AI and online platforms, as well as protecting journalists from vexatious lawsuits (SLAPPs), it can be part of a web of measures to safeguard the public sphere and strengthen freedom of expression.

Besides tabloids, there are formerly reputable outlets and public service media in Europe that have been repeatedly caught spreading untrue, misleading and harmful content.

Yet the law would not be a silver bullet. If a country’s democratic culture is in jeopardy and governments are unwilling to cooperate (or newsrooms willingly publish biased and distorted reports, or support non-democratic politics), there is a risk that the EMFA’s impact will be limited. Neither can the law undo the damage that has already been done: closed newsrooms won’t reopen, and journalists who left the profession will not return en masse to producing high-quality content.

In addition, the proposal acknowledges media capture and the untransparent allocation of economic resources as major drivers of today’s challenges to media pluralism, but it only calls for fair state advertising (a covert support measure), completely disregarding badly needed subsidies at the national or EU level.

Financial support measures would make news media economically sustainable, and weaken the (often covert) web of dependencies. Currently, there are some EU member states with direct subsidy schemes, but they show some deficiencies in terms of fairness and efficiency. There is also some EU support available for news media – for example through the Creative Europe programme – but the existing challenges would require way more financial incentives for quality information providers.

The way ahead

It is also important to monitor the law-making process. While the EMFA is getting closer to turning into reality, there are still possible issues to be addressed, and interest groups might still try to influence the outcome. In June, the ambassadors of EU Member States agreed on the Council’s position on the law.

The Council’s text was heavily criticised by civil liberties watchdogs and journalistic associations in the EU for its disrespect for the freedom of the media – chiefly because it embraced the French proposal to introduce exceptions to the protection from spyware in cases when the surveillance of journalists is deemed necessary for the sake of national security.

In a majority opinion report, the EU Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE)  emphasised that the use of spyware should only be allowed as a “last resort” while respecting the protections granted to journalistic sources.  In all cases, the LIBE report argued, targeted individuals should be informed that they are under surveillance.

Another parliamentary committee, the one on Culture and Education (CULT) has been also discussing amendments that will be voted on in early autumn. Proposed amendments by rapporteur Sabine Verheyen of the European People’s Party have raised concerns, as they seem to prioritise the interests of large publishing houses over the protection of editorial decisions.

As for the European Greens, already a 2019 proposal has shown that they would opt for a more ambitious approach to the EMFA, providing extensive financial support measures, promoting social inclusivity, regulating social media advertising (such as microtargeting, which is not only intrusive but also hurts journalistic revenues), and appointing a dedicated EU Commissioner for Media Freedom. None of these measures are currently on the table.

The vote in the Parliament will be followed by the usual trilogue with the Council and the Commission. While the process is in an advanced phase, there is still a lot that is not set in stone – we need to use this time to remind our representatives that Europe needs meaningful protections for their news producers and audiences.