On 16 September, the European Commissioner for Values and Transparency Věra Jourová and the European Commissioner in charge of Internal Market Thierry Breton have introduced the European Commission’s proposal on the European Media Freedom Act (EMFA) .
The new proposal, if adopted, will significantly reduce the ability of the state to interfere with editorial independence. Additional safeguards are to be created for the public broadcasters and for the fair distribution of state funding. The media will be obliged to disclose their ownership in a more comprehensive manner. The European Board for Media Services (EBMS) will be created, with participation of the national media regulators. It will serve as the venue for exchanging best practices, will follow up on implementation of the EU media directives and inform the Commission.
The EMFA was broadly welcomed by media watchdogs, but despite some groundbreaking provisions, it is considered deficient in addressing certain challenges.
In the meantime, in Georgia, the ruling party is proposing changes to the Broadcasting Law, which were met by criticism of the media community. Yet, the government explains the changes by the need to approximate Georgia’s legislation with the EU, specifically the Audiovisual Media Services Directive (AVMSD).
In this context, on behalf of Civil.ge, Kristina Pitalskaya sat down with Fernando Hortal Foronda – a Digital Policy Officer at the European Partnership for Democracy, a Brussels-based non-profit network that serves as a watchdog and advocate on a number of democracy issues, including media freedom.
Q: Introducing the Media Freedom Act, Commissioner Jourová said the proposed Media Freedom Act will be “too much” for some and “too little” for others – where does your organization come down on this spectrum and why?
A: The proposal was introduced by two Commissioners, which reflects the two-face dimension of this regulation. On the one hand, it is an market regulation on how services (in this case, media services) are provided within the internal market. The other dimension is, of course, protection of democracy. ”’Too much” for some and ”too little” for others” – I would say it is true for several reasons.
First of all, it comes up late. In a way, this regulation seeks to prevent events from happening that have already taken place: media concentration and decrease of media pluralism is already happening in Europe. We have cases in Hungary and in Poland – events that could have been prevented by ensuring independence of editors, media organisations, journalists, etc. This would would have been a great regulation in the 1990s, but it is coming into existence in the 2020s instead.
This would would have been a great regulation in the 1990s, but it is coming into existence in the 2020s instead.
The second reason is the scope. The EC has been funding the work of the Centre for Media Freedom and Media Pluralism attached to the European University Institute in Florence, which has been conducting very thorough analysis of the EU and the neighbourhood as well as state of the media freedom and media pluralism. I would say the Media Freedom Act proposal takes up between 15 and 20 percent of the proposals made by the Centre in terms of political interference in media, market interference in media, lack of fundamental protection for media, which is not sufficient.
This action has been long-awaited, however, proposed transparency measures seem to be causing the most controversy. What is proposed, and in what way do you think the proposal is deficient?
There are transparency issues around a series of things like state advertising, ownership concentration, editorial independence. It might be slightly misleading for those who might not be that familiar with the issue. This intervention (to use the EU jargon) has two dimensions: it has a regulation (a set of binding rules) and it has recommendations (for Member States and media services).
There are recommendations on editorial independence, and measures to guarantee such. There are those we subscribe to, as they are shielding responsible professional editors from pressure both from political and economic powers, including media owners. It is necessary to ensure trustworthy media that strengthens democracy by providing pluralistic, reliable news coverage to the public.
The only thing we regret is that these provisions are not binding: they are just recommendations. So the EC is inviting media organisations to follow these rules, if they wish. Of course, this is always interesting because this creates a reporting mechanism by which information is generated about the extent to which these voluntary guidelines/recommendations are being followed. So, we will remain vigilant – depending on the information on the progress of compliance with these recommendations, in 5-10 years further actions might be taken.
In relation to state advertising, we do regret that there is effectively an exemption for local governments with less than one million inhabitants. These won’t be subject to transparency rules in the same way, especially on how they allocate state advertising. So, the governments are to be transparent on the way they allocate state advertising as long as they represent a public administration of more than one million inhabitants. We think that transparency is a very powerful tool in combination with other very powerful interventions. Transparency per se is not going to avoid arbitrary political decision. Still, if a local, federal, national, executive authority chooses to overfund a media organization just to get positive coverage, they will still be able to do it, but they will need to be transparent about it.
We would like to see transparency coupled with common standards [so that the state funding is] allocating not only transparently, but also fairly.
We would like to see transparency coupled with common standards, for instance, an obligation to allocate state advertising based on the readership size of the media, thus, allocating not only transparently, but also fairly. The regulation takes a positive and substantial effect towards the issue of transparency, but it has to do so for the creation of common standards, too.
How does the new EMFA modify the approach of the Audiovisual Media Services Directive (AVMSD)?
Something that really changes from the AVMSD to this resolution is that the EMFA has different chapters and each of them could be a regulation of its own, because they regulate very different aspects – from relations of the media with public authorities, to relations with supervisors.
The big change is that with the EMFA, the regulators will become more integrated. It is the national regulator that will have a final say, unless it is a cross-border case. Say, in a given country, where there is an issue with the media, it is for the regulator to intervene. But there will be more peer-to-peer pressure. So the venue for cooperation, which has been known as the European Regulators Group for Audiovisual Media Services (ERGA), is substituted by a European Board for Media Services, where national regulators get to have a say (not a vote or veto), resulting in an increased integration in the work of the national regulators in the soft aspect of decision-making process.
And indeed, very much in line with the rest of the digital policy of the EU, that the EMFA is consolidated from the AVMSD. Content wise, the AVMSD touches upon a lot of substantial aspects. For example, AVMSD regulates how advertising of medicines or drugs, alcohol or tobacco products can be made on television. Whereas, EMFA shies away from that, it is very content-neutral. It is about procedures and mechanisms, but it is not about the content in itself. To sum up, EMFA is consolidating an approach to media regulation and regulation in detail, that is not content-focused, but is procedure-focused. That, I think, can have a positive effect and can be a ‘golden standard’, an approach to be followed by other countries.
How much innovation the EMFA can bring in terms of binding regulations?
This regulation essentially bans spyware, but it does not ban other forms of surveillance, which is a broader category than spyware. Thus, journalists might be surveilled during performance of their professional activities by many ways, including spyware. We find it a little bit ineffective to ban spyware, but not to ban other forms of surveillance. We believe that there need to be more complementary measures.
Essentially, the EU being as complex as it is, and this being an internal market regulation, it is possible to regulate state advertising, but not so much to regulate subsidies. Thus, as a follow up to this regulation, we would welcome an initiative that would regulate subsidies to media organizations. Last but not least, we are very much looking forward to the feedback from the European Parliament and the European Council after this as currently we are talking about the very early stages of the proposal from the European Commission.