Statement of the Association of Commercial Television on the proposal for a Regulation of the European Parliament and of the Council establishing a common framework for media services in the internal market (European Media Freedom Act) and amending Directive 2010/13/EU
APRIL 2024
On 26 March 2024, the European Council adopted the European Media Freedom Act (EMFA), which aims to ensure media freedom and pluralism, as well as editorial independence. The EMFA is intended to create a common framework for media services in the EU internal market, to introduce measures to protect journalists and media providers from political interference, and to facilitate cross-border media activities within the EU.
As broadcasters associated in the Association of Commercial Television (AKTV), we have followed the whole legislative process very closely and have been actively involved in the discussions on the amendments, both on our own behalf and through the multinational professional associations with which we work, because we understand that the regulation could affect not only broadcasters but also the entire media market in the European Union in a fundamental way.
Last year, we already commented on the then draft regulation to the effect that we understood the objectives pursued by the European Commission in putting forward the EMFA proposal, although we considered loosening of the existing regulation rather than further regulation of the market to be a more appropriate solution. In the aforementioned statement of April last year, we drew attention to the potential positive benefits that we saw in the EMFA text from the outset, despite the above facts. However, we also pointed to provisions that needed to be refined in our opinion to comply with existing legislation and to take into account the practical expectations of the market.
In particular, we saw the shortcomings of the wording of the draft regulation in the setting of unequal obligations of online platforms in comparison with the obligations of traditional media, since online platforms are in certain aspects direct market competitors to traditional media competing for the same range of entities or financial allocations. In this respect, EMFA has undergone significant changes to ensure that transparency rules generally apply to all media market players. Therefore, we have to mention in this context that we appreciate the explicit inclusion of online platforms in the relevant articles, namely merger control, audience measurement and state advertising. Although we are of the opinion that the definition of audience measurement still contains some problematic points to be clarified, on a global scale we find the compromise reached to be acceptable in this respect.
We consider it very important that the regulation does not interfere in any way with the freedom of expression and does not provide any means for Member States to regulate the editorial content of the media; on the contrary, it expressly prohibits such interference (Article 4(2)). Any attempts to regulate editorial content would pose a major risk to democracy and open the way to abuse. The regulation recognises the importance of self-regulation, which is, among other things, in line with the overall support for self-regulatory initiatives in the European Democracy Action Plan. We will therefore support meaningful self-regulation where it makes sense from the perspective of preserving freedom of expression and a fair media environment and does not lead to editorial independence being affected.
In this context, it is worth recalling the much-discussed power of the European Commission to issue implementing guidelines in certain areas, but in this respect, it is probably premature to assess the impact of the relevant provisions in any depth. Practice will show whether this instrument will serve to preserve the democratic principles of European society. Member States should therefore go further and introduce more robust safeguards to protect media freedom and pluralism and the rights of journalists as a precautionary measure.
The last provisions of the regulation that we want to mention are those that contain safeguards to protect journalists and their sources, an approach to protecting editorial integrity. Editorial independence is a fundamental condition of democracy and guarantees the possibility of unrestricted and critical public debate. In this respect, the regulation recognises both the need for assured freedom of editorial decisions and the need to follow established editorial lines. In general, we would consider any additional interference in the relationship between the publisher and the editorial team through possible further regulation to be counterproductive and detrimental to media freedom and pluralism.
As for the protection of journalists and the sources they use for their work, these sections have been the subject of great debate in many forums and at many levels, right up to the very end of the legislative process. We are concerned that the power to use spyware in the public interest is very broadly defined in the regulation, raising concerns that it may give Member States a great deal of leeway in certain situations without clearly defined boundaries.
There is probably no need to argue that independent media services play a unique role in the internal market. As we have pointed out many times, broadcasters were sufficiently regulated even before EMFA, including voluntary regulation through self-regulatory mechanisms; however, we have to accept the fact that Member States have agreed to further EU regulation. It is usual for any new regulation to be tested by the application practice; in this case, it will be the market of the entire European Union with different media service providers. The evaluation mechanisms are already envisaged now, they are supposed to start in autumn 2029, and although they are primarily focused on the evaluation of the functioning of the European Board for Media Services, which replaces the current regulators group ERGA, we assume that this will not be the only issue addressed and the EMFA will be evaluated as a whole in terms of functionality and adequacy.
In conclusion, we consider it appropriate to emphasise that we believe that the European Media Freedom Act will meet the expectations in the most fundamental respect, i.e. it will successfully target the efforts of politicians to interfere in editorial activities or influence the independence of the media. This is the main objective that we expect the new regulation to achieve, and this is where we see its main future role.
MAY 2023
As the Association of Commercial Television (AKTV), we understand that the European Commission’s objective in presenting this proposal is to ensure that media service providers are able to provide their services freely and independently in an open and transparent market, a market that allows for a plurality of media actors and opinions, and we are aware that independent media services play a unique role in the internal market. Although we believe that there is no need for further regulation for broadcasters, and we have already pointed out that we would prefer deregulation, if there is a consensus in the European area that regulation should be adopted, what we need to address in particular are the practical implications for broadcasters.
There are a number of provisions in the proposal which, although not necessary, can contribute to ensuring that independent media services continue to play a unique role in the internal market and keep on performing their rightful role in a democratic society. Broadcasters provide citizens and businesses with access to a plurality of views and reliable sources of information, and this principle must be maintained going forward. It seems logical to us that not only traditional media – i.e. offline media – but also online media are covered by the proposal.
In this context, we believe that it is legitimate for the Commission to support the self-regulatory initiatives of the media sector, as explicitly highlighted, among other things, in the European Democracy Action Plan. We see great potential for this path in the future and prefer it to legal regulation.
We see potential benefits of the proposed regulation in the provisions on state advertising and believe that a broad definition of state advertising under Article 2 (15) is legitimate.
The proposed provisions governing requests for enforcement of obligations by video-sharing platforms under Article 14 regarding the enforceability of obligations imposed on video-sharing platforms are positive in our opinion.
In principle, we appreciate the support for the protection of the media from external political pressure, and we believe that the suppression of the traditional ‘marketplace of ideas’ and the enforcement of self-censorship should also be regarded as such pressure.
However, we found several points in the proposal that should be refined or reconsidered so that their meaning contributes to the mission and objectives that were at the origin of the idea to introduce the regulation. We are of the opinion that the primary concern must be to strike a balance between the existing national arrangements of the Member States and the harmonisation level, i.e. that in no case should existing national standards be decreased.
As regards the general principles established by the draft regulation, namely that the Commission will issue implementing rules to ensure its implementation, we believe that this intended principle should be reconsidered very carefully and then revised for the sake of preserving the democratic principles of European society.
From a purely practical point of view, we see Article 6 (2) and the related introductory provision (20) as problematic, as we are concerned that the application of the provision on the requirement of editorial independence would bring possible complications in practice, leading to questions as to which person is ultimately responsible. Editorial independence is a fundamental condition of democracy and guarantees the possibility of unrestricted and critical public debate. We consider any interference in the relationship between the publisher and the editorial team through EU regulation to be counterproductive and detrimental to media freedom and pluralism. Editorial independence should strictly distinguish between the individual decisions of the editor (these decisions must remain free from any influence) and the general line of editorial activity, which is the responsibility of the broadcaster or the editorial management. However, we are of the opinion that this disparity could be resolved simply in principle if the text of this Article becomes a soft law recommendation.
According to the Amsterdam Protocol, the organisation and definition of public services, as well as their financing, is a national competence. The regulation of public service therefore varies from state to state and it is a very sensitive area. It might even be worth considering the option to support the text of Article 5 (3) ‘Safeguards for the independent functioning of public service media providers’ more strongly by making explicit reference to the principles of the Amsterdam Protocol in the term ‘public service remit’.
Article 8 establishes the European Board for Media Services (the “Board”). The proposed regulation must explicitly ensure that the Board is an independently functioning body (including independence from the European Commission) capable of taking its own decisions as a collective body bringing together independent bodies to ensure the implementation of the relevant provisions for independent media. Therefore, it must be guaranteed the power to manage its internal affairs, such as creating its own procedural rules. The independence of this body will thus also result from its organisational set-up. We are of the opinion that if the Board takes a view different from that of the European Commission, it must be within its remit to present such a view and not to align its opinions with the European Commission. We also consider the further provision that the Board draws up opinions in agreement with the European Commission to be, at the very least, unfortunately worded.
With regard to the extended supervision of mergers of companies contained in Section 5, we believe in this respect that the existing level and system of regulation is fully sufficient and that there is no need for further EU regulation and we are of the opinion that it should be up to the national states themselves to best assess the impact of the transaction on possible media pluralism. We consider any intervention in this area in the form of the proposed regulation, including through the powers conferred on the European Board for Media Services, to be unnecessary and counterproductive. The provisions dealing with media concentration in the draft regulation are based on the assumption that media concentration is primarily detrimental to media pluralism. But consolidation in the media market is a natural and necessary part of the market environment in which media companies operate. Consolidation is in many cases necessary for sound business management and economic decision-making by business entities. Such decisions are often directed at how to adapt to a dynamic environment or avoid negative economic impacts on a particular company, how to secure jobs and, ultimately, how to safeguard media pluralism. Any further restrictions and requirements concerning the ability of media to merge would further exacerbate the asymmetry between traditional media houses and big-tech platforms in the battle for identical advertisers. Regulation that would impose further restrictions on mergers and acquisitions would not promote media pluralism – on the contrary, it would hinder it.
We also appreciate that the text of Recital 45 of the justification explicitly addresses the issue of audience measurement and its impact on media funding, stating that audience measurement has a direct impact on the allocation and the prices of advertising, and perceives the asymmetry between traditional media service providers and new players in the market (particularly online platforms). However, in our view, this perception is unfortunately not reflected in the wording of Article 23, as its text does not correspond to the objectives set out in the Recital, namely that access to objective audience data stemming from transparent, unbiased and verifiable audience measurement solutions should be provided, taking into account the competition that takes place in the market not only between the same types of media but also between the aforementioned groups of competitors. In a situation where some competitors use their own audience measurement solutions that are not subject to market control and are not sufficiently transparent, it is imperative that Article 23 be further clarified to meet the objectives and ideas contained in the Recital. The latest available draft version of this provision still lacks an explicit reference to the principles of industry standards, self-regulation and market governance. A deeper impact analysis still needs to be carried out concerning the newly proposed obligation to provide viewership data free of charge to media service providers in relation to their content and services.
Finally, a last remark on the audience measurement provision of Article 23: we assume that with respect to the practical application, the use of cookies will be allowed for these purposes.
