By Jonathan Day
The European Media Freedom Act aims to protect independent news organizations and journalists in EU member states, but it contains too many loopholes ripe for abuse. EU bodies must keep a constant eye on how key provisions will be enforced, but it is also the responsibility of civil society, self-regulatory bodies and journalists’ associations to play an active role in monitoring the implementation.
Russia’s recent decision to ban 81 news outlets from European Union countries is a timely reminder that accurate, unbiased reporting is a source of dread for authoritarian governments – and an essential pillar of democracy. Yet despite its importance, media freedom is facing an existential crisis even within the EU. To survive, it needs more than just new legislation.
That legislation, the European Media Freedom Act (EMFA), entered into force this May with the aim of better protecting independent journalists and media outlets in member states.
Although legislative action on this front was long overdue, the EMFA contains too many loopholes and loose language, setting down only minimum standards in many areas that, on their own, fail to fully insulate free media and independent journalists from government threats.
Threats to Journalists Persist across Europe
The threats are manifold. A report this year by the Civil Liberties Union for Europe, a Berlin-based NGO, paints a disturbing picture of the EU media landscape. Physical attacks on journalists continue across the bloc, from France and Germany to Croatia and Greece. Frivolous lawsuits known as SLAPPs (strategic lawsuits against public participation) remain an oft-used tactic to silence journalists.
Public service media, which should be unbiased and free from political influence, face relentless pressure from politicians in many member states. In some, such as Hungary, they are a wholly owned subsidiary of the government and an integral part of its propaganda machine. Even in countries where media freedom has long been more secure, like France and Ireland, public service media face cuts to their funding and an uncertain future.
Across the EU, media ownership remains heavily concentrated in the hands of a few owners, while transparency over who those owners are remains low. Citizens do not have a clear understanding of who controls their preferred news outlets – and thus who influences the editorial line. Transparency in this area is especially crucial to our democracies because it gives voters a complete picture of who’s behind the news and information they consume.
A Good (But Not Great) Regulation
These are not new findings. The report, an annual survey, found a similarly bleak media landscape the year before. Now, with the European Media Freedom Act, the EU thinks it finally has an answer to these ills. The law recognizes the importance of public service media and mandates their independence from the government. It requires new levels of media ownership transparency at the national level and ostensibly bans the use of spyware against journalists.
Yet even where the EMFA makes great strides to improve media freedom and pluralism, there are caveats that must be considered.
Although the EMFA bans the use of spyware against journalists, national security exceptions can be made, a competence of member states. This is a large loophole ripe for abuse.
And although the EMFA says public service media must be independent, member states have the final say over how to organize and fund public service media within their country.
While the EMFA requires some media ownership information to be published at the national level, it does not establish a centralized EU-level database of media owners and their affiliation with politicians. Instead, national regulators, who are not necessarily independent from the government, are allowed to decide how and how much data is made public. This does little to assuage concerns that authoritarian-minded governments will stick to the letter but not the spirit of the law.
Actions Speak Louder Than Words
For all its shortcomings, the EMFA does have the potential to strengthen media freedom and the protection of journalists – but only if it is fully enforced.
The European Commission, together with the newly created European Board of Media Services (the Board), an independent body made up of national media authorities, must keep a constant eye on how member states enforce key provisions of the EMFA.
The Commission has to closely follow how member states implement measures to ensure that public service media have adequate financial resources and operate in true independence of political or corporate influence. Where funding sources for public service media have been cut or remain in doubt, the Commission and the Board must work with the member state government to ensure public service media are given the resources and independence they need.
The Board should also publish best practices on the protection of journalistic integrity, including clear limits on situations where surveillance practices could conform to the EMFA. The Commission should pressure member states to enact strict regulations to limit the use of spyware to only the most exceptional circumstances, unrelated to the actual work of journalists.
Of course, action is not only required by these two bodies.
It is also the responsibility of civil society, self-regulatory bodies and journalists’ associations to play an active role in monitoring the implementation of laws and policies and how they work in practice.
In turn, the European Commission must welcome analysis from these groups and actively engage with them throughout the enforcement process.
In order for the EMFA to reach its full potential, the act must be followed by action. We have seen quite recently with GDPR, how strong EU legislation can be seriously undermined by poor enforcement. As media freedom and pluralism continue to erode across the EU, it is imperative that this is not the case for the EMFA. The strength of European democracy depends on it.
Jonathan Day is Advocacy Officer at Civil Liberties Union for Europe, and co-author of the Liberties Media Freedom Report 2024.
