- Introduction
The recent adoption of the European Media Freedom Act (EMFA)[1] has been presented by European institutions as an important step forward in the effective protection of freedom of the media in the continent. The European Commission considers this Regulation as a culmination of some sort within a series of measures to protect media freedom and pluralism in the EU, in addition to enhancing free movement of services. It is presented as «a new set of rules to protect media pluralism and independence in the EU. They will ensure that media – public and private – can operate more easily across borders in the EU internal market, without undue pressure and taking into account the digital transformation of the media space»[2]. Also, several media freedom organizations welcomed the adoption of this piece of legislation as a big advance for the right to information in Europe[3] and called for full and effective implementation, with a particular consideration to the fact that «EMFA only lays down the very minimum of standards» and therefore «Member States can, and should, go much further in establishing stronger safeguards to protect media freedom and pluralism and journalists’ rights»[4].
- The EMFA and the protection of freedom of expression and media freedom in Europe
The EMFA thus becomes an additional legal instrument or standard to protect freedom of expression in the European continent. All EU member states count, in their respective constitutional frameworks, on a series of provisions and safeguards aiming at protecting the mentioned right. It is obvious that these are, and remain to be, the main sources and pillars for the effective protection of the mentioned right for European citizens. In addition to this, all EU member states are also guided by the extensive jurisprudence already formulated by the European Court of Human Rights (ECtHR) in the application of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), within the broader context of the Council of Europe. Even though required by fundamental treaties such as the Treaty of Lisbon, the EU has still not acceded, as a Union, to the Convention. Such accession would be a key step in the achievement of a coherent system of protection of fundamental rights across Europe by eliminating the current situation where the rights enshrined in the European Convention apply to individual states while at the same time are not binding for the EU and its institutions.
In addition to the above, the EU Charter of Fundamental Rights enshrines in article 11 the right to freedom of expression and the protection of the freedom and pluralism of the media. Even though this provision does not establish, per se, the power or capacity for EU institutions to enact the EMFA, it constitutes a general framework for such institutions and member states when implementing Union law (article 51). It is also worth noting that in any case the Charter already acknowledges that its rights correspond to rights guaranteed by the European Convention, and that «the meaning and scope of those rights shall be the same as those laid down by the said Convention» (article 52.3).
- EMFA’s legal basis and scope
The EMFA must thus be interpreted and enforced within the mentioned continental kaleidoscope of human rights substantive provisions and safeguards in the field of freedom of expression, media freedom, and pluralism of the media. It is important to note that similarly to other EU legislation applicable to the media field, and particularly the Audiovisual Media Services Directive (AVMSD)[5], the entry point for EU regulation that led to the adoption of EMFA is protecting the EU internal media market and economic freedoms by focusing on the economic role of media services. In any case, the EMFA understands the unique role of media services within European societies and thus proclaims that «the protection of media freedom and media pluralism as two of the main pillars of democracy and of the rule of law constitutes an essential feature of a well-functioning internal market for media services» (Recital 2).
The EMFA is therefore a legal instrument (a Regulation) which becomes (as soon as it enters into force[6]) directly applicable and binding in its entirety for member states without the necessity of any transposition process. As a matter of fact, the EMFA does not alter or affect the fundamental and core definitions of the right to freedom of expression and freedom of information in the European legal system, since these aspects remain within the competence and responsibility of both national constitutional systems and the Council of Europe human rights system. However, the EMFA touches upon specific aspects related to the exercise of media activities within the context of the internal market by establishing specific criteria and requirements in areas such as media and journalists’ independence, legal safety of journalists, public service media providers, market concentrations, audience measurements or allocation of public funds for state advertising and supply or service contracts. Also, in addition to media services, the EMFA introduces new provisions applicable to very large online platforms considering their role as «gateways to media content» (Recital 4), which therefore complement the already existing general regime established by the Digital Services Act (DSA)[7].
The EMFA may in some cases overlap with or complement provisions already included in EU legal standards, such as the already existing provisions vis-à-vis the role and independence of public service media providers[8]. In the case of provisions regarding the protection of journalistic sources (article 4), the EMFA has been considered to be a step backwards in the protection of journalistic sources, since the mentioned article would clearly fail to grant the level of protection that all EU member states should already respect in application of Article 10 of the ECHR as developed and applied in the well-established case law of the ECtHR[9]. Also, the introduction at the request of some member states of a “national security” exemption in this area to justify spyware against journalists has been denounced as a violation of fundamental human rights standards by several human rights organizations[10]. In addition to all of this, other reproaches already formulated by experts and several stakeholders include a restrictive definition of media and journalism, the vague and merely declaratory nature of provisions regarding the protection of media independence, the inadequate and counterproductive protection of media providers vis-à-vis online platforms, the unjustified expansion of powers of national regulatory or the superficial approach to issues related to media concentration and pluralism, among others[11].
- Enforcement challenges
The EMFA incorporates a new layer and new mechanisms vis-à-vis the effective protection of freedom of the media in Europe. The decisions of the European Court of Human Rights require a long process encompassing the exhaustion of national judicial remedies and the corresponding litigation before the Court in Strasbourg, which may last for years at the expense of the efforts of an individual claimant. In addition to this, some states have been systematically avoiding proceeding to the actual enforcement[12].
EMFA adopts a different approach since it basically defines a series of obligations for member states regarding the establishment of certain guarantees and safeguards to protect media freedom, independence, and pluralism. More importantly, it does not grant directly actionable rights to individuals or media companies. In addition to this, the EMFA does not include a clear set of legal consequences or penalties deriving from the infraction of any of its provisions.
In this sense, according to article 21, measures taken by a member state liable to affect media pluralism or editorial independence shall be duly justified and proportionate as well as reasoned, transparent, objective, and non-discriminatory. Oversight bodies beyond national jurisdictions are mainly the newly created European Board for Media Services (as an “expanded” version of the existing European Regulators Group for Audiovisual Media) and the European Commission. According to article 22, the mentioned bodies play a role in monitoring and providing opinions regarding media market concentrations likely to affect the functioning of the internal market. Also, according to article 26, the Commission shall monitor risks and progress in the functioning of the internal market for media services on an annual basis. It is important to note, however, that none of these provisions grants an actual power to articulate direct and concrete measures to enforce EMFA’s provision at the national level[13]. Moreover, it is also reasonable to anticipate that only in cases of persistent and blatant lack of respect for EMFA’s provisions would the European Commission open an infringement procedure.
Therefore, we can conclude that in terms of actual enforcement, the EMFA fails to provide substantial differences and significant new tools for the protection of the rights, values, and principles that it declaratorily aims to protect.
- Conclusion
The EMFA is a notable step forward in introducing the “language” of media freedom and protection of journalists within the corpus of EU law. It also complements and enhances protections included in the European broader human rights system. This Regulation must therefore fundamentally be seen as both a “political” statement regarding the will to protect media freedom across the Union, and a tool for EU institutions to better monitor and incentivize member states to avoid certain types of restrictions affecting freedom of expression and freedom of the media. However, only effective enforcement at the national level and a legal and political commitment from institutions in Brussels will prove its actual success.
[1] Regulation (EU) 2024/1083 of the European Parliament and of the Council of 11 April 2024 establishing a common framework for media services in the internal market and amending Directive 2010/13/EU (European Media Freedom Act).
[2] European Commission, European Media Freedom Act, in commission.europa.eu.
[3] Reporters Without Borders, European Media Freedom Act – big advance for right to information in Europe, in rsf.org, 13 March 2024.
[4] International Press Institute, Coalition calls for effective implementation as the Parliament adopts the European Media Freedom Act, in ipi.media, 13 March 2024.
[5] Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities
[6] The Regulation entered into force on 7 May 2024. However, the new rules will fully apply as of 8 August 2025.
[7] Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act).
[8] Protocol No 29 on the system of public broadcasting in the Member States, annexed to the Treaty of the Europeau Union and the Treaty on the Functionning of the European Union.
[9] See D. Voorhoof, European Media Freedom Act and the protection of journalistic sources: still some way to go, in inform.org, 18 November 2022.
[10] For example, the Committee to Protect Journalists, CPJ to EU: The time to act on spyware is now, in cpj.org, 6 December 2023.
[11] J. Barata, Problematic aspects of the European Media Freedom Act – old and new, in blogs.lse.ac.uk, LSE Blog. 2 May 2023.
[12] See G. Stafford, The Implementation of Judgments of the European Court of Human Rights: Worse Than You Think, in ejiltalk.org, 7 October 2019.
[13] See J. Bayer – K. Cseres, Without Enforcement, the DSA is Dead Letter, in verfassungsblog.de, 13 June 2023.
