Credits: Jobin Thomas, iStock
By Samira Allioui
Journalists are under pressure in different ways. Throughout the last few years, media freedom and especially media pluralism have been attacked.
On December 15, 2023, the European Council and the European Parliament struck a deal on rules to safeguard media freedom, media pluralism and editorial independence in the European Union. The EU Media Freedom Act (EMFA) promises increased transparency about media ownership and safeguards against government surveillance and the use of spyware against journalists. The agreement comes after numerous revisions of the Audiovisual Media Services Directive and new regulations such as the Digital Markets Act (DMA) and Digital Services Act (DSA).
The objective of this contribution is to summarise what the EMFA proposes while analyzing how the proposed rules are still harmful in the sense that they still encourage disinformation, the limitation of freedom of speech, the erosion of trust, the breach of democratic processes, and legal uncertainty. Many requirements included in the EMFA proposal are subject to Council of Europe’s standards on freedom of expression and its corollary media freedom which are guaranteed by Art. 10 of the European Convention on Human Rights (ECHR). Without defining the wide range of Council of Europe instruments and mechanisms including fundamental legal guarantees for freedom of expression, standards on media pluralism and independence, recommendations for strengthening reliability and trust in information and provisions on the safety of journalists and other media actors, some of these instruments served as a reference in the development of the EMFA CM/Rec(2012) on the governance of public service media; CM/Rec(2022) on promoting an environment favorable to quality journalism in the digital age; and CM/Rec(2018) on media pluralism and transparency of media ownership.
The proposed regulation, originally introduced in 2022, requires EU countries to respect editorial freedom, to ensure no political interference, to safeguard against the use of spyware, to secure stable funding for public media, to protect the content of online media and guarantee the transparency of state advertising. The proposed regulation aims to establish a European watchdog for media freedom: a new independent European Board for Media Services to fight interference from inside and outside the EU.
However, this proposed EU legislation tries to set boundaries for the journalists’ actions. Are democracy and the possibility for people to get impartial and unbiased information, really strengthened by this proposal? Not forgetting that at the time of the European elections, we know that there will be the danger of political exploitation with extra-European influences that will try to take advantage of democratic elections to influence the media in an illegal way such as launching a massive propaganda campaign or by creating fake social media accounts in order to spread divisive content.
Abusive Regulatory Intervention and Erosion of Trust
First and foremost, one can only be concerned about any regulatory intervention by governments on issues such as freedom of expression or media freedom. Thanks to their EU Treaty competencies in security and defence matters, individual EU Member states seem to be winning the fight against spyware, according to an EU news report. In fact, under the pretext of national security, their options to spy on journalists have been reaffirmed.
Secondly, the political agreement on EMFA’s content moderation provisions could ruin public trust in media and endanger the integrity of information channels. It provides a system that can not only be exploited to distort people discourse but also be manipulated by rogue actors thereby compromising equal freedom of expression as well as democratic debate. More concretely, this risks the spread of hate speech or electoral propaganda. Moderation provisions include a dialogue between the parties to avoid unjustified content removals, an obligatory annual reporting by very large online platforms (VLOP), the possibility to lodge complaints by media service providers that have to be processed with priority, and an additional protection against the unjustified removal by VLOP of media content produced according to professional standards. In this regard, the Electronic Frontier Foundation states that “[b]y creating a special class of privileged self-declared media providers whose content cannot be removed from big tech platforms, the law not only changes company policies but risks harming users in the EU and beyond.” .
The Integrity of Information
The EMFA focuses on two main issues regarding VLOP. First, it asserts that platforms may limit users’ access to reliable content when they apply their terms and conditions to media companies that practice editorial responsibility and create news conforming with journalistic standards. Secondly, it asserts that quality of media services may fight against disinformation. In order to consider this problem, the EMFA’s objective is to adjust the connection between platforms and media. As an illustration, according to the proposed Art. 17 EMFA, media platforms will be provided transparency and contestation rights on platforms. In addition to that, according to Art. 18 EMFA, media services providers will have the opportunity to engage in a constructive dialogue with platforms on concepts such as disinformation. Under the EMFA VLOP will have to inform media companies that they plan to remove or restrict their content and give them 24 hours to answer.
Added to this, Art. 17 of the EMFA enforces a 24-hour content moderation exemption for media, advantageously making platforms host content by force which can lead to negative effects. By making platforms host content by force, this rule prevents large online platforms from deleting media content that violates community guidelines. Nevertheless, not only the proposed EMFA could threaten marginalised groups, but it could also undermine equality of speech and fuel disinformation. This is a vicious circle between the speaker planting false information on social media, the media platform spreading the false speech thanks to amplifying algorithms or human-simulating bots, and the recipients who view the claims and spread them. This infernal machine risks encouraging misinformation and disinformation.
Inequality
In terms of platforms and media companies negotiating content, since not all media providers will receive a special status, it creates inequality. Platforms will have to guarantee that most of the reported information is publicly accessible (Article 17 EMFA). Nevertheless, this strategy gives too much power to online platforms by giving them the possibility to decide over the status of media actors. Media service providers must prove they are “[…] editorially independent from Member States and third countries”, and that they are “[…] subject to regulatory requirements for the exercise of editorial responsibility in one or more Member States or adhere to a co-regulatory or self-regulatory mechanism governing editorial standards” (Article 17 EMFA). Besides, it will conduct to intricate compromises where powerful media outlets and platforms agree on which content remains visible such as frivolous take-downs by social netwoks like X.
Platforms and Media Companies Negotiating Content
But the EMFA Act still does not deal with the complex issue of who would oversee controlling the self-declarations (art. 17 (1) EMFA). More precisely, according to article 17 EMFA “[p]roviders of VLOP shall provide a functionality allowing recipients of their services to declare” that they are media service providers.
Above all, how will the new legislation be applied in practice and how will it work to ensure that it neither undermines the equality of speech and democratic debate nor endangers vulnerable groups? Not including that Article 17 EMFA includes safeguards related to AI-generated content, which we don’t know anything about yet since the details have not yet been disclosed.
Conclusion
To conclude, the risk to manipulate public opinion by disguising disinformation and propaganda as legitimate media content is still reflected in Article 17’s self-proclamation mechanism. In addition to that, the risk of establishing two categories of freedom of speech arises from the fragmentation of legislation, not aligning with the DSA. Then, our capacity to create informed decisions could be undermined by Article 17 EMFA, an article that allows self-proclaimed media entities to operate with insufficient oversight. Furthermore, our democratic processes risk to be severely damaged by the unregulated spread of disinformation. Finally, the opacity of Article 17 in the determination of the authenticity of self-proclaimed media engenders problems of compliance enforcement.
Bio:
Dr. Samira Allioui is a research and tutorial fellow at Centre d’études internationales et européennes, Université de Strasbourg. Her PhD examined the right of access to the European Judge since the entry into force of Protocol 14. Her research interests include the right of access to supranational judges, alternative dispute settlements and artificial intelligence in the legal decision-making process.