The legal basis and form of the European Media Freedom Act (EMFA) continued to occupy MEPs as several experts were invited to speak on the subject on Monday 6 February in the European Parliament’s Culture Committee (CULT).
Media single market
The EMFA is based on Article 114 TFEU on the single market and the protection of public interests. But “not everything can fall under EU legislation on the basis of a claim that it has to do with the single market”, said Matthias Cornils of the University of Mainz, Germany.
In his view, the EU has no competence to legislate on the media sector - in particular for EMFA provisions on the regulation of public media and the independence of individual editorial decisions, or even on merger control - if it is not pursuing an economic objective. However, according to the Treaties, “Member States may take appropriate measures to protect legitimate interests other than competition [including media plurality]”, the European Commission said in response.
Directive vs. regulation
Another point of contention is the choice of legislative act. “Being a regulation of the ‘mixed or hybrid’ style, with directive-like provisions, EMFA produces unfavourable uncertainties”, Mr Cornils summarised, arguing instead for a directive “if sufficient flexibility is granted to Member States”.
On the contrary, Elda Brogi, who teaches at the European University Institute, argued that in view of “the fragmentation of the European regulatory landscape which may limit the [media] market”, a regulation allows for rapid implementation, “avoiding slow national transposition and possible excessive divergences between Member States in the transposition”.
“Media privilege”
As for the substance, one of the provisions that occupied MEPs was the obligation of platforms to notify the media before suspending their content for non-compliance with the terms of use (“media privilege”). This measure is reminiscent of the “media exemption” which was ultimately withdrawn from the Digital Services Act (DSA). “I am sceptical whether it’s a good idea to let the platforms decide which content needs to be disseminated”, summarised Tobias Schmid of the Media Authority of North Rhine-Westphalia.
“This could be a gift for those running disinformation and foreign interference campaigns”, warned fact-checker Carlos Hernández-Echevarría. Networks could circumvent platform monitoring by being recognised as a media outlet, despite the obligation to be recognised as such by national self-regulatory authorities. “They don’t have the resources to actually check the principle the media say they are following, if they are hidden”, he said. (Original version in French by Hélène Seynaeve)