Defining the ‘media’ in Europe: pitfalls of the proposed European Media Freedom Act

ABSTRACT

This comment examines the definition of ‘media’ under the recently-proposed European Media Freedom Act (EMFA), and highlights its potential flaws, while pointing to possible considerations for future improvement. Notably, the narrow service-based approach to defining ‘media’ under Article 2 EMFA appears to be in conflict with the functional approach to defining media under European and international human rights law. Additionally, a lack of transparency and safeguards regarding how the criteria of ‘editorial independence’ is to be assessed, especially under Article 17 EMFA, is problematic. The risk that such decisions are made based on commercial and/or political considerations rather than established standards of media freedom must be avoided, especially when platforms are to assess editorial independence.

KEYWORDS:

• European Media Freedom Act
• media
• journalism
• platforms
• human rights law

Introduction

On 16 September 2022, the European Commission published its landmark Proposal for a Regulation establishing a common framework for media services in the internal market, known as the European Media Freedom Act (EMFA).¹ The EMFA was initially welcomed by many. Journalists, academics, and civil society organisations alike all voiced optimism that it would actually achieve what it promised: defend media freedom and pluralism in Europe, which has come under increasing threat in recent years.² Specifically, the EMFA sets out to ensure that media can operate more easily across borders in the EU internal market, without undue pressure, taking into account the digital transformation of the media space. To that aim, the EMFA focuses on a number of areas, including protection of editorial independence and the use of spyware against media, media pluralism and concentration measures, and protection of media content online.³

However, concerns have been raised by journalist organisations and academics,⁴ since the first positive response. Those are directed especially at the proposed Article 17 EMFA on the protection of media content on very large online platforms (VLOPs), and the potential detrimental effects of introducing something akin to a ‘media exemption’.⁵ But perhaps the most significant ambiguity is triggered by Article 2 EMFA on the definition of ‘media service’,⁶ which appears to be the elephant in the room: who does the EMFA protect?

There is a growing concern that, as it currently stands, the EMFA will exclude some of the most vulnerable actors in the media ecosystem, including (individual) journalists and other media actors who are public watchdogs. In this comment, we will discuss the service-based definition of ‘media’⁷ under the current EMFA proposal, as well as the consequences of Article 17 EMFA, which would not only exclude journalists from its scope, but also appears to leave extremely difficult decisions of whether a media outlet qualifies as a ‘media service provider’ and is ‘editorially independent’ entirely to the discretion of platforms. Accordingly, the purpose of this comment is to drill into the definition, assess its potential consequences, and provide some modest suggestions for how the proposed EMFA might be improved.

The EMFA and its definition of media

The EMFA’s preamble describes the importance of ‘media services’ for a healthy civic sphere, economic freedoms, and fundamental rights such as equality, pluralism, and democracy.⁸ The objectives of the EMFA are, thus, primarily steered towards the protection of such ‘media services’. Article 2 EMFA clarifies who is defined as a ‘media service’ and thus protected. Accordingly, ‘media service’ means ‘a service as defined by Articles 56 and 57 of the Treaty [on the Functioning of the European Union], where the principal purpose of the service or a dissociable section thereof consists in providing programmes or press publications to the general public, by any means, in order to inform, entertain or educate, under the editorial responsibility of a media service provider’.⁹ Further, a ‘media service provider’ is a ‘natural or legal person whose professional activity is to provide a media service and who has editorial responsibility for the choice of the content of the media service and determines the manner in which it is organised’.¹⁰ Reading Article 2 EMFA, in conjunction with Recital 7,¹¹ reveals what appear to be the primary criteria for defining a ‘media service’ for the purposes of the EMFA. These are ‘professional activity’ and ‘editorial responsibility’, respectively. Indeed, the definition of ‘press publication’ is taken from the 2019 Copyright Directive, which is designed to ‘only cover[] journalistic publications, published in any media, including on paper, in the context of an economic activity that constitutes a provision of services under Union law’, and should not apply to ‘websites, such as blogs, that provide information as part of an activity that is not carried out under the initiative, editorial responsibility and control of a service provider, such as a news publisher’.¹²

The definition of media is largely similar to the one in the Audiovisual Media Services Directive (AVMSD),¹³ with the main (obvious) exception that the AVMSD only generally applies to audiovisual content. As the same media authorities are entrusted to apply both definitions, it seems likely that the two will be interpreted the same in practice. While this is desirable from a consistency perspective, it is important to note the two instruments have very different goals. The AVMSD aims to create a minimum level of responsibility necessary for media companies to be able to broadcast to the entire EU from one Member State. The EMFA, conversely, aims to protect media freedom generally.

What becomes evident is that in the EMFA, and similarly in the AVMSD, the European Commission is following a quite narrow approach to defining media. The definition is very much a service-based approach, with professional activity ‘provided for consideration’ as its focus, and arguably deviates from the (generally) broad definitional approach under European and international human rights law. Indeed, on its face, it would seem not apply to individual journalists, bloggers, non-profit news websites, or NGOs, with the EMFA’s preamble actually including a distinction between ‘media service providers’ and ‘journalists’.¹⁴ Notably, the substantive provisions of the EMFA nowhere mention journalists, while Article 4 on protection from surveillance only speaks of protecting ‘employees’ of media service providers.¹⁵

Service-based definition

There are a number of points of critique to be raised over EMFA’s service-based definition of media. One of the most striking aspects of the narrow definition of media under EMFA is that it is arguably at odds with the Council of Europe and international human rights standards on the notion of media.¹⁶ Notably, the definition fails to take account of Council of Europe standards and European Court of Human Rights (ECtHR) case-law on the notion of media. This is crucial for several reasons. First, as the European Commissioner for Human Rights has emphasised, the Council of Europe has historically provided ‘powerful and detailed elaboration’ on the notion of media, having been involved in standard-setting on media regulation for a number of decades.¹⁷ In particular, the Council of Europe’s Committee of Ministers has adopted a number of important standard-setting instruments on the definition of media, which have been cited with approval by not only the ECtHR, but also the Court of Justice of the European Union (CJEU).¹⁸ Second, the ECtHR has delivered numerous landmark judgments on the definition of media under Article 10 of the European Convention on Human Rights (ECHR), which guarantees the right to freedom of expression, and the right to freedom of the media.¹⁹ Importantly, the CJEU expressly confirmed in 2019 that Article 11 of the EU Charter of Fundamental Rights (Charter), which guarantees media freedom, should be given the ‘same meaning and the same scope’ as Article 10 ECHR, ‘as interpreted by the case-law of the European Court of Human Rights’.²⁰ Crucially, the proposed EMFA recognises that it should be ‘interpreted and applied’ with due respect Article 11 Charter, ‘which corresponds’ to Article 10 ECHR.²¹

Notably, the notion and definition of media have gradually evolved over the past decades, with a broad notion of media becoming the benchmark for Council of Europe standard-setting instruments, which takes account of many different actors in the media ecosystem. For example, in its 2004 Recommendation on the right of reply, the Committee of Ministers adopted a notably succinct definition of a ‘medium’, as being ‘any means of communication for the periodic dissemination to the public of edited information, whether on-line or off-line’, giving the examples of newspapers, periodicals, radio, television, and ‘web-based news services’.²² The definition thus took a technology-neutral approach, but ensured that the definition was centred on the information being (a) periodically published and (b) edited; but crucially, there was no service-based or economic element. Then, in its 2007 Recommendation on media coverage of election campaigns, the Committee adopted a more substantive definition of media as being ‘those responsible for the periodic creation of information and content and its dissemination over which there is editorial responsibility, irrespective of the means and technology used for delivery, which are intended for reception by, and which could have a clear impact on, a significant proportion of the general public’.²³ And again, there was no service-based element.

While these early recommendations contained definitions of media, it was not until a seminal recommendation was adopted in 2011 that the Committee devoted an entire recommendation exclusively to defining and identifying ‘media’, entitled a ‘new notion of media.²⁴ Helpfully, the Recommendation set out a detailed framework comprising six criteria on how to identify media, namely (1) intent to act as media; (2) having the purpose and underlying objectives of media; (3) editorial control; (4) adhering to professional standards; (5) seeking outreach and dissemination; and (6) satisfying public expectation.²⁵ Crucially, not all of these criteria carry equal weight, and the absence of certain criteria, such as criterion 2 (purpose), criterion 3 (editorial control) or criterion 5 (outreach and dissemination) would ‘tend to disqualify’ being regarded as media.²⁶ However, where certain criteria are not met, such as criterion 1 (intent) or criterion 6 (public expectation), this ‘should not automatically disqualify’ being considered media.²⁷ Notably, the Recommendation specifically mentions that media are presumed to be ‘broadly accessible’, and noting that ‘this does not rule out services for consideration’ (emphasis added), thus indicating that service-based media are included, but not making service-for-consideration as a criterion of media. Crucially, this definitional framework has been approved in numerous subsequent recommendations, including the 2022 Recommendation on principles for media and communication governance,²⁸ and 2022 Recommendation on promoting a favourable environment for quality journalism in the digital age.²⁹ Further, the influential nature of this definition is evidenced by it being relied upon with approval by the ECtHR, including by its 17-judge Grand Chamber,³⁰ the European Commission’s High Level Group on Media Freedom and Pluralism,³¹ and the Court of Justice of the European Union.³²

Further, it is important to note that the notion of journalism has also evolved along a similar trajectory to media, also becoming a broad notion, not tied to professional activity. For example, an early Committee of Ministers' Recommendation defined a ‘journalist’ as ‘any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication’.³³ Thus, the concept of journalist was not limited to professional journalists. Crucially, in 2016, in the Recommendation on the protection of journalism and the safety of journalists and other media actors, it was reiterated that the definition of media actors has ‘expanded’, due to ‘new forms of media in the digital age’, and includes other media actors who ‘contribute to public debate and who perform journalistic activities or fulfil public watchdog functions’.³⁴ This broad notion of journalism also reflects developments in international freedom of expression standards, where the UN Human Rights Committee has stated that ‘[j]ournalism is a function shared by a wide range of actors, including professional full-time reporters and analysts, as well as bloggers and others who engage in forms of self-publication in print, on the internet or elsewhere’.³⁵ Again, the notion of journalist is not tied to only ‘professional’ journalists.

Turning to the ECtHR, the Court has expressly recognised that certain bloggers and social media influencers may be considered to come within the notion of ‘public watchdog’, under Article 10 ECHR, and to exercise an important role and ‘warranting similar protection under the Convention as that afforded to the press’.³⁶ This was confirmed by the Grand Chamber in 2016, and was recently reaffirmed by a unanimous ECtHR in 2020.³⁷ This view is consistent with the functional notion of journalism mentioned above, and the ECtHR specifically ties the potential protection of bloggers and well-known social media users to the role that these watchdogs play in ‘enhancing the public’s access to news’ and matters of public concern, or public interest.³⁸ Indeed, in 2020, the Court held that a blogger uploading a video to YouTube commenting on a political debate had to be examined based on the ‘same principles applied when assessing the role of a free press’.³⁹ Similarly, the Court has also held that when an NGO engages in expression on matters of public interest, it is exercising a ‘public watchdog role’ of ‘similar importance to that of the press’, and may be characterised as a social ‘watchdog’ warranting similar protection under the Convention as that afforded to the press.⁴⁰

Indeed, the ECtHR has also been emphasising the important role of ‘citizen journalism’, and the role of platforms in the dissemination of traditional media content and in facilitating citizen journalism online. Indeed, the ECtHR has explicitly recognized that YouTube is ‘undoubtedly an important means of exercising the freedom to receive and impart information and ideas’, a place where ‘political content ignored by the traditional media’ is shared, and that fosters the ‘emergence of citizen journalism’.⁴¹

And not only does human rights law define media and journalism broadly, the CJEU takes a similar approach. A seminal judgment is Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and Satamedia Oy, which concerned the interpretation of ‘journalistic purposes’ under the Data Protection Directive, where member states must provide exemptions from certain data protection rules where data processing is carried out solely for ‘journalistic purposes’.⁴² Crucially, the Court laid down a number of important principles. First, the Court emphasised that ‘it is necessary’ to interpret notions relating to freedom of expression, such as journalism, ‘broadly’, in order to take account of the importance of the right to freedom of expression in every democratic society.⁴³ Second, the Court, taking a particularly broad approach, held that the exemptions should not only apply to ‘media undertakings’, but also to ‘every person engaged in journalism’.⁴⁴ In very succinct language, the Court held that activities may be classed as ‘journalistic activities’ if ‘their object is the disclosure to the public of information, opinions or ideas, irrespective of the medium which is used to transmit them’.⁴⁵

The above approach by the CJEU was again evident in a notable judgment from 2019, and again, on the notion of ‘journalistic purposes’. The case was Sergejs Buivids v Datu valsts inspekcija,⁴⁶ and concerned an individual who had recorded his interaction with the police in a Latvian police station and had uploaded the video to YouTube. The domestic courts found that the recording did not come within the journalistic-purposes exception under the Data Protection Directive, because the video ‘did not show current events relevant to society or dishonest conduct on the part of the police officers’.⁴⁷ Notably, the CJEU first held that just because the individual was not a professional journalist, meant that it ‘does not appear to be capable of excluding the possibility’ that the recording of the video and its publication on YouTube ‘may come within the scope’ of journalistic purposes provision’.⁴⁸ Further, uploading a video to YouTube ‘cannot in itself preclude the classification of that processing of personal data as having been carried out solely for journalistic purposes’.⁴⁹ The crucial aspect was the individual’s intention and whether the video was published to ‘draw to the attention of society to alleged police malpractice’.⁵⁰ Thus, both Satakunnan Markkinapörssi Oy and Sergejs Buivids both represent the CJEU’s functional approach to media and journalism, where the concept of journalism is not limited to for-profit media undertakings, and journalism is not limited to professional journalists.

Given the above principles from the Council of Europe, UN Human Rights Committee, the ECtHR and CJEU, it is striking how narrow the EMFA’s service-based definition of media is; and how it arguably runs completely counter to current standards on defining the media. Indeed, it is equally striking that there is no mention of ‘journalism’, ‘journalists’, or ‘journalistic purpose’ in the EMFA. This triggers the fundamental question to what extent bloggers, citizen journalists, and other public watchdog recognised by the ECtHR, such as NGOs, are actually protected by the EMFA. Although, politically and publicly, the Commission placed high value on the protection of journalistic actors, such as investigative freelance journalists and NGOs, the EMFA does not provide a clear definition covering these actors. That is mostly because the definition of media under the EMFA applies to economic activities, whereas the ECtHR and CJEU do not make that distinction. In a nutshell, instead of following a generally broader definition as established under international human rights standards, it seems to opt for a narrow definition focused on professional service and economic activity, rather than the functional role that journalism plays in democracy. This is concerning and provokes the fundamental question: what does that mean for the treatment of other public watchdogs conducting ‘journalistic activities’? Furthermore, the EMFA’s approach to defining ‘media’ has other, far-reaching implications, especially if read in conjunction with Article 17 EMFA.

Independent and responsible media on platforms

The problems with the narrow scope of the EMFA’s general definition of media are exacerbated in the context of Article 17 EMFA, which provides a subset of media that declare they are ‘editorially independent’ from the government, and subject to an editorial responsibility framework, receive (slightly) increased protection when platforms moderate their content.⁵¹ As with the EMFA’s general definition of media, a key question in the context of Article 17 EMFA is who will be able to assert the rights it establishes.

Article 17 EMFA’s plain text suggests that no one needs to check the declarations media organisations submit: platforms must simply allow organisations to declare they are responsible and independent media, and extend Article 17 EMFA’s privileges to media organisations that ‘submitted a declaration’.⁵² Nowhere does Article 17 EMFA require that these declarations are truthful or verified. Of course, in practice it is unlikely that a state-affiliated media organisation such as Russia Today (RT) will be able to claim protection under Article 17 EMFA simply because it has declared itself to be independent and responsible. Some parties will have to verify its application and in doing so, decide which media organisations are sufficiently independent and responsible to qualify for protection on platforms. Recital 33 EMFA indicates platforms have the primary responsibility to check whether media are sufficiently responsible and independent, as it states that VLOPs should not only provide a functionality to self-declare, while retaining the possibility ‘not to accept such a self-declaration where they consider that these conditions are not met’.⁵³ But nowhere does the EMFA give binding, concrete guidance on how, by whom, or according to what criteria a media organisation can be judged to be sufficiently independent and responsible.⁵⁴

Very large online platforms

In doing so, the EMFA creates a new threat for (the equal enjoyment of) media freedom. The criteria to be checked are not straightforward. Editorial independence from the state, for example, depends on a wide range of factors. Some of these are clear: a media organisation whose editorial board is directly appointed and can be dismissed at the discretion of an elected official can hardly be said to be independent from the state. But beyond such clear indicators of state control are many more shades of grey. These particularly come into play for public service media. In that context, the Council of Europe has put forward an elaborate framework detailing the organisational, financial, and other safeguards that ensure the PSM is independent despite it ultimately falling under government control.⁵⁵ But also in the context of private media, editorial independence may be threatened by factors such as the selective application of media law or ownership takeovers by business interests closely connected to the political elite that also holds state power.⁵⁶

Similar concerns apply in the context of the criterion of editorial responsibility. This criterion touches on the core of the debate about media freedom in general – the idea that media companies deserve privileges only if they also assume the accompanying responsibilities.⁵⁷ The EMFA appears to assume that media companies hold up their end of this bargain if they fall under regulation or widely accepted self-regulation in the relevant media sector. But also in this context, many normative decisions must be made. For example, do media companies still qualify for Article 17 EMFA if they sign up for but do not comply with self-regulation, or if the (self-)regulation is not enforced? And by how many, and in which media markets, must self-regulation be accepted before its signatories qualify for Article 17 EMFA? What if the (self-)regulation accepted (in for example Hungary) is not sufficient to safeguard responsible conduct?

The point is that determining which media are independent and responsible enough to gain privileged access to the massive audiences on platforms involves very complex normative decisions. There is nothing wrong with a regulation that raises those issues – they are perhaps unavoidable in an instrument that aims to protect media on platforms. Similarly, spelling out the answers to these detailed questions is a lot to ask of a regulation. It is unavoidable that the broader principles that the EMFA sets out about which media qualify for Article 17 EMFA are answered ex-post.

Concluding remarks

What is problematic is that the EMFA does not provide sufficient guidance on how, or by whom, decisions should be made. This creates a danger that these decisions are not made in line with established principles of freedom of expression and media freedom, but rather based on commercial and/or political considerations. This is especially likely when these decisions are made by platforms, which are governed by commercial interests. But also the role of public authorities and judicial review of the decision of whether a media company falls under Article 17 EMFA should be clarified. While we do not intend to provide concrete solutions, we would like to point to two potential points to consider for the future.

First, any process that extends privileges to certain media must be transparent. In this case, that could involve transparency at two stages of the process. First, of course, the decision of whether a media company’s declaration is accepted should be public. To ensure the decision can be contested, the justification for the decision should also be public. Beyond that, it should be clear which media companies are benefiting from the media privilege in Article 17 EMFA in general. This can be achieved rather simply by appending a media company’s status as privileged under Article 17 EMFA to the database of moderation decisions and statements of reasons the Commission is already required to operate on behalf of large platforms under the recently-enacted Digital Services Act.⁵⁸

Beyond that, the EMFA needs to provide more clarity on the specific ways in which editorial independence and compliance with the regulatory standards attached to editorial responsibility should be understood. At the moment, this homework is pushed to a later date by giving the Commission the power to adopt guidelines on the declaration media companies can make.⁵⁹ The Commission, however, is not only a regulatory but also a political body. Moreover, it has relatively little institutional experience in freedom of expression principles. Further, there is no reason to reinvent the wheel here. The Council of Europe and ECtHR have developed extensive standards outlining the main principles and indicators of editorial independence. Referring to these, and indicating they should guide the interpretation of Article 17 EMFA, would be an easy fix. The European Board of Media Services, which is established in the EMFA and consists of the different EU media authorities, could be given the power to expand on these standards as needed.⁶⁰

In summary, the EMFA’s definition of ‘media’ appears to take an unusual and narrow approach. It contradicts definitions of media international human rights standards, and it raises several concerns. To what extent will the EMFA protect other public watchdogs, such as independent journalists, bloggers, and NGOs, in the first place? Is it acceptable to delegate platforms (or any public authority) with such far-reaching powers to decide over the protective status of a media service? How and by whom would self-declarations be monitored? Finally, what are the implications of taking a ‘service-based’ approach to defining media and journalism rather than a ‘rights-based’ approach, and granting certain privileges and protections to only those who are ‘accredited’ as a ‘media service’? A common thread in these questions is that the EMFA’s approach to defining media reflects EU law and the internal market dimension. In accordance with Article 114 of the Treaty on the Functioning of the European Union (its legal basis), EMFA focuses on safeguarding media freedom only when it can be tied to economic activities. Aspects of its media definition are also based on the AVMSD, which aimed at imposing responsibilities on media companies to facilitate the cross border provision of services, while platforms’ power to initially determine who qualifies for media privileges under Article 17 EMFA is reflective of the general shift to privatised content governance in EU platform law.

Overall, the EU’s economic focus leads it to be both overly restrictive and insufficiently clear. Overly restrictive because media freedom should not only be available to economic services. Insufficiently clear, because the proposal (perhaps due to the EU’s economics-oriented institutions) pays insufficient attention to the normative questions associated with who should and should not qualify for media freedom. Building on this preliminary assessment of the EMFA’s approach to defining ‘media’, we continue to assess the significant points of contention in opting for such a narrow and service-based definition of ‘media’, given that it may run counter to the intended objectives of the proposed EMFA in the first place.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Theresa Seipp

Theresa Seipp is a PhD Candidate at the Institute for Information Law (IViR), University of Amsterdam; Dr. Ronan Ó Fathaigh is a Senior Researcher at the Institute for Information Law (IViR), University of Amsterdam; and Dr. Max van Drunen is a Postdoctoral Researcher at the Institute for Information Law (IViR), University of Amsterdam.

Notes

1 Commission, ‘Proposal for a Regulation establishing a common framework for media services in the internal market (European Media Freedom Act) and amending Directive 2010/13/EU’ COM(2022) 457 final (hereinafter: ‘EMFA proposal’).

2 See, for example, European Broadcasting Union, ‘European Media Freedom Act: Striking the right balance' (16 September 2022) <www.ebu.ch/news/2022/09/european-media-freedom-act>; and Damian Tambini, ‘The democratic fightback has begun: The European Commission’s new European Media Freedom Act’ (Inforrm, 2 October 2022) <https://inforrm.org/2022/10/02/the-democratic-fightback-has-begun-the-european-commissions-new-european-media-freedom-act-damian-tambini/>.

3 See EMFA proposal, s 1 (Rights and duties of media service providers and recipients); s 5 (Requirements for well-functioning media market measures and procedures); and art 17 (Content of media service providers on very large online platforms).

4 See for example, European Federation of Journalists, ‘EFJ welcomes European Media Freedom Act but calls for strengthening’ (16 September 2022) <https://europeanjournalists.org/blog/2022/09/16/efj-welcomes-european-media-act-but-calls-for-strengthening/>; Natali Helberger and others, ‘Expert opinion on draft European Media Freedom Act for stakeholder meeting 28 February 2023’ (DSA Observatory, 29 March 2023) <https://dsa-observatory.eu/2023/03/29/expert-opinion-on-draft-european-media-freedom-act-for-stakeholder-meeting-28-february-2023/>; Joan Barata, ‘Protecting media content on social media platforms’ (Verfassungsblog, 25 November 2022) <https://verfassungsblog.de/emfa-dsa/>; and Dirk Voorhoof, ‘Will the EU Media Freedom Act (EMFA) be able to strengthen the protection of journalistic sources?’ (2023) 28(1) Communications Law 16.

5 See Luca Bertuzzi, ‘Media exemption ruled out in DSA negotiations, but could return’ Euractiv (24 November 2021) <www.euractiv.com/section/digital-single-market/news/media-exception-ruled-out-in-dsa-negotiations-but-could-return/>.

6 EMFA proposal, art 2(1).

7 This comment only seeks to examine the definition of media under the EMFA proposal, and for an in-depth discussion of the notion of media, there is a rich literature: see, for example, Peter Coe, Media Freedom in the Age of Citizen Journalism (Elgar 2021); Damian Tambini, Media Freedom (Polity 2021); András Koltay, ‘The Concept of Media Freedom Today: New Media, New Editors and the Traditional Approach of the Law’ (2015) 7(1) Journal of Media Law 36; and Jan Oster, ‘Theory and Doctrine of “Media Freedom” as a Legal Concept’ (2013) 5(1) Journal of Media Law 57.

8 EMFA proposal, p 1.

9 EMFA proposal, art 2(1).

10 ibid art 2(2).

11 EMFA proposal, recital 7 (‘the definition of a media service should be limited to services as defined by the Treaty and therefore should cover any form of economic activity. This definition should exclude user-generated content uploaded to an online platform unless it constitutes a professional activity normally provided for consideration (be it of financial or of other nature). It should also exclude … services that do not have the provision of audiovisual or audio programmes or press publications as their principal purpose, meaning where the content is merely incidental to the service and not its principal purpose’).

12 Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC, recital 56.

13 Directive (EU) 2018/1808 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, art 1.

14 EMFA proposal, p 5.

15 EMFA proposal, art 4(1)(b).

16 Damian Tambini, ‘What is Journalism? The Paradox of Media Privilege’ (2021) European Human Rights Law Review 523.

17 Commissioner for Human Rights, ‘Media Pluralism and Human Rights’ CommDH (2011)43, s 1.2.

18 See, for example, Delfi AS v Estonia [GC] App no 64569/09 (ECHR, 16 June 2015) para 113; and Case C-622/17 Baltic Media Alliance Ltd v Lietuvos radijo ir televizijos komisija (Opinion of Advocate General, 28 February 2019) para 44.

19 See, for example, OOO Regnum v Russia App no 22649/08 (ECHR, 8 September 2020) para 67.

20 See, Case C–345/17 Sergejs Buivids v Datu valsts inspekcija (14 February 2019) para 65.

21 EMFA proposal, s 3 and recital 53.

22 Recommendation Rec(2004)16 of the Committee of Ministers to member states on the right of reply in the new media environment (15 December 2004), preamble.

23 Recommendation CM/Rec(2007)15 of the Committee of Ministers to member states on measures concerning media coverage of election campaigns (7 November 2007), preamble.

24 Recommendation CM/Rec(2011)7 of the Committee of Ministers to member states on a new notion of media (21 September 2011).

25 ibid para 50.

26 ibid para 11.

27 ibid.

28 Recommendation CM/Rec(2022)11 of the Committee of Ministers to member states on principles for media and communication governance (6 April 2022).

29 Recommendation CM/Rec(2022)4 of the Committee of Ministers to member States on promoting a favourable environment for quality journalism in the digital age (17 March 2022). See also, Recommendation CM/Rec(2018)1 of the Committee of Ministers to member States on media pluralism and transparency of media ownership (7 March 2018), and Recommendation CM/Rec(2018)2 of the Committee of Ministers to member States on the roles and responsibilities of internet intermediaries (7 March 2018); and Recommendation CM/Rec(2022)12 of the Committee of Ministers to member States on electoral communication and media coverage of elections campaigns (6 April 2022).

30 See, Delfi AS v Estonia [GC] App no 64569/09 (ECHR, 16 June 2015) para 113. See also, Magyar Jeti Zrt v Hungary App no 11257/16 (ECHR, 4 December 2018) para 27; and OOO Informatsionnoye Agentstvo Tambov-Inform v Russia App no 43351/12 (ECHR, 18 May 2021) para 51.

31 High Level Group on Media Freedom and Pluralism, A Free and Pluralistic Media to Sustain European Democracy (European Commission 2013) 11.

32 Case C-622/17 Baltic Media Alliance Ltd v Lietuvos radijo ir televizijos komisija (Opinion of Advocate General, 28 February 2019) para 44.

33 Recommendation No R (2000) 7 of the Committee of Ministers to member states on the right of journalists not to disclose their sources of information (8 March 2000), appendix.

34 Recommendation CM/Rec(2016)4 of the Committee of Ministers to member states on the protection of journalism and the safety of journalists and other media actors (13 April 2016), para 4.

35 Human Rights Committee, General Comment No. 34 – Article 19: Freedoms of Opinion and Expression, CCPR/C/GC/34 (12 September 2011) para 44.

36 Magyar Helsinki Bizottság v Hungary [GC] App no 18030/11 (ECHR, 8 November 2016) para 168.

37 Centre for Democracy and the Rule of Law v Ukraine App no 10090/16 (ECHR, 26 March 2020) para 87.

38 ibid para 87.

39 Rebechenko v Russia App no 10257/17 (ECHR, 16 April 2019) para 25.

40 Magyar Helsinki Bizottság v Hungary [GC] App no 18030/11 (ECHR, 8 November 2016) para 166.

41 Cengiz and Others v Turkey App nos 48226/10 and 14027/11 (ECHR, 1 December 2015) para 52.

42 Case C-73/07 Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and Satamedia Oy (16 December 2008). See Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data, art 9.

43 Case C-73/07 Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and Satamedia Oy (16 December 2008) para 56.

44 ibid para 58.

45 ibid para 61.

46 Case C–345/17 Sergejs Buivids v Datu valsts inspekcija (14 February 2019).

47 ibid para 21.

48 ibid para 55.

49 ibid.

50 ibid 60.

51 EMFA proposal, art 17(1) (‘Providers of very large online platforms shall provide a functionality allowing recipients of their services to declare that: (a) it is a media service provider within the meaning of Article 2(2); (b) it is editorially independent from Member States and third countries; and (c) it is subject to regulatory requirements for the exercise of editorial responsibility in one or more Member States, or adheres to a co-regulatory or self-regulatory mechanism governing editorial standards, widely recognised and accepted in the relevant media sector in one or more Member States’).

52 EMFA proposal, art 17(2).

53 EMFA proposal, recital 33.

54 EMFA proposal, recital 33, provides some suggestive guidance, referring to Reporters Without Borders’ Journalism Trust Initiative standards and ‘other relevant codes of conduct’ (VLOPs ‘may rely on information regarding adherence to these requirements, such as the machine-readable standard of the Journalism Trust Initiative or other relevant codes of conduct’).

55 Recommendation CM/Rec(2012)1 of the Committee of Ministers to member states on public service media governance (15 February 2012).

56 Recommendation CM/Rec(2012)1 of the Committee of Ministers to member States on public service media governance (15 February 2012).

57 See Damian Tambini, Media Freedom (John Wiley & Sons 2021).

58 See Regulation (EU) 2022/2065 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act) art 24(5).

59 See EMFA proposal, recital 33 (‘Guidelines by the Commission may be useful to facilitate an effective implementation of such functionality, including on modalities of involvement of relevant civil society organisations in the review of the declarations, on consultation of the regulator of the country of establishment, where relevant, and address any potential abuse of the functionality’).

60 See EMFA proposal, art 8. The Board will replace the European Regulators Group for Audiovisual Media Services (ERGA), established by 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), art 30b.