The European Media Freedom Act (EMFA) was published in the Official Journal of the European Union on 11 April 2024 and will apply from 8 August 2025. Exceptionally, Article 3 on rights of recipients of media services to have access to a plurality of editorially independent media content, will apply from the earlier date of 11 November 2024.
The bulk of the new rules is intended to strengthen journalistic independence and plurality of the media, including rules on media ownership. There are, however, also important provisions on enforcement and cooperation in cross-border infringements, in particular with regard to video sharing platforms, a right for users to customise devices and user interfaces, and additional obligations on VLOPs under the Digital Services Act (DSA) as regards content moderation involving media service providers. A new European Board for Media Services is formally established. Enforcement and fines for non-compliance are regulated at national Member State level.
Scope and definitions
The EMFA establishes common rules for media services, which are defined as "services“ within the meaning of EU law, where the “principal purpose of the service” (or a dissociable section thereof) consists in “providing programmes or press publications, under the editorial responsibility of a media service provider, to the general public, by any means, in order to inform, entertain or educate.” This is essentially an additional definition of a service in European media law.
The scope is therefore broader than that of the Audiovisual Media Services (AVMS) and, in addition to television and on-demand audiovisual services, also covers radio, audio podcasts and press publications. User-generated content is excluded unless it constitutes a commercial professional activity. Purely private correspondence, such as emails, and services that do not provide programmes or press publications as their principal purpose (i.e. where the content is merely incidental to the service such as advertisements or product descriptions), corporate communications and distribution of informational or promotional materials are also excluded (Article 2(1), Recital 9).
Video sharing platforms, as defined in the AVMSD are also in scope, with some provisions expressly aimed at stricter enforcement against video sharing platforms.
There is no express clause covering the EMFA's territorial reach. Based on Articles 56 and 57 TFEU on the provision of “services”, the EMFA is likely to apply to all media services offered by entities based in the Union as well as to entities offering their services to recipients in the Union. Notably, the EMFA also contains a provision on coordinating measures concerning media services from outside the EU (Article 17).
The EMFA leaves other EU legislation unaffected, namely AVMSD, the digital single market Copyright Directive, the P2B Regulation, the DSA and the DMA, as well as GDPR and the more recent Regulation on Political Advertising enacted on 13 March 2024.
The EMFA sets out minimum standards, and Member States are free to implement more detailed or stricter rules on the areas covered by Chapter II (journalistic and editorial independence), Chapter III section 5 on measures affecting media service providers and media market concentration, and Article 25 on allocation of public funds for state advertising.
Journalistic and editorial independence
Rights and duties of media service providers
Article 3 addresses the rights of recipients of media services to receive a plurality of editorially independent media content. Article 4 sets out rights of media service providers, including:
- Respect for editorial freedom and independence and a prohibition on State interference in or influence over editorial policies and decisions
- Protection of journalistic sources and confidential communications, protection against detention, sanctions, interception, or inspection of media service providers or their staff, protection against surveillance or search and seizure of corporate of private premises, and a prohibition on deploying surveillance software (spyware). Certain derogations apply on a case by case basis if justified by an overriding reason of public interest and subject to prior judicial authorisation. Spyware can only be used to prevent major offences and its deployment must be regularly reviewed by a judicial authority.
Ownership transparency
Article 5 contains certain safeguards for the independent functioning of public service media providers including an obligation on Member States to ensure that public service media providers are editorially and functionally independent and provide a plurality of information and opinions in an impartial manner, as well as to ensure they have adequate and sustainable financial resources.
Media service providers must provide easily and directly accessible information including their name and contact details, the names of their direct or indirect owners and significant shareholders including direct or indirect ownership by a State or by a public authority or entity, the name of the beneficial owner (as defined in the Anti-Money Laundering Directive), and the total annual amount of public funds for State advertising and advertising revenues received from third-country public authorities or entities (Article 6). Member States’ national regulatory authorities must develop national media ownership databases. Media service providers of news and current affairs content must also take measures to guarantee the independence of editorial decisions.
Framework for regulatory cooperation and functioning of the internal market for media
National regulatory authorities must have adequate financial, human and technical resources to carry out their tasks under the EMFA.
A formal European Board for Media Services (Board) is established, replacing the European Regulators' Group for Audiovisual Media Services (ERGA) as established by Article 30b of AVMSD. The Board is composed of representatives of national regulatory authorities and elects a chair for one year, renewable once. The European Commission also has a representative on the Board. The tasks of the Board include advising the European Commission and promoting consistent application of the AVMSD including by providing opinions and assisting with drawing up guidelines.
Article 14 sets out rules for cooperation between national regulatory bodies. Under Article 15 a national authority may submit a request to another competent authority to take enforcement action relating to the obligations imposed on video-sharing platform providers under Article 28b(1), (2) and (3) of AVMSD. At the request of at least two national regulatory authorities the Board will also coordinate measures as regards media services originating from outside the EU that target or reach audiences in the EU where, in view of the control that could be exercised by third countries over them, such media services present a serious and grave risk of prejudice to public security (Article 17).
Under Article 18, providers of very large online platforms (VLOPs) as defined in the DSA must provide a functionality allowing media service providers to self-declare as independent and regulated media service providers. Where a VLOP intends to suspend content provided by a media service provider, specific safeguards apply (including where a self-declaration has been submitted by the media service provider). The VLOP has to give a statement of reasons and allow the media service provider 24 hours to reply. Although not expressly stated, it seems only logical that the VLOP will not be liable for any content under review at least during that time period.
Customising of devices and interfaces
Under Article 20, users have the right to be able to easily change the configuration, including default settings, of any device or user interface (e.g. app or website) controlling or managing access to and use of media services to customise the media offering. Manufacturers, developers and importers placing devices and user interfaces on the market must ensure that such devices and user interfaces include a functionality enabling users to easily change configuration, including default settings at any time.
Media market concentration, audience measurement and public funds for state advertising
The EMFA also addresses media market concentrations (Article 22). Member States must lay down transparent rules that allow an assessment of media market concentrations that could have a “significant impact” on media pluralism and editorial independence. This assessment is expressly distinct from competition law assessments (including those provided for under merger control rules). Where a media market concentration is likely to affect the functioning of the internal market for media services, the national regulatory authority must consult the Board in advance on its draft assessment or draft opinion.
Audience measurement is seen by the EU Commission as a decisive factor in the allocation of advertising. Accordingly, providers of proprietary audience measurements systems must provide media service providers, advertisers and designated third parties with information on the methodology used by their audience measurement system, and, on request, with information on audience measurement results, including non-aggregated data, which relate to the media content and media services of that media service provider (Article 24). State advertising must be awarded according to transparent, objective, proportionate and non-discriminative criteria. Public procurement rules remain unaffected (Article 25).
Enforcement
The EMFA does not stipulate separate enforcement measures or fines which will therefore need to be regulated at national Member State level
Outlook
The EMFA covers a wide range of topics from protection of media freedom in a democratic society to device customisation and state advertising. VLOPs under the DSA need to be aware of the additional safeguards and procedures applying to media service providers, although it seems that an infringement of these provisions would not automatically entail an infringement of the DSA. Setting out rules for media pluralism and journalistic independence is a new and untested approach in EU media legislation and shows the EU’s willingness to set up guardrails in these important areas.
