Corinne Thiérache, Associate Lawyer in the Intellectual Property – Technology and Digital Law – Personal Data Protection department, Caroline Leroy-Blanvillain Associate Lawyer and Romane Cussinet Trainee Lawyer have written a publication on the Provisional Agreement on the European Media Freedom Act (EMFA): welcome arbitration?
According to a press release from the Council of the EU dated 15 December 2023, a provisional agreement on the EMFA[1] has been reached between the Parliament and the Council, incorporating the 295 amendments voted by the Parliament on 3 October. There is still a long way to go before this provisional agreement is adopted: it still has to be approved by the Committee on Culture and Education (January 2024), by the full Parliament (March 2024), and by the Council[2] (estimated date unknown).
This provisional agreement is nonetheless an opportunity to look at the above-mentioned amendments adopted in October 2023 and thus measure the progress made by the trialogue in relation to the Council’s proposal. Some of these amendments appear to be relevant in the light of the Digital Services Act (DSA), which will come fully into force on 17 February 2024.
Firstly, the EMFA establishes a principle of transparency for the operation of media service providers. A greater transparency obligation would thus be imposed on media owned by a Member State (amendment 128 relating to Article 6(1)). Similarly, transparency would also be required with regard to the contact details of the editorial director (amendment 129) and with regard to any capital links with other press or other companies (amendment 130). This last point could finally help to rebalance the current trend towards media concentration. Generally speaking, several amendments focused on the absence of ambiguity regarding the links maintained by a media outlet or press group with state authorities or commercial or political interests.
Secondly, the provisional agreement finally seems to reject the national security exception, which could have allowed Member States to misuse the protection afforded to journalists (amendments 113 to 116). The system adopted provides for the necessary protection of journalists’ sources, a ban on gag orders and the impossibility of using spyware.The provisional agreement also settles the question of relations between providers of very large online platforms, probably within the meaning of the DSA, and media service providers. It is envisaged that particular care will be taken with content provided by the media. With this in mind, amendment 208 on article 17§1 stipulates that these platform providers “shall ensure that decisions regarding content moderation and any other action they take do not have a negative impact on the freedom and pluralism of the media”. Importantly, the provisional agreement also incorporates amendment 220 to article 17(2), which allows a media provider to react within 24 hours if one of its content items is removed by the provider of a very large platform. The latter will then be able to refer the matter to the national authority if it considers that the content is still in breach of its general terms and conditions (amendment 221).
Lastly, the provisional agreement takes a stand on the European Committee for Media Services, providing for a broader remit for the Committee, which will be able to issue opinions on its own initiative, but also establishing its independence in principle and providing for its own allocated budget as well as the creation of an Advisory Expert Group. In particular, the Committee should be able to enter into dialogue with the providers of very large online platforms or search engines (amendments 229 to 233 to Article 18) on issues such as access to the media and the control of disinformation or manipulation of information. It would also have the opportunity to give its opinion on measures adopted by the national authorities that have a direct impact on a media provider, at its request (amendment 242 on Article 20(5)). Lastly, it would be able to assess market concentration and its consequences for media pluralism (amendments 258 to 261 on Article 22), given the current trend for European competition law to influence a large proportion of sectoral regulations on online services.
However, this encouraging observation must be qualified by the concern raised by the possible introduction in the provisional agreement of a restriction on the scope of action of publication directors (amendment 30). While the latter remain criminally liable in France due to the mechanism of cascading liability provided for by the law on freedom of the press of 29 July 1881, they would no longer be able to intervene in published content, once the editorial line has been established between the editor-in-chief and the publication director. If necessary, the publication manager would still be able to argue that the content did not comply with the agreed editorial line.
In conclusion, while there are still several stages to go before the final adoption of this text, the EMFA deserves particular attention in that it lays down obligations that can already be anticipated by the entities concerned, particularly in the context of compliance with the DSA.
The teams in ALERION’s Intellectual Property and Digital Technology Law departments are available to assist you with any questions you may have on these subjects.
Corinne THIERACHE, Partner, Caroline LEROY-BLANVILLAIN, Associate and Romane CUSSINET, Student-Lawyer, from ALERION’s Intellectual Property and Digital Technology Law departments.
[1] Council and Parliament reach agreement on new rules to safeguard media freedom, pluralism and editorial independence in the European Union – Consilium (europa.eu)
[2] Agreement on European legislation on media freedom | News | European Parliament (europa.eu)