Lawtitude

INTRODUCTION
Free press and media are regarded as a pillar of any democracy. A true democracy is not possible if a free media does not scrutinise and keep in check those who are in power. The European Union is no exception to this. It regards freedom of expression, information and press freedom to be of utmost importance and guarantees the same as a Fundamental Right under Article 2 Treaty of the European Union.

The existing legislations i.e. The European Democracy Action Plan and The Digital Service Act had inherent shortcomings. They were handled at a State Level and the Member States had varying degrees of media protection and freedom. The Journalists and Media Houses faced increasing political and economic interference which jeopardised the integrity of the information being circulated. Digitalisation of media was not covered under the previous legislations, thus cross-border dissemination of information was at stake. To overcome these obstacles, a comprehensive legislation to regulate freedom of press and media was the need of the hour.

HISTORY
The Conference on the Future of Europe released an official Communication giving a detailed analysis of the Commission’s future plan of action to work on the proposals made by the Conference. The Commission clarified that a proposal was underway to enact a Media Freedom Act, which would include the suggestions made by the Conference. The Commission further stated that the Media Freedom Act should be aimed at safeguarding media pluralism and the independence of media within the European internal market. The proposal for the Legislation was tabled for discussion in September 2022. The European Media Freedom Act (hereinafter referred to as ‘EMFA’) was passed by the European Legislation on the 11th of April, 2024, which came into effect on the 7th of May, 2024. The EMFA aims to regulate media freedom, dependency on journalists, media plurality, prevent information manipulation, and safeguard media publications from being removed from large online platforms.

KEY FEATURES
The EMFA addressed the critical areas in the Media landscape of the European Union. Individualism of every Member State was abandoned, and a broad and detailed legislation addressing all the issues was introduced. The features of the EMFA include but are not limited to the following:

i) PROTECTING JOURNALIST’S WORK
The EMFA expressly prohibits Authorities of the Member States from obliging media service providers to reveal their journalistic sources or confidential information. The Member States are restricted from detaining, sanctioning, subjecting them to surveillance, search and seizure of their premises, intercepting or inspecting media service providers for the purpose of obtaining information that is capable of identifying journalistic sources or confidential information, etc. The Member States cannot deploy intrusive surveillance software on any material, digital device, machine or tool used by media service providers. These provisions are extended to their editorial staff or any person who by virtue of having a personal or a professional relationship with the media service providers may have access to the said journalistic sources or confidential information.

The Act allows the Member States to take the measures mentioned above if it is provided by any Union or National Law, in Compliance with Article 52(1) of the Charter, justified on a case-to-case based on public interest, authorised by a judicial authority, required for investigating offences under Article 2(2) of the Framework Decision punishable with a custodial sentence or a detention order for a maximum period of at least 3 years and other crimes punishable with custodial sentence or a detention order of a maximum period of at least 5 years.

ii) ESTABLISHMENT OF A BOARD
The EMFA establishes the European Board for Media Services (hereinafter referred to as ‘The Board’). The Board replaces the European Regulators Group for Audiovisual Media Services (ERGA) established by Article 30 b of Directive. The Board is composed of different representatives of National Authorities. The Board shall consult representatives from the media sectors at the National Level for matters beyond the audiovisual media sector. The Board has been empowered with a wide range of powers to help and advise the European Commission on issues related to media services. The EMFA expressly lays down the tasks of the Board under Article 13.

iii) REGULATING ONLINE PLATFORMS
The increasing digitalization of media with more and more online platforms accessible to individuals, brought about the need for regulation to ensure that there is no spread of disinformation and illegal content. Despite the presence of the Digital Service Act to regulate digital media, the EMFA aims to address some of its shortcomings. The EMFA thus regulates the content of online media service providers on very large online platforms. The online platforms have to declare that they are editorially independent from the Member States, Political Parties, Third Countries and entities controlled or financially controlled by third countries. The Act also establishes that big online platforms cannot arbitrarily restrict or delete independent media content. It requires a twenty-four hour notice to be given to the media before the platform tries to take down the post. Only after the media service providers reply or in the absence of the reply can the online platform take down the post. To prevent manifest arbitrariness, the media service providers will have the option to bring a case for an out-of-court settlement after the approval of the Board.

iv) RIGHT TO CUSTOMISE OFFERINGS
The users who consume the content of media service providers from huge online platforms shall have the right to customise the media offerings offered to them as per the Union Law. To administer this, the users shall have the right to change the configuration of any device or user interface or manage access to the use of media services. The duty is on the manufacturers, developers and the importers to ensure that the device placed in the market shall have the functionality to enable users to easily change their configuration or settings. Further, the Act imposes a duty on the Member States to take appropriate measures to ensure that the above changes are implemented.

v) COMBATTING MEDIA MARKET CONCENTRATION
Media Market Concentration refers to the concentration of the media ownership and control in the hands of a small number of companies or individuals. A high level of Media Market Concentration can limit the diversification of media content, reduce pluralism and impair the independence of the journalists and media service providers. To suppress the market concentration, the EMFA states that the Member States have to law down substantive and procedural rules within their national law to assess Media Market Concentration. The rules have to be transparent, proportionate, objective and non-discriminatory. Article 22 further lays down the parameters required to assess the concentration. If any Media Market Concentration is discovered, the national regulatory body shall consult the Board for a draft assessment or draft opinion. The Board shall then come up with a draft assessment or opinion which shall further be advanced to the national regulatory body, who after scrutinising the Boards opinion shall give detailed justification as to why the opinion is rejected, either fully or partially, to the Board and the European Commission. If there is a failure on the part of the Member States to come up with an assessment of the Market Concentration, the Board on authorization by the Commission may conduct its own assessment as the Commission itself is empowered to conduct an assessment.

vi) ALLOCATION AND MANAGEMENT OF ECONOMIC RESOURCES
The EMFA has also attempted to regulate the allocation of economic resources and contract opportunities to media service providers, in order to ensure free and fair empowerment of the media in every member state. Various criteria such as free, fair and transparent allocation of economic resources are not just to be followed by Providers of Audience Measurement Systems as mentioned in Article 24, but even the National regulatory authorities and bodies. The provision requires annual information regarding the allocation of any public funds or any other resource as well as the annual expenditure for State Advertising to be made publicly available by electronic means by the respective Public Authorities. Further, they are required to allocate the same on the criteria that it is “transparent, objective, proportionate and non-discriminatory”. The various regulatory bodies of the Member States are also required to carefully assess, monitor and report the allocation of such resources and contracts to various providers of online platforms and various media service providers.

vii) MONITORING AND EVALUATION
The most important task after adopting a new provision, would be to monitor and evaluate its functioning and progress. The EMFA, also includes provisions Article 26 and 27 that require the European Commission to monitor and evaluate the progress as well as risks of the adopted provision. At present, the EMFA has not clearly specified the performance criteria that will be used to evaluate the progress made. However, it specifies that the criteria will be set in due course by the Commission in consultation with the Board as set up by the Act. Further, the Act clearly specifies that the Commission would have to evaluate and provide a report of the same to the European Parliament, Council and European Economic and Social Committee every four years.

CONCLUSION
Despite the resounding success of the EMFA in safeguarding media freedom and enhancing pluralism across the European Union, it falls short in achieving some of its key objectives. The use of spyware in Europe violates the right to privacy enshrined under Article 12 of the Universal Declaration of Human Rights, Article 8 of the European Convention of Human Rights, and Article 7 of the European Charter of Fundamental Rights. While Article 4 of the EMFA aims to restrict member states from using surveillance spyware software on journalists, the right given to journalists is not absolute. The exception allowing surveillance on a case-by-case basis, if authorised by a judicial authority, risks misuse and undermines the EMFA’s purpose of completely stopping member states from surveilling journalists. The lack of clarity about the circumstances in which the exception can be invoked creates vagueness and potential for abuse. To resolve this loophole, the EU must clearly define the instances when such an exception may be exercised.

Further, the EMFA fails to mention any separate enforcement measures for its provisions or the actions that would be taken against media service providers and member states in case of non-compliance. It also lacks clear methods to assess media pluralism, leaving this to the commission to elaborate on. Although the EMFA allocates public funding and service contracts to media service providers and various other media platforms, it leaves the organization and allocation to the discretion of member states, potentially leading to inconsistencies and a lack of uniformity. Despite these criticisms, the EMFA represents a pivotal advancement by strengthening editorial independence, curtailing political and economic interference, and establishing clear standards for media ownership and state advertising transparency. In an era where media landscapes are increasingly influenced by digital transformations and cross-border operations, the EMFA provides the necessary tools to uphold the principles of a free and independent press.