On 16 September 2022, the European Commission (“EC”) proposed a regulation establishing a common framework for media services in the internal market, also known as the European Media Freedom Act (“EMFA”). The aim of the EMFA is to ensure the freedom, independence and pluralism of the media. Among other things, it aims to protect journalists from political interference in European member states. The EC proposal contains a regulation that strengthens the procedural position of media service providers against the Very Large Online Platforms (“VLOPs”) designated by the DSA. Media service providers enjoy a so-called ‘media privilege’ under Article 17 EMFA, which is the focus of this blog.
Article 17 EMFA regulates that journalistic media have a stronger position against online platform providers than other users of the platform. The European legislator considers it very important to protect the editorial independence of media. It is therefore considered undesirable that a platform can simply remove the content offered by a media service provider because, for example, it conflicts with the general conditions of the platform. Against this background, Article 17 EMFA was created.
‘Media service provider’
The EC proposal defines a ‘media service provider’ as a natural or legal person who provides a media service as a professional activity, who has editorial responsibility for the choice of media service content and who determines how it is organised. Services that may be covered include traditional television and radio broadcasting, online video and audio streaming services, news websites, online newspapers and video-on-demand services. In short, it looks at the provision of professional services for a fee.
Privileges
A media service provider can obtain a number of privileges on the platform through a declaration. For example, if the platform decides to remove a provider’s content (or otherwise suspend its services) because it is in breach of its general terms and conditions, it must take all possible measures to inform the provider of the reasons for this decision before the suspension takes effect (Article 17(2) EMFA). This obligation does not apply if the content contributes to a systemic risk within the meaning of Article 34 DSA.
In addition, the platform must take all technical and organisational measures to ensure that complaints from media service providers are processed and handled with priority and without undue delay (Article 17(3) EMFA).
Where a media service provider considers that a platform frequently and without sufficient grounds restricts or suspends the provision of its services, the platform should engage in a meaningful and effective dialogue with the provider. The aim is then to reach an amicable solution to end and avoid unjustified restrictions or suspensions in the future (Article 17(4) EMFA).
Finally, a platform must publish information annually on (a) the number of cases in which it has imposed a restriction or suspension on the grounds that the media service provider’s offered content conflicts with its general conditions, and (b) the reasons for imposing these restrictions (Article 17(5) EMFA).
Statement
In order to invoke the aforementioned privileges, a media service provider must provide a declaration (Article 17(1) EMFA). The EC proposal provides that providers must declare that:
- they are a media service provider as defined above;
- they are editorially independent from Member States and third countries; and
- they are subject to legal requirements for editorial responsibility, or conform to a recognised co- or self-regulatory mechanism.
The EC’s proposal puts the assessment of such declarations in the hands of the VLOPs themselves, which has raised some doubts. Indeed, one might question whether the platform in question is capable of assessing such a declaration competently and independently. On the one hand, because it is conceivable that the platform might be guided by its own commercial considerations, and on the other, because the platform presumably does not have the capacity to perform such an administrative task.
On 3 October 2023, the European Parliament (“EP“) adopted the proposed amendments to Article 17 of the Commission proposal. With regard to the declaration to be made, additional safeguards have been included. A media service provider will additionally have to comply with Article 6(1) EMFA, which means that certain information must be made easily and directly accessible to the recipients of their services; for example, their legal name, contact details and the names of owners and ‘beneficial owners’ (within the meaning of Article 3(6) of Directive (EU) 2015/849).
Authorised media provider
In addition to the proposed Article 17(1)(c) EMFA, media service providers must declare that they are supervised by a competent national authority. In case of doubt about a declaration made, a VLOP can inquire with this authority, to which, upon confirmation, the provider obtains the status of ‘approved media provider’. There is also the possibility for the media provider to appeal to this authority once the declaration made is refused by the VLOP.
Under Article 17(2) EMFA, as soon as the VLOP intends to suspend or restrict the content of a recognised media provider, it must notify the provider. This notification should include the reasons for suspension or restriction, to which the media provider is given 24 hours to respond. In the meantime, the content must remain available. If, after this, the VLOP still considers that the content violates its general conditions, it can refer the matter to the competent national authority. The latter will then take a binding decision on the justified suspension or restriction of the contested content.
Concluding
On 15 December 2023, the Council and EP reached a preliminary agreement on the EMFA. The final text of the regulation is currently being finalised. Final adoption by the EP plenary and formal ratification by the Council is expected to take place at the end of the first quarter of 2024. Once the regulation is officially adopted and published in the Official Journal, the EMFA will be fully binding and directly applicable in all member states after 15 months.
