The European Media Freedom Act: are we doing enough?

The European Media Freedom Act: are we doing enough?

In 2021, during her State of the Union address to the European Parliament, Ursula von der Leyen, the President of the Commission, highlighted the risks faced by journalists. She emphasized that "information is a public good," stressing the need to safeguard those promoting transparency, namely journalists. At that time, nearly four years had elapsed since the tragic killing of Maltese investigative journalist Daphne Caruana Galizia, yet the European Union had not taken any steps to address this issue. It would be another year before the Commission unveiled its proposal for a regulation outlining a unified framework for media services within the internal market, known as the European Media Freedom Act.

Loopholes in Policy

The safeguards for the protection of journalists are primarily concentrated in Article 4 of the proposed Media Freedom Act. Under Article 4(1), media service providers are granted a general right to conduct their economic activities in the Union's market with minimal restrictions, as permitted by Union law. While this provision outlines a broad direction for the Regulation, the subsequent sections of the proposal lack specific provisions that would clarify and support this broadly stated right. Notably, the only provision that reinforces press freedom protection is found in Article 4(2)(a), which prohibits Member States from interfering with or attempting to influence editorial decisions and policies of media service providers. This prohibition is seen as a valuable measure to curb undue political influence on journalists, enhancing the autonomy of journalism.

Are Whistleblowers Protected?

These relaxed standards proposed in Article 4(2)(b) not only pose a threat to journalists but also potentially jeopardizes the safety of their sources who have courageously exposed illegal or unwarranted activities to the media. This provision appears to be at odds with the recently enacted Whistleblower Directive, which explicitly safeguards the legal protection of individuals making public disclosures, including to the media. Consequently, it appears that the exception outlined in Article 4(2)(b) is problematic as it could undermine not only the existing level of protection for journalists but also the safeguarding of sources as afforded by the EU.

The Amendments Proposed by the European Parliament’s LIBE Committee

On April 16, 2023, MEP Ramona Strugariu, the rapporteur from the Committee on Civil Liberties, Justice, and Home Affairs assigned to this legislative piece, released her draft opinion proposing a set of modifications to Article 4.Two proposed clauses under Article 4(2) are noteworthy: the first prohibits Member States from compelling media service providers to disclose source information, "unless justified by an overriding requirement in the public interest, provided for in national law," offering broader protection than the Commission's proposed Article 4(2)(b) but introducing a potentially vague exception susceptible to abuse; however, the draft opinion does not address the existing loophole in Article 4(2)(b) introduced by the reference to the public interest.While the proposed amendments to the Media Freedom Act could offer marginal improvements in journalist and source protection, persistent gaps in the amended text allow Member States to exploit broad exceptions, posing risks to media service providers and their sources, negatively impacting media freedom in the EU and undermining a crucial democratic pillar, revealing a potential conflict between the Act's goal of harmonizing protection standards and the risk of diluting its effectiveness through low thresholds.

The Media Freedom Battleground

This October 16th marks six years since the passing of Maltese journalist Daphne Caruana Galizia, emphasizing the urgent need for enhanced measures to ensure secure journalism, a vital component of our democracies. Despite the Media Freedom Act reaching the European Parliament's plenary on October 3, 2023, triggering trilogue negotiations starting on October 19, the EU's efforts seem belated. While aiming to adopt the Act before the June 2024 European elections, the Commission should prioritize not just swift adoption but rather focus on attaining more substantial protections for journalists and their sources. The current proposal's vague language allows for exceptions that could undermine the Act's essence, making the amendments proposed by the LIBE Committee a positive step forward. However, it is crucial to ensure maximal protection while minimizing potential misuse by national governments.

Sotiris Paphitis is a practicing lawyer and Barrister-at-Law from Cyprus, view his legal analysis - “The Protection of Journalists through the Proposed European Media Freedom Act” (European Law Blog, 24/7/2023)