A new EU law governing the media services sector entered into force on 7 May.The law in question is the Regulation (EU) 2024/1083 of the European Parliament and of the Council of 11 April 2024 establishing a common framework for media services in the internal market and amending Directive 2010/13/EU[1] (hereinafter the “EMFA”). The primary objective of the EMFA is to harmonise certain aspects of national legislation related to media pluralism and editorial independence.

Who is the EMFA addressed to?

The obligations imposed by the EMFA are addressed to:

    • Member States, national regulatory authorities and bodies,
    • media service providers (with the primary objective of such services, or their separable part, being the provision to the general public, by any means, of programmes or press publications for informational, entertainment or educational purposes, for which the media service provider has editorial responsibility),
    • providers of very large online platforms (VLOPs),
    • manufacturers, developers and importers of devices or user interfaces that control access to media services,
    • providers of audience measurement systems.

Right of access to pluralistic media

The EMFA imposes a general obligation on Member States to respect the right of the recipients of media services to have access to diverse and editorially independent media content. This is particularly important to support public debate and cultural diversity and promote the development of civil society. Member States must establish an appropriate framework to safeguard citizens’ right of access to pluralistic media.

Rights of media service providers

Pursuant to the EMFA, media service providers have the right to exercise their economic activities in the internal market without restrictions other than those allowed under Union law.

Member States must respect effective editorial freedom and independence of media service providers. Public authorities may not interfere with or attempt to influence editorial policies or decisions of media service providers.

Moreover, Member States must ensure effective protection of journalistic sources and confidentiality of communications. Pursuant to the EMFA, Member States are prohibited from taking any of the following measures (subject to certain exceptions):

    • require media service providers or their editorial staff to reveal their journalistic sources or disclose confidential communications, or require anyone who may possess such information by virtue of their regular or professional contacts with the media service provider or its editorial staff to disclose such information;
    • deprive of liberty, impose punishment, detain or inspect media service providers or their editorial staff, subject them, their corporate offices or private premises to surveillance, conduct searches or seize property for the purpose of obtaining information on journalistic sources or confidential communications;
    • use intrusive surveillance software on a physical or digital device, machine or tool used by media service providers.

Safeguards for the independent functioning of public service media providers

Member States are required to ensure that public service media providers are editorially and functionally independent and provide to their audiences, in an impartial manner, a plurality of information and opinions, in accordance with their public service mission defined at a national level. Top management or members of the governing body of public service media providers should be appointed through transparent, open, effective and non-discriminatory procedures and criteria, established in advance at a national level.

Member States must also ensure that public service media providers receive funding based on transparent and objective criteria established in advance.

The EMFA requires Member States to designate an independent authority or to put in place a mechanism free from the political influence of the executive in order to monitor compliance with the safeguards for the independent functioning of public service media providers established under the EMFA.

Duties of media service providers

The EMFA imposes on media service providers a duty to communicate certain information to the recipients of media services. The most interesting of these obligations seems to be the duty to communicate information on the beneficial owners of media service providers, the amount of public funds allocated for state advertising and advertising revenue from third-country public authorities or bodies.

European Board for Media Services

The EMFA established a new EU body: the European Board for Media Services (hereafter the “EBMS”), which replaced the European Regulators Group for Audiovisual Media Services (ERGA). The EBMS is composed of representatives of national regulatory authorities or bodies.

The European Media Freedom Act sets out the tasks of the new institution. According to the Act, the task of the EBMS is, among other things, to:

    • support the Commission, through technical expertise, in ensuring the consistent and effective application of the EMFA and implementation of Directive 2010/13/EU, without prejudice to the tasks of national regulatory authorities or bodies;
    • promote cooperation and the effective exchange of information, experience and best practices between the national regulatory authorities or bodies on the application of the Union and national rules applicable to media services;
    • on its own initiative, when requested by the Commission or upon properly substantiated and reasonable request of a media service provider individually and directly concerned, provide opinions on regulatory or administrative measures that are likely to significantly affect the functioning of media service providers in the internal market for media services;
    • on its own initiative or when requested by the Commission, provide opinions on media market concentrations which are likely to affect the functioning of the internal market for media services;
    • assist the Commission in drawing up guidelines with respect to the application of the EMFA;
    • foster the exchange of best practices between national regulatory authorities or bodies, when appropriate consulting stakeholders on the regulatory, technical or practical aspects relevant to the consistent and effective application of the EMFA and implementation of Directive 2010/13/EU.

Providing and accessing media services through very large online platforms

The EMFA supplements the provisions of the Digital Services Act (DSA) with respect to providers of very large online platforms (VLOPs) through which media services are offered.

Pursuant to the EMFA, VLOP providers are required to provide a functionality allowing recipients of their services to “register” on the VLOP as a media service provider, in particular, by allowing them to:

    • declare that they are a media service provider;
    • declare that they comply with the disclosure obligations under the EMFA;
    • declare that they are editorially independent from the Member States, political parties, third countries and entities controlled or financed by third countries;
    • declare that they are subject to regulatory requirements for the exercise of editorial responsibility in one or more Member States, and to supervision by competent national regulatory authorities or bodies, or that they adhere to a co-regulatory or self-regulatory mechanism governing editorial standards that is widely recognised and accepted within the relevant media sector in at least one Member State;
    • declare that they do not provide content generated by artificial intelligence systems without subjecting such content to human review or editorial control;
    • provide their legal name and contact details, including email address, at which the VLOP provider can quickly and directly contact them; and
    • provide contact details of competent national regulatory authorities or bodies, or of the representatives of co-regulatory or self-regulatory mechanisms.

In the event of reasonable doubt about the accuracy of information declared by a media service provider, the VLOP provider may seek confirmation from the competent national regulatory authorities or bodies, or the relevant co-regulatory or self-regulatory mechanism.

VLOP providers must indicate without undue delay whether they accept or reject the declarations made by media service providers.

The information declared by VLOP service recipients (subject to exceptions) should be published by VLOP providers in an easily accessible form on the VLOP web interface.

In the event that a VLOP provider decides to suspend the provision of its online intermediation services in relation to content provided by a media service provider that submitted a declaration with the aforementioned information, or to limit the visibility of such content on the grounds that such content is incompatible with its terms and conditions, before the decision to suspend the provision of services or limit the visibility of content takes effect, the VLOP provider must:

    • communicate to the media service provider concerned the statement of reasons referred to in the DSA[2] and P2B[3];
    • allow the media service provider to respond to the statement of reasons within 24 hours of its receipt.

After the media service provider has responded to the VLOP provider’s statement of reasons or after it has failed to respond by the specified time, the VLOP provider should notify the media service provider whether it intends to suspend the online intermediation services with respect to the content provided by the media service provider or limit the visibility of such content.

If a media service provider that submitted the declaration believes that a VLOP provider frequently restricted or suspended the provision of its services in relation to content provided by the media service provider without sufficient grounds, the VLOP provider must in good faith engage in a meaningful and effective dialogue with the media service provider, upon its request, with a view to finding within reasonable time an amicable solution for putting an end to unjustified restrictions or suspensions and avoiding them in the future. The media service provider may notify the outcome of such exchanges to the EBMS and the European Commission.

VLOP providers are also required to treat with priority complaints from media service providers (filed under Article 20 of P2B or Article 20 of DSA).

Right of customisation of media offer

The EMFA provides users with the right to easily change the configuration, including the default settings of a device (e.g. television decoder, receiver, radio) or user interface, controlling or managing access to media services consisting in the delivery and use of programmes. The purpose of this change is to customise the media offer according to the interests or preferences of users. When placing devices and user interfaces on the market, manufacturers, developers and importers must ensure that such devices and user interfaces include a functionality enabling users to freely and easily change, at any time, the configuration, including default settings controlling or managing access to and use of the media services offered.

Manufacturers, developers and importers of devices and user interfaces must also ensure that the visual identification of the media service providers whose services are made available through their devices and user interfaces is consistently and clearly visible to users.

Measures affecting the operation of media service providers

Any legislative, regulatory or administrative measure taken by a Member State that is liable to affect the media pluralism or the editorial independence of media service providers operating in the internal market must be duly justified, proportionate, transparent, objective and non-discriminatory. Any national procedure used for the purposes of the adoption of an administrative measure that is liable to affect media pluralism or editorial independence of media service providers must be subject to clear timeframes set out in advance and carried out without undue delay.

Any media service provider subject to an administrative or regulatory measure that concerns it individually and directly has the right to appeal against that measure to an appellate body. That body, e.g. a court, must be independent of the parties involved and of any external intervention or political pressure liable to jeopardise its independent assessment of matters coming before it. The EBMS may draw up an opinion on such a measure.

Assessment of media market concentrations

The EMFA requires Member States to introduce in their national legal systems substantive and procedural rules to enable the assessment of media market concentrations. Where a media market concentration is likely to affect the functioning of the internal media market, the national regulatory authority or body must consult the EBMS in advance on a draft assessment or draft opinion. The national regulatory authority or body must take utmost account of that opinion.

Audience measurement

Providers of audience measurement systems must provide, without undue delay and free of costs, to media service providers, advertisers and third parties authorised by media service providers and advertisers, accurate, detailed, comprehensive, intelligible and up-to-date information on the methodology used by their audience measurement systems. The methodology used by their audience measurement systems and its application must be subject to an independent audit once a year.

Transparency of allocation of public funds for state advertising

Public funds or any other consideration or advantage granted, directly or indirectly, by public authorities to media service providers or online platform providers for the purposes of state advertising or for supply or service contracts concluded with media service providers or online platform providers must be allocated according to transparent, objective, proportionate and non-discriminatory criteria, which must be publicly announced in advance by electronic means and in a user-friendly manner, and through open, proportionate and non-discriminatory procedures.

The EMFA requires Member States to ensure that the total annual public funding for state advertising is distributed to a wide range of media service providers represented in the market, taking into account the national and local specificities of the relevant media markets.

Public authorities are required to communicate to the public, on an annual basis, by electronic means and in a user-friendly manner, information on their expenditure on state advertising. The communicated information must include, among other things, the legal names of media service providers or online platform providers from which advertising services were purchased, total spending per year as well as annual spending per media service provider or online platform provider.

Author: Arkadiusz Baran, Attorney‑at‑law, Counsel

Footnotes

[1] European Media Freedom Act

[2] Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act) (hereinafter the “DSA”).

[3] Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services (hereinafter the “P2B”).

 

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