Spanish presidency note hints at final form of EMFA

As the European Media Freedom Act (EMFA) is now in its final legislative phase, a note shared by the Spanish presidency with the Audiovisual and Media Working Party and seen by the news portal Euractiv details an already reached compromise and asks about possible flexibility on the remaining chapters.

In September last year, The European Commission unveiled the EMFA, which aims to establish a basis of media freedom safeguards applicable throughout the European Union to counter the steady decline in media freedom and pluralism across many countries within the bloc.

The EMFA bill is now in its final legislative phase, where the EU Council, Parliament, and Commission are currently in trilogue negotiations to finalise the provisions.

Before an internal technical meeting of the Audiovisual and Media Working Party on 15 November, the Spanish presidency distributed a note, seen by Euractiv, outlining areas of agreement and inquiring about the prospects of flexibility on outstanding issues.

According to the note, the most controversial point in the negotiations remains the broad national security exception, introduced in the Council text at the insistence of France, to protect journalists and their sources from surveillance and interference.

The Commission’s original proposal (Article 4) prohibits coercive measures against journalists to reveal their sources and monitor their communications unless “justified by an overriding requirement in the public interest.”

Nevertheless, last May, Politico reported how France pushed for an “explicit and unconditional” clause in the text to safeguard member countries’ prerogatives on security and defence and for narrower immunity for journalists under the new EU-wide media rules.

For the Spanish presidency, however, some additional safeguards might be needed to reach a deal with MEPs, particularly “accepting including the obligation of prior judicial authorisation and periodic review to deploy intrusive surveillance software”.

Spanish presidency is right: #EMFA must strengthen the protection of journalistic sources in Europe. Members States should accept the safeguards proposed by the European Parliament!#AMIFUND https://t.co/YFd82avLNv

— Ricardo Gutiérrez (@Molenews1) November 16, 2023

Regarding the allocation of state advertising, MEPs had proposed a cap on public advertising allocated to a single media provider, online platform, or search engine to 15% of the total advertising budget allocated by that authority in each EU country.

The Spanish presidency note reports that the Parliament is ready to concede on the 15% cap for the total public budget that could not be assigned to a single outlet. In exchange, MEPs are asking to include online platforms in the scope of this provision.

MEPs also want to oblige outlets to publish information on who owns them and who benefits from them, directly or indirectly and want them to report on state advertising and state financial support, including when they receive public funds from non-EU countries.

Here, the presidency has proposed to concede on disclosing state advertising revenues, including from third countries and ownership information. Nevertheless, it seems open to the idea of the Parliament creating national media ownership databases, admitting there is necessary flexibility left to member states.

The proposed EMFA also introduces several policies to safeguard public service media. For example, under Article 5 of the new rules, top executives at public service media outlets, including their heads of management and members of governing boards, will need to be appointed via transparent, non-discriminatory and objective procedures.

According to the note, the provisions regarding public service media have been primarily agreed upon at the technical level.

“The duration of their term of office shall be sufficient for the effective independence of public service media,” referring to the members of the public media’s management board.

The subsequent trilogue negotiations are scheduled for 29 November and 15 December, when the negotiators are expected to reach a final deal.

Meanwhile, in Malta, there remains little discourse at the national level about how the law and its amendments impact Malta’s media landscape or how its obligations would be implemented.