Media Freedom

Protecting media pluralism and editorial independence is essential to the functioning of our democracy. In a rapidly changing digital media landscape, a new approach was needed to safeguard these fundamental values. Out of this emerged the European Media Freedom Regulation 2024/1083, an ambitious legislative initiative that went into effect on May 7, 2024.

Below we discuss key aspects of this regulation, which was designed to strengthen media pluralism, ensure editorial independence, and create a level playing field for media services within the European single market.

Objectives of the European Media Freedom Regulation

The regulation has four specific objectives:

1. Promoting cross-border activities and investments by harmonizing certain elements of national frameworks for media pluralism
2. Strengthening cooperation and convergence on regulatory matters through coordination instruments and EU-wide guidelines
3. Facilitating free distribution of high-quality media services by limiting the risk of unauthorized interference with editorial freedom
4. Ensuring transparent and fair allocation of economic resources on the internal media market through improved transparency and fairness in audience measurement and government advertising

Key points of the Regulation

1. Protection of journalistic sources

Article 4 of the regulation focuses on ensuring editorial freedom and protecting journalistic sources. This article places important limits on possible government interference:

• Member States may allow media service providers or their editorial staff to do not oblige disclose their sources or confidential information
• There are strict restrictions on the use of surveillance technologies, whereby member states may not detain, sanction, wiretap, inspect, or subject media service providers to surveillance or search
• Intrusion software should be used only in exceptional circumstances, under strict conditions

Deviations from this protection are possible only under specific conditions, including:

• Prior authorization from a judicial authority
• A compelling reason in the public interest
• Proportionality of measures
• Strict legal basis

2. Independence of public media services.

Article 5 guarantees the independent operation of public media services, which despite their important role in democracy may be vulnerable to interference due to their institutional proximity to the state.

Member states should provide:

• Editorial and functional independence of public media services
• Transparent appointment and dismissal procedures for executives
• Adequate, sustainable and predictable financing
• Independent monitoring of compliance with these provisions

3. Transparency of media ownership.

Article 6 requires media services to disclose key information about their ownership structure and financial relationships:

• Their legal name and contact information
• Information about direct or indirect owners with significant influence
• Final beneficiary information
• Annual amounts of public funds for advertising and advertising revenue from government agencies

Member states should also develop national databases of media ownership that act as a central source of information for citizens.

4. The European Media Services Council.

The regulation introduces the European Media Services Council, which replaces the European Regulators Group for Audiovisual Media Services (ERGA). This council is completely independent and has the task of:

• Advising and supporting the Commission
• Promote consistent application of the regulation
• Coordinating national regulatory actions
• Drafting opinions on media concentrations.
• Sharing best practices

5. The media privilege

Article 18 provides protection against unjustified removal of media content by very large online platforms (VLOPs). When a platform wants to remove or restrict media content due to violation of platform terms, it must:

• Inform the relevant media organization in advance with a reasoned decision
• Provide a response option within 24 hours
• Prioritize complaints from media companies

In case of repeated restrictions, a media organization may request a dialogue with the platform to reach a solution.

6. Rights in adaptation of media offerings

Article 20 guarantees users the right to customize the configuration of devices or interfaces providing access to audiovisual media services according to their preferences. This prevents manufacturers or distributors from favoring certain services to the detriment of user choice.

7. Assessment of media concentrations.

Article 22 requires member states to include transparent, objective and non-discriminatory rules for assessing media concentrations that may affect media pluralism. These assessments must take into account:

• Impact on pluralism and opinion formation
• Ensuring editorial independence
• Economic sustainability of stakeholders

8. Transparency in audience measurement and government advertising.

The regulation sets strict requirements for audience measurement (Article 24) and the allocation of government advertising (Article 25):

• Audience measurement systems must comply with principles of transparency, impartiality and accountability
• Government advertising should be allocated based on objective and non-discriminatory criteria
• Government agencies must report annually on their advertising spending, including host media companies

Implications for Belgium

The implementation of the European Media Freedom Regulation will have implications for Belgian media regulation. Some important implications:

• Adaptation of media-related legislation, including the Flemish media decree
• Strengthened role of national regulatory authorities (VRM, CSA, Medienrat and BIPT)
• Need for cooperation between these agencies to implement, for example, the media ownership transparency database
• New safeguards for journalists and strengthening source protection
• More transparent procedures for audience measurement and allocation of government advertising

Legal challenges

It is important to note that on July 10, 2024, Hungary will adopt a appeal for annulment of the regulation filed with the Court of Justice. Their arguments focus mainly on:

• Alleged lack of appropriate legal basis (Article 114 TFEU)
• Objections to the main purpose of the regulation (promotion of democracy and rule of law)
• Violation of the principles of subsidiarity and proportionality

Conclusion

The European Media Freedom Regulation represents an ambitious attempt to strengthen Europe's media sector in an era of rapid digital transformation. By promoting media pluralism, protecting editorial independence, and increasing transparency, the regulation contributes to a healthier democracy and a better functioning internal media market.

For legal practices specializing in media law, this regulation presents both challenges and opportunities. As member states update their laws and implement new procedures, legal advice and guidance will be essential for media organizations, regulators and government agencies.

Our firm follows these developments closely and stands ready to guide organizations in navigating this new regulatory landscape, with a particular focus on protecting journalistic sources, editorial independence, and transparency in media structures.