On September 16, 2022, the European Commission published its Proposal for a European Media Freedom Act (“Proposed MFA”). The Proposed MFA is broadly designed to protect media pluralism and independence in the EU. It does so by setting a common set of rules “for all EU media players,” in particular, providers of “media services.” The Proposed MFA also imposes new obligations on providers of “very large online platforms” (“VLOPs”) as defined in the EU’s Digital Services Act (“DSA”).

Definition of a Media Service

The Proposed MFA applies to providers of “media services,” which are defined broadly as services “as defined by Articles 56 and 57 of the Treaty, where the principal purpose of the service or a dissociable section thereof consists in providing programmes or press publications to the general public, by any means, in order to inform, entertain or educate, under the editorial responsibility of a media service provider” (Article 2(1)). Recital 7 suggests that this definition includes “in particular television or radio broadcasts, on-demand audiovisual media services, audio podcasts or press publications,” but excludes the following:

  • user-generated content uploaded to an online platform unless it constitutes a professional activity normally provided for consideration (of a financial or other nature);
  • private correspondence, such as e-mails;
  • all services that do not have “the provision of audiovisual or audio programmes or press publications as their principal purpose,” such as “advertisements or information related to a product or a service provided by websites that do not offer media services”; and
  • corporate communication and distribution of informational or promotional materials for public or private entities.

The Proposed MFA explains that providers of “video-sharing platforms” (as defined in the EU’s Audiovisual Media Services Directve (“AVMSD”)) and VLOPs “may fall under the definition of media service provider” (Recital 8).

Rights and Obligations on Media Service Providers

The Proposed MFA grants media service providers the right to exercise their “economic activities in the internal market without restrictions other than those allowed under [EU] law (Article 4(1)). In this regard, the Proposal would prohibit Member States from:

  • interfering with editorial policies and decisions by media service providers (Article 4(2)(a));
  • detaining, sanctioning, intercepting, subjecting to surveillance or search and seizure or inspecting media service providers, their employees, their families or their premises “on the ground that they refuse to disclose information on their sources, unless this is justified by an overriding requirement in the public interest” (Article 4(2)(b)); and
  • deploying spyware in any device or machine used by media service providers, their employees or their families other than in certain narrowly-defined circumstances (Article 4(2)(c)).

“Public service media providers”—that is, providers of media services that are “entrusted with a public service mission under national law or receive[] national public funding for the fulfilment of such a mission” (Article 2(3))— are obliged to provide “in an impartial manner a plurality of information and opinions to their audiences, in accordance with their public service mission” (Article 5(1)). The Proposed MFA does not define, or set parameters for how service providers should interpret, a “plurality” of information or opinions.

The Proposed MFA would also require media service providers “providing news and current affairs content”—a concept the proposal does not define—to provide certain information to recipients of their services (i.e., the provider’s name and contact details, and details relating to certain shareholders and beneficial owners) (Article 6(1)). They must also “take measures that they deem appropriate with a view to guaranteeing the independence of individual editorial decisions” (Article 6(2)).

Finally, the Proposed MFA also grants “recipients of media services” in the EU the right to “receive a plurality of news and current affairs content, produced with respect for editorial freedom of media service providers, to the benefit of the public discourse” (Article 3(1)). Recital 11, however, suggests that this right “does not entail any correspondent obligation on any given media service provider to adhere to standards not set out explicitly by law.”

Obligations on VLOPs

The Proposed MFA also imposes obligations on providers of VLOPs, which go beyond their obligations under the DSA. Under the Proposed MFA, VLOPs must provide a functionality allowing a recipient of their services to declare that: (a) it is a media service provider; (b) it is editorially independent from Member States and third countries; and (c) it is subject to regulatory requirements for the exercise of editorial responsibility or adheres to a co-regulatory or self-regulatory mechanism governing editorial standards in one or more Member States” (Article 17(1)). Where a media service provider submits such a declaration, the VLOP provider must:

  • where a VLOP suspends its services to such media service providers on the grounds that the provider has submitted content to the service  that “is incompatible with its terms and conditions, without that content contributing to a systemic risk referred to in Article 26 of the [DSA],” the VLOP must “take all possible measures” to communicate a statement of reasons to the media service provider, as required by Article 4(1) of the  Platform-to-Business Regulation, prior to the suspension taking effect (Article 17(2));
  • take all the “necessary technical and organisational measures” to ensure that complaints submitted under Article 11 of the Platform-to-Business Regulation by such media service providers are “processed and decided upon with priority and without undue delay” (Article 17(3)); and
  • where a media service provider considers that a VLOP provider “frequently restricts or suspends the provision of its services in relation to content provided by the media service provider without sufficient grounds,” the VLOP provider “shall engage in a meaningful and effective dialogue with the media service provider, upon its request, in good faith with a view to finding an amicable solution for terminating unjustified restrictions or suspensions and avoiding them in the future” (Article 17(4)).

Enforcement

The Proposed MFA doesn’t set out a specific mechanism for enforcing its provisions; rather, the accompanying Q&A document suggests that, as a Regulation, any alleged breaches can be brought before national courts. Chapter III of the Proposed MFA also establishes a European Board for Media Services (“EBMS”), which will “replace and succeed” the European Regulators Group for Audiovisual Media Services established by the AVMSD (Article 8(1)-(2)). The Q&A document envisages that the EBMS, “together with the European Commission, will ensure the consistent application of the [MFA] and the wider EU media law framework.”

Next Steps

The European Parliament and the Member States will now discuss and debate the Proposed MFA under the ordinary legislative procedure. Once adopted, it will be directly applicable across the EU.

Please reach out to a member of the Technology Regulatory and Policy team if you have any questions on the Proposed MFA.

Photo of Shona O'Donovan Shona O'Donovan

Advising clients on a broad range of data protection, e-privacy and online content issues under EU, Irish, and UK law, Shóna O’Donovan works with her clients on technology regulatory and policy issues.
With multi-jurisdictional and in-house experience, Shóna advises global companies on complying…

Advising clients on a broad range of data protection, e-privacy and online content issues under EU, Irish, and UK law, Shóna O’Donovan works with her clients on technology regulatory and policy issues.
With multi-jurisdictional and in-house experience, Shóna advises global companies on complying with data protection laws in the EU. In particular, she represents organizations in regulatory investigations and inquiries, advises on children’s privacy issues and provides strategic advice on incident response. Shóna also advises clients on policy developments in online content and online safety.

In her current role, Shóna has gained experience on secondment to the data protection team of a global technology company. In a previous role, she spent seven months on secondment to the European data protection team of a global social media company.

Shóna’s recent pro bono work includes providing data protection advice to the International Aids Vaccine Initiative and a UK charity helping people with dementia, and working with an organization specializing in providing advice to states involved in conflict on documenting human rights abuses.

Photo of Lisa Peets Lisa Peets

Lisa Peets leads the intellectual property and technology and media groups in the firm’s London office. Ms. Peets divides her time between London and Brussels, and her practice embraces legislative advocacy, trade and IP enforcement. In this context, she has worked closely with…

Lisa Peets leads the intellectual property and technology and media groups in the firm’s London office. Ms. Peets divides her time between London and Brussels, and her practice embraces legislative advocacy, trade and IP enforcement. In this context, she has worked closely with leading multinationals in a number of sectors, including many of the world’s best-known software and hardware companies.

On behalf of her clients, Ms. Peets has been actively engaged in a wide range of law reform efforts in Europe, on multilateral, regional and national levels. This includes advocacy on EU and national initiatives relating to e-commerce, copyright, patents, data protection, technology standards, compulsory licensing, IPR enforcement and emerging technologies. Ms. Peets also counsels clients on trade related matters, including EU export controls and sanctions rules and WTO compliance.

In the IP enforcement space, Ms. Peets coordinates a team of lawyers and Internet investigators who direct civil and criminal enforcement actions in countries throughout Europe and who conduct global notice and takedown programs to combat Internet piracy.

Ms. Peets is a member of the European Commission’s Expert Group on reform of the IP Enforcement Directive.