In a recent addition to the EU’s evolving digital rulebook, the European Commission has published a set of Guidelines under the European Media Freedom Act (“EMFA”). The Guidelines advise very large online platforms, as defined under the Digital Services Act (“DSA”), on how to set up a functionality that lets media organisations identify themselves—and, in doing so, unlock a set of procedural protections when it comes to content moderation.

Context: The DSA and the EMFA

The DSA imposes content moderation obligations on online platforms — including “very large online platforms” or “VLOPs” (platforms with at least 45 million average monthly active users in the EU). Most major platforms have content moderation mechanisms in place to comply with the DSA’s obligations, including reporting tools, takedown procedures, and internal review processes.

While the DSA aims to curb the spread of illegal content online, EU legislators also recognise the other side of the equation: safeguarding freedom of expression and the right to receive and impart information. This is where the EMFA comes in. It recognises that media service providers (“MSPs”)—essentially, professional media services with editorial control over their own content (think, news outlets, radio broadcasters)—play a distinctive role in the online information ecosystem. The EMFA accordingly provides MSPs with a set of procedural protections in the context of content moderation by VLOPs—including requirements on VLOPs to: provide MSPs with a statement of reasons before suspending their services (Article 18(4)), prioritise the treatment of complaints lodged by MSPs (Article 18(5)), and enter into good faith dialogue with MSPs where a VLOP has repeatedly restricted content published by their services without sufficient grounds (Article 18(6)).

In order to benefit from these protections, MSPs need to “declare” themselves to VLOPs. Article 18(1) of the EMFA requires VLOPs to set up a functionality on their platforms that allows MSPs to do just that—and sets out the required elements of the declaration. The functionality must allow MSPs to declare, essentially:

  1. that they are MSPs;
  2. that they comply with duties—imposed on MSPs elsewhere in the EMFA—to provide certain ownership and funding information to recipients of their services (i.e., readers, listeners);
  3. that they are editorially independent from Member States, political parties, third countries, and entities controlled or financed by third countries;
  4. that they are subject to regulatory oversight or adhere to a recognised co- or self-regulatory mechanism governing editorial standards;
  5. that they do not provide AI-generated content without human review or editorial control;
  6. their legal name and contact details; and
  7. contact details for the relevant regulatory authority or self-/co-regulatory mechanism.

General Features of the Declaration Functionality

According to the Guidelines, the declaration functionality should:

  • Be a dedicated and prominent feature on the VLOP’s interface;
  • Be designed as a standardized questionnaire available in all official languages of each Member State where the VLOP offers its services;
  • Include a feature enabling MSPs to declare all the accounts they operate on a given platform in a single submission;
  • Allow MSPs to datemark, electronically sign, authenticate, and verify declarations to prevent submissions by bots or other automated software;
  • Allow MSPs to upload supporting information demonstrating compliance with the Article 18(1) elements;  
  • Provide an automated message acknowledging receipt of the declaration once submitted (this should include contact details for the VLOP to enable direct and efficient communication);  
  • Enable MSPs to monitor and manage the status of their declarations through their platform accounts and to update, amend, or withdraw declarations at any time;
  • Make received declarations publicly available in an easily accessible and machine-readable format;
  • Be actively promoted by VLOPs among recipients of their services.

Individual Elements of the Declaration

The Guidelines provide further detail on how the functionality should reflect the individual declaration elements set out in Article 18(1). For example:

  • On identity, ownership transparency, and contact details—elements (a), (b), and (f)—VLOPs may consult publicly available EU-wide or national databases—such as the Euromedia Ownership Monitor, national media ownership databases set up under Article 6(2) of the EMFA, or MAVISE (a centralised database managed by the European Audiovisual Observatory)—to verify information about MSPs and their ownership. (MSPs may also include direct links to these databases in their declarations.)
  • On editorial independence—element (c)—MSPs may optionally upload information about internal measures, policies, or procedures they have in place to safeguard editorial independence—drawing, if they wish, on the Commission’s existing Recommendation on internal safeguards for editorial independence.
  • On regulatory oversight and self-/co-regulation—elements (d) and (g)—MSPs are encouraged to upload supporting evidence that they are subject to regulatory requirements for the exercise of editorial responsibility and oversight by a competent national regulatory authority, or that they adhere to a co- or self-regulatory mechanism. The Commission acknowledges in the Guidelines that the development of co- and self-regulatory mechanisms varies across Member States, and considers that the European Board for Media Services should help foster their development. The Board is also encouraged to maintain an up-to-date list of relevant national regulatory authorities and co-/self-regulatory mechanisms to assist both VLOPs and MSPs.
  • On AI-generated content—element (e)—MSPs may optionally share details of their practices around human review—for example, identifying specific roles within their organisation responsible for editorial oversight of AI-generated content. The Commission clarifies in the Guidelines that Article 18 protections extend to AI-generated or AI-manipulated content, provided that the MSP subjects it to human review or editorial control. (The Guidelines themselves do not affect the obligations under Article 50 the EU AI Act covering transparency obligations for providers and deployers of certain AI systems.)

The Guidelines also address a number of practical aspects relating to how VLOPs should handle declarations once submitted. In particular, the Guidelines encourage VLOPs to process declarations “individually and continuously as they are received”, and clarify that decisions to accept, reject or invalidate declarations should be based solely on whether the Article 18(1) criteria are met, rather than on compliance with the VLOP’s own platform terms and conditions.

These Guidelines are designed to provide practical advice to VLOPs on how to comply with their obligations under the EMFA.

The Covington team continues to monitor regulatory developments on platform regulation and digital media. Please reach out to a member of the Technology and Communications team if you have any questions on the Guidelines.

This blog was drafted with the assistance of Sophia Bor, a trainee in the London office.

Photo of Madelaine Harrington Madelaine Harrington

Madelaine Harrington is an associate in the technology and media group. Her practice covers a wide range of regulatory and policy matters at the cross-section of privacy, content moderation, artificial intelligence, and free expression. Madelaine has deep experience with regulatory investigations, and has…

Madelaine Harrington is an associate in the technology and media group. Her practice covers a wide range of regulatory and policy matters at the cross-section of privacy, content moderation, artificial intelligence, and free expression. Madelaine has deep experience with regulatory investigations, and has counseled multi-national companies on complex cross-jurisdictional fact-gathering exercises and responses to alleged non-compliance. She routinely counsels clients on compliance within the EU regulatory framework, including the General Data Protection Regulation (GDPR), among other EU laws and legislative proposals.

Madelaine’s representative matters include:

coordinating responses to investigations into the handling of personal information under the GDPR,
counseling major technology companies on the use of artificial intelligence, specifically facial recognition technology in public spaces,
advising a major technology company on the legality of hacking defense tactics,
advising a content company on compliance obligations under the DSA, including rules regarding recommender systems.

Madelaine’s work has previously involved representing U.S.-based clients on a wide range of First Amendment issues, including defamation lawsuits, access to courts, and FOIA. She maintains an active pro-bono practice representing journalists with various news-gathering needs.

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Photo of Jane Pinho Jane Pinho

Jane Pinho co-chairs Covington’s Entertainment and Media Industry Group and is a partner in the Technology and Communications practice and the International Business Reorganization practice. She has advised international streaming services on their content acquisition strategies, on new product launches and global expansions…

Jane Pinho co-chairs Covington’s Entertainment and Media Industry Group and is a partner in the Technology and Communications practice and the International Business Reorganization practice. She has advised international streaming services on their content acquisition strategies, on new product launches and global expansions, and on media regulation and licensing for the past decade.

Jane works with media industry leaders with global operations, including streaming services, video games and interactive entertainment companies, and social media platforms. She has particular experience advising in relation to the creation, acquisition, and distribution of digital content in the UK and Europe, in relation to the multi-territory launch, expansion, monetization and marketing of digital media products and services and in relation to compliance with the UK’s broadcasting, on-demand, video-sharing platform and online safety regimes, representing clients facing regulatory scrutiny. She also has experience advising media and technology companies on UK and EU consumer protection law, including on an investigation by the EU Commission and the Consumer Protection Co-operation Network.

Jane is also a key figure in Covington’s International Business Reorganization practice. She has managed global post-acquisition business reorganizations, pre-sale and pre-spin business separations and tax reorganizations for companies with substantial global footprints for more than a decade.

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Photo of Fredericka Argent Fredericka Argent

Fredericka Argent is a special counsel in Covington’s technology regulatory group in London. She advises leading multinationals on some of their most complex regulatory, policy and compliance-related issues, including data protection, copyright and the moderation of online content.

Fredericka regularly provides strategic advice…

Fredericka Argent is a special counsel in Covington’s technology regulatory group in London. She advises leading multinationals on some of their most complex regulatory, policy and compliance-related issues, including data protection, copyright and the moderation of online content.

Fredericka regularly provides strategic advice to companies on complying with data protection laws in the UK and Europe, as well as defending organizations in cross-border, contentious investigations and regulatory enforcement in the UK and EU Member States. She advises global technology and software companies on EU copyright and database rights rules, including the implications of legislative developments on their business. She also counsels clients on a range of policy initiatives and legislation that affect the technology sector, such as the moderation of harmful or illegal content online, rules affecting the audiovisual media sector and EU accessibility laws.

Fredericka represents right owners in the publishing, software and life sciences industries on online IP enforcement matters, and helps coordinate an in-house internet investigations team who conduct global monitoring, reporting, notice and takedown programs to combat Internet piracy.

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