Media pluralism is one of the cornerstones of European democracy and as such must be safeguarded and promoted. EIMP supports the overarching objectives and spirit of the European Media Freedom Act (EMFA) to protect media freedom and independence in Europe. However, there are clear dangers for media pluralism and healthy competition in the media sector in certain parts of the proposed Regulation.
Risks in introducing special media treatment online
Article 17 of the proposed EMFA could easily have the unintended consequence of penalising non-incumbent, smaller, and newer media publishers by introducing special treatment for so-called ‘media service providers’ in online environments. There are several risks with this approach.
The definition of ‘media service provider’ will be key. As we already underscored in our position paper on EMFA, it is of the utmost importance that the final text of the EMFA includes a clear and balanced definition of ‘media service provider’ (MSP), which ensures that content produced by independent, digital publishers and distributed online receives the same treatment as content produced by incumbent, legacy media publishers active online. In practice, we see a clear risk that the definition of MSP will make it de facto possible only for legacy media publishers to be captured, and therefore enjoy special treatment online. Qualifying as a media service provider will likely also bring additional bureaucracy with it for the media service provider itself. This will be easier to handle for large publishers, as opposed to smaller, independent and newer ones.
In light of this, the EMFA would lead to less competition in online media, less media pluralism, and very likely also less innovation, resulting in thousands of European media publishers facing existential threats because their online content will be treated less favorably than that of legacy media. In other words, the EMFA would create two categories of media in Europe.
In order to avoid such a scenario, we have identified two possible solutions:
- If the definition of ‘media service provider’ is maintained as in the Commission proposal, a correct application and enforcement ensuring smaller and independent media are not excluded must be provided. A mechanism that could contribute to this is establishing an ‘expert group’ or similar body, as was done with the Code of Practice on Disinformation, providing a transparent and accountable process that divides the powers amongst relevant players and gives a balanced representation. Such an ‘expert group’ would also pre-empt some possible issues associated with the proposed ‘European Board for Media Services’, such as the presence of national regulators/agencies subject to negative government influence (e.g. in Hungary).
- If the definition of ‘media service provider’ becomes too stringent, making it almost impossible for non-incumbent media to be included, we would be in favor of deleting Article 17 altogether, as it would do more harm than good in terms of media pluralism and competition in media. Furthermore, the Digital Services Act (DSA), which was approved in fall 2022, already includes several provisions that are designed to limit the spread of disinformation. The DSA has not yet shown its full potential, as it is not yet fully applicable, and therefore adding new legislation on top that is not properly designed needs thorough consideration.
EIMP calls on the co-legislators to ensure the EMFA truly boosts media pluralism by ensuring a level playing field between publishers, regardless of size, in the digital environment. EMFA must not create two categories of media, benefiting few, and penalizing many.
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EIMP brings together national associations of media publishers and companies that are active in the sector of (news) media publishing in the European Union and Europe. EIMP represents innovative, independent, local and regional outlets that rely on online channels to grow and reach audiences. Our members have extensive experience operating in the media sector, in different member states, and face various obstacles in their day to day activities. The goal of EIMP is promoting media pluralism and an ecosystem that fosters growth for small, independent and innovative (digital-native) media publishers in Europe. Contact: firstname.lastname@example.org