11 March 2022
EMMA and ENPA position paper on the European Media Freedom Act
The European Newspaper Publishers’ Association (ENPA) and the European Magazine Media
Association (EMMA) represent together the majority of European press publishers with a
variety of magazine and newspaper offerings, both digital and print.
The press publishing sector is one of the most culturally diverse and pluralistic in Europe. It
ensures pluralism of information and opinions across the European Union (EU) and therefore
represents an essential asset for the formation of opinion and for democracy. In every Member
State, both magazines and newspapers are present locally, regionally and nationally in printed
and digital formats. In this way, the press is fulfilling its vital function of providing a diverse and
trusted source of news, views and analysis as well as stimulating an open and critical
democratic debate on all platforms.
The associations have taken note of the public consultation launched by the European
Commission on the European Media Freedom Act. With this position paper, EMMA and ENPA
would like to provide some general comments on this consultation and the issues raised in it
around three main points.
I) Media pluralism is better preserved at Member State level
Press and media freedom in Europe is built on national media markets, which are very diverse
and have been shaped by historical, cultural and societal developments. As such, each
Member State has its own approach to media freedom and pluralism, as well as to possible
initiatives to safeguard it. This is warranted as market conditions, media consumption and
reading habits vary considerably from one country to another, with the press, public and private
TV and radio sectors holding very different local market shares in different territories.
Furthermore, it would not be appropriate to apply the same rules to linear media such as TV,
and radio and the press. These media are essentially different, for example the barrier to entry
for the digital press is relatively low, while that is not the case for radio and television.
Apart from this, due to the richness and diversity of the media landscape in the EU Member
States, it is hardly possible to define a “European media market“. Instead, the media markets
are characterised by a mix of national, regional and local realities that are best equipped to
effectively address any specific situation. In this light, media pluralism can only be assessed by
national authorities who can adapt their legislative framework according to their national,
regional and local characteristics.
In addition and in light of the democratic, social and cultural importance of a free media for
Member States, the EU does not have the competence to regulate media freedom and
pluralism, other than through the provisions of competition law, notably the EC merger
regulation, antitrust rules set out in Articles 81 and 82 of the EU Treaty, which prohibit anti-
competitive horizontal and vertical agreements, the Treaty’s public service provisions in Article
86, and EC state aid control in Article 87 (TFEU).
Specific media regulation is not an appropriate means to achieve freedom and pluralism of the
media. On the contrary, in the case of media freedom, regulation and freedom are mostly
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contradictory. Rather than introducing new regulation that would further complicate the
regulatory landscape, the EU can support media freedom and pluralism in different ways
through legislative initiatives with an impact on both the economic and editorial freedom of the
media, as well as the distribution thereof. For example, the European Commission could help
the press by monitoring the implementation of the Copyright directive and the subsequent
negotiations with the platforms using and distributing press content, as well as their payments.
Another way to indirectly support media pluralism, with regard to data protection rules, would
be to avoid advertising restrictions beyond the already high standard set in the General Data
Protection Regulation (GDPR) and the e-Privacy regulation under discussion. Advertising is an
essential source of funding for many media outlets and allows users to access content with
little to no direct payment. On the one hand, commercial advertising should be clearly
safeguarded from cumbersome obligations such as those described in the political advertising
regulation proposal. On the other hand, very large online platforms should not be enabled to
abuse their market position, either by setting unilateral restrictions to the use of cookies or by
becoming gatekeepers of users’ consent.
Adding to the topic of imbalances in the media markets and the overwhelming power of
gatekeeper platforms, all gatekeeper platforms must be obliged to provide fair and non-
discriminatory conditions of access to all press publishers (in the Digital Markets Act - DMA)
and not be allowed to interfere, demote or remove legal press content on the basis of their
terms and conditions (in the Digital Services Act – DSA). Unfortunately, the Commission
proposals fall short on these key aspects and have not sufficiently considered the concerns of
the free media.
II) No EU-level rules on freedom of expression
In order to safeguard freedom of expression, EMMA and ENPA oppose the regulation of the
press sector at EU level, including printed and digital press as well as editorial and journalistic
video and audio content, which is not the principal purpose of the relevant publication and
therefore is not a non-linear audiovisual media service under the Audiovisual Media Services
(AVMS) Directive. Hence, no media regulation beyond the scope of the AVMS Directive is
legitimate and justifiable. Any such regulation would threaten press freedom and could impose
new limitations to editorial freedom and to what content can be published and disseminated
online. In order to protect democracy, the limits to press freedom must strictly correspond to
the general rules on freedom of expression.
In this context, we oppose in particular the extension of the European Regulators Group for
Audiovisual Media Services (ERGA) competences over the press, the creation of a new EU
body or agency and the assimilation of the press with audiovisual media services and their
rules. This would lead to a centralisation of rules to the detriment of editorial freedom and
pluralism of information. In addition, press and media councils can play an important role.
However, this can only be the case if press and media councils are truly voluntary and purely
self-regulatory, in particular neither directly or indirectly regulated, co-regulated or supervised
by laws, regulators or other authorities. In case national situations require different
arrangements, this should only be decided at national level and not by the EU and press council
must have the right to remain truly voluntary and purely self-regulatory.
We view especially critically the references to possible actions to ensure balanced and
impartial coverage, as such actions would be diametrically opposed to our understanding of
press freedom and would undermine the editorial freedom of press publishers. The essence
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of press freedom and of the editorial freedom of press publishers means that the state cannot
under any circumstance perform a qualitative assessment of editorial content. Imposing equal
coverage of political actors in the press, or marginalising or prohibiting (political) opinions of
the fringes of society, is inherently in opposition with media pluralism. Such a balance
obligation for printed and digital press would be a blatant violation of editorial press freedom.
Freedom of the press consists precisely in the fact that anyone may also report unilaterally,
“biased”, how and about what they want. The right of the publisher to publish one-sided
content, e.g. leaning more towards one side of the political spectrum, is at the cornerstone of
press freedom. Trade unions, employers, NGOs and any other person or group have the
freedom to establish and distribute digital or printed press and media with any editorial content.
The freedom of publishers to determine the editorial content applies not only externally in
relation to governmental entities, but also internally in relation to the editorial staff, both in the
editorial staff selection and for the management and determination of editorial content. Any
regulation by the state, under European law or otherwise, which would restrict the editorial
freedom of publishers towards their editorial staff, would be incompatible with press freedom.
As such, there must be no regulation of the freedom of editorial teams vis-à-vis publishers.
In conclusion, it is absolutely impossible to ensure an objective and unbiased decision over
what should be considered “balanced” or “impartial”. A decision to this effect by the state or a
public authority would constitute an infringement of fundamental rights, the freedom of
expression, the freedom and pluralism of the media, press freedom and editorial freedom. As
such, an obligation to provide balanced and impartial reporting would only be justifiable for
public service broadcasting as an exception. Several Member States already have a balance
obligation for public broadcasting, which should remain regulated at national level.
III) Media Ownership, Concentration and Pluralism
As each Member State, its regions and areas therein, differ significantly, it is impossible to
determine at EU level what should be considered a pluralistic media market. Regarding
ownership, it is important to distinguish between who owns the media and who has editorial
responsibility for the media. While both can be of interest to readers for the purpose of full
transparency, the crucial safeguard and guarantee is whether there is a person with editorial
responsibility, who can be held liable for the content. In other words, in all Member States it is
ensured that the publisher and the person responsible for the content are known. Should this
not be sufficient in some Member States, then it should not be excluded that the Member State
imposes additional obligations on ownership transparency, but it should not be a pan-European
obligation.
With a view to media concentration, it should be noted that many newspapers and magazines
have benefited from cooperation and concentration in the context of a declining market.
Indeed, cooperation and consolidations have allowed them to be more resistant to the financial
crisis and the downturn in advertising revenues and helped for one keeping editorial teams
while also accelerating the digital transformation. In fact, some titles would have closed down
in recent years if they were not able to cooperate or merge with other publishers and media
companies. In other words, it would be erroneous to see media concentration in a negative
light. On the contrary, in times where financing editorial teams and reaching readers becomes
increasingly difficult, many national media markets are dependent on concentration processes
to ensure the survival of newspapers and magazines, and therefore to ensure plurality on the
market.
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Media concentration and pluralism have always been subject to lively debate at European and
national level, since these issues touch upon fundamental values of democracy and upon
freedom of expression. In this respect, national authorities and the EU play a role in ensuring
that different media have the opportunity to develop and in preventing anti-competitive
behaviours. However, when it comes to evaluating pluralism in a particular national and local
market, this can only be done by the national authorities. In addition, European and especially
national competition law has been adjusted and liberalized over the years in this regard and
has been and still is effective with regard to media concentration and consolidation. While some
specific issues such as state advertising and physical, judicial and cyber-attacks against
journalists may and should be monitored by the European Commission in the framework of the
rule of law mechanism, such monitoring shall not turn into EU-level regulation.
IV) Conclusion
In light of the above, EMMA and ENPA are strictly opposed to any legislative intervention on
behalf of the EU to regulate media freedom. While we are aware of problematic situations in a
minority of Member States, we fear that that an EU-level regulation will do more harm in the
Member States that have a healthy media freedom situation, than good in the Member States
where media freedom is at stake. Some EU Member States such as the Scandinavian
countries, on the contrary, are models for press freedom worldwide. In fact, those Member
States are global blueprints for press freedom because of the lack of media regulation or state
intervention. On the other hand, there are legitimate concerns that member states will use this
instrument in order to interfere with editorial freedom and pluralism in their territory.
Instead of regulating media freedom, the EU should provide valuable contributions to press
and media freedom, as well as plurality in the EU by focusing on the impact of legislative and
regulatory initiatives on the free press and media. This includes initiatives such as the DSA and
DMA; but also, data protection law, terrorist content online and e-evidence, as well as avoiding
regulation or co-regulation on legal but allegedly “harmful” content.
Therefore, even as issues in certain Member States persist, the EU should focus on political
pressure and recommendations to find political solutions while having have a clear and
comprehensive picture of the many challenges facing the professional media today. This must
not lead to a centralisation of media legislation that would ultimately decrease the level of media
freedom and pluralism in the EU as a whole.
For additional information please contact:
Ilias Konteas
EMMA-ENPA Executive Director
[email protected] or
[email protected]
EMMA, the European Magazine Media Association, is the unique and complete representation of Europe’s
magazine media, which is today enjoyed by millions of consumers on various platforms. EMMA represents 15,000
publishing houses, publishing 50,000 magazine titles across Europe in print and digital. See:
http://www.magazinemedia.eu
ENPA, the European Newspaper Publishers’ Association (ENPA) is the largest representative body of
newspaper publishers across Europe. ENPA advocates for 16 national associations across 13 European countries
and is a principal interlocutor to the EU institutions and a key driver of media policy debates in the European Union.
See: www.enpa.eu
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European Media Freedom Act – Key Priorities Version 2 – 24 May 2022
I. No EU media regulation beyond the AVMS Directive
➔ The EU should refrain from media regulation at EU level. Existing issues in certain Member States should
rather be addressed through political pressure and recommendations.
• There is no Union competence to regulate the media or the press, including the printed press, aspects
of media concentration etc.
• Furthermore, there is no “EU media market”. Rather, media markets are characterised by cultural,
linguistic, historic, demographic and democratic characteristics at national, regional and local level.
II. Press freedom should be safeguarded in all EU initiatives with an economic impact on media or
editorial freedom, as well as the free distribution of media
• Rather than introducing new legislation on media freedom, the EU should rather focus on fixing issues
in the existing legal and economic framework that undermine press freedom.
• These shortcomings, with a direct impact on the media and freedom of the press, need to be resolved:
This includes the missing protection of legal editorial content against T&C censorship; as well as fair and
non-discriminatory access to and treatment on gatekeeper search engines and social networks.
III. EMMA-ENPA strictly oppose any editorial regulation, as well as regulation of internal press
freedom
➔ Safeguarding editorial freedom is crucial in order to ensure a healthy democratic system where the press
is enabled to support a diverse and critical public opinion.
• EMMA-ENPA have always opposed any interference with editorial freedom, including in the composition
and organisation of the editorial teams, their editorial work etc. Such initiatives are simply incompatible
with the concept of press freedom.
• This also includes regulatory or co-regulatory involvement of the EU in press councils. Press councils
must maintain their voluntary nature and remain genuinely self-regulatory. In particular, they should not,
neither directly or indirectly, be regulated or supervised by laws, regulators or other authorities.
IV. EMMA ENPA oppose selective subsidies and interferences in the distribution of legal press
➔ The principle of non-discrimination in possible subsidies as well as in the distribution of the online and
printed press must be upheld to ensure plurality.
• All legal editorial content must be distributed online and offline on the basis of non-discriminatory
parameters. Promoting or favouring certain content is incompatible with a free and pluralistic press.
• The same applies to media subsidies. Any subsidy must be done on the basis of non-discriminatory
parameters and made available to all newspapers and magazines, such as reduced VAT rates.
V. The EU must ensure that the free press and media can finance its content
➔ Ensuring the economic sustainability is an essential precondition for press freedom and pluralism. The
EU must support it in all ongoing negotiations and initiatives, as well as in the implementation of the
Publishers’ Right across the Union.
• A free press and media is dependent on economic sustainability in the market.
• This must be recognised in data protection laws, while avoiding further advertising restrictions that limit
an important source of revenues for publishers.
• Equally, the Publishers’ Right must be effectively enforced against gatekeepers.
VI. The Media Freedom Act should not promote media regulation rather than media freedom
➔ We do not see how a Media Freedom Act would increase media freedom across the EU. Single issues
should be tackled through political pressure.
• EU Member States, such as in Scandinavia, are global beacons and blueprints of press freedom,
precisely because of the absence of media regulation and state intervention. An EU regulation on Media
Freedom would not improve this situation.
• EU regulation on media concentration would not support, but instead hamper press freedom in the EU.
Particularly in many smaller Member States, consolidation of media companies is not a problem but
rather necessary to counteract economic downturns, to maintain editorial teams and therefore to
preserve media pluralism. Competition law at national and EU levels has been and still is suitable and
effective with regard to media concentration and consolidation.
Forthcoming European Media Freedom Act raises concerns about the future
independence of press publishers
Brussels, 28 June 2022
Excellent Minister,
The European Commission is due to adopt a proposal for the European Media Freedom Act
(EMFA) in September. While we commend the European Commission for its intentions to
improve press freedom throughout the Union, we the European publishers’ associations
EMMA, ENPA, EPC and NME are writing to you to raise our concerns about the validity of such
an intervention and to pose some questions for your consideration. We have actively engaged
with the European Commission in the preparation work, have participated in the public
consultation and produced position papers setting out our views in detail, which we enclose
for your consideration.
It seems that the Commission is intending to cover a wide range of complex legal issues in a
single proposal based on the premise that there is an internal market for all media. We must
question this approach which will mix audiovisual regulation, where the EU does have some
limited competence, together with matters central to the freedom of the press, which correctly
is not regulated at EU level as this sensitive area remains the sole competence of the Member
States based on their historic, cultural, linguistic, demographic, and democratic characteristics
and specificities.
We also question the need of such an all-encompassing legal instrument, as indicated by the
topics covered in the public consultation, and we wonder why the Commission does not tackle
the specific problems they claim exist with sectoral or targeted approaches, including through
recommendations rather than legislation.
The first Impact Assessment on the Media Freedom Act, resulted in a negative opinion by the
Regulatory Scrutiny Board, whose role is to assess the soundness of the Commission's legal
arguments when justifying its regulatory approach. The Board stated the Commission’s
internal market rationale, based on Art. 114 TFEU, was not sufficiently justified, nor was the
rationale for the various harmonisation measures envisaged. The updated Impact Assessment
is expected in July.
Most concerning of all is that some of the measures envisaged by the Commission would
regulate the operations of newsrooms which would inherently undermine the independence
of news publishers. This goes to the heart of press freedom and should continue to remain
outside any EU regulatory framework as they are covered by constitutional protections of the
press and freedom of expression at national level, whereby the press complies with the
general law and with self-regulatory codes of practice.
We’d like to draw your attention to the reservations raised by the Finnish government
regarding the forthcoming proposal: “(...) Finland considers that the legislative proposal should
take into account the differences in media regulatory cultures and markets between Member
States. Therefore, the rules proposed in the legislative proposal should include flexibility,
especially in Member States with a high level of freedom of expression, in order to maintain
existing regulatory practices in those Member States (...)”.1
We take this opportunity to invite you to reflect on these questions and to make your views
known to the European Commission as soon as possible, as your intervention could affect the
choice of legal instrument and the scope.
We thank you for your consideration and remain at your disposal for any clarification you might
need.
Yours sincerely,
Ilias Konteas Angela Mills – Wade Wout van Wijk
EMMA and ENPA EPC NME
Executive Director Executive Director Executive Director
angela.mills-
[email protected] [email protected]
[email protected]
1
English translation of full text attached available at this link
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Submission to the public consultation on a European Media Freedom Act
from the European Publishers Council - ID: 4456380381-30
21st March, 2022
A free press can be good or bad, but, most certainly, without freedom a press will never be
anything but bad.
Albert Camus
The European Publishers Council (“EPC”), a high-level group of Chairmen and CEOs of
Europe’s leading media and publishing groups representing companies with newspapers,
magazines, online publishing, journals, databases, books, eLearning, online marketplaces,
radio, TV broadcasting and audio-visual productions, has been working on the promotion of
free, independent and viable media sector since 1991.
Process and legal basis
The idea of a European Media Freedom Act (EMFA) was first presented publicly on 19
April 2021 by Commissioner Thierry Breton, as part of the Action plan for media at the
height of the Corona pandemic, published in December 2020. Announcing the
Commission’s intention to table a European Media Freedom Act on 15 September 2021 in
the 2021 State of the Union address, President von der Leyen talked of the need to
protect the safety of journalists (now a Recommendation) and stressed that media
companies cannot be treated as any other businesses and that their independence must
be protected; but she specified this protection should be at EU level. However:
Firstly, media is an exclusive competence of member states or shared in some limited
cases. The consultation goes on to say that with the EMFA, the Commission intends to
take yet another step to ensure the proper functioning of the EU media market, in
particular by eliminating barriers to the establishment and operation of media companies,
and safeguard a free and pluralistic media ecosystem. There is no such thing, and never
can be, an internal market for media given the differences in culture, languages and legal
traditions.
• Therefore, we do not agree with the Commission and its plan to use the Article
114 TFEU as the legal basis for any future legal instrument in the field of media.
Secondly, we do not accept that the European Commission needs to establish new legal
bases in order to challenge any Member State’s disregard for the rule of law. The
consultation states that the Commission’s 2020 and 2021 Rule of Law Reports as well as
the Media Pluralism Monitor (MPM) point to various instances of interference in the
ownership, management operation or existence of media outlets across the EU. The
European Commission does not need a new European Freedom Act to take up these
instances of interference with Member States because:
• Already at its disposal are various Rule of Law instruments and we do not accept
that any additional regulation, however well intended, would make any difference
to this particular matter; whereas a EMFA could impose new levels of regulation
on legitimate media businesses throughout the EU for no good reason and which
could have unintended and unfortunate outcomes for the freedom of the media.
• Media freedom, in particular the freedom of the press can only be guaranteed if
the responsibilities and competences of the Member States are strictly adhered
to.”1
Thirdly, our members are troubled by the lack of process that has been followed on the
EMFA. The European Commission has launched its public consultation, without previously
publishing a Roadmap on the proposal, where stakeholders can already provide feedback. A
study providing some evidence for the need to act is still under preparation, as it is the call
for evidence, which has the same deadline as the public consultation. We caution against
acting before all the necessary inputs have been collected and assessed before launching
such a controversial issue as media regulation, which we do not believe is justified.
Europe’s Digital Decade: targets for 2030 should embrace a free press is a financially
robust and independent press
When considering targets for the new “digital decade” for the media sector, one of the
most important pre-conditions in support of a sustainable and well-functioning press, is
to provide for the economic and legal framework to allow competition to flourish, and to
ensure that dominant players in the online market do not overwhelm the capacity of the
press to generate their own economic growth; or for example to undermine efforts such as
to enforce the press publisher’s right under the copyright directive. This why the DMA and
DSA are crucial and why they need some key amendments to fulfil their promise.
• To put it simply, freedom of the press will flourish if publishers are financially
independent. Therefore, the much-needed opening up of competition and
preconditions for a level-playing field - the objectives provided by the DMA and the
DSA, are crucial to our economic future.
• However, despite the extensive discussion we had with the policy makers, including
the European Commission, the very few, but crucial requests that have been put
1
Prof. Dr. Mark D. Cole, Dr. Jörg Ukrow, LL.M. Eur., Ass. iur. Christina Etteldorf, On the Allocation of
Competences between the European Union and its Member States in the Media Sector, EMR, October 2020
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forward to ensure these new regulations will deliver on their promise - i.e., requests
from all the media associations representing publishers, broadcasters and radio for
well over a year now, are still no nearer resolution, risking a missed opportunity to
support the flourishing of media freedom in Europe.
Scope of any proposal and economic impact of further regulation of the media
Notwithstanding the recognition by the European Commission that the EU has no legal
competence to legislate for pluralism, any discussion at European level on media pluralism
and particularly media ownership and media concentration, has traditionally always led to
calls for stricter statutory controls, usually on the claimed grounds of safeguarding
pluralism, rather than leading to any discussion on, or proposals for measures to stimulate
innovation and competitiveness in the media sector. There is no justification in terms of
upholding media freedom to harmonise national ownership and concentration rules, which
are adapted to national market situations and cultural mores.
a) Ownership and consolidation:
• Given the focus on questions around ownership, and the implications from others
that consolidation is injurious to the competitiveness and plurality of the media, and
thereby requiring harmonised rules on media concentration, we wish to make it
clear that the MFA should not become a harmonisation of rules on media
concentration or an anti-consolidation tool. This would fly in the face of the realities
of the market where consolidation is providing much needed investment into
maintaining a diversity of titles and a means to compete with the dominance of
gatekeeping platforms.
• Consolidation does not mean an end to plurality; on the contrary in many cases
titles and publishing companies that would otherwise have disappeared are
maintained in the market through consolidation. Consolidation does not mean an
end to diverse editorial stances; on the contrary, editorial independence is
maintained according to editorial codes and founding statutes.
• Consolidation provides opportunities for companies to benefit from shared
integration of commercial solutions, such as sharing technology, e.g. for advertising
or subscription sales efforts, none of which interferes with the editorial processes.
This provides the economic basis for media to compete better with gatekeeping
platforms.
• DG Competition consulted last year on aspects of competition policy including
definitions of relevant markets which in our view are in much need of reform under
in order to remove outdated anti-consolidation rules for media. This would be an
appropriate European intervention in order to redress the balance between media
and digital platforms which have been allowed to create comprehensive ecosystems
and we regret the lack of reference to consolidation of online platforms in the
consultation of the MFA.
• Media concentration rules and ownership restrictions would take no account, quite
unfairly, not only of the unfair competition from gatekeeping platforms, but also
from the publicly funded media which compete head on with private media.
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• The questionnaire covers several questions regarding various governance aspects of
publicly funded media. However, it is essential for media pluralism that there should
be fair play conditions to allow a free, independently funded European media to
flourish alongside publicly funded media.
• As the publicly funded media work through their own digital transformation, they
compete head on with publishers with multimedia news and general interest
content online, through mobile apps, as well as with private TV broadcasters and
audio. In many markets these public media have developed their own on-demand
platforms. These no longer only include catch-up from their TV and audio channels,
but also exclusive content bought from third parties to enrich their offerings, funded
by the tax payer. Furthermore, their multimedia offerings are promoted via the
major social networks and content sharing platforms. Unchecked growth of publicly
funded media endangers investment in wide areas of potential activity by the
private sector. There should be much clearer limits on state broadcasters to prevent
a crowding out effect through rigorous and independent scrutiny of their ever-
expanding activities.
b) Advertising bans harm media revenues:
• All publishers rely on advertising revenues, and in some cases advertising is the only
source of revenue especially for smaller, local publications. Although many of our
members have experienced success in growing subscriptions to paid-for content,
these revenues are in no way compensating for the overall migration of advertising
revenues to the gatekeeping platforms.
• Furthermore, the content of advertising is under constant threat: either from new
legislative moves with bans, content labelling and limitations, or ever more strict
conditions around data processing for lawful media advertising, or because of unfair
market conditions that benefit big online platforms and deprive publishers of fair
revenues.
c) Editorial independence:
• EPC members are also concerned with the worrying trend calling for legislation to
promote editorial diversity and neutral views. Some questions in the consultation
hint at content prominence or balance requirements, and there is no clarity as to
how this would work or where this could lead.
• We are extremely worried therefore about new legislation that would lead to
interference in editorial freedom, in order to provide subjective, or politically-
motivated “balance”.
• Freedom of the media should be non-negotiable and when it comes to the press in
particular, consumers are well aware that different titles reflect different editorial
and political stances and make their choices accordingly.
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The importance of the DSA and the DMA in supporting a sustainable, viable free press
and why we do not need a European Media Freedom Act
As we have described above, we see no justification for introducing a new Media Freedom
Act. We are of course aware of some specific problems in some member states but this
does not justify the introduction of a wide-ranging EU legal instrument on the grounds of
supporting an internal market in media. More regulation, however well intentioned, always
brings new restrictions, and additional costs. The best way to do something for media
freedom is to provide for the best possible economic framework for media companies,
especially regarding the gatekeeper platforms.
➢ What is missing from the DMA to ensure media freedom?
The EPC’s members use a variety of digital services in order to deliver their products and
services to end users, meaning that they are dependent on gatekeeping platforms offering
various “core platform services”. In particular, the media and publishing groups that the
EPC represents are dependent on online intermediation services (including ad
intermediation services, app stores, platforms incorporating voice assistant technologies
and online marketplaces), online search engines, web browsers, online social networking
services, operating systems, as well as video-sharing platform services provided by a few
gatekeeper platforms.
When it comes to the DMA, to future proof the regulation it is essential for fair and non-
discriminatory general conditions of access for business users to apply to all designated
gatekeepers and their core platform services (under article 6(1)(k) not just App Stores. We
have heard the arguments against extending this provision, including the lack of case law,
or the fear of too many complaints. There is plenty of case law, all of which catalogues very
precisely the areas of harm, and which has been made available to the Commission. And if
the fear of complaints is real, that only serves to prove the absolutely necessity for an
extension of this provision to provide a fairer market for publishers dependent on all
designated gatekeepers.
➢ What is missing from the DSA to ensure media freedom?
The biggest threat to the fundamental rights enshrined in the Charter, including media
freedom and freedom of speech, lies in the hands of the online platforms which today can
decide to block access to or remove editorial content entirely on the basis of their terms
and conditions. We are highly frustrated by the lack of understanding of our serious request
for a) the maintenance of our constitutional protections, and b) by the conflation of this
issue with the way in which disinformation is distributed and often amplified by
platforms. It is essential that platforms take action to desist in the making available and
amplification of disinformation alongside their obligations in the DSA to remove illegal
content; but this must not be used as an excuse to justify inaction to safeguard the freedom
of the media.
EPC, together with all the media associations, are not asking for a ‘media exemption’ from
the DSA; we are asking that the DSA recognises the proper protections of our
fundamental rights, and establishes due process for how platforms deal with lawful
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content under the editorial control and legal liability of the publisher (or broadcaster)
under their content moderation policies and terms and conditions.
Putting it another way, unless the DSA is amended, a Regulation will enshrine in law for
the first-time that decisions about whether content under the editorial control of a
publisher or broadcaster can be judged to be lawful or otherwise by gatekeeping
platforms on the basis of their own, private content moderation policies with no process
in place to be informed of, or to challenge their decisions. This fundamental issue lies at
the very heart of a free press and it is therefore essential that this matter is dealt with
satisfactorily by the co-legislators.
• Let us imagine a world where platforms can censor negative news about
themselves, where they can make arbitrary adjustments to their terms and
conditions to block or remove news stories for their own commercial purposes,
or curtail real debate between citizens online. This is what happens if platforms
will not in future be obliged to respect European fundamental rights including
the freedom of the press when both drawing up, and enforcing their Ts and Cs
and content moderation rules under the DSA;
• The platforms’ algorithms are not remotely capable of making the very
sophisticated judgements which editors make as part of their legal
responsibilities, and which they defend in Court if necessary;
• Furthermore, it is proven all too often that algorithms cannot understand
context; for instance, an algorithm will be unable to understand the difference
between a video of a terrorist incident used by a terrorist website to promote its
aims, and the same piece of content used by a news publisher to illustrate a
legitimate news report.
Before continuing with plans for a European Media Freedom Act we would respectfully ask
the European Commission to re-consider what is at stake for the future of a free press.
More regulation is not in our view justified. For further information, please find below our
own charter for media freedom.
6
A charter for press and media freedom in Europe
Freedom to report
Our media perform a vital role in society in informing citizens about issues of importance and matters
that they care about – everything from education and health to the economy and politics, wars and other
world changing events, the environment and climate change, as well as life-style interests, travel, music
and sport.
Freedom to regulate ourselves
The EPC is naturally opposed to any attempts to curtail editorial freedom and would regard any
legislative interference with editorial policy as censorship.
We are fully supportive of the independent media/press councils as they uphold editorial integrity and
protect journalists against undue influence from both economic and political interests. We are supporting
their development in all European Member States in order to foster coherent media self- regulation
across the EU.
The freedom to advertise is an integral element of the freedom of expression which is why the EPC,
together with colleagues from throughout the media and advertising industry in the European
Advertising Standards Alliance, is committed to high standards of advertising practice. We continue to
update and develop best practice in line with market and technological changes and reject new laws to
regulate the content of advertising which can be handled better through self-regulation.
Freedom to flourish alongside gatekeeping platforms
It is essential to ensure that fair and non-discriminatory general conditions of access for publishers apply
to all gatekeepers and their core platform services including online search engines, online social
networking services, video-sharing platforms, marketplaces, web browsers, app stores, ad intermediation
services, voice assistant technologies, and operating systems.
Freedom to earn advertising revenue
Independent reporting costs money and our ability to earn advertising revenue has a direct impact on the
number of pages in your newspaper, magazine, range of website content or on your choice of television
or radio programmes.
Advertising revenues in huge part are not going to the media, but to gatekeeping platforms. New bans or
legal restrictions on advertising have an immediate detrimental economic impact on the economic
viability of the media.
Freedom to manage our intellectual property
Copyright is not always respected online which means Europe’s cultural diversity and media pluralism are
at stake. We distribute our content as widely as possible and our audience has never been greater thanks
to website and mobile distribution of our content. Audience is not our problem but paid for our content
monetised by online platforms remains challenging, requiring in some cases the intervention of
competition authorities to bring dominant gatekeeping platforms to the negotiating table as the
enforcement of the new press publisher’s right becomes a reality.
Freedom to compete with public service media
It is essential for media pluralism and the maintenance of democracy that there should be fair play
conditions to allow a free, independently funded European media to flourish alongside publicly funded
media. But public media now compete head on with publishers online, via mobile apps as well as with
private broadcasters for audience share and in some cases advertising revenue. In order to prevent a
crowding out effect there should be much clearer limits set by Member States on the ability of publicly
funded state broadcasters to expand beyond their core public service remits through rigorous and
independent scrutiny of their activities.
7
Contribution on the Media Freedom Act (March 2022)
News Media Europe recommends
1. Maintaining the media largely self-regulated to preserve a free and independent
press.
2. Protecting newsrooms from political pressure. Ensure strict separation between
governmental agenda and editorial decisions, and political accountability to all
journalists, not just pro-government media.
3. Tackling state interference by making state advertising subject to transparency and
fair state aid distribution rules. Clarifying that state advertising is illegal if allocated in
a discriminatory manner.
4. Enforcing AVMSD rules on the legal and operational independence of regulators with
the support of ERGA and the Commission.
5. Recognising the benefits of industry consolidation on media pluralism and financial
viability. Prohibit restrictive concentration rules and facilitate cross-border mergers.
6. Protecting editorial independence from platforms’ moderation practices and
establishing fair competition with big tech to preserve press publishers’ sources of
revenues (copyright, advertising).
7. Enforcing existing AVMSD rules on ownership transparency. Preserve Member States’
discretion on how to make information genuinely accessible.
8. Fighting intimidation suits, consistent with efforts under the upcoming anti-SLAPP
Directive. Promoting non-judicial remedies available to citizens via self-regulatory
bodies.
9. Tracking Member States’ efforts in applying the EU Recommendations on the Safety
of Journalists through indicators and progress reports. Providing remedies to
journalists denied accreditation or access to public documents.
10. Promoting the financial viability and independence of private media through
coordinated European investments (Media Action Plan) and regulatory strategies
(DSA, DMA, Copyright, zero-VAT rate).
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Introduction
News Media Europe is the voice of the progressive news media industry in Europe, representing over
2,500 news brands in print, online, radio and TV, through national associations from sixteen countries.
Together, we defend key principles which are vital to us: protecting the freedom of the press,
championing the digital future of our industry, and ensuring that the value of content is properly
protected.
News Media Europe is advised by its media freedom task force dedicated to the exchange of best
practice and promotion of adequate policies related to the freedom of the press. This group serves as
a vector for raising awareness and bringing media freedom violations to the attention of the media,
citizens and decision-makers1. Its expertise feeds directly into our response to the Media Freedom Act
(MFA) public consultation.
The European news media wholeheartedly supports the European Commission’s democratic vision
during this mandate – a vision to which we wish to contribute the best we can. Our association
welcomes the opportunity to share evidence before the publication of the MFA expected in Q3 2022.
Our submission includes elements previously shared with the study teams on “Media Plurality and
Diversity Online”2 and on “Supporting the preparation of an impact assessment on the European
Media Freedom Act”3. We also contributed to the call for evidence published by the European
Commission.
General position
In light of the pandemic and the war in Ukraine, our fight for media freedom has become even more
relevant. News Media Europe sees benefit in the introduction of a Media Freedom Act, provided that
the proposed measures genuinely contribute to enhancing a free and pluralistic media environment,
recognize existing well-functioning models and remain limited to the core problems media markets
face.
The Media Freedom Act should not be a media content regulation (this falls under the AVMS
Directive), nor should it be a rulebook for online content moderation (this is covered by the Digital
Services Act).
The MFA should focus on promoting single market freedoms, based on the Article 114 TFEU legal
basis, as proposed by the European Commission. To support healthy media markets, companies need
1 “News Media Europe condemns police raid at Europa Press and Diario de Mallorca”, Press release, 12
December 2018
2 Study on Media Plurality and Diversity Online, (CNECT/2020/OP/0099)
3 “Study supporting the preparation of an impact assessment on the European Media Freedom Act” (VIGIE
2021-644), PwC, Intellera Consulting srl and Open Evidence S.L
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first and foremost editorial freedom, financial independence and fair competition. We defined these
concepts in our contribution to the European Democratic Action Plan4.
Failure to meet these conditions means that the quality of the media environment suffers, with severe
consequences for media freedom and ultimately for the ability of the news media to serve its
democratic mandate. Keeping media markets healthy, free and viable is of utmost social importance
for the lives of European citizens and for our democratic future.
I. Scope of the MFA
First, we wish to point out that the EU has limited competence for cultural policies. This is an area
where Member States retain discretion under the principle of subsidiarity (Article 6 TFEU).
We therefore question whether the EU has sufficient legal competence to regulate “impartial and
balanced media coverage” which the European Commission incorporated in its consultation. While
we understand the Commission’s interest in supporting content of general interest, creating such
strict categories risks excluding specialised publications or those that cater to specific audiences or
segments of the population. As such publications contribute positively to pluralism and a free
information landscape, we strongly caution against the harmonisation of national cultural policies and
more specifically:
a) The temptation to make the MFA a content regulation instrument. Media content is already
subject to a myriad of EU and national rules as well as effective self-regulation. The MFA, on
the contrary, should remain a market-level instrument and should refrain from creating
additional content regulation.
b) The inappropriate harmonisation of media and cultural services in markets where audiences
remain national or regional. A regulation, with little interpretation margin for Member States,
and harmonised rules for media markets that largely operate on a territorial and local
language basis, seems inappropriate. Such an approach would undermine cultural market
specificities and existing quality media environments.
Underlying problems
Ensuring impartial and balanced media coverage is undeniably more challenging in some Member
States than others, where state interference or the over-representation of oligarch-owned media
outlets hamper access to free, independent and critical information. We propose solutions further
down in the “limiting state interference” section.
When it comes to disinformation, journalist and Nobel Peace Prize winner Maria Ressa, addressing
the European Parliament’s INGE Committee early this year, said: “The minute you start looking at
content, you’re already looking at the wrong thing. We should be looking at algorithms and models.
4 http://www.newsmediaeurope.eu/news/the-european-democracy-actions-plan-perspectives-from-the-news-media-
sector/
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Because that is what has transformed our information ecosystem5”, a principle recalled in her Nobel
Prize lecture6. We could not agree more.
The European Commission is already aware of issues related to algorithmic transparency and has
proposed two complementary instruments, including:
● The Digital Services Act: to make online platforms more responsible and transparent about
content moderation decisions. Here, our sector has been clear and vocal about the risks
associated with platforms’ arbitrary terms and conditions on media pluralism and on content
availability. We suggest that media freedom and pluralism safeguards are retained in the final
text to ensure that platforms better communicate with media companies and respect media
laws7.
● The reviewed Code of Practice on Disinformation: to make platforms genuinely accountable
to citizens and independent researchers about measures taken to limit the spread of
disinformation, particularly via recommender systems and algorithmic decisions. We look
forward to an ambitious Code at the end of March 2022, with appropriate media freedom
safeguards, as recommended by a coalition of media organisations 8.
II. Priority recommendations
a) Preserving effective self-regulation
The experience with self-regulatory bodies and the impact of self-regulation on journalism and ethical
advertising practices is positive. In a democracy, the press must remain free from mandatory
registration to any trade body or press council. Affiliation to any of these organisations must be on a
voluntary basis to preserve freedom of expression and keep the media market as inclusive as possible
especially for innovative formats or emerging businesses.
Adherence to ethical codes takes place very differently across countries. In Denmark, all general and
political information publications must sign up to the Press Council’s (free) registry. However, in
Sweden, Finland and Norway press publishers do not need to formally register to press councils,
although they would be bound by the Council for the Mass Media’s or the Press Ombudsman’s
decisions, or even ethical rules agreed within their trade associations. For example, in Finland, the
great majority of the Finnish media have signed the Council’s Basic Agreement. Hence, self-regulation
is polyform, in substance and in format, depending on countries’ traditions. Please find some
examples in Annex.
5 Access to platform data key to DSA, says Nobel Peace Prize Winner, Euractiv, February 2022
6 “So while the public debate is focused downstream on content moderation, the real sleight of hand, happens further
upstream, where algorithms of distribution have been programmed by humans with their coded bias.”, Maria Ressa, Nobel
lecture, 10 December 2021
7 The Digital Services Act must safeguard freedom of expression online, News Media Europe, 18 January 2022
8 10 Confidence building measures for platforms to deliver verifiable and tangible actions to tackle disinformation online,
News Media Europe website, 10 April 2021
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Given the diversity of industry codes and traditions, self-regulation should not be harmonised at
European level. Self-regulation functions very differently from one country to another, yet works
towards the same objective of preserving the freedom of the press and promoting responsible
industry practices. Furthermore, self-regulatory bodies already coordinate effectively at European
level, where necessary. To preserve such effort and the independence of the press, the functioning
of press councils which emanate from cultural market specificities, should not be harmonised.
Yet, we agree that self-regulation only works to the extent that citizens make full use of the non-
judiciary system that is available to them. In some countries, recourse to the courts and intimidation
lawsuits remain too frequent, a practice that threatens press publishers economically and editorially.
News Media Europe has high expectations for the publication of the EU Directive against SLAPPs
(expected in 2022) to encourage individuals to solve conflicts through non-judicial routes that are
faster, more effective and more respectful of media freedom than legal action.
b) Preventing state interference
Combatting state interference is one of the most business-critical issues for our membership and must
be the MFA’s priority. We are alarmed by the situation in several Member States, in particular in
Central and Eastern Europe, not least in Hungary where the violation of the rule of law and basic
democratic principles is making it impossible for opposition media to operate, leading to a steady
decline of independent media. Please see the full case-studies in Annex. We recommend:
● Strict separation between the government’s agenda and editorial decisions. Whenever
public funding supports media outlets, whether entirely or partially, safeguards must be put
in place to ensure full independence of the editorial team from governmental decisions. An
independent media regulator should scrutinise the implementation of such safeguards.
● Political accountability to all journalists, not only from pro-government outlets. Based on
the EU Safety of Journalists recommendations 9, the MFA should require Member States to
put in place concrete measures to ensure i) unrestricted accreditation and access to events
by journalists, ii) access to public documents iii) replies to journalists’ requests within a
reasonable time.
● Measures should prevent the risks of authoritarian abuses. The deterioration of the media
is often symptomatic of a broader political issue. The MFA alone cannot fix dysfunctional
institutions and the violations of constitutional laws. However, the measures we propose
should prevent the risks of authoritarian abuses. Additionally, policies in the field of justice
provide complementing measures, such as i) the annual publication of the rule of law report
ii) making EU funding conditional upon application of the rule of law and iii) making use of the
Article 7 TFEU procedure for violations of EU core values (Article 2). The aim is to increase
accountability to citizens and to allow for democratic check and balances.
● Making state advertising subject to fair state aid distribution rules. Ill-intentioned
governments use state advertising to selectively support certain media companies to the
9 https://digital-strategy.ec.europa.eu/en/library/recommendation-protection-safety-and-empowerment-journalists
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detriment of others. As a solution, we suggest considering state advertising as state aid, to
better assess its legality. State aid should be considered illegal if it is selective and allocated
on arbitrary criteria.
● By extension, bringing full transparency over the allocation of state advertising to inform
citizens about the public sources of the news they consume. While state advertising can be a
useful policy tool and notably necessary to keep titles afloat in times of crisis (eg. public health
campaigns during the pandemic), such financial support should not turn into anti-competitive,
selective state aid meant to crowd out certain private media actors from the market.
● Measures to ensure that postal delivery of printed news works equally for public and private
media. In many regions, printed news remains citizens’ favourite or most accessible news
product. Hence it is important to ensure the mandatory continuity of the postal service for all
newspapers.
c) Strengthening the independence of media regulators
The reviewed AVMS Directive provides that Member States shall ensure that audiovisual regulators
are “legally distinct” and “functionally independent” from the government and any other public or
private bodies (Article 30). These requirements are not met in some Member States.
In Hungary for instance, the lack of independence of the National Media and Infocommunications
Authority, established under the Media Laws 2010, contributes to the dysfunctional political and
media landscape. The Authority is composed of five members appointed by the government for a
nine-year period. The president’s mandate, which was supposed to expire in June 2022, has been
shortened by the Fidesz government. In other words, the government anticipated the president’s
nomination two months before the April 2022 elections to keep control over the media regulator
during the next term.
In the Czech Republic, a new law is being drafted to reduce the government’s influence over the media
regulator, a problem that became particularly acute over the past years. The reform should allow the
Senate to take part in the nomination process of the TV and Radio Councils‘ members, avoid
politicisation of both entities and maintain the independence of public service media. The upcoming
Czech presidency to the European Union announced its intention to make media freedom a priority
for the EU Council10, an agenda we hope will bring concrete results in terms of regulators’
independence.
The AVMSD should be properly enforced across Member States under the scrutiny of ERGA and the
European Commission. Peer pressure within ERGA and enforcement action by the Commission for
non-application of European law should contribute to the legal and operational independence of
media regulators and more certainty in the market.
10 “Media freedom to be focus of Czech EU Council presidency” , Euractiv, 28 January 2022
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d) Consolidation in the interest of innovation and media pluralism
Over the past decades, the news industry has experienced prolonged, disruptive and structural
changes arising from digitisation and the conduct of big tech that largely dominate advertising
markets. This has exerted unprecedented pressure on European media and left the ecosystem in a
fragile state, with serious consequences for media freedom and pluralism.
It is in that specific context that concentration in news media markets accelerated over recent years.
In many cases this has not been a luxury but a necessity to build the scale necessary to compete.
Concretely, media companies are increasingly competing with platforms for viewers’ time, for their
budgets in securing subscription revenues, and in advertising markets.
As such, concentration in the media sector has played an important role in securing the financial
independence of the press and, by extension, the variety of editorial offerings in Europe. This has been
particularly important in smaller media markets which offer limited opportunities to build scale and
where concentration has inevitably increased faster. In that sense, facilitating cross-border mergers is
arguably even more important for media operating in such markets.
Benefits of consolidation
It is interesting to observe that countries that rank the highest in the World Press Freedom Index 2021
are also fairly concentrated media markets. This includes Norway (1), Finland (2), Sweden (3),
Denmark (4), the Netherlands (6), Belgium (11) and Ireland (12)11. It would therefore be erroneous to
conclude that concentration automatically puts media freedom and pluralism at risk. Given the war in
Ukraine, it is also crucial not to weaken free models in border countries with Russia, such as Finland.
The need for robust and free media in these countries is becoming even more relevant.
The examples we provide in Annex show that concentration allows for:
● Creating economies of scale and efficiencies, diversification of activities, support for
innovation and uptake of new technologies (e.g use of artificial intelligence);
● Providing a safety net for news media that cannot digitally transition on their own;
● Readers to keep sources of information that are relevant and close to them;
● Providing a strong alternative to publicly owned media and ensuring a competitive market;
● Helping press publishers to stay competitive against tech giants and resist international
market pressure.
The assumption that consolidation threatens media pluralism is misleading. For instance, the largest
Danish publishing house, JP|Politikens Hus A/S, publishes various daily newspapers covering a large
political spectrum (liberal, conservative, etc) as well as tabloids. The diversity of publications within
the same media group is uncontestable. In fact, JP|Politiken Hus sees an economic upside in having
titles with different editors, editorial lines and audiences – to the extent that diversity and pluralism
are not seen as constraints, but rather as economic assets which help to build resilience.
11 World Press Freedom Index 2021, Reporters Without Borders
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In The Netherlands, media pluralism was core to the adoption of the Temporary Media Concentration
Act. It allowed Mediahuis to acquire NDC Mediagroep in 2020, a regional press publisher which
needed investments in new technologies and digital skills to survive on the market. Consequently,
consolidation offered small publications financial stability and a positive future that were key to
upholding media pluralism.
Increasing publishers’ bargaining power in copyright negotiations
The largest press publishers in Denmark and in the Netherlands have been able to launch a collective
management organization (CMO) for the administration of the press publisher right (Article 15 of the
Copyright Directive 2019/790/EU). The significant initial investments required to establish CMOs
would not have been possible without the resources made available by the largest publishers to
contribute to creating the new legal entities, drafting the statutes, elaborating business models and
redistribution plans, preparing licensing proposals and more. Depending on the terms of their
mandates, CMOs can represent small press publishers who often lack legal resources and expertise to
negotiate remuneration agreements with large tech players, and redistribute fees.
We also observe in ongoing copyright negotiations that especially smaller media titles are not
approached by Google or Facebook unlike their larger counterparts. It is therefore clear that when it
comes to remuneration agreements with tech giants, size and concentration clearly matter.
Larger media companies are also better resourced to undertake the legal costs associated with
launching proceedings to enforce their neighbouring right (e.g. competition cases against Google
before the Autorité de la Concurrence12 and the Bundeskartellamt13). It is hoped that these procedures
will eventually benefit smaller media companies that fall in the scope of the decisions.
It is also relevant to observe that an increasing number of national transposition laws include the
possibility for press publishers to join forces through Extended Collective Licensing (ECL). The DSM
Directive (Article 12)14, based on the framework of the Collective Management Directive15, allows
press publishers to collectively negotiate with online platforms for remuneration agreements. Hence,
lawmakers have already factored in a relaxed competition framework to respond to the specific needs
of the press sector.
Consolidation has brought many benefits to media markets in terms of innovation and media
pluralism, particularly in light of the increasing pressures on the market through the ruthless and anti-
competitive conduct of tech giants. The need for a flexible competition framework for the media
12 https://www.autoritedelaconcurrence.fr/fr/decision/relative-des-demandes-de-mesures-conservatoires-presentees-par-
le-syndicat-des-editeurs-de
13https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Meldungen%20News%20Karussell/2021/04_06_2021_Goo
gle_Showcase.html
14 https://eur-lex.europa.eu/eli/dir/2019/790/oj
15 Directive 2014/26/EU on collective management of copyright and related rights and multi-territorial licensing of rights in
musical works for online use in the internal market
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sector was also recognised as part of the new Copyright regime. The MFA should preserve the
competition acquis for the industry to stay competitive and deliver better and diverse editorial
offerings.
e) Protecting editorial independence
News Media Europe has been clear and vocal about the risks of interference by social networks, news
aggregators and search engines in the Digital Services Act, where we expect clear media freedom
safeguards16. Yet, the concern that online platforms exert power over press publishers through their
moderation practices remains.
When it comes to self-regulation, important safeguards exist in national Constitutions, statutory laws
and at company level with the shared objective of preserving freedom of expression from internal and
external pressure. Editorial independence is, after all, part of private media’s credibility towards
readers and advertisers. See some comparative examples in Annex.
Some jurisdictions rely purely on effective self-regulation and industry collective agreements to
protect editorial independence. In Ireland, media organisations rely on their own editorial codes of
conduct and the Press Council’s Code of Practice. In the Netherlands, editorial independence is
guaranteed by both editorial statutes and company statutes and further anchored in sectoral
collective agreements.
In other jurisdictions like the Czech Republic, the greatest threat to editorial independence is
perceived to be the financial pressure on small and independent press publishers, which means that
editorial decisions largely depend on the commercial department. Due to lack of sufficient resources,
newsrooms run the risk of merely reprinting press releases or news shared by public authorities. So
the priority for private media remains to get sufficient (advertising) revenues to invest in quality
journalism.
To conclude, the harmonization of self-regulation is not desirable but industry solutions can serve
as an example in an EU recommendation. Editorial independence is protected through very different
sets of rules, depending on the jurisdiction and practices. We should therefore preserve the well-
functioning articulation between legal safeguards and self-regulation in these jurisdictions. Efforts
should rather focus on the Digital Services Act to protect European press publishers from platforms’
arbitrary decisions.
16 “Digital Services Act must establish the right relationship between platforms, the media and their users”, News Media
Europe, 15 February 2022
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f) Restoring fair competition with tech giants and public media
Relation with tech giants
It is surprising that the public consultation does not inquire about the relationship between tech giants
and press publishers, a problem of direct relevance to media freedom. News publishers across the
European Union remain very concerned about the unfair and anti-competitive strategies of big tech,
in particular in content, data and advertising markets.
As a matter of priority, we ask the Commission to consider the economic pressure suffered by
private media due to competition distortions with online platforms and bring solutions. The MFA
should complement efforts under the Digital Services Act and the Digital Markets Act and impose clear
transparency requirements and data-sharing obligations on the main ad-tech players (Google, Meta).
Relation with public service media
Europe’s model of combining public and private media is beneficial for citizens and generally well-
functioning. This unique dual market structure approach recognises the need to inclusively cater for
all audiences and recognises that certain pro-competitive and pro-pluralistic effects can be created in
media markets.
However, the funding of public media inherently carries risks of creating competition restrictions. Such
anti-competitive effects can in certain cases outweigh the benefits that are generated through public
media services if their activities are not exercised with due consideration for private media actors and
within a limited mandate.
For instance, problems arise when public service broadcasters directly compete with private media
for people’s time - and in some Member States advertising revenues - while exclusively benefitting
from public subsidies. This has been the case in the Netherlands where the Dutch Public Service
Broadcaster (NPO)’s subsidised podcast discourages innovation efforts from private players on the
audio streaming market. In Finland, stemming from a complaint by Finnmedia to the European
Commission in June 2017, the Finnish government proposed to limit the scope of text-based content
activities of the public service broadcaster Yleisradio and restore fair competition with private
newspapers17. Similar complaints arose in Estonia, Lithuania and Denmark.
The MFA should promote the transparent allocation of state aid in public service media and ensure
that government funding is used responsibly without risks of crowding out private media.
Concretely, public service media should not overstep its mandate at the expense of market
opportunities for private actors. This would ensure that media companies, public and private, can
compete on the merits of the services they offer.
17 “Parliament set to vote on Yle text content restrictions”, Yle, 23 February 2022.
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III. Complementary recommendations
a) Enforcing existing rules on transparency of media ownership and beneficiaries
Transparency requirements over ownership structures already exist in the Audiovisual Media Services
(AVMS) Directive, Article 5(1) and (2). Before considering new provisions as part of the MFA, existing
measures should be properly implemented and enforced at national level.
There are already national legislations in place to promote the transparency of financial information.
Media companies, by signing up to their national business registry, will disclose all necessary
information such as financial information and beneficiaries. Publicly listed companies are in addition
required to disclose financials through annual reports, as detailed in Annex.
Meaningful ownership transparency and reporting obligations measures are already in place at
national level, through general and media specific laws, which also draw on the EU acquis. We would
start with applying these rules in practice. We recognise that practical enforcement can be improved
in some Member States, for instance through the ability for company registries to proactively check
the veracity of the data or for citizens to access information for free or against a nominal fee. We also
hope that equally significant ownership transparency rules are applicable to tech giants which directly
compete with media companies.
b) Safeguarding Single Market freedoms
The MFA intends to safeguard the free movement of services and capital and the freedom of
establishment. We support this objective to allow for more cross-border investment in media.
Expanding operations into another European market is a business decision based on market potential.
It is therefore expected that a flourishing national news media market will attract investments from
across borders. At the same time, news and current affairs mostly cater to national, regional or local
audiences. For instance, Belgian (Flanders) publishers can in principle establish across borders but in
practice only own titles in the Netherlands, Denmark, Ireland, Luxembourg and Germany. This calls
for two sets of conclusions:
1) The centralisation of media policies at EU level would be clearly inappropriate and even risky for
cultural services like news.
2) Media companies that have the potential to operate cross border must be able to do so based on
unhindered Single Market freedoms. Therefore, our recommendation is to uphold the
functioning general market rules for the media sector.
c) Promoting a free and transparent market for audience measurement
Audience measurement should be as transparent and objective as possible and conducted in an
independent manner by media companies themselves, their contractors or entities they mandate (e.g.
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trade association, joint industry body, etc). Moreover, press publishers should be able to access their
audience data generated via platforms, apps and the Internet of Things. Here, News Media Europe
made concrete proposals for data-sharing obligations under the Digital Markets Act.
Our members are generally satisfied with the audience measurement services available to them on
the market. Their main concerns, detailed in Annex, relate to:
a) Maintaining a genuinely competitive market for audience measurement while tackling the
market dominance and unfair practices of larger platforms (eg. Google Analytics).
b) Promoting an inclusive market, with affordable services for small and medium-size
publishers. One key challenge for publishers remains the cost of measuring multi-platform
audiences in an effective and representative manner.
Hence, there must be a competitive market for audience measurement which respects standards of
trustworthiness, independence and transparency. Such conditions are best achieved through
industry self-regulation and many initiatives already go in this direction (see Annex). Ultimately, the
aim should be to make audience measurement an accurate, useful and affordable tool for all media
companies, and to provide advertisers with reliable information. We recommend:
● Steering away from EU harmonisation in this area since calculation methods apply to the
characteristics of each market;
● Fostering a competitive market for audience measurement which acknowledges greater
standardisation efforts led by the industry;
● Aiming for self-regulatory, independent and transparent audience measurement methods.
Promote industry criteria that are representative of market realities and benefit companies
and advertisers;
● Ensuring that big tech is more transparent and adhere to data sharing obligations for
publishers to understand their own audiences.
c) Creating a favourable environment for media innovation
The level of attention given to innovation, data-driven solutions and new sources of investment for
news media in the Media Action Plan is very positive. We would welcome complementary efforts in
the MFA for a European media strategy, under the form of recommendations, including:
● Ensuring that EU laws do not restrict media companies’ sources of revenues e.g. in the future
ePrivacy, Digital Services Act and Political Advertising proposals. Based on the GDPR
experience, national regulators must be provided with the means to enforce EU rules for
media companies to compete on fair terms with tech giants.
● Enforcing the Copyright Directive to give press publishers greater bargaining power in their
relations with online distributors. The Commission should continue to apply pressure on
Member States to swiftly transpose the Directive through infringement proceedings. Strict
compliance is crucial so that revenues derived from copyright support press publishers’
investments in innovative and quality journalism.
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News Media Europe - Square de Meeus 25 - 1000 Brussels - Belgium - BE 0647.900.810
● Keeping competition rules flexible enough to boost innovation: Consolidation is still
perceived as one of the most effective ways to innovate, based on back-office technologies
and the transfer of knowledge and new skills. A recent Helsinki University report points to the
benefits of consolidation on local media markets, on the ability to “renew business models”
and “to aggregate audiences and know-how” and eventually to grow less dependent from
Silicon Valley companies18.
● Open public funding to private players in full respect of editorial independence. In Denmark,
some highly successful digital players emerged from publicly funded initiatives, such as
Zetland, an online media outlet specialised in story-telling and audio. Making sure that
Member States make use of European funding available for private news media (Creative
Europe, Digital Europe, Recovery Fund, etc) with as little red tape as possible and with high
standards of transparency and objectivity is essential. Concrete support to applicants should
be made available to overcome administrative challenges.
● Encouraging governments to put in place dedicated teams for media innovation. It appears
in certain Member States, such as the Czech Republic, that there has historically not been any
public advisory body dedicated to the media, nor any media policy priority in the
government’s agenda. As a result, Czech media are not able to receive any financial support
from the EU Recovery Fund, nor any other grant. As independent media continues to suffer
from the Covid-19 crisis, financial support should not be conditional on cross-border
cooperation, and be urgently facilitated by lighter administrative processes.
Contacts:
Wout van Wijk (Executive Director):
[email protected]
Aurore Raoux (EU Policy Manager):
[email protected]
18 Final report “Road to Freedom: How media and advertisers can reduce dependency on Silicon Valley tech companies”,
University of Helsinki, 9 February 2022 – see page 38.
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Saatja: <
[email protected]>
Saadetud: 28.06.2022 16:42
Adressaat: KUL min <
[email protected]>
Koopia: Andres Jõesaar <
[email protected]>; Heili Jõe <
[email protected]>
Teema: European publishers joint letter on EMFA
Manused: image001.png; News-Media-Europe-position-paper-on-Media-Freedom-Act-March-
2022-.pdf; EPC Position Paper on European Media Freedom Act 21March2021.pdf; 220325
EMMA ENPA position paper EMFA + Annex.pdf; 28 06 22 Media Freedom Act letter -
European press publishers.pdf
To the kind attention of Mr Terik
Dear Minister,
The undersigned European associations of press publishers, representing the press sector in the vast
majority of EU Member States, would like to share their concerns on the planned European Media
Freedom Act (EMFA), announced by the European Commission and expected in September 2022.
We would take this opportunity to raise our concerns about the validity of such an intervention and to
pose some questions for your consideration ahead of the Summer pause. It seems that the Commission
intends to cover a wide range of complex legal issues in the EMFA proposal, based on the premise that
there is a single internal market for all media. We must question this approach which will mix audiovisual
regulation, where the EU does have some limited competence, together with matters central to the
freedom of the press, which correctly is not regulated at EU level as this sensitive area remains the sole
competence of the Member States based on their historic, cultural, linguistic, demographic, and
democratic characteristics and specificities.
For these reasons, you can find enclosed for your consideration a joint letter describing our concerns in
details, as well as our position papers.
We thank you for time and consideration and remain entirely at your disposal.
Sincerely,
Wout van Wijk
On behalf of:
EMMA – European Magazine Media Association
ENPA – European Newspaper Publishers’ Association
EPC – European Publishers’ Council
NME – News Media Europe
Wout van Wijk
Executive Director
[email protected]
+32 473 685864
EU Transparency Register ID: 577812220311-81