Policy brief #78 The European Media Freedom Act

21 June 2024

Adelaida Afilipoaie, Heritiana Ranaivoson & Aina Errando

The European Union’s principles include as core values free and pluralistic media, as they play crucial role in democracies. Globally, the EU stands as a bastion of media freedom, setting democratic standards. However, concerning trends have emerged with growing threats from media ownership concentration and dominance of online platforms. Building on previous efforts, the European Commission has implemented measures to safeguard media pluralism and the culmination of these efforts is the European Media Freedom Act (EMFA), the first EU Regulation to mention pluralism. Although a few Member States initially disagreed with the contents of the proposal and raised the issue of subsidiarity^[1], the EMFA was finally agreed upon. The Act seeks to address several key challenges to media pluralism, in particular in relation to media independence and the assessment of media mergers.

Highlights

Media pluralism is a cornerstone of democratic societies: the plurality of media ownership combined with a diversity of viewpoints produced and eventually consumed by citizens is necessary to foster political agreements and mitigate social conflicts. Despite its recognized importance, high levels of concentration and domination of online platforms pose crucial risks to pluralism and editorial independence.

Historically, media policies have largely been the prerogative of EU Member States, resulting in a fragmented regulatory landscape. Previous EU initiatives, starting with the 1992 Green Paper on pluralism and media concentration in the internal market, acknowledged the importance of safeguarding pluralism but deferred the responsibility to national frameworks, thus contributing to the fragmentation. This has led to further uncertainties and barriers in the internal media market.

1. The EMFA'S Key Objectives

In response to these challenges, the EMFA was adopted and entered into force on 7 May 2024. The EMFA is fully applicable as of 8 August 2025.The Act builds on the revised Audiovisual Media Services Directive^[1] and is part of the broader European Democracy Action Plan. The Plan aims to strengthen democracies across the EU by focusing on (1) protecting election integrity and promoting democratic participation, (2) strengthening media freedom and media pluralism, and (3) countering disinformation.

The EMFA’s key objectives include:

1. to harmonize fragmented national rules on media freedom and pluralism.
2. to ensure that EU citizens have access to a wide and varied media offering, both offline and online.
3. to protect editorial independence and shield media management from interference.
4. to promote transparency regarding the allocation of state resources, media ownership and audience measurement systems

5. to establish the European Board for Media Services (the Board), replacing the European Regulators Group for Audiovisual Media Services (ERGA). The Board is composed of representatives from National Regulatory Authorities (NRAs) and plays a key role in upholding media pluralism.

    

2. EMFA’s Protection of Media Pluralism: Section 5

The protection of media pluralism is particularly addressed in Section 5 (Requirements for well-functioning media market measures and procedures) and specifically in Art. 22 (Assessment of media market concentrations). This section introduces the "media pluralism test", incorporating criteria to evaluate media mergers comprehensively and addresses the role played by NRAs. The criteria stipulated in Art. 22(2) is quite high-level, sometimes abstract and mostly relies on the media services providers’ voluntary actions to safeguard media pluralism and editorial independence.

In previous research,^[2] we have shown that when both NRAs and ministries intervene in media merger assessments, they do so based on media pluralism and often on public interest considerations. There is, however, a broad disparity of situations in the EU. In most Member States, there is no such cooperation, while in others, there are various combinations, involving NRAs, National Competition Authorities (NCAs) and Ministries. A major change brought by the EMFA is that Art. 22 introduces a requirement for Member States that do not have a cooperation assessment in place, to designate an NRA and establish substantive and procedural rules in national law.

Hence, NRAs are mandated to cooperate with NCAs and, where necessary, consult the Board (of which they are part). If the concentration is likely to affect the functioning of the internal market for media services, the Board shall be consulted before the NRAs take their decisions. The Board transmits its opinion – basing itself on the elements stipulated in Art. 22(2) – to the NRAs and the Commission. In cases where the NRA assessments are absent and the concentration is likely to affect the functioning of the internal market for media services, the Board must provide an opinion. In this case, the Commission may also issue its opinion. The NRAs must justify to the Board and the Commission their decision to fully or partially follow the Board’s or the Commission’s opinions. This decentralized yet cooperative system aims to create a more holistic assessment of media concentrations.

3. The EMFA and the MPM

A parallel can be drawn between the EMFA’s approach to broadly defining and assessing pluralism and the Media Pluralism Monitor (MPM). The MPM was implemented by the Centre for Media Pluralism and Media Freedom (CMPF) for the first time in 2013/2014 and has been carried out annually since 2020. The MPM gives a comprehensive overview of risks considering four areas: basic protection of media freedom, market plurality, political independence, and social inclusiveness. Similar to the MPM, the EMFA follows a risk-based approach. The risk-based approach of the MPM also informs EU Rule of Law reports, particularly its chapter on media pluralism and freedom (EUI, 2022). The chapter is also referred to in Art. 22(2)(d) which encourages the NRA to consider the findings of the Rule of Law report.

Article 22(2) details the elements NRAs must consider during assessments, which notably include the economic resilience of the merging parties; the impact of the merger on the formation of public opinion and on the diversity of media content; safeguards in place for ensuring editorial independence; ownership transparency; and the compliance of the resulting entity with democratic values. The EMFA emphasizes transparency by requiring Member States to set clear, objective, and non-discriminatory criteria for media concentration assessments, while including the abovementioned elements in their assessments. This approach aims to foster some legal certainty for media market players.

4. Conclusion and upcoming challenges

The EMFA marks a critical development in the EU's efforts to safeguard media pluralism and editorial independence. By harmonizing some of the fragmented national regulations, promoting diverse media offerings, and protecting against undue interference (increasing the risks to media capture and state capture), the EMFA lays the groundwork for a more pluralistic and democratic media landscape. However, in so doing, it raises additional challenges.

First, despite the EMFA's harmonization efforts, the existing national regulatory frameworks remain diverse. Implementing Art. 22 of the EMFA will require significant adjustments in Member States' laws and procedures, especially in those without established cooperation mechanisms between NRAs and NCAs. The effectiveness of Art. 22 could be limited by the non-binding nature of opinions issued by NRAs. Ensuring that NRAs' contributions are adequately weighted in the assessments by the NCAs remains a challenge. Regular post-merger assessments on the impact on media pluralism and editorial independence should also take place. However, all this oversight and intervention requires adequate resources.

Traditional media ownership rules rarely encompass online platforms, posing an additional challenge. The EMFA provisions need to be robustly applied to digital media to ensure comprehensive media pluralism. For example, assessments in the digital world should consider the role of data ownership, recommender systems and algorithms in influencing exposure diversity and opinion formation, and thus go beyond traditional metrics like market shares. Transparency is a necessary, though insufficient, step.

While the EMFA measures are less ambitious than anticipated, they advance the much-needed transparency measures in media ownership and allocation of state advertising, which could deter unwanted practices and increase the accountability of media service providers both offline and online.

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