The Media Freedom Act (“MFA”), originally proposed by the European Commission in 2022, aims to protect the independence and plurality of media services. Media services are defined as the provision of programmes and press publications, to inform, entertain or educate, which are under the editorial responsibility of a media service provider (“MSP”). The proposal aims to prevent political interference in editorial decisions, ensure transparency of media ownership, protect journalists from having to disclose their sources and from the use of spyware against them, establish requirements for transparent allocation of state advertising, ensure the independence and stable funding of public service media, address media concentrations, and increase protection against media content removal by large online platforms.

On 3 October 2023, Parliament published its proposed amendments to the MFA (previously reported by Wiggin). On 15 December 2023, the EU Parliament and Council reached a provisional agreement on the MFA. The agreed text is not yet available but some of the reported changes to the Commission’s original proposal, agreed by the Parliament and Council, are described below.

Under the MFA, Member States must respect the effective editorial freedom of MSPs and not interfere with editorial polices and decisions. They may not detain, sanction, intercept, search, seize or inspect MSPs, their family or employees on the grounds that they refuse to disclose journalistic sources, or deploy spyware on any device used by an MSP other than when justified on the grounds of national security or as part of a serious crime investigation. According to reports, the co-legislators appear to have agreed amendments removing the Commission’s proposed exceptions to prohibition on interferences to the effect that the interferences will only be permitted on a case-by-case basis “by reason of an overriding public interest” which will be subject to authorisation by a judicial authority, and that the use of surveillance software must also be justified for the purposes of investigating serious crimes punishable by a custodial sentence in the respective Member State.

The MFA provides that MSPs providing news and current affairs content must publicly disclose the names of their direct and indirect owners and any actual or potential conflict of interest by any party having a stake in them that may affect the provision of news and current affairs content. According to reports, the co-legislators agreed to extend these transparency obligations to all MSPs, not just those who publish news and current affairs content.

In order to ensure moderation decisions by online platforms do not negatively affect media freedom, the MFA contains safeguards against the unjustified removal of professionally produced media content published online. Specifically, in cases not involving systemic risks such as disinformation, Very Large Online Platforms (“VLOPs“) (defined under the EU Digital Services Act as online platforms having 45m or more average monthly active users in the EU) that intend to delete legal media content considered to be contrary to the VLOP’s terms and conditions would have to inform the MSP of its reasons in advance of the deletion. The co-legislators have agreed to extend this provision to a VLOP’s decision to restrict content as well as to deletion, and have agreed 24-hour stay up period in which the MSP may respond to the reasons given for the proposed restriction or deletion. Even after restriction or deletion, MSPs will still have the option to bring the case to an out-of-court dispute settlement body.

The provisional agreement must now be endorsed by the Parliament and Council and will then need to be formally adopted by both institutions.

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