On October 3, 2023, an overwhelming majority of the European Parliament (“Parliament”) adopted its position on the EU Media Freedom Act (the “Act”), introducing a number of amendments to the text of the Act as proposed by the European Commission (the “Commission”).
The Commission’s proposal for a Regulation establishing a common framework for media services in the internal market (European Media Freedom Act) and amending Directive 2010/13/EU, published on September 16, 2022, aims, inter alia, to safeguard media independence and promote media pluralism across the EU, in addition to establishing specific requirements for Very Large Online Platforms (“VLOPs”) as defined under Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (the Digital Services Act).
This blog post summarizes some of the key developments resulting from Parliament’s proposed amendments in relation to: (i) requirements for VLOPs when removing content of media service providers from their platforms (Article 17); and (ii) the rights of media service providers (Article 4).
Takedown obligations for VLOPs (Article 17)
Building on the Commission’s original proposal, the position adopted by Parliament, if enacted into law, would impose a number of obligations on VLOPs when taking down content found to be in violation of the platform’s own terms and conditions. As a general rule, VLOPs will need to ensure that their content moderation systems do not negatively impact media freedom and pluralism. More specifically, VLOPs must:
- ensure that their content moderation and monitoring processes have adequate human resources to cover all languages and geographical regionsof the EU;
- provide a mechanism enabling media service providers to declare themselves as editorially independent, and either: (i) regulated and subject to oversight by a competent national regulatory authority or body; or (ii) compliant with a co-regulatory or self-regulatory mechanism governing editorial standards that is transparent, legally recognized and widely accepted in the relevant media sector in one or more Member States;
- notify the media service provider of any intention to suspend or restrict its content, providing the reason for the decision and highlighting the specific clause(s) of the terms and conditions being violated; and
- allow for a 24-hour period within which the media service provider may respond to the reasons provided by the VLOP in reaching its decision.
Where VLOPs still consider the content to be in breach after the 24-hour period has lapsed, they may: (i) suspend or restrict the content; or (ii) defer to the relevant competent national regulatory authority or body or the body of the relevant self-regulatory or co-regulatory mechanism, who can make the final decision.
Parliament’s position also permits the media service provider to lodge a complaint with an out-of-court settlement body, where it considers that the VLOP has acted without sufficient grounds and in a manner that undermines media freedom and pluralism.
Rights of media service providers (Article 14)
Parliament’s amended text affirms that the right to freedom of expression and information, enshrined in Article 11 of the Charter of Fundamental Rights of the European Union) and in Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, encompasses the right to receive and impart information and media freedom and media pluralism without interference by public authority and regardless of frontiers.
To that end, Parliament’s adopted position would prohibit certain practices (except in very limited circumstances, where certain criteria are met) which interfere with the editorial freedom and independence of media service providers, including: accessing encrypted content of media service providers; deploying surveillance measures or using surveillance technology; and deploying spyware or similar intrusive technology. Under Parliament’s position, these activities would only be permitted where ordered by an independent judicial authority, and where justified on a case-by-case basis for the purpose of preventing, investigating or prosecuting a serious crime; in addition to certain other criteria being met.
Under Parliament’s amended text, the work of the proposed new European Board for Media Services (“the Board”), should be independent from the Commission and from any political or economic influence. Parliament’s position also provides for the participation of experts, on an ad hoc basis, in the Board’s work. Parliament’s amended text also imposes additional informational requirements on media service providers regarding their ownership structure, as well as reporting obligations in relation to funds received. Finally, Parliament’s position would require Members States to adopt measures to ensure the economic viability of public media.
Following Parliament’s adoption of its position, inter-institutional discussions are now expected. The Council having adopted its own position on the Act on June 21, 2023.
If enacted into law, the Act would be directly applicable across Member States, and its provisions would apply 6 months from its entry into force, except for: (i) Articles 7 to 12 and 27; and (ii) Article 19 (under Parliament’s position), which would apply from (i) 3 months and (ii) 24 months (under Parliament’s position) respectively after the Act’s entry into force.
Covington will be monitoring developments on the Act. Please reach out to a member of the team with any enquiries.