The final phase of negotiation of the European Union’s Media Freedom Act has begun after two different draft versions were adopted by the European Union Council and the European Parliament. The future law aims to promote EU-wide media pluralism without political interference.
The European Commission introduced the European Media Freedom Act (EMFA) on 16 September 2022.
It was borne from the need to fight political interference in editorial decisions, foster pluralism in the bloc’s media landscape, and boost transparency on media ownership.
A year on, Commission President Ursula von der Leyen says that Europe needs a law that safeguards the independence of media companies.
"Commissioner Vera Jourova was brave. It was a delicate task for the Commission to devise laws that can be implemented by each member-state. It is not just a text of good intentions and some member states were very reluctant to see it through," Gwendoline Delbos-Corfield, a French European Member of Parliament (MEP) from the Greens group told RFI.
The Council of the European Union agreed on its version of the EMFA’s text on 21 June 2023.
The European Parliament adopted its version of the EMFA on 3 October 2023.
Now, three-way negotiations, involving the main EU institutions, Council, Parliament and Commission will kick off. They are aimed at reaching an agreement on a common framework for the legislation which will be enforced by the EU’s 27 member-states on a national level.
The first political 'trilogue' is expected on 19 October, while the process is to be finished before the upcoming European Parliament elections due in June 2024.
Many thought this was mission impossible.
— Věra Jourová (@VeraJourova) October 3, 2023
But we have it: a proposal to protect media freedom in the European Union.
After today’s vote, let’s get a final deal to protect journalists and our democracies.#MediaFreedomAct pic.twitter.com/tJM6GclUZT
Shocking attacks
"In the last decade, we have seen incredible attacks against the media in Europe, especially in Hungary and Poland," Delbos-Corfield told RFI.
"In Hungary, the ruling Fidesz party has seized control of 80 percent of the country’s media, while the Polish government faces criticisms for attempting to control information on sensitive subjects".
"In Malta, journalist Daphne Caruana Galizia was killed [in 2017] and Slovak journalist Jan Kuciak murdered [in 2018] because they were reporting on corruption stories linking the government and the mafia," Delbos-Corfield adds.
Investigative Greek reporters Sokratis Giolas, working on corruption, and Giorgos Karaivaz, reporting on organised crime, were executed in 2010 and 2021 respectively by unknown gunmen.
In France, journalist Ariane Lavrilleux was detained for 39 hours in September facing questions by the national intelligence agency (DGSI). Her home searched and documents seized.
France’s Ministry of the Armed Forces filed a complaint, in 2021, for "violation of national defence secrecy" following her reports published on Disclose - a French news website - dating back to 2019.
Lavrilleux reported on French arms sale, and on leaked documents claiming that a French counterintelligence operation in Egypt, codenamed Sirli, was used by the Egyptian government to carry out air strikes on suspected smugglers.
Controversial use of national security
"We will now enter the final and toughest part of the negotiations," Julie Majerczak, the European Union (EU) representative of, media watchdog, Reporters Without Borders (RSF) told RFI of the EMFA.
"The usual suspects, Hungary, Poland, will oppose resistance. Viktor Orban has already made two declarations," echoes MEP Delbos-Corfield. "But we also expect pressure from the big publishers in Germany. The French government will raise problems over the issue of national security".
According to RSF, the text adopted by the EU Parliament offers better protection to journalists than the one proposed by the EU Council, or even that of the European Commission.
"This text includes very strong safeguards towards any possible derogations, such as detention of journalists, access to their computers and other materials. The derogations may be applied but only under very strict circumstances and cannot lead to disclosing the journalists’ sources," RSF’s Majerczak told RFI.
Under the EU Parliament’s version of the EMFA, surveillance or the use of spyware is admissible as a last resort, when journalists are involved in "serious crimes" such as terrorism or human trafficking for example. And, only after a judge gives clearance.
"This is not enough. We want a total ban on using spyware against the press," says Carine Fouteau, journalist for the French online news outlet Mediapart and a member of its editorial board.
"We want full protection of press independence and confidentiality of journalistic sources without any limitations".
The text approved by the EU Council allows for surveillance of journalists in the name of national security.
"Defence of national security must not be used as a blank check allowing for the surveillance of journalists and opening the way to all kinds of abuses," RSF’s Majerczak continues.
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Cases of surveillance have been reported in Greece and Hungary using the Israeli Pegasus and Greek Predator spyware.
The French exception
France successfully introduced an exception allowing for the use of "intrusive surveillance software" for journalists in the name of national security, raising concerns.
"We are not surprised by the position of France,” Mediapart’s Fouteau told RFI. "Under Emmanuel Macron’s presidency, a number of journalists have been detained and interrogated by the intelligence service".
She cites the case of Alex Jordanov, questioned in 2022 because his book allegedly revealed defence secrets.
Mediapart’s offices were searched in 2019 following articles on Alexandre Benalla, a former president security aide.
Under President François Mitterand’s presidency in the 1980s, Edwy Plenel, now Mediapart’s director, was one of several journalists who were wiretapped.
Meanwhile, on 3 October, President Macron launched a nationwide public consultation on information whose report is to be published in June 2024. It is a public discussion on the right to reliable information for all.
"A perfect example of the French paradox. Something we’ve seen throughout our history," comments Alexis Levrier, media historian at Reims University. "We want to be the country of human rights but at the same time we sometimes err towards an authoritarian rule".
Fouteau believes that this public consultation on information is just a publicity stunt.
Fierce final round
The three EU institutions now have to agree on a final text, but MEP Delbos-Corfield fears that it may be watered down.
"However, the worst is never sure. We’ve seen that, on this sort of topic, we, Commission and Parliament together, do manage to resist some member states. But we only have a few months left," she says.
Majerczak said that RSF intends to pressure France over its national security exemption.
"It is not going to be easy to convince them that sources confidentiality is the backbone of press freedom. It goes beyond journalism. It is about democracy and the right to information for all of us," she added.
