Safeguarding media freedom in the EU

By Susanna Lukacs

New legislation in Slovakia foresees to place public broadcaster RTVS under full government control, as the Slovak government has been claiming RTVS is “ in conflict with the Slovak government.” The takeover  is due to start with the current director general’s replacement by a Council, with members nominated by the government. The change is to take effect in June if voted on in parliament, where the party of PM Fico, who has been violently attacked recently, has a majority. Based on the findings of Reporters Without Borders, Fico’s government thereby “defies a report on the rule of law in Slovakia” implemented by the European Commission in 2023.

Also Poland went through a media purge in December 2023, with the entry into power of the new government led by Donald Tusk. There, we could witness assaults on media freedom and pluralism, including changes made to media regulators. Tusk justified this by claiming he was merely “set on reversing some policies” of his “populist predecessor” – changes that put Poland’s justice system under political control.

Tusk’s government scurried to take control of state television and radio (PAP), which Law and Justice used as propaganda against its critics and against Tusk personally. Leaders of the former government maintain that Tusk’s political move was illegal, curbing freedom. Commentators said Law and Justice wanted to maintain control of the nationwide broadcasters ahead of local administration elections this spring.

The Polish Constitutional Court ruled that the appointment of new members to state media by the Donald Tusk cabinet was unconstitutional. Tusk’s government dismissed the ruling that would have hindered the new prime minister’s plans to “overhaul public media,” arguing that the judges in power were “illegitimately” nominated by the former administration and were therefore “partial.”

Pluralistic media is the cornerstone of democracy. However, media freedom is under threat despite the EU’s heavy-handed regulations. In protecting these values, Article 7 of the TEU has in place an EU mechanism to determine the breaches of EU values by a Member State. It was most recently activated in relation to Poland.

Freedom of expression provides the most powerful tool in forming public opinion. The lack of independence of “media regulators,” media being used as “propaganda outlets for the government,” and the “state disproportionately funding government-supporting private media,” are issues of concern. “In Poland, the number of  lawsuits against commercial media that criticises the government has been on the rise.” The National Broadcasting Council (KRRiT) fined TVN24 news owned by Warner Bros. Discovery for its coverage of the 2016 protests against the restraints on media freedom. The fine was eventually rescinded in 2018 after the American State Department “critiqued the decision” for curbing media freedom. In 2020–2021, the KRRiT hindered the renewal of TVN24’s broadcasting licence and TVN24 obtained a licence in the Netherlands.

Press freedom should be characterised by the lack of state monopoly and intrusion. Media freedom and pluralism cater to the ease of information flow in holding the government to account. The European Commission has stepped up its work in this area, funding multiple projects assisting the work and safety of journalists. The European Union’s commitment to media pluralism is reflected in its adoption of the EU Charter of Fundamental Rights and the European Media Freedom Act, “a novel set of rules to protect media pluralism and independence in the EU.” For the purposes of clarity, it is worthwhile to recall these initiatives.

The EU Charter of Fundamental Rights, a protector of press freedom

The European Union’s dedication towards media freedom, pluralism, and freedom of expression — which embodies the right to “receive and impart information without interference by public authority” — are prescribed in Article 11 of the EU’s Charter of Fundamental Rights, which reiterates Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms(ECHR) reads as follows:

  1. Everyone has the right to freedom of expression. The right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
  2. The freedom and pluralism of the media shall be respected.

Article 10(2) of the ECHR elaborates on the possibility of state intervention during a state of emergency:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Dirk Voorhoof and Hannes Cannie suggest that for a state to rightfully interfere with a person’s freedom of expression it is of upmost importance to pass the “triple test” of conditions in Article 10(2): the state’s involvement has to be mapped out in the nation’s national law and be justifiable.

The First Amendment within the American constitution is somewhat synonymous with freedom of expression and speech stipulated in the ECHR. However,  according to Bleich, the freedoms in the American Constitution and the European Convention differ for the American constitution which “categorically upholds the value of Free Speech whereas the European Court of Human Rights Article 10 explicitly lists the reasons that free expression can be constrained.” The U.S. First Amendment imparts greater protection with less curtailments on freedoms pertaining to speech, while the freedom of expression within the ECtHR does not directly afford a similar safeguard of expression to citizens.

The European Media Freedom Act (EMFA): an attempt to protect media pluralism in the EU

The European Media Freedom Act was proposed by President von der Leyen in her 2021 State of the Union Address. It elaborates on the Commission’s rule of law reports and the Audiovisual Media Services Directive, which “provides for EU-wide coordination of national legislation for audiovisual media,” as set out under the European Democracy Action Plan.

The EMFA promotes the neutrality and stable funding of public service media as well as the “transparency of media ownership” and the “allocation of state advertising,” protecting the independence of editors through “internal safeguards.” Finally, the Act addresses “media concentrations” via an independent European Board for Media Services composed of national media authorities. Through its media pluralism tests the AMFA asks Member States to size up media market concentrations and assure media legislative measures are “duly justified.”

Transparency is key

Bringing about newly introduced requirements in a non-discriminatory manner is challenging, nonetheless the Act promises to “enhance the transparency and objectivity of audience measurement systems, which have an impact on media advertising revenues, in particular online.”

This is not sufficient: the EU should outlaw national legislation unrightfully hassling specific media outlets that dare to criticise the government with heavy duty levies and other financial burdens that could risk their operation. America may set a significant example with its First Amendment.

At the same time, this new EU regulatory mechanism must not overstep its bounds. The EU’s authorisation of the spying of journalists in the name of national security should not be permissible. In June 2023, the International and European Federation of Journalists (IFJ-EFJ) stated itstrongly reject[ed] the position” of the EU Council on the European Media Freedom Act and “denounc[ed]” it a “blow to media freedom.”

It noted that France set forth an “exception” to the restriction on “deploying spyware against journalists.” Amendments made to Article 4 of the Media Freedom Act, now permit the “state use of surveillance against journalists and their sources on the basis of national security.” This change “enlarges the scope for governments” to implement spyware, making journalists uneasy as regards performing their duties. The EFJ claimed that such an exception would in turn “effect the protections originally afforded into empty shells.” The Amendments also disregard the important case law of the Court of Justice of the European Union (CJEU), which stipulates that “safeguarding” national security does not “exempt” Member States from their “obligations to comply with the rule of law.”

National security should not be a pretext for the infringement on human rights. Authoritarian tools used to protect press freedom, by the same token, may at the same time ending up censoring the press and limit its activities. Numerous European countries, like Greece, Poland, Slovenia, and Slovakia rank rather low in the World Press Freedom Index. Surveillance scandals in countries like GreeceHungaryPoland and Spain are on the rise, with governments implementing spyware on the opposition and sometimes journalists. The EU needs to step up its efforts against France’s push, given how protecting media freedom starts with the safeguarding of the press and journalists from government overreach.

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