Minimum consensus or overblocking? How justified is the criticism of the European Media Freedom Act?

Press freedom is not the same everywhere in Europe. In an attempt to establish EU-wide standards for press freedom, the various EU bodies have developed and adopted the European Media Freedom Act in recent years. Criticism of this law was not long in coming. Media law expert Niklas E. Kastor spoke to the EJO about some of these criticisms.


Niklas E. Kastor works as a research assistant at the Institute of Journalism Studies at TU Dortmund University and conducts research into public media and broadcasting law – he is also doing his doctorate in this field at Ruhr University Bochum, where he is working on legal issues relating to the future of the media. In the context of this research, he also came into contact with the EMFA and the discussion that has developed around it.

EJO: Mr Kastor, are you in favour of EU-wide regulation of the media?

Yes, in principle I am in favour of it. The background is that the European Union is more than just an economic community. It is also about a community of values. We have democracy everywhere, we want to have certain minimum standards everywhere. And in this context, especially now against the background of the current threats, it simply makes sense to create a certain minimum standard for the media, a minimum harmonisation, and to ask ourselves the question: How much media freedom do we want in Europe?

EJO: The first major point of criticism is the tension between the national sovereignty of the individual states or the economic and media systems in the individual states, and the EU system. Some critics fear that the EMFA would not eliminate the political dependencies of the media, but would merely shift them from a national level to an EU level. Do you share this criticism?

No, I think this criticism is too generalised. In many places, the EMFA is basically just a mandate to the member states. In many places in the law, there are formulations such as ‘The nation states should ensure that…’ In other words, it does not create any dependency on the EU, but only this framework, which is also desired. However, there is the European Board for Media Services – I believe that this body is the best place to say that a certain dependency can arise. But here, too, it is mainly the individual nation states that come together.

EJO: How does the task of this European Board for Media Services differ from that of the national broadcasting councils?

In principle, it’s just an addition. It is about coordinating at European level and discussing problems and best practices. After this exchange, the representatives of the national states should then go back to their home countries and return to their tasks there. The aim here is primarily to establish an exchange and to make contact with the Commission and advise it.

EJO: But wouldn’t a board like this further strengthen the balance of power that exists within Europe and within the European Commission? Could stronger states exert pressure on weaker states?

Each country has one vote on this board and decisions are made by a two-thirds majority. It’s not as if Germany, for example, has more voting power than smaller states. Perhaps it’s even the other way round: that smaller countries are represented a little disproportionately with their influence. And of course this criticism came up from time to time and people asked: ‘What’s it like if Hungary is suddenly supposed to ensure media diversity in this context? Isn’t that perhaps a disadvantage for the countries where media diversity is good?’ But the Board’s task is not to take action in the individual countries. It is to establish a framework for how media regulation can take place. I think we should leave the church in the village. Hungary is not suddenly going to interfere in German media regulation. Ultimately, it’s about establishing guidelines that, in the best-case scenario, ensure media freedom throughout Europe.

EJO: You just mentioned Hungary as an example, and I’ll throw Italy into the mix again. Isn’t it perhaps even desirable to interfere with national sovereignty in order to create a framework that somehow acts against burgeoning post-fascist structures, as they are called in Italy?

Any harmonisation that takes place at European level aims to create a framework within which the nation states can then take action. So the European Union has agreed to lay down certain rules. This also applies to the EMFA, which is about media freedom. If a country repeatedly falls outside this framework, then limits should be set. That is why, in these extreme cases, the aim is to restrict these countries in their ability to act in order to safeguard media freedom. Of course, you just have to be careful not to interfere with functioning systems and then restrict something. Of course, that is not the purpose of the matter.

EJO: With its regulations, the EMFA is aimed precisely at countries with less firmly established media freedom. What do the new requirements mean for other media systems? In your opinion, does the EMFA pose a risk to the German, decentralised media system? Some critics throw the keyword ‘overblocking’ into the room.

The EMFA requirements are formulated as minimum requirements. We therefore already fulfil them in Germany for the most part. What is repeatedly criticised are the transparency regulations. The aim is to reveal the ownership structure in the media world and thus also the balance of power. In this context, there is criticism that this could lead to new regulation or perhaps even double regulation with the German regulations. That would be something where we would have to make adjustments. But these innovations should be looked at calmly. Perhaps some of them are not so wrong and perhaps we rightly need to adapt our system a little because we are not in the best possible position. Even if our media system works well on the whole.

EJO: Another point that should not only be addressed by the EMFA, but also previously by various EU-wide regulations, is the power of the platform giants. In other words, the question of how much influence Meta or Twitter, for example, have on the opinion market.

The EMFA is about creating a so-called ‘media privilege’. This means that social networks are not allowed to simply remove posts from certain media from the platform without comment, but a kind of dispute resolution procedure must first be carried out. Information must first be provided, then 24 hours must pass and only then may the post be deleted if necessary. This initially applies to media companies and not so much to private individuals. There are two points of criticism: Firstly, it is asked why these networks, even if they comply with this procedure, are still allowed to refer to their general terms and conditions when deleting content. In other words, they can make their own rules and can still implement these solutions according to their own rules. So it’s great that these procedures exist, but the GTCs are ultimately set arbitrarily. In my view, however, this is a question that we should ask ourselves not only with regard to the EMFA, but in general. Do we want social networks as a whole to have to adhere to legal standards? So not only that they are now forced by the DSA to delete unlawful posts. But do we perhaps also want them not to be allowed to delete lawful posts, or at least only to a certain extent? We may have to allow them to adhere to a certain netiquette, i.e. to allow a certain style, and violations will be deleted. But we are also not allowed to arbitrarily delete any posts. I can therefore understand why the legislator did not want to make a universal decision on this at EMFA, but rather that this discussion should be held in general.

Nevertheless, I would emphasise at this point that at least the media have the privilege of no longer being allowed to delete posts arbitrarily, but that a procedure must be followed. The other criticism that was levelled was that there is now unequal treatment between private individuals and the media. But the decision was also made in favour of the minimum consensus. That we should at least say that the editorial media should be protected a little more. Also for reasons of pragmatism. It is of course more realistic for the social network to carry out such procedures for large media than for each individual user.

EJO: What also came up as criticism in the context of platform power and media privileges was that some critics even see EMFA as an instrument for suppressing unwelcome voices and reinforcing pro-European opinion bubbles. Can you understand these fears?

Not really in the current state of the law. For the most part, the law states that it is intended to safeguard media freedom, and I think it also contains a minimum standard of safeguarding media freedom for the most part. No opinion should be particularly favoured. The aim of the law is precisely to say that if you want to delete something, you must at least have spoken to people. It says that the individual states must provide a minimum level of funding if they operate a public service broadcaster. But it doesn’t say that you have to implement this or that opinion. That is precisely not the purpose of this law. Especially in the current version of the law, which is still very cautious with specific formulations on how regulation is to be carried out. No very direct regulation from the EU to the media has been established.

EJO: A controversial section of the EMFA was Article 4, which in the original version of the law was intended to allow states to use so-called state Trojans to ‘spy’ on media professionals when it comes to national security issues. In the end, Article 4 was amended in this regard. Could you briefly explain the debate surrounding the amendment and assess the changes?

The provision was actually intended to protect journalists. So the provision actually states that it is precisely not to be bugged, not to be spied on. That was the purpose. The only problem was – and this always happens when so many nation states negotiate with each other and some of them also have an interest in perhaps carrying out certain wiretapping operations – that relatively large exceptions were defined: namely in the concept of national security. If this is affected, then it would be permissible to carry out surveillance. But it has to be said that national security is of course a term that can be interpreted very broadly. And there was a great danger that the provision would be reversed, because it would legalise, so to speak, the carrying out of interceptions in matters of national security. Our standard would actually have been weakened because we would have indirectly had a licence for surveillance.

There was a lot of discussion about this and in the end the wording was deleted. But reference is still made to other regulations, which already state that a restriction is possible in principle for national security purposes. In order to ensure greater security, further procedural provisions have been added. And – and this is where I come to a personal judgement – I would say that we have at least created procedures based on the rule of law and the other is more of a political question for me. To what extent do we want to protect journalists from any kind of state persecution? To what extent do we still want to give state authorities the opportunity to carry out prosecutions in cases of serious crime? And we have now decided in favour of a path where we have said ‘yes, it is possible for serious crime’. But we will have to look closely at how this plays out in everyday life. Perhaps the regulations will have to be tightened up a bit more in the political discussion and the possibilities further restricted. I therefore believe that it is a good step that at least a constitutional procedure is assumed.

EJO: But isn’t that particularly critical in countries where the legal system is not based on the same value system as the EU, where the same standards do not apply and where the rule of law is sometimes questionable? Isn’t this still a kind of loophole for these critical countries, where there is a greater risk of surveillance operations being carried out against journalists? Wouldn’t it make sense to have a kind of EU review centre for these cases?

That’s a completely different proposal that can certainly be discussed. Basically, yes, there is a risk. But I think you have to put yourself in the shoes of other countries at this point. France, for example, was also in favour of the exception, and you really can’t say that France doesn’t have a functioning judicial system. But they say that we want to be able to investigate journalists under certain conditions, for example if there is a risk of terrorism, and not give them a blank cheque. I believe that the question of whether this could be exploited in other countries should perhaps be answered at a different level. Perhaps we also need a minimum standard in these areas, or that the existing one is tightened further so that the judicial system has the necessary independence. However, I don’t know whether the solution of centralisation to the EU would make sense, because then we could quickly slip into an area where the EU interferes very strongly with national sovereignty again. But if necessary, if you actually realise that the justice system in many countries does not work in this area, you will have to tighten up the minimum standards again.

EJO: It has also been criticised that there is no definition of what constitutes ‘confidential content of journalistic communication’ worthy of protection and that there is no ban on surveillance measures that could reveal journalistic sources as a secondary consequence. In your opinion, would this protection be achievable via the EMFA – and would it have been realistic for these demands to have made it through the various stages of EU legislation?

This is the classic problem when many countries negotiate with each other, each with their own legal and political systems. In the end, you always end up with the lowest common denominator and that was this concept of the ‘content of journalistic work’, which I would agree is somewhat in need of elaboration. It would certainly make sense to define this more clearly for practical implementation and enforcement. The same applies to the protection of sources. Nevertheless, I believe that we have at least the minimum starting point. At least these blatant cases are subsumed under it and potentially problematic would be borderline cases, i.e. secondary cases. We will then have to see how the application of this term develops in practice and, if necessary, make further adjustments in the coming years.

EJO: How effective do you hope the EMFA will be?

What is exciting for me is the question of how the EMFA will be implemented and enforced. In other words, will the Commission be able to use this law to ensure that its good goals are actually implemented in the nation states? I mention the Commission explicitly because it is also represented with a seat on the Board. I do believe that the EMFA will be a means of using this Board to bring the rules to the nation states and enforce them efficiently. But it remains to be seen whether, for example, these somewhat vague terms will somehow be filled with life and then actually enforced. I therefore believe that something exciting has been created with this law. Apart from that, I am nevertheless pleased that we have taken this step in the right direction and at the same time we must realise that the EMFA will not be a panacea against anti-democratic tendencies in certain countries. Above all, I believe it can only slow down the process a little and counteract it if necessary. The EMFA can hopefully simply bring democracy a little closer to the people in the individual countries through greater media freedom.

This article was originally published in European Journalism Observatory