In mid-September, the European Commission published a proposal for the long-awaited legislation to strengthen the freedom and independence of media. The proposal focuses on a series of binding rules and recommendations on media independence from politicians, state funding of advertising and cross-border mergers. This legislation has been long awaited at the European level and its arrival is welcome. However, in its current form, the proposal has a few flaws that need to be fixed.
Independence of the media from politicians? Recommendations are not enough!
In its current form, the Media Freedom Act regulates transparency and media ownership only as a recommendation. This creates a significant risk of circumvention. The recommendations then will not be sufficient to meet the objectives of the legislation. The proposal merely reflects the status quo and therefore I do not see the shift that is needed in this area. It is clear that the Commission has been inspired by the Council of Europe recommendations that have been in place for several years. Unfortunately, as we can see from the current situation in Poland and Hungary these recommendations are wholly inadequate. The rules on transparency and media ownership must become binding and the recommendations need to turn into mandatory obligations. In view of the history of media ownership by top politicians, Czechia should be one of the main voices calling for stricter rules.
Rules for funding state advertising can be easily circumvented
Between 2015 and 2020, the Czech Railways advertised—non-transparently and without a public tender—in the media that belonged to then Prime Minister Andrej Babiš. His company Mafra received significantly more money for advertisment of the Czech Railways than other media houses. According to the new rules, the financing and procurement of state advertising will always have to be transparent and fair. However, the current wording of Article 2(15) of the Media Freedom Act is unfortunate. It states that the rules apply only to “local authorities of a territorial unit with a population of more than 1 million”. However, using Czechia as an example, this means that any city council outside Prague would be out of scope. The room for circumvention is enormous. Money could easily spill over from ministries or regions to given city councils, through which advertisements can then be placed without having to comply with the rules. It is therefore certain that the population-based restriction must be removed from the definition.
Media service providers’ rights: yes or no to snooping?
The protection of journalists is addressed in Article 4 of the proposal, which focuses primarily on the use of spyware. This is quite understandable in the light of the current scandal regarding Pegasus and Predator spyware. However, the current wording of Article 4 ignores any other means of blanket snooping, such as eavesdropping on conversations, identifying people in public spaces, etc. We need to address snooping comprehensively and not just focus on certain methods of snooping or on protecting only a certain group of people (e.g. journalists). The use of spyware is completely unacceptable and eavesdropping must never be carried out without a court order.
This bring us to another problem with Article 4. Authorization of snooping is allowed ex post. This means that the court could retrospectively assess whether the snooping was justified. This is wholly inadequate. It is more than necessary to redraft the current proposal, so that the necessary authorization is always ex ante, i.e. in advance.
Nonsensical Article 17? Get rid of it!
Article 17 of the proposal focuses on the digital environment and makes absolutely no sense. Its current wording allows for a dangerous exception to content moderation for the media. It constitutes two categories of so-called content creators with different rights and privileges. A similar effort was made under the Digital Services Act (DSA), but was soundly rejected. There is no need to revisit the concept that already proved to have no political support. Moreover, it would set a dangerous precedent that would provide ammunition for politicians, unions, and others to demand such an exception for them as well. This would create even greater inequalities and an opaque legal environment, and it is not the direction we should be taking.
The way Article 17 is worded and the way it regulates the so-called self-declare rules is easily exploitable and creates an environment for disinformation and propaganda. Disinformation and propaganda websites would be considered media service providers with editorial responsibility and would therefore fall under a special content moderation model. I&nbps;don’t really think that we need to make such websites privileged over other users.
Importantly, we need to acknowledge that editorial responsibility is not the holy grail that saves all media problems. In today’s fast-paced times, even with the influence of social networks, the quality of information verification is being reduced and disinformation and misinformation is occurring even in traditional media. The failure of editorial responsibility can be seen in several recent examples, including CNN Prima News quoting a fake BBC account and declaring Queen Elizabeth II dead before the official announcement.
What is the conclusion?
In general terms, the new legislation is more than welcome. It has been a long time coming and after endless delays, the Commission has finally taken a step in the right direction. However, we must realize that in order to achieve the objectives of the proposal, particularly in the area of media ownership and transparency, we need primarily binding rules rather than recommendations.
The freedom and independence of media in the V4 countries is severely damaged. In Hungary and Poland, the situation has long been over the edge. Restrictions on freedom of speech and editorial independence of media are destroying democracy there. Unfortunately, in Czechia, due to former Prime Minister Andrej Babiš, we have first-hand experience of what it looks like when a top level politician controls media and interferes with their editorial autonomy. That is why we must not remain on the sidelines, quite the opposite. It is of the utmost importance that Czechia supports the creation of this legislation. In my work, I will focus on ensuring that the new rules are fair and cannot be easily circumvented by means of trust funds.