Introduced in September 2022 by the European Commission as part of the “new push for European Union Democracy,” the European Media Freedom Act (EMFA) seeks to promote media pluralism and independence across the EU.
EMFA in a Nutshell
The EMFA sets out rights and obligations for ‘media service providers’, including rules on transparency about media ownership and protections against political interference. The proposed bill also introduces valuable safeguards against surveillance powers of states and the use of spyware against them. EFF has warned for years about the dangers of powerful state-sponsored malware, and the Pegasus project shows the need to take the abuse of power by governments seriously.
Article 17: Media Exemption
One of the most controversial provisions under the EMFA is Article 17, which endeavors to address the treatment and moderation of media content by ‘Very Large Online Platforms’ (VLOPs), such as Twitter and Facebook. Article 17 requires VLOPs to give special privileged treatment to media outlets by notifying them before content is removed. Should VLOPs remove content without ‘sufficient grounds’, Article 17 enables media service providers to find an ‘amicable solution’ through dialogue with the VLOP. Article 17 also provides that VLOPs must create fast-track systems for actors to self-declare as independent and regulated media providers, hence leaving it to online platforms to decide over the status of a wide range of media actors.
Content shared by media service providers on VLOPs should not be exempt from moderation protocols through a carte blanche exception from regulation provisions.
If passed, Article 17 would:
- facilitate an environment of disinformation wherein harmful content would remain online if posted by a self-declared media service provider.
- undermine existing provisions outlined under the Digital Services Act (DSA), which already introduced obligations to address arbitrary content moderation systems and regulate the power imbalance between VLOPs and media service providers.
Increased Risk of Disinformation
Article 17 is a reckless approach to protecting media pluralism across the EU. By handing out content moderation privileges and providing anyone the discretion to self-declare as a media outlet, the Media Freedom Act will inadvertently foster a plurality of disinformation rather than media diversity. Article 17 provides a framework that can be manipulated by rogue actors. It stifles the ability of platforms to warn users about the content, thus enabling the spread of hate speech, electoral propaganda, scams, and other forms of damaging disinformation.
In practice, (actual and self-declared) media services could publish disinformation about a war, for example, on a VLOP platform like Twitter. In response, Twitter would need to contact the media service provider and be encouraged to wait, according to suggestions by some EU parliamentarians up to 48 hours, before adding a fact-check or deleting the content. This is enough time for disinformation to spread during the suspense-period, with any exchanges between individuals on the content amplifying the spread of the disinformation across platforms. This would also function as a loophole for rogue actors to exploit the system and distort public discourse—undermining the equality of free speech as well as democratic debate. Some influential voices within the EU Parliament have even proposed exempting media content entirely from moderation protocols, thus contradicting the expectations of million EU users, who rely on online platform to remove content that violate community standards.
This light version of a must-carry provision is particularly concerning in EU countries where public service broadcasting is captured by the ruling party as state media. Under these conditions, harmful state propaganda or government-orchestrated disinformation would remain online—even if the content is false—due to the privileged treatment provided by the media exemption.
And in these countries where the media is at a ‘high risk’ from state interference, the likelihood of disinformation spreading is exacerbated by the discretionary power under Article 17 to self-declare a provider as a media service. This would allow state media outlets to shape public discourses in alignment with government-oriented propaganda, as well as facilitating a gatekeeping of media content and public information.
Undermining the EU’s Digital Services Act
The EU’s Digital Services Act came into force on 16 November 2022, seeking to make the internet a fairer place by setting out new legal responsibilities for online platforms and educating users on why content is removed and what they can do about it. The idea of a media exemption was rejected during DSA negotiations and condemned by civil society organizations.
Alternatively, the DSA requires VLOPs to comply with far-reaching obligations to responsibly tackle systemic risks and abuse on their platform. These risks cover a variety of aspects, including the dissemination of illegal content and the communication of disinformation. VLOPs also face oversight through independent audits, which assess whether platforms respect their obligations under the DSA.
On these grounds, the obligations under Article 17 EMFA add an extra layer to the existing EU’s comprehensive rules and overload VLOPs with new and potentially conflicting procedures. VLOPs will face an impossible choice under Article 17: hand out blanket content moderation privileges and risk leaving problematic content online (and thus face potential fines and liability) or engage in arduous communications with media services when moderating content.
While the EMFA attempts to distinguish between media content that pertains to systemic risks covered by the DSA's regulations and other content with less contentious issues, it remains entirely unclear as to how and when a violation of terms of service by a media service provider will be linked to these risks.
With such conflicting and subjective requirements, Article 17 will have a detrimental impact on individual rights to freedom of expression and speech, and will make the already-passed and vetted DSA almost impossible to enforce against many large platforms in a human-rights friendly manner. And by forcing platforms to keep (any) media content up, Article 17 could potentially evolve into an enforcement tool that major publishers use to seek reimbursement for their content under copyright rules.
What Happens Next?
EFF supports the worthwhile attempt to promote media pluralism and independence across the EU and we welcome critical safeguards that protect media service providers from surveillance measures, including actions such as deploying spyware against journalists.
However, Article 17 of the European Media Freedom Act is a harmful provision, which must be rejected or at least significantly revised by EU parliamentarians and the EU member states. As we’ve said before, media actors should not, as a matter of principle, be granted special treatment when it comes to the moderation of their content.
Without accountability and transparent content moderation systems for all content online, the media’s ability to provide reliable information and scrutinize political leaders is at risk of being eroded. It is essential that media freedom is able to operate outside the confines of political interference and outside the parameters of state censorship to give users more information, not less.
As the EMFA continues its progression through EU institutions—the dossier is negotiated in the EU Parliament whilst the Council already secured their mandate for negotiations—EFF and our allies will continue to oppose any media exemptions, and defend digital rights and fundamental freedoms for all.
