New EU Regulation pushes for journalism and media protection online

On 16 September, the European Commission launched the European Media Freedom Act (EMFA) as part of its 2022 Work Programme. Unveiled by the vice-president for Values and Transparency, Vera Jourova, and the internal market commissioner Thierry Breton, the new Regulation seeks to protect the function of journalism and media outlets as a key pillar for democracy, in the context of a new push for EU democracy.

This regulation will intervene in the internal media market looking forward to improving the quality of media services and strengthening the integrity of the media market as a whole. EDRi finds particularly important the provisions regarding the prohibition of spyware against journalists and the rules bringing “more protection for media against unjustified online content removal”. This could increase the legal standards against surveillance of journalists and harmonise rules when it comes to online disinformation.  In light of this, this new regulation should be read as a complementing legal framework that includes the Digital Services Act (DSA), the Digital Markets Act and soft law instruments such as the Recommendation on the protection, safety and empowerment of journalists (2021).

EDRi welcomes the intention of the EMFA to promote media independence and pluralism on online platforms. However, the manner in which this protection is taking place recalls the problematic “media exemption” that was rejected during the discussion on the DSA. This new provision is problematic because Very Large Online Platforms (VLOPs) would give special treatments (“with priority and without undue delay”) to even-self-declared media services before the decision to suspend their content. This creates a loophole for pervasive actors to benefit from safeguards against online content moderation policies by online platforms. For instance, media actors with strong ties with governments could benefit from this to spread propaganda and/or disinformation. Furthermore, the new concept of “amicable solutions” to solve conflicts between media services and online platforms just creates an ambiguity of what would be the formal channels to resolve those disputes. The new regulation should re-conduct controversies between media services and online platforms to the already existing mechanisms enshrined in the DSA rather than creates new bodies to solve controversies between online platforms and media services. 

Protecting journalists and journalistic sources online

Another aspect is the protection of journalists and journalistic sources in online contexts. Although specific rules protect journalism against spyware, the European Commission has the opportunity to tackle this in a full broad online surveillance scope rather than referring solely to spyware. Freedom of expression entails not only specific prohibitions already set in the EMFA ( such as The Member States “shall not deploy spyware in any device or machine by media service providers.”) but also the promotion of positive measures for the protection of both journalists and journalistic sources. Particularly those who are disproportionately attacked online such as women journalists. The recent Pegasus and Predator spyware cases show that there is an urgent need for upholding digital security through tools like end-to-end encryption that protect journalists’ anonymity and the privacy of their communications. Privacy and freedom of expression are inextricably connected, as United Nations has repeatedly stated, encryption enables privacy and security online for safeguarding rights, including rights to freedom of opinion and expression. Therefore embracing privacy and online protection for both journalist and journalistic sources is the only manner to guarantee true freedom of expression. 

Key elements in the new regulation

EDRi welcomes and is committed to pushing for a regulation that protects journalism as a crucial element for democracies. Nevertheless, this should consider the developed standards and mechanisms set by the DSA when it comes to regulating content moderation policies. Finally, the promotion and protection of journalists and journalistic sources in online contexts should incorporate the best technological tool against online surveillance: end-to-end encryption. 

What’s next?

The initiative is in a preparatory phase in the European Parliament and should be discussed in the next months under the ordinary legislative procedure. EDRi will work alongside MEPs and policymakers to improve the text and written standards when it comes to content moderation policies and digital security.

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