AER Position on the proposal for a European Media Freedom Act

AER, the Association of European Radios, is the Europe-wide trade body for commercial radio, representing the interests of companies operating over 5,000 commercial radio stations to the EU Institutions. AER promotes the development of commercially-funded radio broadcasting in Europe, by ensuring a fair and sustainable economic framework for radio so it can continue to thrive.

AER takes note of the European Commission’s proposal for a European Media Freedom Act (EMFA). AER and its members are strong supporters of the principles of media freedom and media pluralism. Radio plays a vital role in informing, educating, enlightening and entertaining people. Radio moulds opinions, hosts discussions that support our democratic societies. This is why it continues to be Europe’s most trusted medium again in the latest Eurobarometer survey by the European Commission.

While AER welcomes the fundamental objectives of the EMFA, we believe that the Act should not interfere with national laws and practices. It is important that the conditions set out under the EMFA do not risk undermining those national media markets that currently function well, which is the case for most countries. 

AER members have looked at the European Commission’s proposal through the prism of what will mean for radio and digital audio in the future.  For AER, EMFA can only be justified if it delivers tangible benefits to radio broadcasters, including the ability to scale up, consolidate, when necessary, and compete on an equal footing with audio distributing tech platforms. It is important to ensure that licensed audio services are discoverable and easy to find via user interfaces, including in cars. The Rule of Law and the EU values should be properly enforced against Member States that do not respect them, shielding radio broadcasters from political interference. In its current form, the EMFA doesn’t deliver any of these benefits to radio and therefore it needs to be amended. 


In detail

1. Legal basis of the proposal

The European Media Freedom Act is based on Art. 114 TFEU regarding the establishment and functioning of the internal market. It has put a lot of emphasis on the current disparate rules for media amongst Member States and this is used to justify the use of Article 114 TFEU as the legal basis for the proposal. However, it is only natural for Member States to have divergent rules for media as it is an area of quasi exclusive national competence, given the rich cultural traditions and different languages of the Union. Culture and media had and should continue to have a set of rules that respect their special nature. 

The proposal makes reference to the alleged cross-border nature of media services and to the existence of an internal media market, with phrases such as “cross-border matters”, “cross-border activity and investment”, “cross-border coordination tools and EU-level opinions and guidelines”, “cross-border production, distribution and consumption of media content”, “cross-border media market transactions” etc, using it as a justification for adopting harmonising rules at EU level on the media area based on Article 114. However, what is not clearly mentioned or explained is that the vast majority of European media, and this is even more true for radio, only have a local, regional or at best national reach and do not cross borders at all. Linguistic and cultural diversity are the main reasons for that and their intrinsic value. Hence media have always been and should continue to be subject to national regulatory competence.

Furthermore, it is not clear how the measures within the EMFA will resolve the alleged internal market problems identified in the Explanatory Memorandum. 

Recital 6 states that the audience should be able to receive cross-border information flows, as Article 11 of the Charter on Fundamental Rights prescribes, but this does not imply an internal market for media; and the Charter cannot be used as a legal basis for harmonising legislation.


2. Editorial independence and duties of media service providers providing news and current affairs content 

AER members are strong supporters of editorial independence, a fundamental media principle. 

The requirements of the EMFA in Art. 6.2, in conjunction with Recital 20, and the associated recommendations of the European Commission interfere disproportionately with the freedoms of media owners without justification. The preservation of editorial independence is already in the interest and in the own intrinsic as well as economic motivation of media companies. The restriction could have a negative impact on the attractiveness of media companies to the market.  This could become an internal market barrier that contradicts the legal basis chosen by the European Commission (Art. 114 TFEU). Therefore, and in order to protect the economic freedom of the owners of media companies, the provision in Art. 6 (2) EMFA and the associated Recital 20 should be removed. 

However, Article 6.2 raises several questions for our membership, especially as the proposal does not define who are the “service providers providing news and current affairs content”. 

  • Are the 2-3-5 mins news bulletins of radio stations enough to qualify as a “news programme”?
  • What is a news programme when it comes to radio?  
  • What about radio discussions with for example musicians and actors when a new song or a new movie comes out. Do they all fall under the category of current affairs?


3. Enforcement and Respect for Rule of Law

AER members are in favour of the application of the “conditionality mechanism” enshrined in Regulation 2020/2092, according to which member states only get funds from the EU if they respect the Rule of Law and the EU values. We believe that the EMFA should reflect that. 


4. Content of media service providers on very large online platforms (VLOPs)

In order to deliver benefits to radio, Article 17 will have to be strengthened, especially as the DSA did not go far enough to protect professional media from platform take-downs based on their own T&Cs. Some clarifications are needed:

  • To start with, we would like article 17 to apply to all tech platforms that carry media content or are competing for the advertising customers, which are essential for the radio market to fulfil its democratic objectives such as media pluralism – and not just VLOPs. At national level there are tech platforms which are market leaders in media distribution and these might not be caught under the rigid VLOP criteria. However, as tech platforms, they have an important role to play and therefore they should come under the obligations of this article. 
  • Article 17 is mainly based on the procedures of the Platform to Business Regulation (“P2B Regulation”). However, the legal relationship between these provisions remains unclear. In particular, what Article 17 obligations on VLOPs add to the existing P2B Regulation obligations (which anyway apply to VLOPs). VLOPs most likely will satisfy the definition of “online intermediation service providers” within the meaning of the P2B Regulation and therefore have certain obligations to their “business users”. It seems also likely that media service providers using VLOPs (or other tech platforms) to reach their audiences would constitute such “business users”.  
  • The timeframes are not clear. Article 17(3) stipulates that complaints lodged by media organisations should be handled “with priority” and “without undue delay”, but article 11 of P2B requires online intermediation service providers to handle complaints “swiftly and effectively”. There is clearly an issue here, especially as the EMFA proposal envisages a separate mechanism for media entities, there is a risk of confusion as to which mechanisms for dispute resolution – whether those in the DSA or those envisaged here – should be used.
  • It is crucial for effective protection that the notification to content providers is detailed in such a way so that the dialogue is conducted in a solution-oriented manner in each individual case and before the restriction of dissemination or deletion of the content by the platform. 


5. Right of customisation of audiovisual offer

Article 19 of the EMFA only gives users the right to customise devices and user interfaces in relation to audiovisual offers. As more and more listeners are accessing audio media services via user interfaces, article 19 should be amended to oblige user interfaces (including car, smart device manufacturers and online platforms) to provide regulated discoverability and findability to audio content services that are licensed in Europe. 

Providers of user interfaces have the ability to interfere with the relationship radio operators have with their listeners; for example, by self-preferencing their own services or by offering exclusive agreements with strategic partners who are able to pay for a particular positioning or exclusivity. Moreover, radio listeners should be able to change user interface settings in line with their listening preferences.

User interfaces in cars is a useful illustration of what is at stake. A significant percentage of radio listening happens in cars. Until recently, most cars were sold with a radio receiver (FM/AM) and DAB. That model is now at risk as car manufacturers are starting to sell cars without radio receivers, for example in order to cut costs. Indeed, the European Electronic Communications Code (EECC) obligation for cars with an analogue (FM/AM) radio receiver to include a DAB tuner is increasingly being evaded by manufacturers of modern cars as there is no obligation for car manufacturers to sell a car with a radio receiver. As most car manufacturers operate globally, they prefer to have to have agreements with global platforms. For example, some cars embed an infotainment system powered by the car manufacturer itself, or by a third-party strategic partner (like Google’s Android Auto, or Apple’s Apple car Play). Such a car could evade the above EECC regulatory requirement as long as it is not also equipped with a stand-alone in-car radio receiver. Moreover, there is no standardised place on the dashboard of a car for any kind of in-car terrestrial radio i.e. FM and DAB. So, the future of radio in cars is really at risk and this, in turn, creates a risk to media plurality. Security is also at risk as radio is often the only medium that can be used to provide alerts to populations in the event of national disasters when electricity and telecommunications networks are no longer operational. 

For these reasons, we support the extension of article 19 in order to oblige user interfaces to provide regulated discoverability and findability to audio content services that are licensed in Europe. 


6. Tech platforms should not be excluded from obligations 

A level playing field of radio operators with tech platforms is needed. AER’s members support the declared inclusion of tech platforms, irrespective of their editorial responsibility status, at least to the provisions below:

  • Article 24 (allocation of state advertising): Even though more and more state advertising is supplied through online platforms, these are currently excluded from the provisions referred to state advertising. State advertising in every medium, including tech platforms (with or without editorial responsibility), must be included in the provision, otherwise cash flows of state actors will not be transparent and fair, and there will be an area of ​​state media financing in which the general provisions of Art 24 (transparency, objectivity, proportionality, non-discrimination) do not apply.
  • Article 23 (audience measurement): Tech platforms’ capacity to offer content without exercising editorial responsibility over it and the market ability to target users with advertising allows them to act as direct competitors to media service providers, whose content they intermediate and distribute. For these reasons they should be explicitly included in the scope. 
  • Article 21 (assessment of media market concentration): see section below.


7. Media Concentration

Article 21 requires Member States to provide in their national legal systems “substantive and procedural rules” which ensure an assessment of “media market concentrations” that could have a significant impact on media pluralism and editorial independence. However, according to Article 2.13 the term “media market concentration” is based on the EU Merger Regulation and requires the involvement of “at least one media service provider”, hence it does not include market concentrations that only involve online platforms without editorial control, even when such concentration is expected to have a substantial impact on media pluralism.

Furthermore, platform consolidations that affect the media market ecosystem will also be left out. In practice, we are concerned that the EMFA will widen the asymmetries between media and platforms if there is no update of the definitions. AER would like to see article 21 to apply only to tech platforms that are seeking to acquire any type of actor that operates within the national or European media market ecosystem.  

Furthermore, it is important that the conditions set out under the EMFA do not risk undermining those national media markets that currently function well, which is the case for most countries. Given the competence of Member States over media, any assessment of the impact of media concentrations on a different media market should therefore, as far as possible, be done at national level and not by the European Board for Media Services, which may not have local market expertise.

Finally, another reason that AER is concerned by this provision is that it could be used by (some) Member States as a pretext to (artificially) block acquisitions of their national/local media by “foreign media” (based in other EU Member States). This could be a way for national governments to exercise undue control over foreign media and/or interfere in national media markets.


8. The European Board for Media Services

The EMFA is introducing the European Board for Media Services. AER members are deeply concerned about: 

  1. the Board’s extensive competences and especially its possibility to supervise the way member states are acting within their competencies and the decision of independent national authorities.
  2. the heavy involvement of the European Commission in the activities of the Board. The Board is expected to promote the effective and consistent application of the EU media law framework therefore our concern relates in particular to the risk that the Commission’s involvement in the Board would pose to the independence of national regulatory authorities. The independence of supervision of media organisations and their activities within the framework of strict regulation at European, Member State and regional level is a core prerequisite for the exercise and development of the media freedoms protected by the Charter of Fundamental Rights of the European Union, the European Treaties and the constitutions of the Member States. We do not consider that the EMFA contains any safeguards in this respect. 
  3. any assessment of the impact of media concentration on a different media market should, as far as possible, be done at national level and not by the Board which may not have any local market expertise.

The proposal should also be more specific on:

  • What guarantees of independence EMFA grants to national regulators? Are the governance mechanisms under the AVMSD sufficient to guarantee the independence of national regulatory authorities?
  • The adequacy of funding of National Regulators, given that now in addition to their duties under the AVMSD, they will be involved in policing the DSA, the DMA (and the future EMFA). The cost of this enforcement has not been properly assessed in the proposal. 


9. Audience Measurement methodologies

Tech platforms who compete directly with media service providers from a content proposition and ad spend standpoint need to be included in the scope of the EMFA in this regard.

As it stands now, the EMFA fails to achieve the goal stated in the recitals, which is to be welcomed, of providing media market players with access to objective audience measurement data from transparent and verifiable audience measurement systems in the competitive relationship with big tech platforms. Data are necessary for content providers to develop further and must be clearly mentioned in the EMFA.

Finally, according to Art. 2 (14), only audience measuring activities that relate to the use of a media service fall within the meaning of Art. 23. Since the definition of a media service does not include non-editorial online media offers (such as e.g. those of online sharing platforms and social media), Art 23 does not apply to proprietary measurement systems of such online media providers. This should be addressed. 


10. Allocation of State Advertisement 

The proposal defines state advertising “as covering promotional or self-promotional activities undertaken by, for or on behalf of a wide range of public authorities or entities, including governments, regulatory authorities or bodies as well as state-owned enterprises or other state-controlled entities in different sectors, at the national or regional level, or local governments of territorial entities of more than 1 million inhabitants”. The following elements are missing from this provision:

  • The definition of state advertising should apply to all relevant public entities, including governments and state-owned or state-controlled companies, at any level, national, regional and local, without imposing a threshold of 1 million inhabitants. From a transparency standpoint, we do not support the introduction of such a threshold, which will in practice exclude several EU member state capitals and, in some cases, entire EU countries from the scope of this provision (i.e. those that have a population under 1 million). 
  • As we stated in our point 6 above, more and more state advertising is happening on tech platforms. But such platforms are currently not included in the provisions on state advertising. State advertising in every medium, including tech platforms (with or without editorial responsibility), must be included in the provision. This is important not least because otherwise cash flows between state actors and these media would be non-transparent, and would create an area of ​​state media financing in which the general provisions (transparency, objectivity, proportionality, non-discrimination) do not apply.
  • The role of the supervisory authorities needs to be strengthened. The authorities shall not only be responsible for the functioning of the transparency requirements, but also need to be able to determine violations by member state actors, possibly even impose effective sanctions.
  • Finally, any form of state funding to national media service providers, including subsidies, should also follow the same rules on transparency as state advertising expenditure. 


For more information, please contact the AER office francesca.fabbri(Replace this parenthesis with the @ sign)