Statement of the Association of Commercial Television on the proposal for a Regulation of the European Parliament and of the Council establishing a common framework for media services in the internal market (European Media Freedom Act) and amending Directive 2010/13/EU

MAY 2023

As the Association of Commercial Television (AKTV), we understand that the European Commission’s objective in presenting this proposal is to ensure that media service providers are able to provide their services freely and independently in an open and transparent market, a market that allows for a plurality of media actors and opinions, and we are aware that independent media services play a unique role in the internal market. Although we believe that there is no need for further regulation for broadcasters, and we have already pointed out that we would prefer deregulation, if there is a consensus in the European area that regulation should be adopted, what we need to address in particular are the practical implications for broadcasters.

There are a number of provisions in the proposal which, although not necessary, can contribute to ensuring that independent media services continue to play a unique role in the internal market and keep on performing their rightful role in a democratic society. Broadcasters provide citizens and businesses with access to a plurality of views and reliable sources of information, and this principle must be maintained going forward. It seems logical to us that not only traditional media – i.e. offline media – but also online media are covered by the proposal.

In this context, we believe that it is legitimate for the Commission to support the self-regulatory initiatives of the media sector, as explicitly highlighted, among other things, in the European Democracy Action Plan. We see great potential for this path in the future and prefer it to legal regulation.

We see potential benefits of the proposed regulation in the provisions on state advertising and believe that a broad definition of state advertising under Article 2 (15) is legitimate.

The proposed provisions governing requests for enforcement of obligations by video-sharing platforms under Article 14 regarding the enforceability of obligations imposed on video-sharing platforms are positive in our opinion.

In principle, we appreciate the support for the protection of the media from external political pressure, and we believe that the suppression of the traditional ‘marketplace of ideas’ and the enforcement of self-censorship should also be regarded as such pressure.

However, we found several points in the proposal that should be refined or reconsidered so that their meaning contributes to the mission and objectives that were at the origin of the idea to introduce the regulation. We are of the opinion that the primary concern must be to strike a balance between the existing national arrangements of the Member States and the harmonisation level, i.e. that in no case should existing national standards be decreased.

As regards the general principles established by the draft regulation, namely that the Commission will issue implementing rules to ensure its implementation, we believe that this intended principle should be reconsidered very carefully and then revised for the sake of preserving the democratic principles of European society.

From a purely practical point of view, we see Article 6 (2) and the related introductory provision (20) as problematic, as we are concerned that the application of the provision on the requirement of editorial independence would bring possible complications in practice, leading to questions as to which person is ultimately responsible. Editorial independence is a fundamental condition of democracy and guarantees the possibility of unrestricted and critical public debate. We consider any interference in the relationship between the publisher and the editorial team through EU regulation to be counterproductive and detrimental to media freedom and pluralism. Editorial independence should strictly distinguish between the individual decisions of the editor (these decisions must remain free from any influence) and the general line of editorial activity, which is the responsibility of the broadcaster or the editorial management. However, we are of the opinion that this disparity could be resolved simply in principle if the text of this Article becomes a soft law recommendation.

According to the Amsterdam Protocol, the organisation and definition of public services, as well as their financing, is a national competence. The regulation of public service therefore varies from state to state and it is a very sensitive area. It might even be worth considering the option to support the text of Article 5 (3) ‘Safeguards for the independent functioning of public service media providers’ more strongly by making explicit reference to the principles of the Amsterdam Protocol in the term ‘public service remit’.

Article 8 establishes the European Board for Media Services (the “Board”). The proposed regulation must explicitly ensure that the Board is an independently functioning body (including independence from the European Commission) capable of taking its own decisions as a collective body bringing together independent bodies to ensure the implementation of the relevant provisions for independent media. Therefore, it must be guaranteed the power to manage its internal affairs, such as creating its own procedural rules. The independence of this body will thus also result from its organisational set-up. We are of the opinion that if the Board takes a view different from that of the European Commission, it must be within its remit to present such a view and not to align its opinions with the European Commission. We also consider the further provision that the Board draws up opinions in agreement with the European Commission to be, at the very least, unfortunately worded.

With regard to the extended supervision of mergers of companies contained in Section 5, we believe in this respect that the existing level and system of regulation is fully sufficient and that there is no need for further EU regulation and we are of the opinion that it should be up to the national states themselves to best assess the impact of the transaction on possible media pluralism. We consider any intervention in this area in the form of the proposed regulation, including through the powers conferred on the European Board for Media Services, to be unnecessary and counterproductive. The provisions dealing with media concentration in the draft regulation are based on the assumption that media concentration is primarily detrimental to media pluralism. But consolidation in the media market is a natural and necessary part of the market environment in which media companies operate. Consolidation is in many cases necessary for sound business management and economic decision-making by business entities. Such decisions are often directed at how to adapt to a dynamic environment or avoid negative economic impacts on a particular company, how to secure jobs and, ultimately, how to safeguard media pluralism. Any further restrictions and requirements concerning the ability of media to merge would further exacerbate the asymmetry between traditional media houses and big-tech platforms in the battle for identical advertisers. Regulation that would impose further restrictions on mergers and acquisitions would not promote media pluralism – on the contrary, it would hinder it.

We also appreciate that the text of Recital 45 of the justification explicitly addresses the issue of audience measurement and its impact on media funding, stating that audience measurement has a direct impact on the allocation and the prices of advertising, and perceives the asymmetry between traditional media service providers and new players in the market (particularly online platforms). However, in our view, this perception is unfortunately not reflected in the wording of Article 23, as its text does not correspond to the objectives set out in the Recital, namely that access to objective audience data stemming from transparent, unbiased and verifiable audience measurement solutions should be provided, taking into account the competition that takes place in the market not only between the same types of media but also between the aforementioned groups of competitors. In a situation where some competitors use their own audience measurement solutions that are not subject to market control and are not sufficiently transparent, it is imperative that Article 23 be further clarified to meet the objectives and ideas contained in the Recital. The latest available draft version of this provision still lacks an explicit reference to the principles of industry standards, self-regulation and market governance. A deeper impact analysis still needs to be carried out concerning the newly proposed obligation to provide viewership data free of charge to media service providers in relation to their content and services.

Finally, a last remark on the audience measurement provision of Article 23: we assume that with respect to the practical application, the use of cookies will be allowed for these purposes.