By Joan Barata
1. Introduction
The recent adoption of the European Media Freedom Act (EMFA)[1] has been presented by European institutions as an important step forward in the effective protection of freedom of the media in the continent. The European Commission considers this Regulation as a culmination of some sort within a series of measures to protect media freedom and pluralism in the EU, in addition to enhancing free movement of services. It is presented as «a new set of rules to protect media pluralism and independence in the EU. They will ensure that media – public and private – can operate more easily across borders in the EU internal market, without undue pressure and taking into account the digital transformation of the media space»[2]. Also, several media freedom organizations welcomed the adoption of this piece of legislation as a big advance for the right to information in Europe[3] and called for full and effective implementation, with a particular consideration to the fact that «EMFA only lays down the very minimum of standards» and therefore «Member States can, and should, go much further in establishing stronger safeguards to protect media freedom and pluralism and journalists’ rights»[4].
2. The EMFA and the protection of freedom of expression and media freedom in Europe
The EMFA thus becomes an additional legal instrument or standard to protect freedom of expression in the European continent. All EU member states count, in their respective constitutional frameworks, on a series of provisions and safeguards aiming at protecting the mentioned right. It is obvious that these are, and remain to be, the main sources and pillars for the effective protection of the mentioned right for European citizens. In addition to this, all EU member states are also guided by the extensive jurisprudence already formulated by the European Court of Human Rights (ECtHR) in the application of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), within the broader context of the Council of Europe. Even though required by fundamental treaties such as the Treaty of Lisbon, the EU has still not acceded, as a Union, to the Convention. Such accession would be a key step in the achievement of a coherent system of protection of fundamental rights across Europe by eliminating the current situation where the rights enshrined in the European Convention apply to individual states while at the same time are not binding for the EU and its institutions.
In addition to the above, the EU Charter of Fundamental Rights enshrines in article 11 the right to freedom of expression and the protection of the freedom and pluralism of the media. Even though this provision does not establish, per se, the power or capacity for EU institutions to enact the EMFA, it constitutes a general framework for such institutions and member states when implementing Union law (article 51). It is also worth noting that in any case the Charter already acknowledges that its rights correspond to rights guaranteed by the European Convention, and that «the meaning and scope of those rights shall be the same as those laid down by the said Convention» (article 52.3).
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Joan Barata is a Senior Legal Fellow for The Future of Free Speech. He works on freedom of expression, media regulation, and intermediary liability issues.