Regulation (EU) 2024/1083 of the European Parliament and of the Council of 11 April 2024 establishing a common framework for media services in the internal market and amending Directive 2010/13/EU (European Media Freedom Act) (Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee (1),

Having regard to the opinion of the Committee of the Regions (2),

Acting in accordance with the ordinary legislative procedure (3),

Whereas:

(1) Independent media services play a unique role in the internal market. They represent a fast-changing and economically important sector and at the same time provide access to a plurality of views and reliable sources of information to citizens and businesses alike, thereby fulfilling the general interest function of ‘public watchdog’ and being an indispensable factor in the process of the formation of public opinion. Media services are increasingly available online and across borders but are not subject to the same rules and the same level of protection in different Member States. While some matters related to the audiovisual media sector have been harmonised at Union level by means of Directive 2010/13/EU of the European Parliament and of the Council (4), the scope and matters covered by that Directive are limited. Moreover, the radio and press sectors are not covered by that Directive, despite their increasing cross-border relevance in the internal market.

(2) Given the unique role of media services, the protection of media freedom and media pluralism as two of the main pillars of democracy and of the rule of law constitutes an essential feature of a well-functioning internal market for media services. That market, including audiovisual media services, radio and the press, has substantially changed since the beginning of the 21st century, becoming increasingly digital and international. It offers many economic opportunities but also faces a number of challenges. The Union should help the media sector so that it can seize those opportunities within the internal market, while at the same time protecting the values that are common to the Union and to its Member States, such as the protection of fundamental rights.

(3) In the digital media space, citizens and businesses access and consume media content and services, which are immediately available on their personal devices, increasingly in a cross-border setting. That is the case for audiovisual media services, radio and the press, which are easily accessible through the internet, for example via podcasts or online news portals. The availability of content in a number of languages and the ease with which it can be accessed through smart devices, such as smartphones or tablets, increases the cross-border relevance of media services, as established in a judgment of the Court of Justice of the European Union (5) (the ‘Court of Justice’). That relevance is underpinned by the growing use and acceptance of automatic translation or subtitling tools which reduce the linguistic barriers within the internal market and the convergence of the different types of media, combining audiovisual and non-audiovisual content within the same offering.

(4) However, the internal market for media services is insufficiently integrated and suffers from a number of market failures that have increased due to digitalisation. Firstly, global online platforms act as gateways to media content, with business models that tend to disintermediate access to media services and amplify polarising content and disinformation. Those platforms are also essential providers of online advertising, which has diverted financial resources from the media sector, affecting its financial sustainability and, consequently, the diversity of content on offer. As media services are knowledge-intensive and capital-intensive, they require scale to remain competitive, to meet their audiences’ needs and to thrive in the internal market. To that end, the possibility to offer services across borders and obtain investment, including from or in other Member States, is particularly important. Secondly, a number of national restrictions hamper free movement within the internal market. In particular, different national rules and approaches related to media pluralism and editorial independence, insufficient cooperation between national regulatory authorities or bodies and an opaque and unfair allocation of public and private economic resources make it difficult for media market players to operate and expand across borders and lead to an uneven playing field across the Union. Thirdly, the good functioning of the internal market for media services is challenged by providers, including those controlled by certain third countries, that systematically engage in disinformation or information manipulation and interference, and use the internal market freedoms for abusive purposes, thus thwarting the proper functioning of market dynamics.

(5) The fragmentation of rules and approaches which characterises the media market in the Union negatively affects, to varying degrees, the conditions for the exercise of economic activities in the internal market by media service providers in different sectors, including the audiovisual, radio and press sectors, and undermines their capability to efficiently operate across borders or establish operations in other Member States. National measures and procedures could be conducive to media pluralism in a Member State, but the divergence and lack of coordination between Member States’ national measures and procedures could lead to legal uncertainty and additional costs for media undertakings willing to enter new markets and could therefore prevent them from benefitting from the scale of the internal market for media services. Moreover, discriminatory or protectionist national measures affecting the operation of media undertakings disincentivise cross-border investment in the media sector and, in some cases, could force media undertakings that are already operating in a given market to exit it. Those obstacles affect undertakings active both in the broadcasting sector, including audiovisual and radio, and the press sector. Although the fragmentation of editorial independence safeguards concerns all media sectors, it especially affects the press sector as national regulatory or self-regulatory approaches differ more in relation to the press.

(6) The internal market for media services could also be affected by insufficient tools for regulatory cooperation between national regulatory authorities or bodies. Such cooperation is key to ensuring that media market players, which are often active in different media sectors, that systematically engage in disinformation or information manipulation and interference, do not benefit from the scale of the internal market for media services. Furthermore, while a biased allocation of economic resources, in particular in the form of state advertising, is used to covertly subsidise media outlets in all the media sectors, it tends to have a particularly negative impact on the press, which has been weakened by decreasing levels of advertising revenues. The challenges stemming from the digital transformation also reduce the ability of undertakings in all media sectors, in particular the smaller ones in the radio and press sectors, to compete on a level playing field with online platforms, which play a key role in the online distribution of content.

(7) In response to challenges to media pluralism and media freedom online, some Member States have taken regulatory measures and other Member States are likely to do so. That risks furthering the divergence in national approaches and restrictions to free movement in the internal market. Therefore, it is necessary to harmonise certain aspects of national rules related to media pluralism and editorial independence, thereby guaranteeing high standards in that area.

(8) Recipients of media services in the Union, namely natural persons who are nationals of Member States or benefit from rights conferred upon them by Union law and legal persons established in the Union, should be able to enjoy pluralistic media content produced in accordance with editorial freedom in the internal market. That is key to fostering public discourse and civic participation, as a broad range of reliable sources of information and quality journalism empowers citizens to make informed choices, including about the state of their democracies. It is also essential for cultural and linguistic diversity in the Union, given the role of media services as carriers of cultural expression. Member States should respect the right to a plurality of media content and contribute to an enabling media environment by making sure that relevant framework conditions are in place. Such an approach reflects the right to receive and impart information and the requirement to respect media freedom and media pluralism pursuant to Article 11 of the Charter of Fundamental Rights of the European Union (the ‘Charter’), in conjunction with Article 22 thereof, which requires the Union to respect cultural, religious and linguistic diversity. Furthermore, in fostering the cross-border flow of media services, a minimum level of protection for recipients of media services should be ensured in the internal market. In the final report of the Conference on the Future of Europe, citizens called on the Union to further promote media independence and media pluralism, in particular by introducing legislation addressing threats to media independence through Union-wide minimum standards. It is thus necessary to harmonise certain aspects of national rules related to media services, also taking into consideration Article 167 of the Treaty on the Functioning of the European Union (TFEU), which reaffirms the importance of respecting the national and regional diversity of the Member States. However, Member States should have the possibility to adopt more detailed or stricter rules in specific fields, provided that those rules ensure a higher level of protection for media pluralism or editorial independence in accordance with this Regulation and comply with Union law and that Member States do not restrict the free movement of media services from other Member States which comply with the rules laid down in those fields. Member States should also retain the possibility to maintain or adopt measures to preserve media pluralism or editorial independence at national level regarding aspects not covered by this Regulation in so far as such measures comply with Union law, including Regulation (EU) 2022/2065 of the European Parliament and of the Council (6). It is also appropriate to recall that this Regulation respects the Member States’ responsibilities as referred to in Article 4(2) of the Treaty on European Union (TEU), in particular their powers to safeguard essential state functions.

(9) For the purposes of this Regulation, the definition of media service should be limited to services as defined by the TFEU and, therefore, should cover any form of economic activity. The definition of media service should cover, in particular, television or radio broadcasts, on-demand audiovisual media services, audio podcasts or press publications. It should exclude user-generated content uploaded to an online platform unless it constitutes a professional activity normally provided for consideration, be it of a financial or other nature. It should also exclude purely private correspondence, such as e-mails, and all services that do not have the provision of programmes or press publications as their principal purpose, meaning where the content is merely incidental to the service and not its principal purpose, such as advertisements or information related to a product or a service provided by websites that do not offer media services. Corporate communication and distribution of informational or promotional materials for public or private entities should be excluded from the scope of the definition. Furthermore, since the operation of media service providers in the internal market can take different forms, the definition of media service provider should cover a wide spectrum of professional media actors falling within the scope of the definition of media service, including freelancers.

(10) Public service media providers should be understood to be those concurrently entrusted with a public service remit and receiving public funding for the fulfilment of that remit. That should not cover private media undertakings that have agreed to carry out, as a limited part of their activities, certain specific tasks of general interest in return for payment.

(11) In the digital media market, video-sharing platform providers or providers of very large online platforms could fall under the definition of media service provider. In general, such providers play a key role in the organisation of content, including by automated means or by means of algorithms, but do not exercise editorial responsibility over the content to which they provide access. However, in the increasingly convergent media environment, some video-sharing platform providers or providers of very large online platforms have started to exercise editorial control over a section or sections of their services. Therefore, where such providers exercise editorial control over a section or sections of their services, they could be qualified as both a video-sharing platform provider or a provider of a very large online platform and a media service provider.

(12) The definition of audience measurement should cover measurement systems developed as agreed by industry standards within self-regulatory organisations, like the Joint Industry Committees, and measurement systems developed outside self-regulatory approaches. The latter tend to be used by certain online players, including online platforms, that self-measure or provide their proprietary audience measurement systems to the market without abiding by the commonly agreed industry standards or best practices. Given the significant impact that such audience measurement systems have on the advertising and media markets, they should be covered by this Regulation. In particular, the capacity to provide access to media content and the ability to target their users with advertising allow online platforms to compete with the media service providers whose content they distribute. Thus, the definition of audience measurement should be understood as including measurement systems that enable the collection, interpretation or other processing of information about the use of media content and content created by users on online platforms that are primarily used to access such content. That would ensure that providers of audience measurement systems that are intermediaries involved in content distribution are transparent about their audience measurement activities, fostering the ability of media service providers and advertisers to make informed choices.

(13) State advertising as defined in this Regulation should be understood broadly as covering promotional or self-promotional activities, public announcements or information campaigns undertaken by, for or on behalf of a wide range of public authorities or entities, including national or subnational governments, regulatory authorities or bodies and entities controlled by national or subnational governments. Such control can result from rights, contracts or any other means which confer the possibility of exercising a decisive influence on an entity. In particular, ownership of capital or the right to use all or part of the assets of an entity, or rights or contracts which confer a decisive influence on the composition, voting or decisions of the organs of an entity are relevant factors, as laid down in Article 3(2) of Council Regulation (EC) No 139/2004 (7). However, the definition of state advertising should not include official announcements that are justified by an overriding reason of public interest, such as emergency messages by public authorities or entities which are necessary, for example, in cases of natural disasters or health crises, accidents or other sudden incidents that can cause harm to individuals. When the emergency situation has ended, announcements pertaining to that emergency which are placed, promoted, published or disseminated in return for payment or for any other consideration should be considered state advertising.

(14) In order to ensure that society reaps the benefits of the internal market for media services, it is essential not only to guarantee the fundamental freedoms under the Treaties, but also the legal certainty which is needed for the enjoyment of benefits of an integrated and developed market. In a well-functioning internal market, recipients of media services should be able to access quality media services which have been produced by journalists in an independent manner and in line with ethical and journalistic standards and which, therefore, provide trustworthy information. That is particularly relevant for news and current affairs content, which comprises a wide category of content of political, societal or cultural interest at local, national or international level. News and current affairs content has the potential to play a major role in shaping public opinion and has a direct impact on democratic participation and societal well-being. In that context, news and current affairs content should be understood as covering any type of news and current affairs content, regardless of the form it takes. News and current affairs content can reach audiences in diverse formats, such as documentaries, magazines or talk-shows, and can be disseminated in diverse ways, including by uploading it to online platforms. Quality media services are also an antidote against disinformation and foreign information manipulation and interference. Access to such services should also be ensured by preventing attempts to silence journalists, ranging from threats and harassment to censorship and cancelling of dissenting opinions, which could limit the free flow of information into the public sphere by reducing the quality and plurality of information. The right to a plurality of media content does not entail any corresponding obligation on any given media service provider to adhere to standards not set out explicitly by law.

(15) This Regulation does not affect the freedom of expression and information guaranteed to individuals under the Charter. The European Court of Human Rights has observed that in such a sensitive sector as the audiovisual media sector, in addition to its negative duty of non-interference, the public powers have a positive obligation to put in place an appropriate legislative and administrative framework to guarantee effective media pluralism (8).

(16) The free flow of trustworthy information is essential in a well-functioning internal market for media services. Therefore, the provision of media services should not be subject to any restrictions contrary to this Regulation or other rules of Union law, such as Directive 2010/13/EU, which provide for measures necessary to protect users from illegal and harmful content. Restrictions could also derive from measures applied by national public authorities in compliance with Union law.