EU lawmakers are currently negotiating on the European Media Freedom Act (EMFA). One of the most controversial parts is the European Commission’s suggestion to give special treatment to media content (Article 17).
In a nutshell, Article 17 would require so-called “very large online platforms” (VLOPs) to give special treatment to media outlets, by having to inform them before their content is taken down if it doesn’t respect a platform’s terms and conditions.
While the initial Commission proposal only required a few improvements to make it fit for purpose, Parliament and Council are now suggesting to turn Article 17 into a “media exemption”. This dreaded idea, which – to everyone’s relief – was rejected during the Digital Services Act negotiations, now seems to have been brought back from the dead.
So, how would a media exemption concretely undermine the fight against disinformation? Let’s walk through the most damaging ideas that are currently being discussed.
1.) Who or what a “media services provider” is remains unclear
Given that the exemption would depend on unreliable self-declarations, platforms could be inundated with disinformation by rogue actors. The fixes to self-declaration proposed by Parliament and Council fall short of what’s needed. While some proposals suggest more involvement from authorities, the criteria to determine who or what would exactly qualify as legitimate “media” are still unclear.
It would be much more effective to build on well-established definitions, such as those for audiovisual media services from the respective Directive. To prevent abuse, only news and current affairs media should be allowed to declare themselves a media outlet. Moreover, that functionality should only be present on platforms that actually distribute those specific types of content. It wouldn’t make sense if this obligation applies to online marketplaces for example, yet this is something that still remains to be clarified.
Likewise, in order to ensure accountability, the self-declaration process should be supervised by national authorities with the support of the European Commission. A complementary, useful deterrent against rogue actors would be the introduction of severe penalties in case of abuse of the self-declaration functionality.
2.) Content restrictions are not proportionate
Another concerning change that has been tabled by the co-legislators is the proposed extension of this special treatment to content restrictions, and not only the suspension of content. If this would happen, online platforms would, for instance, have to seek explicit approval from media outlets before putting their content behind so-called “trigger warning” filters that are used to shield children from violent or disturbing news and images.
The Commission’s proposal did not include any restrictions in this domain for a good reason. While one could argue that it might be proportionate to address content suspension through a “special treatment” mechanism, restrictions on the way content is presented without the explicit approval of the media concerned do not carry any significant added value. Besides, even without including such restrictions, media outlets can still challenge these decisions if they believe them to be unjustified. In order to ensure a safe and secure online experience for European users, the Commission’s original approach – without content restrictions – has to be preserved.
3.) Must-carry obligation for harmful content
Another problematic change to Article 17 is the idea to introduce a must-carry obligation. This means that when VLOPs inform a media outlet that they will have to delete a piece of content, they would now be obliged to wait for 48 hours before actually being able to act. This goes much further than the Commission’s original proposal, which asked online platforms to simply inform media outlets before such suspension decisions take effect, without having to wait for two days.
48 hours is more than enough time for misinformation and harmful content to be disseminated widely and have a profound impact on the news cycle or the public debate. This is also inconsistent with the DSA. Unlike what some now argue, the must-carry obligation would not ‘just’ be a precision of how the general DSA framework is applied to media content, but a massive contradiction instead. That is why any special treatment of media under the EMFA should be limited to a privileged communication channel between platforms and media outlets on content moderation decisions, without obligations.
4.) Incompatible with the Digital Services Act
The proposal to extend the EMFA’s special treatment of media to content that poses “systemic risks” under the DSA, such as illegal content or threats to fundamental rights and our democratic processes, is problematic. Indeed, this would go completely against the very purpose of the DSA, which requires online platforms to actively moderate content in order to prevent and mitigate such risks. It is simply impossible for online platforms to comply with contradictory obligations. Therefore, special treatment under the EMFA must remain strictly limited to media content deleted because of violations of platform terms and conditions.
So, how can lawmakers fix the EMFA?
The special treatment of media content on the Internet must not end up serving as a tool that enables those who want to spread disinformation. It is vital that the EMFA’s Article 17 does not impede the implementation of the DSA, which already seeks to promote media freedom as one of its key objectives. It is only by striking a balance between the goals of the DSA and the EMFA that lawmakers can ensure an online information environment for Europeans that is both safe and diverse.