Changes from plenary report to adopted text

Recital 1: (1) Independent media services play a unique role for democracy, for ensuring the rule of law and for the functioning of the internal market. They are an indispensable factor in the public opinion-forming process, 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’. Media services are increasingly available online and across borders while they are not subject to the same rules and the same level of protection in different Member States.

Recital 1 a (new): (1a) At the same time, media services are always either carriers of cultural forms of expression or directly represent a cultural form of expression themselves. This dual character must be respected throughout. Article 167(4) of the Treaty on the Functioning of the European Union (TFEU) requires the Union to take cultural aspects into account in its action under other provisions of the Treaties, in particular in order to respect and to promote the diversity of its cultures.

Recital 2: (2) Given their unique role and the fact that they are one of the main pillars of democracy, special attention should be paid to the protection of media freedom and media pluralism in the internal market for media services. This market has substantially changed since the beginning of the new century, becoming increasingly digital and international. It offers many economic opportunities but also faces a number of challenges. The Union should support the media sector so that it can seize those opportunities within the internal market, while at the same time protecting the values, such as the protection of the fundamental rights, that are common to the Union and to its Member States.

Recital 3: (3) In the digital media space, citizens and businesses access and consume media content and services, immediately available on their personal devices, increasingly in a cross-border setting. Global online platforms and search engines, act as gateways to media content, with business models that too often tend to disintermediate access to media services and amplify polarising content and disinformation. These platforms and search engines are also essential providers or facilitators of online advertising, which divert financial resources from the media sector, affecting its financial sustainability and journalistic work, and consequently the diversity of content on offer. Therefore, online platforms and search engines should be included in the scope of this Regulation in order to ensure the independence and diversity of the media. As media services are knowledge- and capital-intensive, their ability to reach their audiences needs to remain competitive and to thrive in the internal market. To that effect, the possibility to offer services across borders and obtain investment including from or in other Member States is particularly important.

Recital 5: (5) Moreover, 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 continue to do so with a risk of furthering the divergence in national approaches and restrictions to free movement in the internal market.

Recital 5 a (new): (5a) A free and well-functioning internal market for media services is an essential pillar of a functioning democracy because it provides recipients with access to a plurality of views and trustworthy sources of information. The increased role of the online environment and its new functionalities have had a disruptive effect on the market for media services, rendering it increasingly cross-border and fostering a truly European market for media services. In such an environment, media services are not only available but also easily accessible to Union consumers, irrespective of their Member State of origin. Media services created for recipients in one Member State are able to reach far further than initially intended. Divergent approaches at national level can hamper the ability of media service providers to operate on a fair level-playing field in order to make media services, including news and current affairs information available. Such approaches have created market fragmentation, legal uncertainty and increasing compliance costs for media service providers and media professionals. Therefore, it is necessary to have a single legal framework that ensures a harmonised application of rules for media service providers throughout the Union, ensuring that Union recipients have access to a broad range of reliable sources of information and to quality journalism as public goods in order to make informed choices, including about the state of their democracies.

Recital 5 b (new): (5b) The right to freedom of expression and information, enshrined in Article 11 of the Charter of Fundamental Rights of the European Union (the ‘Charter’) and in Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, encompasses the right to receive and impart information and media freedom and media pluralism without interference by public authority and regardless of frontiers. They also require that diversity is established in European communication spaces and require Member States to safeguard and foster media pluralism. Accordingly, this Regulation draws upon the case law of the European Court of Human Rights and builds upon the standards developed by the Council of Europe in that regard.

Recital 6: (6) Recipients of media services in the Union (natural persons who benefit from rights conferred upon them by Union law and legal persons established in the Union) should be able to effectively enjoy the freedom to have access to independent, free and pluralistic media services in the internal market. In fostering the cross-border flow of media services, a minimum level of protection of service recipients should be ensured in the internal market. That would be in compliance with the right, pursuant to Article 11 of the Charter. In accordance with Article 22 of the Charter, the Union is to respect cultural, religious and linguistic diversity. It is thus necessary to harmonise certain aspects of national rules related to media services. In the final report of the Conference on the Future of Europe, citizens called on the EU to further promote media independence and pluralism, in particular by introducing legislation addressing threats to media independence through EU-wide minimum standards46 .

Recital 7: (7) For the purposes of this Regulation, the definition of a media service should be limited to services as defined by the Treaty and therefore should cover any form of economic activity, for which normally remuneration is provided including non-standard forms of employment, such as free-lancing or independent journalism. This definition should exclude user-generated content uploaded to an online platform unless it constitutes a professional activity normally provided for consideration (be it of financial or of other nature). It should also exclude purely private correspondence, such as e-mails, as well as all services that do not have the provision of audiovisual or audio 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 this definition.

Recital 7 a (new): (7a) The media environment is undergoing major and rapid changes. While the role of the media in a democratic society has not changed, media have additional tools to facilitate interaction and engagement. It is important that media-related policy take those and future developments into account. Therefore, the notion of media used in this Regulation should be interpreted broadly to encompass all actors who are involved in the production and dissemination, to potentially large numbers of people, of content, who have editorial responsibility or who oversee content.

Recital 8: (8) In the digitalised media market, providers of video-sharing platforms or very large online platforms may fall under the definition of media service provider. In general, such providers play a key role in the content organisation, including by automated means or algorithms, but do not exercise editorial responsibility over the content to which they provide access. However, in the increasingly convergent media environment, some providers of video-sharing platforms or very large online platforms have started to exercise editorial control over a section or sections of their services. Therefore, when such entities exercise editorial control over a section or sections of their services, they could be qualified both as a video-sharing platform provider or a very large online platform provider and as a media service provider.

Recital 8 a (new): (8a) The capacity of online platforms to provide access to media services without exercising editorial responsibility over it and to market the ability to target users with advertising allows them to act as direct competitors to media service providers whose media services they intermediate and distribute. Given the transfer of economic value in favour of online platforms, the definition of ‘audience measurement’ set out in this Regulation should be understood as including data on the media services consumed by recipients of media services and of online platforms. That will ensure that all intermediaries involved in content distribution are transparent about their audience measurement methodologies so as to enable advertisers to make informed choices, which should drive competition.

Recital 9: (9) 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 such self-regulatory approaches. The latter tend to be deployed by certain online players, including online platforms, who self-measure or provide their proprietary audience measurement systems to the market, which do not necessarily abide by the commonly agreed industry standards. Given the significant impact that such audience measurement systems have on the advertising and media markets, they should be covered by this Regulation. Media service providers which abide by commonly agreed industry standards should not be considered providers of proprietary audience measurement systems.

Recital 10: (10) State advertising should be understood broadly as covering promotional or self-promotional activities, which include advertising and purchases undertaken by, for or on behalf of a wide range of public authorities or entities, including Union institutions, bodies, offices or agencies, governments, regulatory authorities or bodies as well as state-owned enterprises or other state-controlled entities in different sectors, at national, regional, or local level. For the purposes of allocation of state advertising and purchases including in cases of natural or sanitary disasters, accidents or other unforeseen, major incidents that can cause harm to significant portions of the population criteria should be laid down in advance by national law. Emergency messages by public authorities should be understood broadly as different from state advertising.

Recital 11: (11) In order to ensure that society reaps the benefits of the internal media market, it is essential not only to guarantee the fundamental freedoms under the Treaty, but also the legal certainty which the recipients of media services need for the enjoyment of the corresponding benefits. Recipients of media services should have access to quality media services, which have been produced by journalists, editors, editors-in-chief and media workers in an independent manner and in line with ethical and professional journalistic standards and which, therefore, provide trustworthy information, of political or societal interest at local, national or international level without any interference by public authority or without being influenced by economic interests. Such quality media services are also an essential antidote against disinformation, including foreign information manipulation and interference.

Recital 14: (14) The protection of editorial independence is a precondition for exercising the activity of media service providers and their professional integrity especially given its societal role as a public good. Media service providers should be able to exercise their economic activities freely in the internal market and compete on equal footing in an increasingly online environment where information flows across borders. Furthermore, in order to guarantee independent and pluralistic media, it is of key importance that the necessary measures be put in place to create a safe environment that allows journalists, editors, editors-in-chief and media workers to exercise their activities. To that end, in addition to safeguarding the freedom of the media, it is necessary to protect freedom within the media.

Recital 15: (15) Member States have taken different approaches to the protection of editorial independence, which is increasingly challenged across the Union. Because of growing interference with editorial decisions of media service providers in several Member States, legislative action is necessary. Such interference can represent a breach of principle of the rule of law, which can be direct or indirect, from the State or other actors, including public authorities, elected officials, government officials and politicians, for example to obtain a political advantage. Shareholders and other private parties who have a stake in media service providers may act in ways which go beyond the necessary balance between their own business freedom and freedom of expression, on the one hand, and editorial freedom of expression and the information rights of users, on the other hand, in pursuit of economic or other advantage This seems to be particularly the case where economic power generates a power to shape opinions that may interfere with the public opinion forming process. Moreover, recent trends in media distribution and consumption, including in particular in the online environment, have prompted Member States to consider laws aimed at regulating the provision of media content. Approaches taken by media service providers to guarantee editorial independence also vary. As a result of such interference and fragmentation of regulation and approaches, the conditions for the exercise of economic activi…

Recital 16: (16) Journalists, editors, editors-in-chief and media workers are the main actors in the production and provision of trustworthy media services. It is essential therefore to protect journalists’ capability to collect, fact-check and analyse information, including information imparted confidentially both in the offline and online world. In particular, media service providers, media workers and journalists (including those operating in non-standard forms of employment, such as freelancers and bloggers) should be able to rely on the most robust protection of journalistic sources and communications, including against arbitrary interferences and deployment of surveillance technologies, since without such protection sources may be deterred from assisting the media in informing the public on matters of public interest. As a result, journalists' and media workers’ freedom of expression and capacity to exercise their economic activity and fulfil their vital ‘public watchdog’ role may be undermined, thus affecting negatively access to quality media services. The protection of journalistic sources is a precondition for the protection of the fundamental right enshrined in Article 11 of the Charter and crucial for safeguarding the ‘watchdog’ role of investigative journalism in democratic societies.

Recital 16 a (new): (16a) Upholding the rule of law in the Union is essential for the functioning of democracies in the Member States. Union instruments for that purpose have expanded to include, in addition to procedure set out in Article 7 TEU, new frameworks such as the Commission’s annual rule of law report and Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council1a. The functionality of rule of law systems is directly interlinked with free and pluralistic media. Media freedom and media pluralism represent a central pillar of the Union framework for upholding the rule of law and the state of media freedom and media pluralism is examined annually through the Commission’s annual rule of law report. The protection of journalistic sources, guarantees for editorial independence and a robust protection system against the abusive use of certain measures and technologies are essential for upholding the Union’s rule of law framework. Actions that put the freedom and pluralism of the media at risk, such as the detention, sanctioning, search, seizure or inspection of media service providers, severely damage the rule of law and therefore should be considered breaches of the principle of the rule of law, thus triggering sanctioning mechanisms provided for by Article 7 TEU and Regulation (EU, Euratom) 2020/2092. / 1a Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the…

Recital 16 b (new): (16b) Surveillance methods deployed against journalists and media workers are varied and include the interception of electronic communications and metadata, device or software hacking, including denial of service attacks, wiretapping, bugging, videotaping, geolocation tracking via radio-frequency identification, the global positioning system or cell-site data, data mining and social media monitoring. Such methods could gravely impact journalists’ and media workers’ rights to privacy, to the protection of their data and to the freedom of expression. The protections afforded by this Regulation, therefore, encompass both current forms of digital surveillance and future technologies that might appear as a result of technological innovation. Those protections are without prejudice to the application of existing and future Union law that restricts or prohibits the development and use of, and trade in, specific surveillance technologies deemed too invasive. Spyware that grants full unlimited access to personal data, including sensitive data, on a device could affect the very essence of the right to privacy and should, therefore, under no circumstance be considered necessary and proportionate under Union law.

Recital 17: (17) The protection of journalistic sources and communications is currently regulated heterogeneously in the Member States. Some Member States provide an absolute protection against coercing journalists to disclose information that identify their source in criminal and administrative proceedings. Other Member States provide a qualified protection confined to judicial proceedings based on certain criminal charges, while others provide protection in the form of a general principle. In spite of existing standards codified by the Council of Europe and of established case law by the European Court of Human Rights, practical examples from several Member States have revealed that there are very different approaches to the matter and that journalistic sources are not protected in some situations. This leads to fragmentation in the internal media market. As a result, journalists, which work increasingly on cross-border projects and provide their services to cross-border audiences, and by extension providers of media services, are likely to face barriers, legal uncertainty and uneven conditions of competition. Therefore, the protection of journalistic sources and communications needs to be strengthened as comprehensively and as extensively as possible. To that end, this Regulation harmonises the standard of protection provided to journalistic sources and communications by introducing minimum rules at Union level. An interference with journalistic sources always needs to be balanced aga…

Recital 17 a (new): (17a) Digital safety and the confidentiality of electronic communications have become a major concern for journalists and media workers. In light of that fact, the promotion and protection of anonymisation tools and end-to-end encrypted services used by media service providers and their employees needs to be encouraged at Union level in order to ensure an equal level of access to such equipment across all Member States. Those tools have become vital for them to freely exercise their work and their rights to privacy, to data protection and to the freedom of expression, including by securing their communications and protecting the confidentiality of their sources.

Recital 18: (18) Public service media established by the Member States play a particular role in the internal media market and in safeguarding media pluralism, by ensuring that citizens and businesses have access to a diverse content offer, including quality information and impartial media coverage, as part of their remit. They provide a forum for public discussion and a means of promoting the broader democratic participation of individuals. That is why media pluralism can only be guaranteed by a proper diversity reflected in the content offer of public service media. Independence of public service media is particularly important during electoral periods to ensure citizens have access to impartial and quality information. However, public service media can be particularly exposed to the risk of interference, given their institutional proximity to the State and the public funding they receive, which might expose them to additional vulnerabilities compared to other players in the internal media market to the extent that they threaten their existence. This risk may be exacerbated by uneven safeguards related to independent governance and balanced coverage by public service media across the Union. This risk can also result in politically appointed senior management exerting pressure on the editorial independence of journalists and editors-in-chief for political or economic interests. Those situations may lead to biased or partial media coverage, distort competition in the internal media marke…

Recital 18 a (new): (18a) For the benefit of European audiences, public service media providers should promote media pluralism and contribute to making media markets more robust. They should offer an extensive array of content catering to diverse interests, perspectives and demographics, encompassing all segments of society, including minorities.

Recital 18 b (new): (18b) Article 5(2) should not apply to a media service provider that is part of a group of which the securities are admitted to trading on a regulated market of any Member State and of which the total revenues linked to the public service remit represent less than 10 % of the consolidated media related revenue of such group at the time at which this Regulation enters into force.

Recital 19: (19) It is crucial for the recipients of media services to know with certainty who owns and is behind the news media so that they can identify and understand potential conflicts of interest which is a prerequisite for forming well-informed opinions and consequently to actively participate in a democracy. Such transparency is, therefore, an effective tool to limit risks of interference with editorial independence. It is thus necessary to introduce common information requirements for media service providers exercising editorial responsibility across the Union that should include proportionate requirements to disclose ownership information. In this context, the measures taken by Member States under Article 30(9) of Directive (EU) 2015/84949 should not be affected. The required information should be disclosed by the relevant providers on their websites or other medium that is easily and directly accessible in a user-friendly format. It is therefore necessary that Member States entrust a relevant national regulatory authority or body with monitoring compliance with such information requirements and with developing and maintaining a media ownership database. That national regulatory authority or body should be able to request and receive additional information from media service providers relevant to its tasks. To further strengthen and guarantee the accessibility and uniformity of the information available to recipients of media services, the Board should establish and maintain a …

Recital 19 a (new): (19a) Public access to certain contact details, ownership information and information on state advertising and state financial support allocated to media service providers is essential so that the recipients of media services can understand and scrutinise potential conflicts of interest, contributing at the same time to preserving trust and facilitating the timely and efficient availability of information for national regulatory authorities or bodies or the Board. Nevertheless, in order to mitigate possible administrative burden, certain categories of data should be provided only in duly justified cases, in a proportionate and balanced manner and to guarantee the rights to respect for private life and the protection of personal data.

Recital 20: (20) Media integrity can be supported by promoting and ensuring journalistic standards across the Union and by promoting and ensuring the editorial independence of media service providers, in particular through internal safeguards, in order to guarantee that information is trustworthy and that any ideological orientation is limited by the absolute requirement to report the news and opinions truthfully and ethically. Media service providers should adopt measures to guarantee the freedom of editors and editors-in-chief to take editorial decisions, on the basis of the established editorial line, in the course of their professional activity. Those measures should not only reinforce the safeguards for freedom of the media but also freedom within the media. The objective to shield editors and editors-in-chief from undue interference in their decisions taken on specific pieces of content as part of their everyday work contributes to ensuring a level playing field in the internal market for media services and the quality of such services. That objective is also in conformity with the fundamental right to receive and impart information under Article 11 of the Charter and with Resolution 1003 (1993) of the Council of Europe. In view of these considerations, media service providers should also ensure transparency and disclose any actual or potential conflicts of interest to their service recipients and ensure that their owners, publishers and management follow the highest professional s…

Recital 22: (22) Independent national regulatory authorities or bodies are key for the proper application of media law across the Union. National regulatory authorities or bodies referred to in Article 30 of Directive 2010/13/EU are best placed to ensure the correct application of the requirements related to regulatory cooperation and a well-functioning market for media services, envisaged in Chapter III of this Regulation. In order to ensure a consistent application of this Regulation and other Union media law, it is necessary that national regulatory authorities or bodies hold consultations with representatives of media service providers, civil society organisations, media experts, representatives of academia, trade union associations and associations of journalists. In addition, it is necessary to set up an independent advisory body at Union level gathering such authorities or bodies and coordinating their actions. The European Regulators Group for Audiovisual Media Services (ERGA), established by Directive 2010/13/EU, has been essential in promoting the consistent implementation of that Directive. The European Board for Media Services (‘the Board’) should therefore build on ERGA and replace it. This requires a targeted amendment of Directive 2010/13/EU to delete its Article 30b, which establishes ERGA, and to replace references to ERGA and its tasks as a consequence. The amendment of Directive 2010/13/EU by this Regulation is justified in this case as it is limited to a provision whi…

Recital 23: (23) The Board should bring together senior representatives of the national regulatory authorities or bodies established in accordance with the requirements set out in Article 30 of Directive 2010/13/EU. In cases where Member States have several relevant regulatory authorities or bodies, including at regional level, a joint representative should be chosen through appropriate procedures and the voting right should remain limited to one representative per Member State. This should not affect the possibility for the other national regulatory authorities or bodies or, where applicable, a common representative of self-regulatory or co-regulatory mechanisms to participate, as appropriate, in the meetings of the Board. The Board and the Expert Group should also have the possibility to invite to attend its meetings, external experts on a case-by-case basis. The Board should also have the possibility, in agreement with the Commission, to designate permanent observers to attend its meetings, including in particular regulatory authorities or bodies from candidate countries, potential candidate countries, EEA countries, or ad hoc delegates from other competent national authorities. Due to the sensitivity of the media sector and following the practice of ERGA decisions in accordance with its rules of procedure, the Board should adopt its decisions on the basis of a two-thirds majority of of its members with voting rights. The Board's rules of procedure should specify the role and tasks of…

Recital 23 a (new): (23a) The Board will need to address, in accordance with this Regulation, issues beyond the remit of the ERGA, in particular issues related to press publications, radio, online media. It is thus necessary to establish an Expert Group, consisting of experts, media representatives of self-regulatory or co-regulatory organisations such as journalistic associations, media or press councils, and representatives of civil society, to advise and consult the Board on the implementation of this Regulation. The composition of the Expert Group should be determined by the Board’s rules of procedure and reflect the existing self-regulatory media frameworks from each Member State and different sectoral and geographic areas within the Member States. In addition to representatives from the Member States, the Expert Group should consist of widely recognised and established European organisations representing diverse interests from the media sector. The Expert Group should be positioned within the structure of the Board. The Expert Group should advise the Board on the performance of its tasks. The Expert Group should have the necessary autonomy to act independently. The Expert Group should be able to invite, on its own initiative, experts and media representatives, whether in a structured dialogue or otherwise, to help it assess the application of this Regulation and to contribute to its work based on its needs. The Expert Group should be empowered to issue recommendations and draw the Board’s …

Recital 24: (24) Without prejudice to the powers granted to the Commission by the Treaties, it is essential that the Commission and the Board work and cooperate closely. Nevertheless, the Board’s work should be independent from the Commission and from any political or economic influence. The Board should actively support the Commission in its tasks of ensuring the consistent application of this Regulation and of the national rules implementing Directive 2010/13/EU. For that purpose, the Board should in particular advise and assist the Commission on regulatory, technical or practical aspects pertinent to the application of Union law, promote cooperation and the effective exchange of information, experience and best practices, draw up opinions and carry out any other tasks on its own initiative or at the request of the Commission or the European Parliament in the cases envisaged by this Regulation. In order to effectively and independently fulfil its tasks, the Board should be able to rely on the expertise and human resources of an independent secretariat. The secretariat should act only on the Board's instructions. The secretariat should be provided with sufficient budgetary and human resources. The secretariat should provide substantive, administrative and organisational support to the Board, and help the Board in carrying out its tasks.

Recital 24 a (new): (24a) It is important that the Board issue, in cooperation with the national regulatory authorities or bodies and taking into account existing national law, guidelines on the definition of media services of general interest and on the criteria, assessment framework and process for determining their scope. It is important that those guidelines be consistent with Union values and established general interest objectives such as media pluralism, freedom of expression, access to reliable information, social cohesion and cultural diversity.

Recital 25: (25) Regulatory cooperation between independent media regulatory authorities or bodies is essential to make the internal market for media services function properly. However, Directive 2010/13/EU does not provide for a structured cooperation framework for national regulatory authorities or bodies. Since the revision of the EU framework for audiovisual media services by Directive 2018/1808/EU of the European Parliament and of the Council52 , which extended its scope to video-sharing platforms, there has been an ever-increasing need for close cooperation among national regulatory authorities or bodies, in particular to resolve cross-border cases. Such a need is also justified in view of the new challenges in the EU media environment that this Regulation seeks to address, including by entrusting national regulatory authorities or bodies with new tasks. Therefore, the Board, in consultation with the Commission, should also be able to establish cooperation arrangements with competent Union bodies, offices, agencies and advisory groups, with competent authorities of third countries and with international organisations.

Recital 26: (26) In 2020, the ERGA adopted a Memorandum of Understanding consisting of a voluntary framework for cooperation to strengthen the cross-border enforcement of media rules on audiovisual media services and video-sharing platform services. Building on that voluntary framework and in order to ensure the comprehensive and effective enforcement of Union measures concerning media law, to prevent possible circumvention of the applicable rules by rogue media service providers and to avoid additional barriers to the provision of media services in the internal market, it is essential that national regulatory authorities or bodies cooperate effectively and efficiently with one another within the established legal framework.