The European Media Freedom Act (EMFA), which will come into force in August this year, should lead to greater media independence across the European Union. What the new legislation actually brings and what challenges it may pose in the Czech context was debated at a panel entitled ‘What is EMFA and why you need to know about it’, which took place as part of this year's Journalists' Forum.
The discussion was moderated by Josef Šlerka from the Independent Journalism Foundation (NFNZ) and the panellists included experts from various professional backgrounds: Marína Urbániková, an academic at the Faculty of Social Studies at Masaryk University and a member of the NFNZ board of directors, lawyer Iveta Kvardová from the organisation Lobbio, and data journalist Jan Cibulka from Český rozhlas.
What the EMFA brings: basic framework and questions
The European Media Freedom Act (EMFA) has the potential to significantly influence the functioning of the media environment across the European Union. Although the regulation itself is not extensive, it raises a surprising number of questions that are crucial for its practical application.
The panellists began by summarising what the EMFA actually is and what it means for their professional fields. The first to speak was lawyer Iveta Kvardová, who outlined the legal and political framework of the document. ‘We see the EMFA as an opportunity to review media legislation,’ she said. She emphasised that the regulation comes in response to developments in some EU countries where media freedom has been threatened, particularly in Hungary and Poland. At the same time, however, she acknowledged that the implementation of EMFA will be complicated, among other things because it is ‘rather vague’, which she believes is a result of both political compromise and the absence of similar legislation in the past.
Marína Urbániková followed up by pointing out that the EMFA is a regulation, not a directive, and therefore most of it will apply automatically. ‘The first tests will come relatively quickly and we don't have to wait for adaptation regulations,’ she warned. Marína Urbániková paid particular attention to Article 5, which concerns the independence of public service media. She pointed out that formal compliance with the regulation will not be the only key factor, but also its actual functioning in practice. Using Slovakia as an example, she illustrated that even the amendment of a problematic provision of the law did not ensure genuine independence. According to her, EMFA offers an important tool, but it cannot guarantee media protection on its own without the will of political representatives.
Jan Cibulka then focused on Article 4, which deals with the protection of journalists from cyber attacks and the misuse of surveillance technologies. ‘What EMFA definitely brings us is some kind of objective protection for journalistic sources,’ he said. He mentioned, for example, that although Czech legislation recognises the right of journalists to refuse to disclose information about their sources, the state currently has no obligation to actually protect these sources from surveillance or wiretapping.
Independence of public service media
One of the most sensitive points of the European Media Freedom Act is the issue of the independence of public service media. This concerns not only how they are funded or how their boards are appointed, but also their day-to-day operations, from editorial autonomy to protection against political or economic pressure. The panel discussion noted that this area will be the first major test in many countries, including the Czech Republic.
Marína Urbániková, who has long been involved in public service media research, pointed out that although some Western European countries approached the EMFA negotiations with the feeling that their own systems were sufficiently strong, the experience in Central and Eastern Europe is different. ‘I think most of us are actually glad that we have another level to turn to if our national states fail in this regard,’ she said, referring to the situation in Hungary, Poland and Slovakia.
Urbániková added that while the EMFA does not explicitly require the existence of self-regulatory bodies, it assumes that the media have internally established rules and procedures that guarantee editorial autonomy. ‘If someone wants to reap the benefits of the EMFA, they must guarantee editorial autonomy towards their employees, collaborators, in short, within the media.’
Protection of journalists and cyber threats
Today, journalists face not only pressure from politicians and economic interests, but also, increasingly, targeted surveillance, cyberattacks and the misuse of surveillance technologies. Article 4 of the EMFA Regulation focuses on this area.
Cibulka explained that while journalists in the Czech Republic can refuse to disclose their sources under the law, the state currently has no real obligation to protect those sources. This is precisely what is set to change. Among other things, the EMFA responds to cases in which journalists in some EU countries have been monitored using spyware such as Pegasus. However, according to Cibulka, this is not just a matter of excesses in authoritarian states. Even some democratic countries, such as France, have seen cases of surveillance tools being misused against journalists and activists.
‘Such tools are very dangerous because they allow the integrity of journalistic work to be seriously undermined, especially when it comes to protecting sources, which is actually why EMFA is trying to respond to this,’ said Cibulka. He also mentioned that while the EMFA represents a step forward in this area, the originally ambitious proposals were weakened during the negotiations – the use of surveillance tools is not completely banned, but only ‘in certain situations’. Furthermore, the protection of journalists in the EMFA is limited to criminal proceedings, while intelligence services, for example, are completely excluded from its scope.
Ownership concentration and ‘state advertising’
Another key topic was the issue of media ownership concentration and the closely related topic of ‘state advertising’. According to the panellists, both areas are poorly regulated in the Czech environment, yet they pose fundamental risks to media plurality and independence. The European Media Freedom Act emphasises precisely these points and highlights how weak the safeguards are in the Czech Republic at present.
‘This is something that we have not addressed at all in the Czech Republic,’ Iveta Kvardová pointed out in connection with state advertising. She explained that this refers to funds that the state or its authorities invest in the media, for example through advertising. If this system is not sufficiently transparent, it can become a tool for rewarding ‘compliant’ media and disadvantaging critical ones. ‘We feel that we don't have a problem with this, but we don't really know because we don't have proper data,’ she added.
The second area that EMFA wants to address is mergers and acquisitions in the media market. According to Kvardová, the Czech Republic is lagging behind in this area as well: ‘We currently have no special rules. EMFA wants us to stop assessing the media in the same way as ordinary companies, where turnover is a telling indicator. In the media, turnover does not tell us much.’
In her view, the problem lies not only in the absence of regulation, but also in the lack of clarity as to who should assess mergers and on the basis of what criteria. ‘The EMFA does not tell us exactly. It only sets out general principles,’ she adds.
Marína Urbániková followed up with the observation that there is virtually no debate on media ownership concentration in the Czech Republic. ‘Firstly, we don't have the data. Secondly, we can't agree on what metrics to use. And thirdly, we know what the situation is in economic terms,’ she summarised. Nevertheless, she believes that even under these conditions, it is necessary to set clear indicators and rules that would allow mergers to be assessed not only in economic terms, but also in terms of their impact on plurality and editorial independence.
Who is a journalist? And who decides? EMFA and the role of self-regulation
When EMFA talks about media protection, it omits the fundamental question of who actually falls into this category. The regulation itself does not explicitly define the term ‘journalist’. Instead, it uses the terms ‘media service’ and ‘media service provider’, deliberately leaving room for interpretation. As Marína Urbániková pointed out, the term journalist does not appear in the articles of the regulation itself, only in the preamble. The fundamental question, however, is: who will decide who is a journalist and who is not? This is where the concept of self-regulation comes into play.
The term ‘journalist’ also plays an important role in the aforementioned claim to protection for journalists. Cibulka warned that if the journalistic community is unable to define the term itself, the state will most likely do so for it. According to him, although the EMFA does not impose self-regulation on anyone, in reality, without it, it will not be possible to enjoy some of the benefits offered by the law, such as privileged treatment on digital platforms.
Cibulka pointed out that platforms such as Facebook and TikTok will not evaluate who is a media outlet and who is not. They will rely on lists drawn up by individual states. And if there is no professional body that can guarantee editorial standards and professional affiliation, state authorities will decide.
According to Urbániková, the Czech Republic lacks a strong self-regulatory body and public debate that would support its creation. Although the EMFA does not mandate self-regulation, it repeatedly recommends it and offers space for both internal editorial tools (codes of ethics, editorial boards) and the creation of a broader professional structure at the industry level. Such an institution, similar to media chambers abroad, could not only set standards, but also receive complaints from the public and impose soft sanctions, for example in the form of mandatory publication of rule violations.
Delayed implementation
The European Media Freedom Act will come into force in August this year, but the Czech Republic is clearly not ready to implement it. At the Journalists' Forum, it was said that the delay is not only the result of legislative slowness, but also the consequence of a systemic underestimation of the entire agenda, both on the part of the state and in public debate.
Kvardová pointed out that key issues remain unresolved just three months before the law comes into force. ‘It's not five minutes to midnight anymore, I think it's more like half past midnight for implementation.’ Urbániková described the situation from the perspective of the legislative process. According to her, the Ministry of Culture was so overwhelmed with the preparation of the so-called small and large media amendments that the EMFA simply did not get any attention.
Kvardová also pointed out that the delay is not solely the fault of the Czech Republic. Even the European Commission itself has not yet issued the necessary interpretative documents, and there is also a lack of methodology from the European Media Services Authority, which was only recently established. However, the state and efficiency of the Czech Chamber of Deputies also contribute to the problems, which also contribute to considerable scepticism.
Jan Cibulka also pointed out the complexity of the entire agenda. The EMFA affects not only the media, but also criminal law, the work of intelligence services and the functioning of the courts. ‘The EMFA is wide-ranging; it is no longer just a matter for the Ministry of Culture, but also for the Ministry of the Interior and the Ministry of Justice,’ he said. The Ministry of Culture does not have sufficient weight in this hierarchy to enforce the necessary coordination across government structures.
The discussion showed that the current draft of the Czech implementation law on EMFA does not contain any sanctions, which the panellists described as a fundamental shortcoming. Without effective penalties, there is a risk that the rules will remain toothless. The penalty framework should not only be part of the law, but also sufficiently dissuasive. At the same time, it was suggested that the Czech Republic could set stricter protections for journalists than required by the European regulation itself, if it so wished.
The debate showed that without a clear political mandate and expert coordination, there is a risk that the Czech Republic will not only fail to implement the EMFA in a meaningful way, but will also miss the opportunity to set rules that would truly protect journalists' work and ensure media plurality.
Author: Eliška Schejbalová, NFNZ communications team
Source: mediaguru.cz