By Danielle Borges, Research Associate at the Centre for Media Pluralism and Media Freedom (CMPF) of the European University Institute (EUI)

The European Media Freedom Act (EMFA) included ownership transparency obligations among the duties of media service providers under Article 6. In the media sector, ownership transparency can serve different specific goals, such as avoiding the concentration of media markets, protecting quality journalism, reinforcing audience credibility, and avoiding political influence over content and conflicts of interest. Altogether these specific goals contribute to media pluralism and diversity and, as a consequence, to the formation of public opinion and, more generally, to fostering participatory democracies. 

The obligations contained in Article 6 aim at different objectives, including the disclosure of different types of information. While Articles 6(1) and (2) are concerned with the disclosure of ownership and financial information of media service providers, Article 6(3) concerns measures to guarantee editorial independence, including the disclosure of conflicts of interest by media service providers. This blog post, however, concentrates on the obligations related to media ownership and, thus, on Article 6(1) and (2).

Recitals 32 and 33 explain the motivation behind the disclosure of ownership information and structure to the recipients of media service providers. The recitals refer to the economic and non-economic aspects of transparency: on the one hand, the disclosure of ownership and financial information of media providers allows users of services to know who owns a media outlet media, thus enabling them to identify potential conflicts of interest; on the other hand the availability of information on media ownership, its structures and financial aspects contributes to a fair and healthy media market environment: it enhances accountability and control as it allows governments and national authorities to verify compliance with competition rules, contributing to the quality of media services and to the EU internal market as a whole. Moreover, this motivation also demonstrates that EMFA encompasses both the civic and administrative dimensions of transparency, also called ‘downwards’ and ‘upwards transparency’ (Craufurd Smith et al., 2021).

The wording of these Recitals shows that the objective of ensuring ownership transparency in the media market is not restricted only to the economic, corporate, or criminal aspect, as is the case of commercial and anti-money laundering laws, such as the Directive 2015/849. Therefore, Article 6 has a strong commitment to protecting editorial independence and the readership/audience, reinforcing the right of citizens to choose their source of information freely and consciously, and also allowing other actors, such as journalists, civil society, and researchers, to independently monitor possible misconduct, conflicts of interest and abuse of power in the media sector.

With these aims expressed by legislators, Article 6(1) requires media service providers to make the following information easily and directly accessible to the recipients of their services: 

(a) their legal name or names and contact details; 

b) the name or names of their direct or indirect owner or owners with shareholdings enabling them to exercise influence on the operation and strategic decision-making, including direct or indirect ownership by a state or by a public authority or entity; 

c) the name or names of their beneficial owner or owners as defined in Article 3, point (6), of Directive (EU) 2015/849; 

d) the total annual amount of public funds for state advertising allocated to them and the total annual amount of advertising revenues received from third-country public authorities or entities.

The information required under Article 6(1) is quite similar to that mentioned under points 4.5 and 4.7 of Recommendation CM/Rec (2018)1[1]. In effect, even before the EMFA adoption, some Member States had already put in place legislative frameworks that required media service providers to disclose such information. Some countries improved their media ownership transparency requirements by adopting/changing their laws to comply with the Anti-Money Laundering Directive. However, in the absence of a harmonised media-specific framework, the situation remained fragmented across the EU in terms of the disclosure of media ownership information as illustrated by the Media Plurality and Diversity Online Study from the European Commission (2022). Another problem pointed out by the study is the heterogeneous levels of disclosure in different  Member States, with problematic issues such as missing information; outdated information; inaccessible information to the general public; or information available in non-friendly format files. 

In this regard, Article 6(2) can be considered an important measure to tackle the differences in the disclosure of ownership information found across the EU to eventually reach harmonisation. It builds up on point 4.8 of Recommendation Recommendation CM/Rec (2018)1[1] and on Section III of Recommendation (EU) 2022/1634. EMFA does not specify which authority is responsible for storing this information, stating that “Member States shall entrust national regulatory authorities or bodies or other competent authorities or bodies with the development of national media ownership databases containing the information set out in paragraph 1.” Therefore, Member States have the possibility to use other databases already existing in their legal framework, such as the one under Article 30 of the Anti-Money Laundering Directive (Directive 2015/849/EU) or commercial registers databases, adding and adapting the specific information required under Article 6(1) points (a) to (d).

By requiring media service providers to provide their users with easy and direct access to ownership information, including beneficial owners, EMFA strengthens the right of citizens to freely and consciously choose their source of information, to be aware of the potential inclination or bias (political or economic) of a media service in light of its ownership.

Nevertheless, the full implementation of these transparency obligations across the EU may not be an easy task, and will require a major coordination effort by the EC, the European Board for Media Services, as well as national authorities and governments. One of the challenges to the full enforcement of  Article 6 is the argument raised in the recent decision of the Court of Justice of the European Union (CJEU) on Joined Cases C-37/20 and C-601/20 which declared invalid point (c) of the first subparagraph of Article 30(5) of the Anti-Money Laundering Directive. This requires Member States to ensure that information on beneficial ownership is accessible to the general public in all cases.

However, it is important to note that granting the general public access to information on beneficial ownership can potentially interfere with fundamental rights, such as the protection of personal data and respect for private life. Although ownership transparency in EMFA has a broader scope than combating money laundering, and that journalists are not affected by the mentioned CJEU decision, there is a possible risk for future enforcement when it comes to the disclosure of media ownership to the general public. In order to avoid this conflict of fundamental rights, Recital 32 explains that, in the context of media systems, “the disclosure of targeted media ownership information would produce benefits clearly outweighing any possible impact of the disclosure obligation on fundamental rights, including the right to private and family life and the right to protection of personal data. In that context, the measures taken by Member States under Article 30(9) of Directive (EU) 2015/849 of the European Parliament and of the Council (11) should not be affected.”

Another challenge in the implementation of this provision will be how to standardise the ownership information disclosed by news media services. Recital 32 provides some guidance, stating that “The required information should be disclosed by the relevant media service providers in an electronic format, for instance on their websites, or another medium that is easily and directly accessible.” This task may be easier at the national level, but if the aim is for national authorities to build databases that allow for cross-country/cross-jurisdictional searches, this will require additional coordination efforts at EU level. In effect, considering that Article 6 will also affect the disclosure of ownership information in the audiovisual sector and thus have an impact on the application of Article 5(2) AVMSD (Directive 2010/13/EU), Recital 46 EMFA recognises that the implementation of this provision of the AVMSD in conformity with Article 6 will require guidelines from the EC with the assistance of the European Board for Media Services, in order to achieve legal certainty in that field.

Finally, while acknowledging the progress made by the ownership rules provided by EMFA, it can be argued that there is still important information that is not included in Article 6(1). According to Tomaz (2024), in terms of financial information to be disclosed by media providers, EMFA has focused mainly on public funding (Article 6(1)(d)), but the absence of comprehensive systematic information on news media revenues, including private funding, may reveal an extremely partial and distorted picture in this respect. The only private funding that is required to be disclosed according to Article 6(1)(d) is the ones coming from third-country entities, which seems to be a measure of the EU legislator to tackle foreign information manipulation and interference as referred, for instance, in several Recitals 14, 47, 74 and Articles 19 and 26 EMFA.

To conclude, while EMFA represents a major advancement in the harmonisation of the disclosure of media ownership information, as herein discussed, there are some challenges ahead regarding the implementation of the transparency rules which may limit the potential of Article 6 to contribute to media pluralism, quality journalism and, as a consequence, to a healthier media ecosystem.

References:

Council of Europe (2018) Recommendation CM/Rec (2018)1[1] of the Committee of Ministers to member States on media pluralism and transparency of media ownership.   Adopted by the Committee of Ministers on 7 March 2018 at the 1309th meeting of the Ministers’ Deputies.

Craufurd Smith, R., Klimkiewicz, B., and Ostling, A. (2021). Media ownership transparency in Europe: Closing the gap between European aspiration and domestic reality. European Journal of Communication, 36(6), 547–562. https://doi.org/10.1177/0267323121999523.

European Commission (2022) Commission Recommendation (EU) 2022/1634 of 16 September 2022 on internal safeguards for editorial independence and ownership transparency in the media sector

European Commission (2022) Directorate-General for communications networks, content and technology, Parcu, P., Brogi, E., Verza, S. Study on media plurality and diversity online: final report. Publications Office of the European Union. https://op.europa.eu/en/publication-detail/-/publication/475bacb6-34a2-11ed-8b77-01aa75ed71a1/language-en

Tomaz, T. (2024). Media ownership and control in Europe: A multidimensional approach. European Journal of Communication, 39(5), 498-511. https://doi.org/10.1177/02673231241270994