6 September 2023

Media freedom: can Brussels agree on landmark law to protect Europe’s at-risk journalists?

Sigrid Melchior
Sigrid Melchior
Harald Schumann
Harald Schumann
Mounting restrictions on the press are creating a "desperate situation", warns Věra Jourová, the EU Commissioner behind a new law aimed at safeguarding media pluralism. The Media Freedom Act, set to be voted on in the European Parliament, could provide crucial protections to journalists and trigger a wave of lawsuits against governments which fail to abide by it.
Sofia Mandilara really likes her job. As a reporter for the Greek news agency Amna, she is "often at the forefront of important events", she says. "Through us, people find out what is going on in our country". But not all that goes on in Greece is reported. This is because Amna belongs to the state and is subject to the office of Prime Minister Kyriakos Mitsotakis. Anyone who reports critically on his conservative government is censored, the 38-year-old says. Recently, her editors cut quotes from two Supreme Court judges who spoke against a government bill, and reporters "quite often engage in self-censorship" to avoid trouble with management. The consequences are dramatic, as much of Greece’s media rely on Amna for news with others left to fill the void in critical reporting. The Greek “Watergate” scandal, revelations last year that authorities used spyware to target journalists, was uncovered by small independent outlets like Reporters United and Inside Story, and for months went ignored by mainstream newspapers and TV stations.

A similar situation exists at the Italian state broadcaster, Rai. With more than 12,000 employees, Rai plays a major role in shaping public opinion. But it is increasingly under the influence of Italy’s right-wing populist government. Immediately after taking office in October 2022, Prime Minister Giorgia Meloni filled all management positions with her followers. The two previous governments did the same, but none as radically as Meloni. Prominent reporters left and even high-profile journalist and anti-Mafia author Roberto Saviano’s show was cancelled after he tangled with Meloni. Confirmatory reports about Meloni’s government, meanwhile, account for around 70 per cent of all political news on Rai stations, according to the media research institute Osservatorio di Pavia. "There is no need for censorship here now", says Daniele Macheda, secretary of the broadcasters’ union. "The whole system is gagged; critical news just doesn’t get through anymore.” 

Journalists at the Journal du Dimanche (JDD), France’s leading Sunday newspaper, have also suffered a radical change of regime. In the spring, Vivendi, owned by billionaire Vincent Bolloré, got the go-ahead to buy the publishing giant Lagardère, including the JDD. Bolloré publicly denies any political interest. But as with his acquisitions of CNews in 2016 and the magazine Paris Match last year, the buy-out was followed by a sharp turn in the editorial orientation of the JDD. The editor-in-chief soon departed and the far-right journalist Geoffrey Lejeune took his place. At first, the entire staff went on strike, claiming Lejeune was responsible for "despicable" and "racist" articles in his previous position at Valeurs Actuelles, a magazine which had drifted from right-wing to far-right positions. His appointment, according to the striking staff, was driving away readers and "endangering the newspaper".
Protests took place in Athens last year in the wake of the spyware scandal that rocked Kyriakos Mitsotakis' government.Shutterstock

State officials who demand censorship, party functionaries who misuse public broadcasters for their propaganda and billionaires who buy media to propagate their own political interests - what was long known only in Viktor Orbán’s Hungary - is spreading across Europe. The creeping decline in media freedom and pluralism has been documented for years by the Centre for Media Freedom at the European University of Florence, an EU-funded project. There is now "an alarming level of risk to media pluralism in all European countries", researchers wrote in their annual report in June.

This puts Europe in a "desperate situation", says Věra Jourová, the EU Commission vice-president for values and transparency. The Czech Commissioner has personal experience of life without a free press. "I lived under communism, that was uncontrolled power - and unchallengeable power. This should not happen in any EU member state," she tells Investigate Europe. Media are "the ones who keep politicians under control. If we want the media to fulfill its important role in democracy, we have to introduce a European safety net." That is why she is pushing to implement a landmark EU law "to protect media pluralism and independence", which would set legally binding standards to preserve press freedom in all EU member states.

She and her colleagues introduced the bill in September 2022. Among other things, it provides that:
  • public service media must report "impartially" and their leadership positions must be "determined in a transparent, open and non-discriminatory procedure" and may only be dismissed before the end of their term of office in legally clearly defined "exceptional cases";
  • the allocation of state funds to media for advertising and other purposes must be made "according to transparent, objective, proportionate and non-discriminatory criteria" among all providers, regardless of political orientation;
  • governments and media companies must ensure that the responsible "editors are free to make individual editorial decisions";
  • owners and managers of media companies must disclose "actual or potential conflicts of interest" that could affect reporting;
  • it is "not permitted" to force journalists and other media workers to reveal their sources through "detention, surveillance or confiscation" or install spyware on their phones and computers;
  • a board made up by representatives of the 27 national supervisory authorities assesses whether the EU states actually comply with these regulations.
Rai, Italy's state broadcaster, has faced growing criticism for its connections to the government.

Roberto Saviano is among those to have had shows cancelled by Rai since Prime Minister Giorgia Meloni came to power.

All of this seems self-evident for democratic states - and yet it met with massive resistance from not only Hungary and Poland, but also Austria and Germany. They argued the proposal is overreaching, "with reference to the cultural sovereignty of the member states", according to minutes from the legislative negotiations in the EU Council, obtained by Investigate Europe. The four governments wanted a directive rather than a legally binding regulation. A change that gives governments a lot of leeway when they implement the EU rules nationally, which would allow the governments to undermine the unwelcome EU law.

In Germany, media supervision is the task of regional states. On their behalf, Heike Raab from the state government of Rhineland-Palatinate, led the negotiations in the EU Council. The EU was acting as a "competence hoover in an area that was expressly reserved for the member states in the treaties", Raab argued, saying the law would be an "encroachment on publishers’ freedom" in line with the respective lobby. If publishers are no longer allowed to dictate the content of their media alone, this would "destroy the freedom of the press", the Federal Association of Newspaper Publishers declared.

The Die Zeit newspaper recently revealed how the power of publishers is abused also in Germany. According to the report, the head of the Axel Springer publishing group Matthias Döpfner, explicitly instructed the editorial staff of leading tabloid Bild to support the market-liberal FDP in the Bundestag elections. Despite such abuses of power by its members, documented in many EU countries, the European Publishers Association claimed that the EU proposal was in fact a "media unfreedom act". However, Raab and the publishers’ lobby failed to present any practical proposals on how to stop the attacks on editorial freedom by publishers like Bolloré in France and similar investors in Hungary, Greece or even Italy.

Therefore such opposition has proved largely unsuccessful. Although several controversial amendments to the law have been put forward. Most notably when a majority of EU governments backed a change to allow the possible use of spyware against journalists in the name of national security, which was revealed by Investigate Europe and was met with massive protest, not least in the European Parliament. However, the key proposals of Jourová and her colleagues were adopted in June by most EU governments. Only the Poles and the Hungarians voted against. If, as expected, the parliament also gives its approval at the beginning of October, the law could come into force early next year - and trigger a small revolution in the European media system. At least that is what Jourová hopes. It will be "a reliable basis" for lawsuits against the restriction of media freedom, she believes, "which so far have had absolutely no chance in many countries.”
The direct influence on public service media by way of appointment of politically affiliated managers, as seen in Greece and Italy, for example, would not be compatible with the new law. “The state must not interfere in editorial decisions", Jourová says. If a member state does not comply, the Commission could open proceedings against the government for violation of the EU treaties. And if the violations continue, this could "lead to very serious financial penalties from the European Court of Justice.” 

Journalists themselves could also sue governments or private media owners in national courts against censorship or surveillance on their part, the Commissioner explains. "Exactly because of these possible cases, we insist that it must be a directly applicable regulation. So the journalist can rely on the proper wording of the law", she says. "The main purpose is to protect them against interference in their work by harassment from the site of the owner or of the state.”
Staff at the Journal du Dimanche in France went on strike to protest the newspaper's change in editorial direction.Shutterstock

It is questionable, however, whether this can help reverse the decline of media diversity in the right-wing populist-ruled Eastern European states. The Hungarian and Polish government are already accepting the blocking of billions in payments from EU funds because they violate the principles of the rule of law with its political control of the courts. So why should they fear further rulings by EU judges?

Viktor Orbán’s regime has for years engineered a "creeping economic strangulation" of independent media in Hungary, says journalist Zsolt Kerner of the online magazine 24.hu. The government withdrew all state advertising contracts for independent media and then pressured commercial advertisers to do the same. Today, advertising revenues only go to media loyal to the government. 24.hu survived only thanks to an economically strong and independent investor. The rest either had to close or were taken over by stooges. As a result, the pro-government Kesma group now controls more than 500 newspapers and magazines. The independent Klubrádió was summarily deprived of its broadcasting licence by authorities and the remaining online media rely on reader donations and have "hardly any access to state information", says Kerner. This would all become illegal with the planned regulation because EU law trumps national legislation. But Kerner and his colleagues "doubt whether it will do any good in our country." After all, the government has "many good lawyers".

"Maybe Hungary is a bit immune now," admits Commissioner Jourová. But there, too, the government will "sooner or later feel the political impact". An “independent European media board", including media experts from all 27 EU states, is planned under the new regulation. While the board can decide by majority vote only on assessments without legal consequences, Jourová expects that countries "which the board certifies as restricting media freedom" will "lose their international reputation, for which most governments are very sensitive.” 
This could well put pressure on the right-wing nationalists in Poland, thinks Roman Imielski, deputy head of Gazeta Wyborcza, the country’s last major independent newspaper. Prime Minister Mateusz Morawiecki’s government has also turned public television and the national news agency into "a Russian-style propaganda machine" that brands all critics as "traitors to the nation and conspirators", Imielski says. But if Poland looks bad to the US government, "that puts pressure on it", as happened when the government tried to force the sale of the government-critical TVN station, owned by the US group Warner Bros. Discovery, to a Polish buyer. Under pressure from Washington, the Polish president vetoed the corresponding law in 2021. 

When or even if Jourová’s grand plan actually becomes law is still unknown. After the parliamentary adoption scheduled for the beginning of October, its representatives still have to agree on a common text with the Council. However, they have contradictory views on two central issues. Most EU governments want to reverse the planned ban on the use of surveillance software against journalists and explicitly allow it in cases of danger "to national security". This is flatly rejected by the parliament’s Legal Affairs Committee and Jourová also warns against a "blank cheque" for the secret services. "We have to enter the negotiations with goodwill to have a final solution. But the goodwill finishes where we might worsen the situation of the journalists," she declares. In other words: If the governments insist on their position, the Commission could withdraw its legislative proposal.
EU Commissioner Věra Jourová is pushing to implement a landmark EU law "to protect media pluralism and independence".European Parliament

Article six, which obliges media owners to respect "editorial freedom", is also highly controversial. Member states, including Germany, want to weaken this provision also considerably by only granting this freedom "within the editorial line" set by media owners. If successful, the law would fail at a crucial point. And not only in the French case of Bolloré or the German Springer publishing house. In Italy, for example, the Agnelli family, owners of the Fiat group, bought an entire press empire and control national newspapers La Repubblica and La Stampa. In Greece, meanwhile, powerful shipowners own almost all mainstream media outlets and are closely allied with the government.

“The problem is not media concentration in itself, the problem is that it gets into the wrong hands,” says Gad Lerner, a columnist at the still independent Il Fatto Quotidiano, who worked for La Repubblica until it was sold. “More and more entrepreneurs with a core business in other industries are buying newspapers, TV or radio to give visibility to the politicians on whom they depend for their real business."

"Of course, we don’t want rich people to buy media to influence politics. But we are not here to micromanage how the newsrooms should be organised,” Jourová says, pointing to the need for civil society and journalists to help push for stronger editorial freedoms. 

The Greek journalist Sofia Mandilara at the state news agency has already given a starting signal for this. With the help of the trade union, she filed a public complaint against the censorship of statements critical of the government in one of her articles and - to her surprise - was proven right and allowed to write another article on the subject. Since then, "at least they always ask me when they want to change my texts", she says with a laugh.

Editor: Chris Matthews
Graphics: Marta Portocarrero


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