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Newsletter from 17/09/2022

FairDigitalEurope   European Media Freedom Act – Curse or blessing?   14/09/2022  
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European Media Freedom Act – Curse or blessing?

The European Commission is about to present the European Media Freedom Act – and there are already many critical voices.

What is the European Media Freedom Act?

The EU Commission is introducing a law this week that is intended to protect the press in the European Union from state surveillance and influence. A key point is a general ban on arresting, searching, punishing or monitoring journalists and their families in order to access their sources. The only exceptions are surveillance measures “in the public interest”. The draft expressly forbids the use of state Trojans for surveillance. Their use should only be permitted for reasons of national security or in the investigation of serious crimes. Every measure must be compatible with the EU Charter of Fundamental Rights.

With its proposal for the European Media Freedom Act, the Commission is responding to growing concerns about press freedom in some EU countries. In Hungary, Poland and Greece, journalists were recently hacked with the state Trojan Pegasus. However, the Commission also sees unclear ownership structures and the concentration of media ownership in a few hands as a threat, as well as state influence through subsidies, such as in Austria. The Commission also makes proposals on these points. The Commission’s draft was leaked by the French medium Contexte before the official presentation of the law (available here).

In its proposed law, the Commission points out that journalists in different EU countries do not always enjoy the same level of legal protection from state surveillance. The law is intended to change this and, for the first time, place reaction secrecy under the protection of EU law. Journalists spied on by the state must be given the opportunity to complain to an independent national body. This must decide within three months whether the surveillance measure was justified. In the event of a dispute, those affected can go as far as the European Court of Justice – a legal recourse that was previously not possible in the case of such violations of press freedom.

European Media Freedom Act – Opinions of NGOs, Press and others

NGOs expressed concerns in advance as to whether the Commission’s ideas would go far enough. For example, they doubt how effective the proposed surveillance ban actually is. Because the Hungarian government and the Polish government expressly referred to the protection of national security when monitoring journalists. In addition, protection against surveillance should not be limited to certain technologies such as Trojans, criticizes the civil rights organization Liberties.eu.

The Commission’s proposal that platforms such as YouTube and Facebook must create privileged complaint channels for news media against the deletion or blocking of their content is also controversial. Accordingly, media appeals against deletion decisions should be given priority over other such complaints. If a medium with its content regularly loses access to a large platform, the latter must enter into a dialogue about a “friendly solution” to the problem, according to the Commission’s draft. However, this media privilege could involuntarily support the propaganda of authoritarian states like Russia, criticizes Liberties.eu. A similar proposal for a privilege for press publishers in the recently passed Digital Services Act was rejected by a majority in the European Parliament.

The fact that the Media Freedom Act could bring a transparency advantage for public advertisements is positively received. In countries like Austria, the public sector distributes millions of dollars to media for advertising placements, the effectiveness of which is at least questionable. The law proposed by the EU Commission now stipulates that publicly funded advertising must be distributed according to objective, transparent criteria. Also, the disbursement of funds to the media would have to be disclosed in full.

Meanwhile, there has been criticism of the Commission’s proposals about media pluralism. Experts had asked the commission to counteract tendencies like those in countries like Hungary. There, pro-government businessmen have bought up most of the private newspapers, radios and news sites – only government lines can be written and broadcast in these. However, the Commission’s draft law does not contain any binding measures against this. Instead, it only proposes that media concentration be regularly surveyed by an independent authority – with no consequences if the result is problematic.
 
Platform worker directive – new compromise amendments and how France lobbied against the proposal

France is lobbying over the right of platform workers

According to documents obtained by EURACTIV, France heavily lobbied the European Commission over the rights of platform workers, favouring the position of platforms and raising more concerns of collusion between French decision makers and industry lobbyists. The documents show that France pushed the European Commission to ditch the presumption of employment in the platform workers directive before the proposal was even published. According to a letter by the French Permanent Representation to the EU, the French authorities were against the rebuttable presumption of an employment, because it would be against the French legal model that preserves self-employed workers’ autonomy and flexibility and is in line with the economic model of platforms.

The Commission’s proposed directive, published in December 2021, failed to address France’s concerns. Instead, it went a step further than Parliament: Article 4 of the proposal, which creates a “legal presumption”, defines a set of five criteria “indicating that the digital work platform controls the execution of the work. The fulfilment of at least two indicators should trigger the acceptance of this presumption”. According to a confidential document, France is hoping for a slowdown in negotiations under the Swedish EU Council Presidency from January 2023, which rejects the directive. “However, the Spanish Presidency [from July 2023], which is already very advanced on this issue at national level, could decide to diverge the directive widely from French legislation,” the letter also reads.

New compromise amendments towards a broad-scoped legal presumption

New compromise amendments drafted by the European Parliament’s rapporteur show that MEPs are heading towards a broad-scoped legal presumption of employment. The EU-wide criteria should now serve as necessary conditions that platforms must meet in order to rebut the presumption. The initial Commission draft had set out five EU-wide criteria that could determine whether platforms controlled workers’ “performance of work”. If at least two of these criteria were met, the legal presumption of employment was triggered. Under these new, yet-to-be-agreed amendments, this “triggering” would disappear for a more general rebuttable presumption of employment.
 
Instagram fined 405 Million Euros

The Irish Data Protection Commission (DPC) has announced that Meta subsidiary Instagram has been fined for failing to comply with data protection and privacy requirements for minors.

Sensitive data such as telephone numbers and e-mail addresses of children are said to have been published among them. However, §8 of the GDPR stipulates that children under the age of 16 must have the consent of their legal guardian for Instagram to be able to process the personal data at all. The online platform would therefore have to continuously check the age of its users to determine which users require such consent.

The Meta group defends itself and wants to counteract the high fine; the determination of the violation refers to outdated settings. Meta states that there are now functions on the platform that explicitly protect children and young people. In this regard, the social network published a package of measures at the beginning of the year, including a new method for age verification. In the future, this should prevent users from being under the minimum age of 13 if they want to join Instagram.

At 405 million euros, the fine is in second place in the ranking of penalties imposed for GDPR violations and only behind an Amazon fine from 2021 of 746 million euros. The penalty is the biggest handed down by the Data Protection Commissioner Helen Dixon since she assumed sweeping powers in 2018 to supervise the pan-European operations of technology companies such as Meta that have their EU headquarters in Dublin.     Stay tuned by subscribing to this newsletter here and help us expand the network!