ARTICLE
8 January 2025

Media Law Trends 2024

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PLMJ

Contributor

PLMJ is a law firm based in Portugal that combines a full service with bespoke legal craftsmanship. For more than 50 years, the firm has taken an innovative and creative approach to produced tailor-made solutions to effectively defend the interests of its clients. The firm supports its clients in all areas of the law, often with multidisciplinary teams, and always acting as a business partner in the most strategic decision-making processes.
The Technology, Media and Telecommunications team has prepared a Guide with the most relevant Trends of 2024 in media law. Here you can consult the main highlights on the The European Media Freedom Act – EMFA.
Portugal Media, Telecoms, IT, Entertainment

1. The European Media Freedom Act – EMFA

The EMFA 1 is a European regulation that establishes a common framework for media services in the European Union's internal market. It aims to protect the pluralism, freedom and editorial independence of the media, and to protect journalists and media service providers from political interference.

The EMFA establishes the European Board for Media Services, composed of representatives of national authorities and supported by a secretariat. Among other things, the Board will act independently, promote the effective and consistent application of the European Union's media regulatory framework and replace the European Regulators Group for Audiovisual Media Services (ERGA) established by the Audiovisual Media Services Directive (AVMS Directive) 2.

1.1. KEY FEATURES OF THE EMFA:

  • Protection of editorial independence: media service providers have the right to operate without undue interference, ensuring editorial independence and freedom.
  • Protection of journalistic sources: safeguards will be put in place to protect the confidentiality of journalistic sources and communications, including against the use of intrusive surveillance software
  • Allocation of public funds for state advertising: rules on the transparency of state institutional advertising will be introduced.
  • Ownership transparency: the media will be obliged to disclose information on their ownership and sources of funding, thus promoting transparency in the sector
  • Assessment of market mergers: Member States must assess mergers in the media market that are likely to have a significant impact on media pluralism and editorial independence.
  • Users' right to customise the media offering: users have the right to easily change the settings of any device or interface that controls access to media services in order to personalise the offer according to their interests or preferences.
  • Audience measurement: providers of audience measurement systems will have to provide media service providers and advertisers with information on the methodology used by the audience measurement systems.
  • Very large online platforms (VLOPs): VLOPs will have to provide new functionalities for service recipients to declare that they are media service providers, subject to regulatory requirements for the exercise of editorial responsibility. If content produced by a recognised media service provider is removed, the platform must notify the media service provider and provide a clear explanation of the decision. The media service provider has the right to appeal.

Several of the obligations set out in the EMFA are not new to the Portuguese legal system. The safeguarding of editorial independence and the protection of journalistic sources are values that are present in virtually all media legislation in Portugal. Transparency of ownership is regulated in detail by Law 78/2015 (the Media Transparency Law), which seeks to ensure transparency in the ownership, management and means of financing of organisations carrying out media activities. With regard to market concentration operations, Law 27/2007 of 30 July (the Law on Television and On-Demand Audiovisual Services) and Law 54/2010 of 24 December (the Law on Radio and Television Broadcasting) contain specific provisions that make concentration operations subject to the intervention of the Competition Authority and the prior opinion of the ERC (the Portuguese Regulatory Authority for the Media), as well as changes in the ownership of operators subject to the prior approval of the ERC. Also with regard to state advertising, Law 95/2015 of 17 August establishes the rules and transparency obligations to which state institutional advertising campaigns are subject, as well as the rules applicable to their distribution in the national territory through local and regional media.

The regulatory landscape for media services in the European Union is very diverse. In contrast to Portugal, there are Member States with very little regulation of the sector. The challenge for the Portuguese legislature will therefore be to adapt the existing legal framework to the specific provisions introduced by the EMFA to ensure that the national rules do not conflict or overlap with the EMFA rules.

The challenge for the Portuguese legislature will therefore be to adapt the existing legal framework to the specific provisions introduced by the EMFA

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2. The Digital Services Act – DSA

The DSA 3 aims to regulate intermediary mere conduit, caching and hosting services (which include online platforms), in order to ensure the safety of users, the protection of fundamental rights and the creation of a fair and secure online environment. With regard to the media sector, the DSA is fundamental due to the content moderation obligations applicable to online platforms.

In Portugal, Decree-Law 20-B/2024 of 16 February designates ANACOM (the national regulatory authority for communications), the ERC (the regulatory authority for the media) and the IGAC (Inspectorate-General of Cultural Activities) as competent authorities, with ANACOM acting as coordinator of digital services. The ERC is the competent authority for media and other media content. In its opinion on the draft Decree-Law designating the competent authorities and the coordinator of digital services in Portugal [Decision ERC/2024/63 (Legal Op)] of 7 February 2024, the ERC warned that its powers should not be limited to "media matters" only, as envisaged in the proposal, but should also include "other media content", which was adopted in the final wording of the Decree-Law.

At the time of writing, Draft Law 32/XVI/1st, which is intended to ensure the implementation of the DSA in the national legal system, is under discussion.

Throughout 2024, the Commission has published various instruments to assist in the interpretation and implementation of the DSA:

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3. The Anti-SLAPP Directive

The Anti-SLAPP Directive 4 provides procedural safeguards to protect people who participate publicly in matters of public interest from manifestly unfounded or vexatious civil litigation, known as SLAPPs (Strategic Lawsuits Against Public Participation). Persons potentially falling within the scope of protection of the Directive include journalists, editors, media organisations, whistleblowers, human rights defenders, civil society organisations, NGOs, trade unions, artists, researchers or members of the academic community. The aim of the Anti-SLAPP Directive is to remove obstacles to the proper functioning of the civil justice system by preventing legal actions aimed at silencing people who take part in public participation activities.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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