Autori

Simona Chiesa - Junior Researcher Mondo Internazionale G.E.O. Cultura & Società

Margherita Gobbo - Senior Researcher Mondo Internazionale G.E.O. Cultura & Società

Marco Rizzi - Senior Researcher Mondo Internazionale G.E.O. Cultura & Società

Matteo Restivo - Senior Researcher Mondo Internazionale G.E.O. Cultura & Società

Abstract

The landscape of press freedom in Europe is characterized by a complex interplay of challenges and opportunities. While events like pandemics and diplomatic tensions have provided pretexts for governments to impose regulations curtailing media freedom, there have also been notable initiatives aimed at enhancing press freedom and protecting journalists. The European Media Freedom Act (EMFA) stands as a significant milestone, seeking to address various challenges faced by media organizations and journalists, including editorial autonomy, transparency, and protection from surveillance. Civil society's role, particularly that of NGOs, is pivotal in advocating for journalist safety and promoting the rule of law. The case study of media capture in Hungary exemplifies the systemic erosion of media pluralism and the dangers of government control over the media landscape. In conclusion, urgent action is needed to safeguard press freedom in Europe, with comprehensive measures required to protect journalists and combat threats to media independence.

I. Introduction

Over the last few years, some events such as pandemics, wars, diplomatic tensions, and digital disinformation, turned out to be also opportunities to legitimize new regulations against media and journalists. On the pretext of protecting the population, governments have provided legal means to muzzle dissidents, accused in turn of “attempting to destabilize the State”, “digital terrorism” or “pacting with foreign powers”.

Despite this, 2023 has also been marked by some encouraging initiatives in the European Union - the launch of the Council of Europe’s Journalists Matter campaign, the drafting of the Council of Europe’s anti-SLAPP (Strategic Lawsuits Against Public Participation) recommendation, the adoption of the European Media Freedom Act and the anti-SLAPP Directive in the EU - which testify to the commitment of a significant number of governments to enhance press freedom and protect journalists, even if the fruits of that public commitment are in too many cases still awaited.

Civil society’s actions, NGOs, and journalists’ panels are working tirelessly to raise awareness and implement policies that protect press freedom, in order to stop threats and intimidation, detentions, restrictive legislation, SLAPPs, abusive lawsuits, media capture, and attacks on public service media. It is crucial to continue the efforts to address those issues, not only for the purpose of protecting editors and journalists, but also citizens’ right to access comprehensive and transparent information.

II. The European Media Freedom Act: protecting press freedom and journalists’ work

As highlighted in the annual rule of law reports by the European Commission and the Media Pluralism Monitor, recent years have witnessed concerning trends across the European Union. With the ongoing media landscape evolution, politicization and lack of transparency regarding ownership and allocation of state advertising funds, it becomes increasingly imperative to confront the challenges and opportunities concerning media freedom and pluralism (Brogi, Borges, Carlini, Nenadic, Bleyer-Simon, Reviglio, Trevisan, Verza, 2023).

The European Media Freedom Act (EMFA) was introduced as an initiative by Ursula von der Leyen, President of the European Commission, during her 2021 State of the Union address. She emphasized the importance of information as a public good and recognized that media companies cannot be treated merely as businesses. The initiative was subsequently included in the Commission's 2022 work program also because Reporters Without Borders released their annual World Press Freedom Index in May 2022, revealing that while the most severe violations of press freedom occur in non-EU countries, European nations have also witnessed declines in press freedom. Thierry Breton, the Commissioner for the Internal Market, pointed out the challenges faced by media companies, including declining revenues, threats to media freedom and pluralism, the dominance of large online platforms, and varying national regulations. He unveiled the Commission's proposal for the EMFA on September 16, 2022, emphasizing that it aims to establish common safeguards at EU level to ensure a diverse range of voices and to protect media from interference, whether from private or public sources (Laaninen, 2024).

A significant milestone was reached on 15 December 2023, with the Council and Parliament reaching a political agreement on the EMFA. Subsequently, the Council, at the Coreper level, endorsed the agreed text on 19 January 2024. The law passed on 13 March 2024 by a big parliamentary majority and officially adopted by the Council on 26 March 2024 (Laaninen, 2024).

The proposal, adopted by 464 votes in favor to 92 against and 65 abstentions is based on Article 114 of the Treaty on the Functioning of the European Union (TFEU), enabling the establishment of directly applicable regulations in Member States without the need for implementing legislation. It seeks to amend the rules of the Audiovisual Media Services (AVMS) Directive and complement the Digital Services Act (DSA).

The proposed regulation mandates that Member States uphold the actual editorial autonomy of media providers. These providers must establish measures ensuring the editors' freedom to make independent decisions within their professional scope once the overall editorial stance is agreed upon between owners and editors. Furthermore, transparency regarding ownership is to be ensured by media providers, who must publicly disclose this information on easily accessible platforms (European Commission, 2023).

The regulation supplements the existing framework by obliging all news and current affairs media services to disclose ownership details to their audience. To prevent rogue media providers from bypassing regulations, a clear, legally binding framework for national regulatory bodies' efficient cooperation is deemed essential. Such coordination is necessary to address potential public security threats posed by media providers established outside the Union (Laaninen, 2024).

The proposal also seeks to safeguard media, journalists, and their families from spyware usage. Exceptions to this protection are narrowly defined, limited to cases of national security or specific criminal investigations for crimes such as terrorism, child abuse, or murder. Such exceptions must be justified on a case-by-case basis where no other investigative method suffices (Laaninen, 2024).

Regarding the protection of journalistic sources, the proposal advocates harmonization at the EU level to address disparities among Member States' regulations. This harmonization is crucial as journalists increasingly engage in cross-border projects, facing legal uncertainties and uneven competitive conditions. The proposed rules affirm that journalists should not face prosecution for safeguarding their sources' confidentiality. Authorities will be prohibited from pressuring journalists and editors to disclose, including by detaining them, sanctions, office searches, or by installing intrusive surveillance software on their electronic devices (Laaninen, 2024).

Public service media, established by Member States, are acknowledged for their role in providing quality information and impartial coverage. However, they are susceptible to political interference due to their institutional proximity to the state and reliance on public funding. To ensure their editorial independence, funding should be stable, preferably allocated on a multi-year basis, and appointments to key positions should be transparent, with dismissal only under specific circumstances. Member States are required to evaluate the impact of media market concentrations, with the regulation providing a framework for assessing concentrations affecting media pluralism. Rules for the allocation of state advertising aim to prevent undue state influence, ensuring transparency in advertising expenditure (Laaninen, 2024).

The regulation enhances the transparency of audience measurement systems, particularly online, to impact media advertising prices. MEPs introduced measures to prevent large online platforms like Facebook, X (formerly Twitter), or Instagram from arbitrarily deleting or restricting independent media content. Platforms must first distinguish independent media, notify them before content deletion or restriction, allowing 24-hour response time. Media can bring cases to an out-of-court dispute settlement body or seek an opinion from the European Board for Media Services, established by the EMFA. (Cyber Risk Gmbh, 2024)

Additionally, users gain the right to customize their media experience on various devices and interfaces, such as connected TVs, enabling users to change the default settings to reflect their own preferences (European Commission, 2023).

III. Civil society’s initiatives and NGOs as contributors to the rule of law

The role of non-governmental organizations (NGOs) in enhancing journalist safety and promoting the rule of law is well-established. These organizations, through their advocacy, protective actions, and legal initiatives shield journalists from immediate threats and spearhead the development of a legal and normative framework that sustains media freedom globally.

In their seminal work, Voltmer and Wasserman (2014) argue that NGOs are critical in filling the gaps left by international governance structures, providing both a buffer and a bridge between journalists and aggressive state apparatus. They articulate how NGOs, by documenting abuses and providing legal support, uphold standards of freedom of expression as enshrined in international law. The influence of NGOs on national legal systems is particularly notable. According to Dragomir (2019), NGOs have been instrumental in shaping media laws around the world by lobbying for the decriminalization of defamation and pushing for laws that protect whistleblowers and journalistic sources. This has a direct impact on the rule of law, as these legal protections are fundamental to ensuring that journalists can perform their duties without fear of retaliation or censorship.

NGOs also play a crucial role in the policy-making process, as highlighted by Dupuy et al. (2016), who examine how NGO-led coalitions can influence international and national policies related to journalist safety. Their research illustrates that through strategic advocacy and public campaigns, NGOs can bring about significant policy shifts that prioritize the safety of journalists and media workers, thereby enhancing the overall health of democratic institutions. Moreover, the educational initiatives led by NGOs contribute significantly to raising awareness among policymakers about the importance of media freedom. As noted by Czepek et al. (2009), these educational efforts are vital for cultivating a policy environment that respects and upholds the independence of the media. These programs are aimed at informing legislators and the judiciary about the complexities of media operations in contemporary political landscapes but also about the critical need for robust protections for media personnel.

Building on the foundational efforts of NGOs in enhancing media law and policy, the establishment of structured platforms like the Safety of Journalists Platform of the Council of Europe exemplifies how these principles are put into practice on a larger scale. This transition from theoretical advocacy to practical application marks a significant step in the commitment to safeguard journalistic freedom and integrity globally.

The Safety of Journalists Platform of the Council of Europe stands as a critical initiative in the international efforts to safeguard journalists. Launched as a collaborative response to the escalating threats against media personnel in Europe, the platform functions supported by the Council of Europe, involving major press freedom organizations like Reporters Without Borders, the European Federation of Journalists, and ARTICLE 19. Its primary function is to record and publicize various threats or attacks on journalists and demand accountability from state authorities where these incidents occur. According to the Council of Europe's 2024 annual report, the platform has successfully initiated dialogues and pressured governments to take definitive action, thereby enhancing the immediate safety responses and contributing to the development of legal frameworks that provide long-term security for journalists (Council of Europe, 2024). This platform is instrumental in fostering an environment where violations against journalists are not merely reported but systematically addressed. By facilitating a structured dialogue between civil society and state actors, it ensures that issues of press safety are integrated into national and European policy agendas. The platform’s public accessibility and the transparency of its reports allow for a broader societal engagement, which in turn heightens the pressure on governments to uphold and strengthen the rule of law as it pertains to media freedom.

The importance of such platforms is evident in enhancing the legal and societal framework protecting journalists. As Rolnik et al. (2019) discuss, these platforms provide immediate safety nets but also contribute to the normative shaping of international responses to threats against media professionals. By serving as a liaison between media professionals and governmental bodies, the platform ensures that incidents are not isolated but are part of a constant dialogue aimed at enhancing journalist safety across Europe.

The synergy between NGOs through collaborative platforms like that of the Council of Europe has led to significant advancements in journalist safety and press freedom. These organizations, leveraging their collective expertise and resources, can mount more significant challenges to repressive measures and advocate effectively for the protection of media rights. For example, the International Federation of Journalists utilizes the data and alerts from the Safety of Journalists Platform to support its campaigns and interventions at various governmental and intergovernmental levels. The federation's efforts are crucial in both providing immediate support and recourse to threatened journalists and in influencing policy changes that benefit the broader journalistic community (International Federation of Journalists, 2020). Moreover, these collaborative efforts often lead to the development of comprehensive safety standards and legal protections. Through workshops, training sessions, and public advocacy, these organizations work to elevate the standards of journalist safety globally. They also play a pivotal role in shaping international norms and guidelines, such as those pertaining to the treatment of journalists in conflict zones or the legal repercussions for perpetrators of violence against journalists. This cooperative framework enhances the capability of each organization to tackle complex and sensitive issues, such as legal reform or the implementation of international safety protocols. By pooling their resources and expertise, NGOs can operate on a scale and scope that would be unattainable individually, leading to more substantial and lasting impacts in the realms of legal reform and the safeguarding of press freedoms.

Gunther and Mughan (2000) support the efficacy of these collaborative interventions and highlight that multi-NGO alliances can significantly influence policy changes at both national and international levels. These coalitions facilitate a unified front that can more effectively pressure governments and international bodies to implement stringent protections for journalists. Furthermore, the synergy among NGOs through platforms like this can drive the development of global standards for journalist safety, creating a ripple effect that enhances media protection worldwide.

The efficacy of non-governmental organizations in enhancing journalist safety and influencing legal reforms is vividly illustrated through various case studies, also beyond European borders. The following examples showcase the tangible results of concerted NGO actions and collaborations in challenging environments, demonstrating their critical role in advocating for and implementing changes that have significantly improved conditions for journalists worldwide.

i. ARTICLE 19 in Mexico

One of the most impactful illustrations of NGO efficacy is seen in the work of ARTICLE 19 in Mexico. In response to the high rates of violence against journalists in the country, ARTICLE 19 implemented a dual approach: direct support for journalists under threat and advocacy for systemic legal changes. Their efforts led to the establishment of the Federal Protection Mechanism for Journalists and Human Rights Defenders in 2012, which offers protective measures for journalists at risk. Furthermore, their persistent advocacy contributed to reforms in the justice system, enhancing accountability for crimes against journalists. Hughes and Márquez-Ramírez (2017) highlights how these interventions both improved immediate safety for journalists but also fostered a broader cultural shift towards recognizing and protecting press freedom.

ii. International Media Support (IMS) in Syria

In war-torn Syria, International Media Support (IMS) has played a pivotal role in journalist safety through innovative approaches such as establishing local journalist networks that provide real-time safety information and support. IMS has facilitated training and resources for Syrian journalists, focusing on digital security and risk assessment to navigate the complex conflict environment effectively. Their work has been vital in sustaining the flow of reliable information within and outside of Syria, highlighting the importance of local networks in enhancing journalists' resilience against threats. These networks have not only protected journalists but have also contributed to maintaining an informed public during crises (Relief International 2024).

IV. Case study: the Media Capture in Hungary

The significance of the European Media Freedom Act of 2024, as well as the importance of civil society's active role in ensuring democratic accountability, is highlighted by the present state of the press in Hungary. In recent years, Hungary has seen a concerning erosion of freedom of expression, information, and opinion. This decline seems to be part of a larger assault on the rule of law by Urban's government, which has been sharply criticized for violating European and international human rights standards (Human Rights Watch, 2024).

Following the 2010 election victory of Viktor Orban's Fidesz party and the KDNP (Christian Democratic People's Party), the government has implemented a number of measures that are undermining the country's media pluralism. An anonymous source with extensive experience in the Hungarian State Media told The Guardian (2022) that the press situation is more critical now than it was under the Communist Regime. Against this backdrop, it's not surprising that Hungary ranks 72nd in the world for press freedom (Reporters Without Borders, 2024).

Within the scholarly discourse, the media strategy found in Urban's illiberal democracy bears similarities to what academics define as the “Media Capture” phenomenon. Media capture, according to Prat (2015), occurs when a government actively seeks to reassert its authority over the media, diminishing its diversity. In an attempt to sway election results and limit the public's access to unbiased information, this consolidation frequently produces manipulated reporting (Prat, 2015). As a result, the public sphere becomes a platform for governmental self-promotion rather than an avenue for free discourse (Polyák, 2019).

The renewed international organization Human Rights Watch has been closely monitoring the ongoing Hungarian media capture, drawing a comprehensive picture of its progress in the investigative report "I Can't Do My Job As A Journalist" (2024). The report, tracing the path that led to the present state, where Orbán's Fidesz party wields direct or indirect control over 80% of the nation's media (International Press Institute, 2023) identifies as a critical juncture the 2010’s Media Act. This legislation swiftly followed the government's election victory earlier that year, facilitated by its parliamentary supermajority.

The 2010 Media Act systematically reshaped the Hungarian media regulatory landscape by eroding the independence of oversight bodies governing both private and public media. Notably, the law centralized control over media entities by stacking the Media Authority (NMHH) with Fidesz loyalists (Human Rights Watch, 2024, p.2). Additionally, under the provision of this law, a novel regulatory body, the Media Council, was created. While designed as a formally independent body, all five members of the Council were appointed by Fidesz for a 9-year term. This institution’s dubious impartiality is concerning because, since 2010, the Media Council has emerged as the most influential player in the Hungarian media landscape. Indeed, as established in the Media Act (Sections 136-137), the Council oversees licensing for radio and television services and manages the Media Service Support and Asset Management Fund (MTVA) (Polyák, 2019, p.286). In practice, this grants the Council control over media assets and, thus, the power to manipulate access to the market resources necessary for media market activities.

In the aftermath of the Media Act, the landscape of the media sector, spanning radio, television, print, and online platforms, has undergone profound transformations, increasingly leaning towards a pro-government orientation. One particularly noteworthy scandal, drawing the attention of the European Commission, unfolded in 2016 with the abrupt closure of Nepszabadsag, a major left-leaning Hungarian newspaper. While the official explanation cited economic losses, independent journalists and activists voiced the political machinations at play (Politico, 2016). Similarly, in 2021, Klubrádió, the Hungarian last major independent radio station, faced a setback when its broadcasting license renewal was denied by the Media Council (Reporters Without Borders, 2021). While alarming, those are only a few examples of a biggest pattern. Over the past decade, approximately 1600 journalists and media professionals within MTVA (National Public Media Company) were supplanted by individuals sympathetic to the government's agenda (Human Rights Watch, 2024).

According to a former employee of M1, an MTVA TV Channel, working within the public media sector equates to serving as a mouthpiece for the government (Human Rights Watch, 2024, p. 14). This insider revealed to Human Rights Watch (2024), that editors enforce a form of soft censorship, by imposing content guidelines and dictating language usage, thereby pressuring dissenting journalists to resign. This trend reached new heights in 2018 with the establishment of the Central European Press and Media Foundation (KESMA) by the Orbán government, which now wields control over more than 470 media outlets (p. 10).

Despite the described situation, it is important to point out that independent media still hold significant market positions (Reporters Without Borders, 2024). Indeed, in illiberal democracies, the presence of critical media outlets is crucial for maintaining a democratic facade (Polyák, 2019, p. 282). It is precisely for this that Orban’s media capture is so insidious: because it occurs through formally democratic and legal channels. As the case of Hungary exemplifies, media capture does not have to occur by explicitly canceling all independent media outlets. It can also happen by shaping unfavorable working conditions to hinder the impact of those critical voices on the public sphere, as the testimonies of independent Hungarian journalists show.

In Hungary, journalists not only lack funding but also struggle to obtain information due to the government's willful denial of access to important sources and public conference participation (Human Rights Watch, 2024). Transparency is further obscured by the fact that, even in cases when information is supplied, it is frequently severely redacted or unreadable (p. 2). In this context, independent media owners often find themselves forced to resort to anonymous sources, which hinder their credibility in front of the public. Beyond those informational barriers, such a hostile environment is further fueled by smear campaigns against independent journalists and even by the use of surveillance technologies (p. 22-24). In this regard, in June 2023, the European Parliament launched an investigation into Hungary, suspected of conducting indiscriminate surveillance of journalists and activists using Pegasus spyware (European Parliament News, 2023). Despite Hungary's denial of such allegations, Szabolcs Panyi and András Szabó, two journalists from Direkt36, a newspaper openly critical of Urban's government, found their phones traced by governmental entities (Human Rights Watch, 2024, p.23). This lends further credence to the claim of state intervention in journalistic endeavors, emphasizing the scope of Urbàn’s administration interference with press freedoms.

Finally, this analysis into media capture in Hungary aimed at emphasizing the critical importance of protecting EU journalists and media entities from governmental, political, or economic interference. The European Media Freedom Act (EMFA) shows promise as a powerful tool in achieving this goal. Nonetheless, it is critical to understand that Hungary's situation is not unique in the larger European context. With the rise of populist and totalitarian regimes throughout Europe, the fundamental right to free expression seems under threat. Evidence of this can be found in the ongoing discussions in nations such as Italy, where worries about censorship policies at Rai, the public radio and television service, under Giorgia Meloni’s government, prompts further reflections.

V. Conclusion

To conclude, free press and media pluralism in Europe are under a consistent attack. We have just reviewed the case of Hungary and its Act on the Defence of National Sovereignty which watchdogs said threatened to put a final nail in the coffin for the independent media. We have also introduced the ongoing debate in Italy about censorship policies in public radio and television services. We could have proceeded further with other case studies, such as the re-criminalization of defamation and insult in the Republika Srpska of Bosnia and Herzegovina in July 2023; then the Belarus amendments to the media law passed in July 2023, which empower the government to ban national and foreign medias, or to block news websites and aggregators; lastly, the case of Croatia where a new bill on media, if adopted, e.g., would oblige journalists to register; ban journalists from criticizing the work of courts and public prosecutors; oblige journalists to disclose their sources to their editor-in-chief upon request.

Throughout Europe, some governments are shaping a new state-controlled media era, at odds with European standards, instead of adopting action plans for the safety of journalists and mobilizing the necessary resources to implement them. States should firstly ensure editorial independence and institutional autonomy of Public Service Media, then review laws, policies, and practices with particular attention to SLAPPs. Finally, comprehensive anti-SLAPP legislation should be adopted in order to protect journalists and other media actors against excessive or disproportionate penalties, minimizing the harm caused to SLAPP victims, and applying dissuasive sanctions against those who use SLAPPs.

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