Brussels, 14 February 2023
WK 2185/2023 INIT
LIMITE
AUDIO
COMPET
CODEC
EDPS
DIGIT
DATAPROTECT
MI
JAI
DISINFO
SERVICES
FREMP
POLGEN
This is a paper intended for a specific community of recipients. Handling and
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CONTRIBUTION
From:
General Secretariat of the Council
To:
Audiovisual and Media Working Party (Attachés)
Audiovisual and Media Working Party
N° Cion doc.:
COM (2022) 457 final
Subject:
Proposal for a Regulation of the European Parliament and of the Council
establishing a common framework for media services in the internal market
(European Media Freedom Act) Interinstitutional File 2022/0277 (COD) - COM
(2022) 457 final
- EMFA Regulation – Articles 17 to 19
- Comments from CY, DE, FI, LV, NL, and SI delegations.
Delegations will find attached comments on the subject mentioned above (Interinstitutional File
2022/0277 (COD) - COM (2022) 457 final) from the following delegations: Cyprus, Germany, Finland,
Latvia, the Netherlands, and Slovenia.
WK 2185/2023 INIT
TREE.1.B ATR/fco
LIMITE
EN
CY COMMENTS
Comments on wk01630.en23_PCYProposal
Article 13 – paragraph 4(a) ‘
to provide the type of cooperation requested’: can we have an
explanation on what this type of cooperation could be? We understand that in order the requested
authority to address the request, it will provide information and/or data. Therefore, our question is
whether this type of cooperation can be anything else than the provision of relevant information
and/or data, the provision of which doesn’t breach any other national law.
Article 13 – paragraph 6 ‘
regular updates’: we want to make sure that ‘
regular updates’ is not
interpreted as twice per week. We understand it as interpreted as not more than a week.
Article 13 – paragraph 7 and Article 14 paragraph 4
‘in consultation with the Commission’: we
would welcome confirmation that the Commission will only provide its views on the examined issues
and that the Board maintains its independence in decision-making.
Article 14 – paragraph 4: ‘
sufficiently addressed’: we would welcome some elaboration on how
sufficiently is interpreted and understood, taking into consideration the particularities of the legal
system of each member-state and the need to respect the procedures and policies adopted by each
national regulatory authority.
Article 16 – paragraph 1 ‘
media services provided by media service providers’: we welcome a clear
interpretation of what this media service can be. Considering the definition of ‘media service’
provided in Article 2 of the discussed Regulation that refers to press publication we emphasise that
Cyprus Radio Television Authority doesn’t have any responsibility and/or jurisdiction on press
publications (neither on printed newspapers and/or magazine nor on online news sites, unless
online platforms are considered Video Sharing Platforms as per the AVMSD 2018/1808).
Recital 27 – ‘
a mechanism is needed’ can we have some more information on this mechanism? (eg
structure, procedures etc…)
DE COMMENTS
Proposal for a Regulation of the European Parliament and of the Council establishing a common framework for media
services in the internal market (European Media Freedom Act)
Interinstitutional File 2022/0277 (COD) - COM (2022) 457 final
German amendments to Art. 17-19 EMFA
General remarks:
In general, GER welcomes the fact that Art. 17 recognizes the special role and responsibility of media service providers. The provision takes up an
important discussion regarding the DSA and goes in the right direction. However, in order to achieve even greater added value in terms of free and
pluralistic media and users' freedom of information, the intermediary services must take their responsibility. GER therefore submits the following
proposals for amendments and reserves the right to make further proposals in connection with Art. 17, in particular with regard to an additional
provision of comparable content regarding very large online search engines and regarding the involvement of national regulatory authorities or self-
or co-regulatory bodies in the procedure. This is due to the envisaged short time frame, within which it is not possible to hand in substantiated and
comprehensive proposals on these complex issues raised.
Original text
Proposed amendments
Explanation
Section 4
Provision of media services in a digital
environment
Article 17
Article 17
As mentioned intermediary services should,
Content of media service providers on very
Content of media service providers on very
according to their significant importance for
large online platforms
large online platforms
the distribution of media content and their
accessibility for the user, assume greater
responsibility in terms of preserving free and
pluralistic media and users' freedom of
information. Art. 17 should balance the right
of platforms to set their own general terms
and conditions with the public interest to
safeguarding media freedom and diversity, the
freedom of expression and the media as well
as the user’s right of information.
Since very large online search engines have a
similar crucial role to very large online
platforms when it comes to accessing and
distributing media content, we believe that it
needs to be discussed if a comparable
provision for very large online search engines
shall be included and GER reserves the right to
amend its proposals accordingly.
1. Providers of very large online platforms
1. Providers of very large online platforms
Art. 17 so far only refers to the existence of
shall provide a functionality allowing
shall provide a functionality allowing
declarations by media service providers
recipients of their services to declare that:
recipients
media service providers of their
pursuant to Art. 17 (1).
services to declare that:
Art. 17 (1) should additionally provide that
media service providers designate their
(a) it is a media service provider within the
(a) it is a media service provider within the
competent supervisory body in the Member
meaning of Article 2(2);
meaning of Article 2(2);
State (supervisory authority or self-/co-
regulatory body), if such a body exists. This
(b) it is editorially independent from Member
(b) it is editorially independent from Member
body should be involved in the further
States and third countries; and
States and third countries; and
procedure and be able to issue a confirmation
(c) it is subject to regulatory requirements for
(c) it is subject to regulatory requirements for
that the information provided by the media
the exercise of editorial responsibility in one or the exercise of editorial responsibility in one or service provider in accordance with paragraph
more Member States, or adheres to a co-
more Member States, or adheres to a co-
2 (new) (a) to (d) is correct. This will also
regulatory or self-regulatory mechanism
regulatory or self-regulatory mechanism
enable online platforms to know whether a
governing editorial standards, widely
governing editorial standards, widely
media service provider is subject to
recognised and accepted in the relevant media
recognised and accepted in the relevant media
supervision or has committed to certain
sector in one or more Member States.
sector in one or more Member States
; and
standards through self-/ co-regulation.
(d) it is subject to the supervision of an
independent national regulatory authority
or body or to the supervision of a self- or co-
regulatory mechanism, state its name and
contact details.
(1a) Providers of very large online
From our point of view, the question arises as
platforms may review declarations of media to whether it would not be advisable to provide
service providers according to paragraph 1
for the possibility of verification or a
and ask for evidence, including a
complaints mechanism with regard to whether
confirmation by the national regulatory
the statements are correct.
authority or body or the self- or co-
regulatory body identified under paragraph
1 (d), that the information provided by the
media service provider in accordance with
paragraph 1 (a) to (d) is correct.
If the very large online platform has
reasonable grounds to doubt the outcome of
such a review that the conditions of
paragraph 1 are not met, it may submit the
matter to the Board for a decision with a
clear and specific justification. The Board
shall decide without undue delay.
2. Where a provider of very large online
2. Where a provider of
a very large online
Media service providers should be heard
platform decides to suspend the provision of
platform decides
intends to remove, disable
before content is deleted and thus have the
its online intermediation services in relation to
access to or otherwise to suspend the
opportunity to comment on the legality of the
content provided by a media service provider
provision of its online intermediation services
complaint by the very large online platforms.
that submitted a declaration pursuant to
in relation to content provided by a media
In order to ensure media freedom and
paragraph 1 of this Article, on the grounds that service provider that submitted a declaration
independence, the national supervisory
such content is incompatible with its terms and pursuant to paragraph 1 of this Article, on the
authorities should also be informed prior to
conditions, without that content contributing to grounds that such content is incompatible with deletion.
a systemic risk referred to in Article 26 of the
its terms and conditions, without that content
Article 17(2) should be supplemented by the
Regulation (EU) 2022/XXX [Digital Services
contributing to a systemic risk referred to in
obligation of the respective provider of very
Act], it shall take all possible measures, to the
Article 26 of the Regulation (EU) 2022/XXX
large online platforms to also communicate the
extent consistent with their obligations under
[Digital Services Act], it shall take all possible
Union law, including Regulation (EU)
measures, to the extent consistent with their
respective reasons for its decision to the
2022/XXX [Digital Services Act], to
obligations under Union law, including
respective competent authorities/bodies of the
communicate to the media service provider
Regulation (EU) 2022/XXX [Digital Services
Member States. Such a notification to the
concerned the statement of reasons
Act], to communicate to
inform the media
national supervisory authorities will make it
accompanying that decision, as required by
service provider concerned
of its intention,
possible to take action against the media
Article 4(1) of Regulation (EU) 2019/1150,
provide a clear and specific the statement of
service provider at an early stage if it commits
prior to the suspension taking effect.
reasons accompanying that decision, as
an infringement of the law.
required by Article 4(1) of Regulation (EU)
At the same time, they will be able to inform
2019/1150
and hear the media service
the provider of the respective very large online
provider prior to
implementation of a
platform of supervisory measures that have
decisionthe suspension taking effect.
The
already been carried out (protection against
provider of a very large online platform is
double controls).
obliged to submit its statement of reasons
also to the competent supervision authority
or body identified by the media service
provider in accordance with paragraph 1.
3. Providers of very large online platforms
3.
If, within 24 hours, the media service
In Art. 17, a mechanism should be provided
shall take all the necessary technical and
provider gives the provider of a very large
which takes into account the prominent role of
organisational measures to ensure that
online platform sufficient grounds to
media services. A clear time frame should also
complaints under Article 11 of Regulation
consider that the respective content is not
be provided here. Deletion of the content in
(EU) 2019/1150 by media service providers
incompatible with its terms and conditions,
that submitted a declaration pursuant to
the very large online platform may not
dispute should not take place before the review
paragraph 1 of this Article are processed and
implement its decision in the meaning of
is completed.
decided upon with priority and without undue
paragraph 2. If, after due consideration, the
delay.
provider of a very large online platform still
considers the respective service or content
incompatible with its terms and conditions,
GER is currently still examining the exact
it shall “…”.
modalities of the further procedure,
including the possible involvement of the
Providers of very large online platforms shall
national regulatory authorities or self- or
take all the necessary technical and
co-regulatory bodies of the national
organisational measures to ensure that
supervisory authorities. A separate wording
complaints under Article 11 of Regulation
proposal may be submitted after further
(EU) 2019/1150 by media service providers
examination.
that submitted a declaration pursuant to
paragraph 1 of this Article are processed and
decided upon with priority and without undue
delay.
4. Where a media service provider that
4. Where a media service provider that
The wording could be made more specific with
submitted a declaration pursuant to paragraph
submitted a declaration pursuant to paragraph
regard to the standard of review of the
1 considers that a provider of very large online 1 considers that a provider of
a very large
platform.
platform frequently restricts or suspends the
online platform frequently
claims
provision of its services in relation to content
incompatibility of restricts or suspends the
provided by the media service provider
provision of its services in relation to content
without sufficient grounds, the provider of
provided by the media service provider
with
very large online platform shall engage in a
its terms and conditions without sufficient
meaningful and effective dialogue with the
grounds, the provider of very large online
media service provider, upon its request, in
platform shall engage in a meaningful and
good faith with a view to finding an amicable
effective dialogue with the media service
solution for terminating unjustified restrictions provider, upon its request, in good faith with a
or suspensions and avoiding them in the
view to finding an amicable solution for
future. The media service provider may notify
terminating unjustified restrictions or
the outcome of such exchanges to the Board.
suspensions and avoiding them in the future.
The media service provider may notify the
outcome of such exchanges to the Board.
5. Providers of very large online platforms
5. Providers of very large online platforms
shall make publicly available on an annual
shall make publicly available on an annual
basis information on:
basis information on:
(a) the number of instances where they
(a) the number of instances where they
imposed any restriction or suspension on the
imposed any restriction or suspension on the
grounds that the content provided by a media
grounds that the content provided by a media
service provider that submitted a declaration in service provider that submitted a declaration in
accordance with paragraph 1 of this Article is
accordance with paragraph 1 of this Article is
incompatible with their terms and conditions;
incompatible with their terms and conditions;
and
and
(b) the grounds for imposing such restrictions. (b) the grounds for imposing such restrictions.
6. With a view to facilitating the consistent and 6.
With a view to facilitating the consistent and
effective implementation of this Article, the
effective implementation of this Article, the
Commission may issue guidelines to establish
Commission may issue guidelines to establish
the form and details of the declaration set out
the form and details of the declaration set out
in paragraph 1.
in paragraph 1.
Article 18
Article 18
Structured dialogue
Structured dialogue
1. The Board shall regularly organise a
1. The Board shall regularly organise a
structured dialogue between providers of very
structured dialogue between providers of very
large online platforms, representatives of
large online platforms representatives of media
media service providers and representatives of service providers and representatives of civil
civil society to discuss experience and best
society to discuss experience and best
practices in the application of Article 17 of this practices in the application of Article 17 of this
Regulation, to foster access to diverse offers of Regulation, to foster access to diverse offers of
independent media on very large online
independent media on very large online
platforms and to monitor adherence to self-
platforms and to monitor adherence to self-
regulatory initiatives aimed
regulatory initiatives aimed at protecting
at protecting society from harmful content,
society from harmful content, including
including disinformation and foreign
disinformation and foreign information
information manipulation and interference.
manipulation and interference.
2. The Board shall report on the results of the
2. The Board shall report on the results of the
In para. 2, it should be included that the
dialogue to the Commission.
dialogue to the Commission
and the Member Member States are also informed about the
States.
outcome of the structured dialogue, because
the insights gained in this procedure are also
relevant for the Member States.
Article 19
Article 19
Right of customisation of audiovisual media
Right of customisation of audiovisual media
offer
offer
1. Users shall have a right to easily change the 1. Users shall have a right to easily change the In Art. 19(1), it should be clarified that
default settings of any device or user interface
default settings of any device or user interface national regulations on discoverability, even if
controlling or managing access to and use of
controlling or managing access to and use of they were not adopted on the basis of Art. 7a
audiovisual media services in order to
audiovisual
or audio media services in order to of Directive 2010/13/EU, remain valid and can
customise the audiovisual media offer
customise the audiovisual
or audio media offer be further developed, as they serve to ensure
according to their interests or preferences in
according to their interests or preferences in diversity. This applies in particular against the
compliance with the law. This provision shall
compliance with the law. This provision shall background that Art. 7a AVMS Directive only
not affect national measures implementing
does not affect national measures implementing regulates the discoverability of audiovisual
Article 7a of Directive 2010/13/EU.
Article 7a of Directive 2010/13/EU
or other media services. In GER, however, there are
national measures to enhance discoverability also rules for the discoverability of audio
to secure media pluralism.
content.
Within the framework of the Council
conclusions on securing a free and pluralistic
media system, it was affirmed that media-
specific and diversity-related regulation of
media platforms and intermediaries is
necessary and that securing media pluralism is
primarily the responsibility of the Member
States. This should also be reflected in the
regulatory text.
2. When placing the devices and user
2. When placing the devices and user interfaces
interfaces referred to in paragraph 1 on the
referred to in paragraph 1 on the market,
market, manufacturers and developers shall
manufacturers and developers shall ensure that
ensure that they include a functionality
they include a functionality enabling users to
enabling users to freely and easily change the
freely and easily change the default settings
default settings controlling or managing access controlling or managing access to and use of the
to and use of the audiovisual media services
audiovisual media services offered.
offered.
1(8)
FINLAND
Proposal for a Regulation of the European Parliament and of the Council estab-
lishing a common framework for media services in the internal market (Euro-
pean Media Freedom Act)
Interinstitutional File 2022/0277 (COD) - COM (2022) 457 final
Articles 15 and 17-18
- Table for comments –
Commission proposal
Comments and drafting
Interinstitutional File
suggestions from
2022/0277 (COD)
delegations
COM (2022) 457 final
Section 3
Regulatory cooperation and
convergence
Article 15
Guidance on media regulation
matters
1. The Board shall foster the ex-
change of best practices among
the national regulatory
authorities or bodies, consulting
stakeholders, where appropriate,
and in close cooperation with the
Commission, on regulatory, tech-
nical or practical aspects perti-
2(8)
nent to the consistent and effec-
tive application of this Regula-
tion and of the national rules im-
plementing Directive
2010/13/EU.
2. Where the Commission issues
guidelines related to the applica-
tion of this Regulation
or the national rules implement-
ing Directive 2010/13/EU, the
Board shall assist it by
providing expertise on regula-
tory, technical or practical as-
pects, as regards in particular:
(a) the appropriate prominence of
audiovisual media services of
general interest
under Article 7a of Directive
2010/13/EU;
(b) making information accessi-
ble on the ownership structure of
media service providers, as pro-
vided under Article 5(2) of Di-
rective 2010/13/EU.
3(8)
3. The Commission may issue an
opinion on any matter related to
the application of this Regulation
and of the national rules imple-
menting Directive 2010/13/EU.
The Board shall assist the Com-
mission in this regard, where re-
quested.
Section 4
Provision of media services in a
digital environment
Article 17
Content of media service provid-
ers on very large online plat-
forms
1. Providers of very large online
(c) it is subject to regulatory re- We suggest clarifying
platforms shall provide a func-
wording “regulatory re-
quirements for the exercise of ed- quirements” in the para-
tionality allowing
itorial responsibility in one or graph 1, sub-paragraph c.
recipients of their services to de-
In some cases, media ser-
more Member States, or
and ad- vice providers can be sub-
clare that:
heres to a co-regulatory or self- ject to obligations of cer-
tain rules, such as rules
regulatory mechanism governing laid down in the AVMSD.
(a) it is a media service provider
editorial standards, widely recog- However, it does not nec-
within the meaning of Article
essarily mean that these
nized and accepted in the rele- media service providers
2(2);
vant media sector in one or more are committed to the self-
regulation mechanisms
Member States,
where such governing editorial stand-
(b) it is editorially independent
mechanism is in operation/in ards.
from Member States and third
place.
countries; and
4(8)
(c) it is subject to regulatory re-
We would like to empha-
size the importance of
quirements for the exercise of
self-regulatory systems
editorial responsibility in one or
and to ensure that quality
journalism that in compli-
more Member States, or adheres
ance with the editorial
to a co-regulatory or self-regula-
standards resulting from
self-regulatory guidelines
tory mechanism governing edito-
is protected on the plat-
rial standards, widely recognized
forms. We also note that
not all Member States
and accepted in the relevant me-
possibly have widely rec-
dia sector in one or more Mem-
ognize self-regulatory sys-
tems.
ber States.
2. Where a provider of very large 2. Where a provider of very
In many cases, not only
online platform decides to sus-
large online platform decides to
content by media service
providers but also
ac-
pend the provision of its online
suspend the provision of its
counts of media service
intermediation services in rela-
online intermediation services in providers are removed
from the platforms due to
tion to content provided by a me- relation to content
or services
the flagging of content or
dia service provider that submit-
provided by a media service pro- content being incompati-
ble with platform’s terms
ted a declaration pursuant to par-
vider that submitted a declara-
and conditions. Article 17
agraph 1 of this Article, on the
tion pursuant to paragraph 1 of
seems to apply only the
content provided by a me-
grounds that such content is in-
this Article, on the grounds that
dia service provider. It
compatible with its terms and
such content
or services is in-
should be considered, if
the scope of the article is
conditions, without that content
compatible with its terms and
extended to the accounts
contributing to a systemic risk
conditions, without that content
of media service providers
as well.
referred to in Article 26 of the
contributing to a systemic risk
Regulation (EU) 2022/XXX
referred to in Article 26 of the
It should be considered if
[Digital Services Act], it shall
Regulation (EU) 2022/XXX
VLOPs should communi-
take all possible measures, to the [Digital Services Act], it shall
cate, for example mean-
ingful and concrete rea-
take all possible measures, to the sons accompanying the
5(8)
extent consistent with their obli-
extent consistent with their obli-
decision to suspend con-
tent provided by a media
gations under Union law, includ-
gations under Union law, includ- service provider. The sug-
ing Regulation (EU) 2022/XXX
ing Regulation (EU) 2022/XXX gested clarification would
decrease the risk that me-
[Digital Services Act], to com-
[Digital Services Act], to com-
dia service providers only
municate to the media service
municate to the media service
received generic email no-
tifications prior to the sus-
provider concerned the statement provider concerned the state-
pension taking effect.
of reasons accompanying that de- ment of
meaningful and de-
cision, as required by Article
tailed reasons accompanying
4(1) of Regulation (EU)
that decision, as required by Ar-
2019/1150, prior to the suspen-
ticle 4(1) of Regulation (EU)
sion taking effect.
2019/1150, prior to the suspen-
sion taking effect.
3. Providers of very large online
platforms shall take all the neces-
sary technical and organisational
measures to ensure that com-
plaints under Article 11 of Regu-
lation (EU) 2019/1150 by media
service providers that submitted
a declaration pursuant to para-
graph 1 of this Article are pro-
cessed and decided upon with
priority and without undue delay.
4. Where a media service pro-
4. Where a media service pro-
We suggest adding indica-
vider that submitted a declaration vider that submitted a declara-
tion of a reasonable
timeframe to the para-
pursuant to paragraph 1 consid-
tion pursuant to paragraph 1
graph 4 for the dialogue
ers that a provider of very large
considers that a provider of very and finding solution to de-
6(8)
online platform frequently re-
large online platform frequently crease uncertainty of me-
dia service providers in
stricts or suspends the provision
restricts or suspends the provi-
case their content or ac-
of its services in relation to con-
sion of its services in relation to count is removed from the
platform. Reasonable
tent provided by the media ser-
content provided by the media
timeframe could be de-
vice provider without sufficient
service provider without suffi-
fined in more detailed in
the recitals.
grounds, the provider of very
cient grounds, the provider of
large online platform shall en-
very large online platform shall
gage in a meaningful and effec-
engage in a meaningful and ef-
tive dialogue with the media ser-
fective dialogue with the media
vice provider, upon its request, in service provider, upon its re-
good faith with a view to finding quest, in good faith with a view
an amicable solution for termi-
to finding an amicable solution
nating unjustified restrictions or
within a reasonable timeframe
suspensions and avoiding them
for terminating unjustified re-
in the future. The media service
strictions or suspensions and
provider may notify the outcome avoiding them in the future. The
of such exchanges to the Board.
media service provider may no-
tify the outcome of such ex-
changes to the Board.
5. Providers of very large online
platforms shall make publicly
available on an annual basis in-
formation on:
(a) the number of instances
where they imposed any re-
striction or suspension on the
grounds that the content provided
7(8)
by a media service provider that
submitted a declaration in ac-
cordance with paragraph 1 of this
Article is
incompatible with their terms
and conditions; and
(b) the grounds for imposing
such restrictions.
6. With a view to facilitating the
consistent and effective imple-
mentation of this Article, the
Commission may issue guide-
lines to establish the form and
details of the declaration set out
in paragraph 1.
Article 18
Structured dialogue
1. The Board shall regularly or-
ganise a structured dialogue be-
tween providers of very large
online platforms, representatives
of media service providers and
representatives of civil society to
discuss experience and best prac-
tices in the application of Article
17 of this Regulation, to foster
8(8)
access to diverse offers of inde-
pendent media on very large
online platforms and to monitor
adherence to self-regulatory initi-
atives aimed at protecting society
from harmful content, including
disinformation and foreign infor-
mation manipulation and inter-
ference.
2. The Board shall report on the
results of the dialogue to the
Commission.
LATVIA
Proposal for a Regulation of the European Parliament and of the Council
establishing a common framework for media services in the internal market
(European Media Freedom Act) COM (2022) 457 final
- Table for comments –
Section 4
Provision of media services in a digital environment
Article 17
Content of media service providers on very large online platforms
General remarks: As regards the Article as a whole, LV sees a problem with a self-declaration
mechanism that lacks the element of verification. As has been pointed by many civil society
organisations, such a mechanism is open to abuse by rogue players. In Europe we know only too
well that media can also serve as a tool of information manipulation, propaganda and
disinformation, especially those originating in authoritarian countries. In the case of RT France v
the Council at the EU Court of Justice, RT France claimed that it distributed its content under the
aegis of an independent editorial committee and ethics committee. It further argued that, even if
the various RT channels belonged to the same group and shared a number of values, RT France
was a quite independent channel and master of its editorial line. This we know to be untrue.
If the article is to be retained and media service providers are to be given preferential treatment by
VLOPs, then we have to be sure that they are genuinely independent and adhere to generally
accepted journalistic standards. To avoid the situation whereby VLOPs themselves have to
investigate the bona fides of declarants and decide on whether they qualify for preferential
treatment, we propose verification prior to the submission of a declaration.
The platforms should not only explain to the content holder the reasons for its removal or restriction
of access (Article 15 of the DSA), but also collate all relevant information and provide Member
States with an overview of the functioning of the article, including the operation of the complaints
mechanism as well as information on accessibility restrictions or restrictions on or deletions of
user accounts. The availability of the relevant, accurately gathered information would give an
insight into both the functioning of platforms and their ability to respond to challenges in the
information space of EU Member States as well as the algorithms they apply.
1. Providers of very large online platforms New paragraph 1a
shall provide a functionality allowing
recipients of their services to declare that:
(a) it is a media service provider within
the meaning of Article 2(2);
(b) it is editorially independent from
Member States and third countries;
(c) it is subject to regulatory requirements
for the exercise of editorial responsibility
in one or more Member States, or adheres
to a co-regulatory or self-regulatory
mechanism governing editorial standards,
widely recognised and accepted in the
relevant media sector in one or more
Member States.
1a. The declaration referred to in
Paragraph 1 should be accompanied by a
statement by an independent competent
authority or institution in the Member
State concerned attesting to the veracity
of the declaration.
2. Where a provider of very large online We believe that platforms should not be the ones to
platform decides to suspend the provision determine who is a bona fide media service provider
of its online intermediation services in and who is not. Verified declarations should obviate
relation to content provided by a media the need for this.
service provider that submitted a Article 26 of DSA covers “Advertising on online
declaration pursuant to paragraph 1 of this platforms", we believe the correct corresponding
Article, on the grounds that such content is article would be Article 34 of DSA on “Risk
incompatible with its terms and conditions, assessment".
without that content contributing to a
systemic risk referred to in
Article 34 26
of
the Regulation (EU) 2022/XXX [Digital
Services Act], it shall take all possible
measures, to the extent consistent with their
obligations under Union law, including
Regulation (EU) 2022/XXX [Digital
Services Act], to communicate to the media
service provider concerned the statement of
reasons accompanying that decision, as
required by Article 4(1) of Regulation (EU)
2019/1150, prior to the suspension taking
effect.
3. Providers of very large online platforms At this point, it is unclear whether Article 17.3 of the
shall take all the necessary technical and EMFA duplicates the mechanism that media service
organisational measures to ensure that providers will be able to use under the DSA. And
complaints under Article 11 of Regulation what added value would there be in creating a
(EU) 2019/1150 by media service providers separate complaints mechanism for the media under
that submitted a declaration pursuant to P2B Regulation, why would they not be able to use
paragraph 1 of this Article are processed the mechanisms already set up by the DSA? We
and decided upon with priority and without would encourage this to be clarified in the recitals.
undue delay.
4. Where a media service provider that 17.4 in LV's view is too general because it is not
submitted a declaration pursuant to clear how the media and the VLOPs should engage
paragraph 1 considers that a provider of in dialogue in order to find a solution. On the other
very large online platform frequently hand, Article 21 of the DSA already provides for
restricts or suspends the provision of its detailed out-of-court settlement of disputes. As in
services in relation to content provided by the previous paragraph, we see no clear justification
the media service provider without for creating a separate mechanism/dialogue. There
sufficient grounds, the provider of very should be instead a reference to the DSA
large online platform shall engage in a mechanism.
meaningful and effective dialogue with the
media service provider, upon its request, in
good faith with a view to finding an
amicable
solution
for
terminating
unjustified restrictions or suspensions and
avoiding them in the future. The media
service provider may notify the outcome of
such exchanges to the Board.
5.
Without prejudice to articles 15, 24 Article 17.5 – Articles 15, 24 and 42 of the DSA
and 42 of Regulation (EU) 2022/2065, the already oblige the VLOPs to provide public reports
reports prepared by providers of very large at least once a year, ensuring transparency, on
online platforms shall
include a specific compliance with a number of conditions. In our
section
concerning
relevant, view, the EMFA would be an appropriate place to
disaggregated information on media clarify that these VLOP reports should pay
service providers, including: make particular attention to and provide a special section
publicly available on an annual basis on media service providers. The information should
information on:
be about the concrete media service providers
(a) the number of instances where they concerned and not about media service providers as
imposed any restriction or suspension on a whole.
the grounds that the content provided by a
media service provider that submitted a
declaration in accordance with paragraph 1
of this Article is incompatible with their
terms and conditions; and
(b) the grounds for imposing such
restrictions.
6. In order to facilitate the consistent and
effective implementation of this Article, the
Commission
may
issue
guidelines
specifying the form and details of the
declaration referred to in paragraph 1.
Recital (31) Very large online platforms act Article 26 of DSA covers “Advertising on online
for many users as a gateway for access to platforms", we believe the correct corresponding
media services. Media service providers article would be Article 34 of DSA on “Risk
who exercise editorial responsibility over assessment".
their content play an important role in the
distribution of information and in the
exercise of freedom of information online.
When
exercising
such
editorial
responsibility, they are expected to act
diligently and provide information that is
trustworthy and respectful of fundamental
rights, in line with the regulatory or self-
regulatory requirements they are subject to
in the Member States. Therefore, also in
view of users’ freedom of information,
where providers of very large online
platforms consider that content provided by
such
media
service
providers
is
incompatible with their terms and
conditions, while it is not contributing to a
systemic risk referred to in
Article 34 26
of
Regulation (EU) 2022/XXX [the Digital
Services Act], they should duly consider
freedom and pluralism of media, in
accordance
with
Regulation
(EU)
2022/XXX [the Digital Services Act] and
provide, as early as possible, the necessary
explanations to media service providers as
their business users in the statement of
reasons under Regulation (EU) 2019/1150
of the European Parliament and of the
Council[1]. To minimise the impact of any
restriction to that content on users’ freedom
of information, very large online platforms
should endeavour to submit the statement of
reasons prior to the restriction taking effect
without prejudice to their obligations under
Regulation (EU) 2022/XXX [the Digital
Services Act]. In particular, this Regulation
should not prevent a provider of a very large
online platform to take expeditious
measures either against illegal content
disseminated through its service, or in order
to mitigate systemic risks posed by
dissemination of certain content through its
service, in compliance with Union law, in
particular pursuant to Regulation (EU)
2022/XXX [the Digital Services Act].
Recital (33) To this end, providers of very We believe that platforms should not be the ones to
large online platforms should provide a determine who is a bona fide media service provider
functionality on their online interface to and who is not. Verified declarations should obviate
enable media service providers to submit a the need for this.
verified declaration that they meet certain
requirements. , while at the same time
retaining the possibility not to accept such
self-declaration where they consider that
these conditions are not met. Providers of
very large online platforms may rely on
information regarding adherence to these
requirements, such as the machine-readable
standard of the Journalism Trust Initiative
or other relevant codes of conduct.
Guidelines by the Commission may be
useful
to
facilitate
an
effective
implementation of such functionality. ,
including on modalities of involvement of
relevant civil society organisations in the
review of the declarations, on consultation
of the regulator of the country of
establishment, where relevant, and address
any potential abuse of the functionality.
Article 19
Right of customisation of audiovisual media offer
General remarks: in essence, the article mandates software developers, as well as smart device
manufacturers, to allow users to change their access settings to a media service. On the one hand,
it will prevent, for example, Huawei or Xiaomi from including apps/settings on their devices that
favour content from or sponsored by a certain country, without the user having the right to change
them or to create obstacles for the user that make it difficult to change the settings. For example, a
smart device purchased from a company of a particular authoritarian state may have a web browser
(analogous to Google Chrome, Mozilla, etc.) developed by a company of a particular authoritarian
state, which is designated as the default browser and which already has built-in functionality that
favours, promotes or otherwise mandates legitimate content from media sponsored by that state.
On the other hand, this obligation places a burden on a wide range of software developers. Their
software/device will have to be able to recognise what media content is. How to ensure this
technically? Plus, LV agrees with the duty of monitoring, because the competent authority will
have to be able to check the functionality of the various software (including all kinds of
applications, search engines, web browsers, operating systems, etc.) as well as the devices.
Moreover, this functionality may be somehow technologically hidden/deceptive.
One might add here that the key point is that it is easy for the user to change the settings, and that
the burden of proof lies on the software developer/manufacturer. Perhaps this can be somehow
reflected in the Recitals.
NL COMMENTS
Written comments from NL on the Presidency compromise texts concerning articles 15,17
and18 and recitals 28, 29 and 31–36
Article 15
Guidance on media regulation matters
3. The Commission may issue an opinion on any matter related to the application of this
Regulation and of the national rules implementing Directive 2010/13/EU. The Board
and, if
applicable, the Contact Committee as mentioned in Directive 2010/13/EU shall assist the
Commission in this regard, where requested.
The Board and the Contact Committee will
be informed once the Commission issues an opinion. Motivation
Concerning the first sentence, we are interested in the considerations of the Legal Service of
the Council on the scope of this competence (to issue opinions on any matter…), which might
be too wide. The provisions of Article 15 may touch on national media policy, or at least
provide information that may be relevant to national media policy. In that respect, the
Netherlands would be in favor of involving the Contact Committee. Cooperation could also
be promoted within the Contact Committee, in order to facilitate the exchange of information.
Article 17
Content of media service providers on very large online platforms
We are still studying the article and therefore have no text proposal yet. We are in principle
positive about the procedural approach of this regulation (not suspending without warning).
We have heard from both online platforms and NGOs that they have concerns about this
proposal. It could create a loophole that could be exploited by disinformation actors. We want
to watch out for this. We are also uncomfortable with the fact that online platforms determine
which statement is accepted, so who is protected and who is not. There is also no possibility
of objection.
Recital 36
36. Building on the useful role played by ERGA in monitoring compliance by the signatories
of EU Code of Practice on Disinformation, the Board should, at least on a yearly basis,
organise a structured dialogue between providers of very large online platforms,
representatives of media service providers and representatives of civil society to foster access
to diverse offers of independent media on very large online platforms, discuss
examples, data
(notifications and handling thereof), experience and best practices related to the application
of the relevant provisions of this Regulation and to monitor adherence to self-regulatory
initiatives aimed at protecting society from harmful content, including those aimed at
countering disinformation. The Commission may, where relevant, examine the reports on the
results of such structured dialogues when assessing systemic and emerging issues across the
Union under Regulation (EU) 2022/XXX [Digital Services Act] and may ask the Board to
support it to this effect.
Motivation
Currently, it is hard to assess the scale of the problem (i.e. takedown of media service content
on VLOPs that is problematic from a media freedom perspective). In order to be able to
discuss the problems encountered by media service providers it is useful to base the dialoque
on real data and examples. Actual data on complaints and complaint handling can inform
independent research, DSA codes of practice and Council of Europe standard setting.
Council of the
European Union
Brussels, 19 September 2022
(OR. en)
12413/22
Interinstitutional File:
2022/0277(COD)
AUDIO 86
CODEC 1314
DIGIT 166
MI 668
DISINFO 72
FREMP 183
COMPET 712
EDPS 1
DATAPROTECT 256
JAI 1194
SERVICES 18
POLGEN 121
COVER NOTE
From:
Secretary-General of the European Commission, signed by Ms Martine
DEPREZ, Director
date of receipt:
16 September 2022
To:
General Secretariat of the Council
No. Cion doc.:
COM(2022) 457 final
Subject:
Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND
OF THE COUNCIL establishing a common framework for media
services in the internal market (European Media Freedom Act) and
amending Directive 2010/13/EU
Delegations will find attached document COM(2022) 457 final.
Encl.: COM(2022) 457 final
12413/22
ATR/fco
TREE.1.B
EN
EUROPEAN
COMMISSION
Brussels, 16.9.2022
COM(2022) 457 final
2022/0277 (COD)
Proposal for a
REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
establishing a common framework for media services in the internal market (European
Media Freedom Act) and amending Directive 2010/13/EU
(Text with EEA relevance)
{SEC(2022) 322 final} - {SWD(2022) 286 final} - {SWD(2022) 287 final}
EN
EN
COMMENTS FROM SLOVENIA
Article 15
Guidance on media regulation matters
1.
The Board shall foster the exchange of best practices among the national regulatory
authorities or bodies, consulting stakeholders, and where appropriate, and in close
Formatted: Strikethrough
cooperation with the Commission, on regulatory, technical or practical aspects
pertinent to the consistent and effective application of this Regulation and of the
national rules implementing Directive 2010/13/EU.
2.
Where the Commission issues guidelines related to the application of this Regulation
or the national rules implementing Directive 2010/13/EU, the Board shall assist it by
providing expertise on regulatory, technical or practical aspects, as regards in
particular:
(a) the appropriate prominence of audiovisual media services of general interest
under Article 7a of Directive 2010/13/EU;
(b) making information accessible on the ownership structure of media service
providers, as provided under Article 5(2) of Directive 2010/13/EU.
3.
The Commission may issue an opinion on any matter related to the application of
this Regulation and of the national rules implementing Directive 2010/13/EU. The
Board shall assist the Commission in this regard, where requested.
4.
The Board shall foster cooperation between media service providers, standardisation
bodies or any other relevant stakeholders in order to facilitate the development of
technical standards related to digital signals or design of devices or user interfaces
controlling or managing access to and use of audiovisual media services.
Section 4
Provision of media services in a digital environment
Article 17
Content of media service providers on very large online platforms
1.
Providers of very large online platforms shall provide a functionality allowing
recipients of their services to declare that:
(a) it is a media service provider within the meaning of Article 2(2);
EN
1
EN
(b) it is editorially independent from Member States and third countries; and
(c) it is subject to regulatory requirements for the exercise of editorial
responsibility in one or more Member States, or adheres to a co-regulatory or
self-regulatory mechanism governing editorial standards, widely recognised
and accepted in the relevant media sector in one or more Member States.
1. a. The functionality will allow to acces to the information on the media service
providers, that the users of the content will be able to verify.
Commented [A1]: To bi bil link na 6. Člen.
Formatted: Pattern: Clear (White)
2.
Where a provider of very large online platform decides to suspend the provision of
its online intermediation services in relation to content provided by a media service
provider that submitted a declaration pursuant to paragraph 1 of this Article, on the
grounds that such content is incompatible with its terms and conditions, without that
content contributing to a systemic risk referred to in Article 26 of the Regulation
(EU) 2022/XXX [Digital Services Act], it shall notify the media service provider on
the reasons accompanying that decision before the suspension with the right to reply
take all possible measures, to the extent consistent with their obligations under Union
Formatted: Strikethrough
law, including Regulation (EU) 2022/XXX [Digital Services Act], to communicate
to the media service provider concerned the statement of reasons accompanying that
decision, as required by Article 4(1) of Regulation (EU) 2019/1150, prior to the
suspension taking effect.
Formatted: English (United Kingdom)
3.
Providers of very large online platforms shall take all the necessary technical and
organisational measures to ensure that complaints under Article 11 of Regulation
(EU) 2019/1150 by media service providers that submitted a declaration pursuant to
paragraph 1 of this Article are processed and decided upon with priority and without
undue delay.
4.
Where a media service provider that submitted a declaration pursuant to paragraph 1
considers that a provider of very large online platform frequently restricts or
suspends the provision of its services in relation to content provided by the media
service provider without sufficient grounds, the provider of very large online
platform shall engage in a meaningful and effective dialogue with the media service
provider, upon its request, in good faith with a view to finding an amicable solution
for terminating unjustified restrictions or suspensions and avoiding them in the
future. The media service provider may notify the outcome of such exchanges to the
Board.
5.
Providers of very large online platforms shall make publicly available on an annual
basis information on:
(a) the number of instances where they imposed any restriction or suspension on
the grounds that the content provided by a media service provider that
submitted a declaration in accordance with paragraph 1 of this Article is
incompatible with their terms and conditions; and
(b) the grounds for imposing such restrictions.
6.
With a view to facilitating the consistent and effective implementation of this Article,
the Commission may issue guidelines to establish the form and details of the
declaration set out in paragraph 1.
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Article 18
Structured dialogue
1.
The Board shall regularly organise a structured dialogue between providers of very
large online platforms, representatives of media service providers and representatives
of civil society to discuss experience and best practices in the application of Article
17 of this Regulation, to foster access to diverse offers of independent media on very
large online platforms and to monitor adherence to self-regulatory initiatives aimed
at protecting society from harmful content, including disinformation and foreign
information manipulation and interference.
2.
The Board shall report on the results of the dialogue to the Commission and when
apopriate to the Member states..
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EXPLANATION NOTES
As we have already proposed for the Article 12, our intent is to include differentiated roles of
the Board depending on the articles that are subject of minimum or maximum hamonisation.
In this sense the amending of the Article 15 should follow the same logic: since the Board as
it was interpreted, should not have any role beside the Directive 2010/13/EU and the new
provisions in chapter III., we propose to delete other possible obligations. Since the
Commission has legal ground to issue guidelines, there is no particular need to articulate it as
a general possibility, beside specific situations when the guidelines are indeed needed and
usuful.
As the media have a specific role in ensuring that their services, in line with editorial
responsible decisions, provide the informations in general public interest, they should be
notified of the intended suspension or restriction before the final suspension or restriction. On
the same line we propose additional safeguard for the users to verify the information on the
media service providers. Our proposal at this phase is provisory, as we understood that the
Article in DSA have still to be checked and we have therefore to verify it with our autorities
in this field.
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Document Outline
