EU. Portugal aligns with media freedom regulation

ERC advisor Carla Martins believes that Portuguese legislation is largely aligned with the European Media Freedom Regulation (EMFA), whose rules come into force this Friday.

The European Media Freedom Act (EMFA) was approved in 2024, when some rules came into force, but most come into force this Friday, in a phased process that will be fully applicable in 2027.

“The national legal framework is quite aligned with several of the provisions of the EMFA”, says the member of the Regulatory Council of the Regulatory Authority for Social Communication (ERC), who frames the importance of this regulation and points out how even in some points the national legislation goes further .

"With the entry into force of this regulation, I think it's fair to point out that, for the first time, there is legislation at the European Union level that regulates or harmonizes the rules applicable to the independence and pluralism of the media," Carla Martins said in an interview with Lusa.

Until this regulation came into existence, " these matters were the exclusive competence of the Member States and, as a result, some Member States have challenged this legislation before the Court of Justice of the European Union and this decision has not yet been made," says Carla Martins.

The ERC advisor explains that there is controversy over European-level regulation of "such a sensitive matter that is related to the functioning of the media system in the Member States."

The impetus for the creation of this legislation is “related to the diagnosis that is made (…) at the level of the European Union, of the state of independence and pluralism of the media and of what is identified as a year-after-year decrease in independence (…), of its capture before political power and before economic power, its vulnerability in relation to threats from countries outside the European Union”, he states.

Therefore, "we hear a lot today about third-country interference in the independence of the media in the European Union, particularly in the form of propaganda and disinformation," he points out.

This "is a major concern at the level of European policy and there are instruments that are applied at the European level that have been documenting, year after year, this degradation of the conditions for exercising press freedom, so to speak, in the European space, namely the media pluralism monitor and the European Commission's report on the Rule of Law", highlights Carla Martins.

Initially, the regulation had the effect of creating a new independent advisory body in the European Union, which is the Committee for Media Services.

"One of the first rules to come into force was the replacement of a former advisory body of the European Commission," creating this new body that is not exactly regulatory, but "independent advisory, where all the independent regulatory bodies of the 27 Member States have a seat, including the ERC, of course," namely on the management body.

And now "a set of important rules will come into force, precisely to pursue this objective of harmonizing the rules applicable to media markets in the Member States and which concern the independence and pluralism of the media and also the safeguarding of the independence of journalists and their rights, in particular the right to source protection," he summarizes.

"From a legal perspective, a regulation does not require transposition into the legal system of a Member State. The rules automatically come into force, and any person, whether natural or legal, can claim the regulation's application in the national legal system," he explains.

The ERC analyzed the extent to which the national legislative framework on media is or is not aligned with several provisions of the EMFA and concluded that it is in line with the European regulation.

"It's a fact that the national legal framework in several areas is aligned with the EMFA and even goes beyond it. And why? Because we have a very robust constitutional and legal framework protecting the independence and pluralism of the media and journalistic activity," argues the ERC advisor.

The safeguarding of the Public Media Service (SMP) is enshrined in the Constitution, for example.

The EMFA's objective is to protect the independence of the media, protect journalists, their independence in carrying out their work to pursue freedom of the press, the confidentiality of their sources of information, and ensure that the SPM has the necessary independence to function, but also the necessary means of financing, he summarizes.

“When we look at all these obligations set out in the European regulation, we realize that Portuguese law already protects these same values” and “is quite aligned with the EMFA.”

Then, "there are other areas, and here I think Portugal can even be at the forefront of other European countries, where we already have legislation," he says, pointing out examples, including the law "to safeguard the transparency of the media, the transparency of ownership, management and financing methods, which is something that now appears as a novelty for several countries, precisely to be aligned with this specific provision of the EMFA."

The other area in which Portugal is at the forefront “has to do with institutional advertising by the State, where we have also had for a decade (…) a law for transparency in the distribution of institutional advertising by the State, which is another of the very important standards of the EMFA”, he says.

The competition law itself also provides for the ERC to be consulted in concentration operations.

"In fact, there are many European countries where this is not provided for, and Portugal already provides a regulatory response to an issue like mergers, verifying whether or not it jeopardizes the independence and pluralism of the media," he says.

For Carla Martins, "it is always possible to introduce improvements to the law," but overall, "there is indeed an alignment of national law with the EMFA."