In anticipation of the various proposals and action plans for regulating digital platforms, funding media and protecting democracy that the European Commission will unveil on 2 December, Reporters Without Borders (RSF) is submitting its recommendations to European institutions on how to respond to the challenges to democracy and fundamental rights.

RSF is presenting 10 recommendations for establishing democratic safeguards in the online information and communication domain, and for building the foundations of a sustainable ecosystem for the troubled media industry.

Democracy and fundamental rights are threatened by the online information chaos, attributable to the business model of digital platforms and the lack of regulation; by the increase in press freedom violations and attacks on editorial independence all over the world; and by the collapse in media revenue that is threatening content quality and even the survival of many media outlets.

The European Union has undertaken to respond to these threats by means of a European Democracy Action Plan that will be published on 2 December. It is based on three pillars: the integrity of elections and political advertising, reinforcing media freedom and pluralism, and combatting disinformation in the EU. The European Commission will also present the Digital Services Act (DSA) and the Digital Markets Act (DMA), future European legislation aimed at regulating digital platforms, and a Media and Audiovisual Plan. A joint regulatory proposal from the Council on measures to curb serious human rights violations and abuses is also expected.

After presenting an initial series of proposals for strengthening press freedom in the European Union on the eve of the European elections in 2019, RSF is now publishing ten recommendations with the aim of helping members states to respond to these challenges.

1/ Promote the goal of journalistic freedom and reliable news and information in the EU and international forums

Europe is the continent in which press freedom is best guaranteed, as can be seen in RSF’s World Press Freedom Index. But this freedom is in danger all over the world and has been undermined in the European continent.

→ The EU’s diplomatic priorities should include democratic safeguards for public debate in the online information and communication domain.

→ The EU’s diplomatic priorities should also include not only the defence but also the promotion of journalistic freedom, independence and pluralism.

→ To promote its fundamental values and safeguard its democratic models, the EU must put these issues on the agenda of international meetings such as G7 and G20 summits.

2/ Regulate digital platforms by requiring democratic safeguards for public debate

The digital platforms have acquired a major role in our lives. They are no longer mere technical intermediaries, neutral content conveyers or hosts with no impact on the public domain. They are entities that shape and structure the public space, set its standards, determine content censorship, and decide which media outlets and information get priority.

In response to this reality, 38 countries, including 21 European Union members, have signed the International Partnership on Information and Democracy, which proclaims overall principles for the online information and communication domain and calls on the digital platforms to implement them.

→ It is crucial that European legislation regulating the platforms should be based on the approach and principles of the Partnership on Information and Democracy.

→ In particular, the EU must proclaim the online information and communication domain to be a common good, one governed by principles that allow fundamental rights and freedoms to be exercised.

→ The system of accountability required of platforms should ensure that they safeguard and respect democratic procedures and the rights of their users, especially the right to freedom of opinion and expression.

3/ Promote reliable news and information

To combat disinformation, the European Union should prioritize the promotion of reliable online content (“whitelisting”) rather than repressive policies that are hard to implement and threaten freedom of expression (“blacklisting”).

→ The European Union should adopt a co-regulation approach to get platforms to promote and improve the visibility of reliable information sources in their news feeds and search results (a due prominence obligation), using independent criteria employed by the media profession and adopting mechanisms such the Journalism Trust initiative. The platforms would implement these tools and criteria themselves, under the oversight of national regulatory authorities, applying tools and criteria that are clear and identified in legislation.

In a collaborative process launched and managed by RSF, the Journalism Trust initiative (JTI) has produced a machine-readable set of standards designed to encourage respect for journalistic ethics and methods and reinforce use of the right to information by promoting online content produced in accordance with these principles. Under the aegis of the European Committee for Standardization (CEN), the JTI European “Standard” was officially issued on 19 December 2019 in the form of a “CEN workshop agreement.” More than 120 entities collaborated in drafting these standards, including news media, media unions, consumer associations and technology groups. The incorporation of these standards into algorithms used by search engines and to allocate advertising is due to begin in early 2021.

4/ Reinforce media sustainability

The coronavirus crisis has shown how essential it is to have reliable news and information and independent media. At the same time, it has deprived independent media of even more revenue, exacerbating their financial frailty.

→ In the short term, RSF asks the EU to create an emergency fund to help vulnerable European media to overcome the crisis. The EU must ensure that any direct or indirect subsidy or any other form of financial support for media is granted on the basis of objective, fair and neutral criteria, as part of non-discriminatory and transparent procedures, and implemented in full respect for the editorial and operational autonomy of the beneficiaries – in accordance with the Council of Europe’s recommendations[1].

→ A revision of the legal framework should be proposed with the aim of encouraging the emergence of innovative funding models. It should be developed in cooperation with civil society and the sector’s stakeholders. The Forum on Information and Democracy will create a working group on media sustainability in November 2020 to devise novel proposals for funding journalism (including reference to good practices, regulation and provisions of an extra-market nature). It could define the outlines of a European plan for media sustainability in Europe.

→ The EU should require platforms to contribute to media sustainability, given their impact on the media’s loss of income. RSF recommends, for example, redistributing part of the net national revenue of the platforms towards public interest media, or channelling advertising to media that respect independent, machine-readable standards produced by the media profession, such as the standards developed by the JTI.

5/ Reinforce Europe’s rule of law mechanism

RSF welcomes the inclusion of media pluralism in the European Commission’s Rule of Law Report, which signals recognition of independent journalism and access to information as one of the pillars of democracy. It also reflects a realization of the decline in press freedom and media pluralism in the EU.

→ So that this mechanism is effective, RSF asks for it to be reinforced and to be included in the country-by-country recommendations and in sanctions for serious violations of rule of law principles, in particular, press freedom and media independence.

6/ Adopt a directive protecting journalists and media against arbitrary lawsuits

RSF has noted a significant increase in judicial harassment of journalists in the European Union in recent years. So-called Strategic Lawsuits against Public Participation, or SLAPPs, have become one of the weapons preferred by those in positions of power, politicians and businessmen for gagging the media.

→ RSF asks the EU to take measures to combat misuse of lawsuits designed to silence journalists. In particular, RSF calls for the adoption of a directive establishing European-wide minimal standards of protection by introducing procedural guarantees for SLAPP victims and by combining preventive measures to block abusive lawsuits (including evaluation of admissibility, injunctions and temporary measures) with measures to punish those responsible for SLAPPs and to compensate their victims.

7/ Create a rapid alert mechanism for press freedom violations and to protect journalists

→ RSF supports the creation, at the political level, of a rapid alert mechanism for press freedom violations and for the protection of journalists, and for a commissioner to be named as point person for this mechanism. Such a mechanism would be in line with the recommendations of the United Nations Plan of Action on the Safety of Journalists and the Issue of Impunity. It would enable civil society and NGOs to sound the alarm as soon as a press freedom violation or attack on journalists occurs, so that the EU can take rapid action.

→ At the international level, RSF urges the EU to press for the creation of the post of Special Representative to the UN secretary-general for protecting journalists and combatting impunity for crimes of violence against them, a post with the political weight, capacity for rapid action and legitimacy necessary to coordinate all UN bodies and bring about a real change.

8/ Harmonize legislation on safeguarding the confidentiality of journalists’ sources

The confidentiality of journalists’ sources is one of the cornerstones of press freedom, according to the European Court of Human Rights. However, the relevant legislation and the efficacy with which it protects journalists’ sources vary greatly from country to country within the European Union.

→ The EU should encourage member states to adopt a harmonized legislation on the confidentiality of journalists’ sources, under which journalists can never be forced to reveal their sources and authorities can try to identify their sources by other means only when permitted by a judge in order to prevent a serious crime on a strictly defined list.

9/ Reinforce journalists’ protection against state surveillance

Because of mass data gathering, Internet traffic analysis and the possibilities of penetrating private communications, police and surveillance powers threaten the ability of journalists to protect the confidentiality of their communications and their sources in EU member states.

RSF calls for the adoption of effective safeguards against the surveillance of journalists and their sources at the national and European level.

→ Supranational initiatives aimed at drafting common standards and agreements on intelligence agency surveillance, respect for privacy and protection of data must be supported and encouraged in the light of the German Federal Constitutional Court’s recent ruling on the foreign intelligence law (BND-Gesetz) and the CJEU’s 2020 ruling on data transfers (“Schrems II”), in accordance with requests for such common standards from the Parliamentary Assembly of the Council of Europe, the UN special rapporteur on the protection of privacy and the European Intelligence Oversight Network (EION).

10/ Condition EU funding on respect for press freedom and the rule of law

The European Union is a union of values that include fundamental rights, democracy and the rule of law. The Union must, as a matter of urgency, give itself adequate mechanisms and instruments for ensuring respect for these values, especially press freedom, media independence and media pluralism, which are essential to the functioning of democracy and the rule of law.

→ A member state should not be able to benefit from European solidarity in the form of European funding if, at the same time, it tramples on press freedom and media pluralism and, through them, on democracy and the rule of law.

The new instrument on the conditionality of European funding, which should be definitively adopted by the end of 2020, is a step in the right direction. However, it is liable to be difficult to use because of the modalities envisaged for taking such a decision.

→ RSF recommends that European funding should also be conditioned on respect for press freedom and media independence, in order to be better able to respond to the violations seen in certain EU member states.

REPORTERS SANS FRONTIÈRES/ REPORTERS WITHOUT BORDERS