New obligations for MSPs and VLOPs heralded in by European Media Freedom Act

The European Media Freedom Act (EMFA) to protect media freedom and pluralism in the EU comes into effect from 8 August, with the legislation applying to all media service providers (MSPs) that target audiences in the Union, whether established within the EU or outside.

MSPs covers all entities that provide a media service and have editorial responsibility for the content on their service. The definition includes TV and radio broadcasters, video on demand (VOD) providers, audio podcast providers, newspaper publishers (online and offline) and video-sharing platforms, including very large online platforms (VLOPs) that exercise editorial control. VLOPs are defined in the Digital Services Act (DSA) as platforms with over 45 million monthly users that are designated by the European Commission as VLOPs.

The EMFA also includes obligations for VLOPs – whether they have editorial control or not – in relation to MSP content on their platforms, as well as obligations for manufacturers, developers and importers of devices and user interfaces on which media services are consumed.

What does EMFA do?

The EMFA recognises the EU public's right to receive editorially independent media content, requires member states to ensure that MSPs are editorially and functionally free and independent (consistent with article 11 of the Charter on Fundamental Rights) and that journalistic sources are protected. Member states must also ensure that funding for public MSPs is transparent and objective. 

MSPs must adhere to transparency requirements about their ownership and the amount of public funding for state advertising that they receive; if they provide news and current affairs, they must also take measures to guarantee the independence of editorial decisions.

The EMFA establishes the European Board for Media Services, which replaces the European Regulators Group for Audiovisual Media Services, that brings together national media regulators in order to ensure the consistent application of media legislation across the EU.

Article 18: VLOPs

Article 18 of the EMFA sets out various requirements for VLOPs, whether they have editorial control or not. It is designed to protect freedom of expression and counter any unjustified removal of MSP content by VLOPs from their services; for example, as a result of using automated tools for content moderation purposes to comply with the DSA.

For MSPs to benefit from the protections, they must make various declarations on the VLOP service, including that they are MSPs, they do not provide content generated by artificial intelligence without subjecting it to human review or editorial control, they are editorially independent from member states and political parties, and they are subject to regulatory oversight by a national regulator.

For VLOPs, their article 18 obligations include providing functionality for MSPs to make the necessary declarations and accepting or rejecting declarations without undue delay, enabling direct communication with MSPs and ensuring that the information provided by MSPs is publicly available and easily accessible. VLOPs' obligations also include making publicly available on an annual basis information on (among other things) how many declarations have been rejected or invalidated, and how many direct dialogues with MSPs have taken place.

Article 18 obligations for VLOPs also require compliance with the rules on the removal or restriction of MSP content, which include:

• Notifying the MSP of an intention to restrict or remove content.
• Providing a statement of reasons behind the decision.
• giving the MSP 24 hours to reply (although this timeframe can be reduced in a crisis situation).
• Ensuring that complaints from MSPs are processed quickly.
• Engaging in "meaningful and effective" dialogue with an MSP to find an "amicable solution", if a MSP considers that its content is being unjustifiably removed or restricted repeatedly.

Exactly how the European Commission is expecting these obligations to be implemented remains unclear. A consultation seeking feedback on the article 18 provisions, to inform a set of guidelines that the Commission will publish to assist both MSPs and VLOPs, ended on 23 July. Despite an 8 August effective date, the Commission is reported to be looking at planning to publish the guidelines in the autumn.

What does this mean for VLOPs and MSPs?

A lack of guidelines does not, however, mean that the obligations in Article 18 do not apply. They will be coming into effect from 8 August 2025, as planned.

For MSPs, which includes UK-based providers where their content reaches EU audiences, this means making sure that they make the required declarations to the relevant VLOPs to ensure that they can take advantage of the protections. Once this is done, if they receive notification from a VLOP of any potential content moderation activity, it means responding within the required time if they wish to do so.

For VLOPs, the requirements are more concerned with respecting the new procedural safeguards. VLOPs must ensure that they have the necessary technical and organisational processes and practices in place to enable MSPs to make their declarations on the service, ensure that MSPs are notified before any of their content is removed or restricted, and deal with any complaints from MSPs. They must also be transparent about the reasoning behind any decision to remove or restrict MSP content, as well as set up systems to ensure that the relevant information is published on the service and allow meaningful engagement with MSPs.

Article 20: manufacturers, developers and importers

Article 20 of the EMFA gives users a right to be able to, at any time, freely and easily change the configuration, including default settings, of any device or user interface they use to consume media services so that they can customise the content according to their interests or preferences.

Manufacturers, developers and importers of devices and user interfaces must ensure that functionality to make configuration changes freely and easily is provided. They also have to ensure that the visual identify of the MSPs, to which the device and user interface connect, is clearly and consistently visible. 

Those within scope of article 20 will, therefore, need to review their user interfaces and devices and ensure that they comply with the requirements.

Osborne Clarke comment

VLOPs will need to comply with the new rules from 8 August and make any necessary changes dictated by the guidelines when these are published, potentially later in the year.

Various responses to the consultation from public service media organisations concerned with protecting MSP content are calling on the Commission to ensure that the guidelines strengthen the provisions in article 18 by, for example, obliging VLOPs to create a simple, free of charge and user-friendly declaration system and to appoint contacts within the company that have expertise in the media sector.

Concerns have been raised that article 18 will allow false and misleading content to proliferate online. However, as the European Parliament notes in a briefing paper published last year, EMFA creates a framework that allows national authorities to tackle systematic information manipulation, interference and disinformation through, for example, controls over MSPs financed by certain third countries. The paper also points out that the new media board will play a key role in curbing disinformation and foreign interference.

In any event, VLOPs are required to act to ensure compliance with the EMFA by 8 August, guidelines or no guidelines.