In this blog, Gemma Horton and Antonia Assersen-Skadberg of the University of Sheffield zoom in on the European Media Freedom Act’s promise to protect media freedom across Europe, asking: Amid autocratic threats and a surge in surveillance, is the Act robust enough to protect journalists and their sources?
Across Europe, the democratic decline and the growth of populism are causing concern for European institutions. Reports from Freedom House and V-Dem have highlighted that democracies around the world are under threat, and the impact this is having on media freedom is multifaceted. Safety threats across Europe have been well-documented, with journalists subjected to both online and in-person harassment; Strategic Lawsuits against Public Participation (SLAPPs) have been on the rise; and the publishing of independent journalism is becoming increasingly difficult in autocratic regimes.
No simple solution exists for tackling threats to media freedom, but steps have been taken by the European Union through the adoption of the Council of Europe’s Recommendation on countering the use of SLAPPs and the passing of the European Media Freedom Act (EMFA). The latter is designed to provide stronger protections for media freedom across Europe in response to the rise of authoritarianism. The Act seeks to promote editorial independence; provide special protections for media service providers from Very Large Online Platform’s content moderation; and bolster journalism safety by limiting the circumstances when journalists can be subjected to surveillance. However, there are certain issues with the Act, including vague language, which could potentially weaken the media protections. Therefore, questions arise as to whether or not the EMFA can actually achieve its goal of safeguarding media freedom, as shall be discussed below.
Editorial Independence Under Threat
In certain countries across Europe, newsrooms have found themselves increasingly lacking editorial independence. In Hungary, the majority of the media is either directly or indirectly controlled by the Fidesz Party. In Romania, there are concerns about the level of political polarisation in the media and the number of outlets being used to advance political or business interests. In Greece, public service media outlets have also faced challenges with political and economic pressures.
The EMFA attempts to counter such pressures through Article 5, which focuses on protecting the independent functioning of public service media providers. Article 5 prescribes the disclosure of ownership, funding, and the structure of public service media—as transparent, objective, and non-discriminatory—and their oversight by an independent board or authority. Nevertheless, these requirements cannot be enforced, and in countries with an already unfolding democratic decline, they are unlikely to make a difference.
Hungary, as a case study, is one of the best to demonstrate this. In theory, Hungarian law falls in line with the EMFA, stating that public service media should be free from government interference. Yet while the procedure of appointing editorial boards is found to be “entirely transparent and outlined in Hungarian law,” those boards usually come from a pro-Fidesz background, furthering political influence over the media. The same is true of the regulatory boards. Despite Article 5 calling for transparency on ownership, citizens in Hungary are already aware of the media capture in their country, and merely knowing who owns the companies does not change the ownership or the way it is used to advance political interests. Clearly, while Hungary’s national law might fall in line with the EMFA standards in theory, the reality is different.
Despite the EMFA attempting to protect editorial independence, that is far from the case in a number of countries, such as Hungary, where journalistic autonomy and independence have already been severely eroded. The EMFA does not have the power to enforce change on a country’s public service media board or funding models, which undermines its objective of ensuring editorial independence within the EU.
The Deployment of Spyware
Across Member States, journalists have found themselves exposed to surveillance. The “Pegasus Project” was perhaps the most notorious in recent times and showed the threat that spyware poses to journalists and their sources. If a whistleblower’s information is compromised, it could lead to their identification. The protection of sources, as the European Court of Human Rights stated in the case of Goodwin, “is one of the most basic conditions for press freedom.”
Article 4 of the EMFA focuses on the protections of sources and the deployment of surveillance techniques, but Paragraph 4 provides an exception to those protections, stating that surveillance may be justified on a case-by-case basis and is “subject to prior authorisation by a judicial authority or an independent and impartial decision-making authority or, in duly justified and exceptional and urgent cases, is subsequently authorised by such an authority without due delay.” There are several concerns that Article 4(4) could compromise journalists’ safety.
Firstly, “undue delay” is not given a specific time frame. Secondly, Article 4(4)(d) states that judicial authorisation can take place ‘ex-post’ if provided for by national law or Union law and “in duly justified and exceptional and urgent cases.” This invites states to take advantage of their power in authorising state surveillance if they simply “act first, and ask permission second.” Thirdly, in some cases, the independence of the judiciary is undergoing erosion. One such example is Georgia, a country that has been granted candidate status, but has not been made an official member due to democratic backsliding. Research has suggested that Georgia’s judiciary is lacking independence and impartiality. Another example is Poland, where it has been stated that the Constitutional Court has been “seriously compromised over time by the infiltration of government zealots promoting executive usurpation of justice system authority.” With no “independent and impartial decision-making authority” in place to grant surveillance, the state has more room for abuse of power.
Additionally, Article 4(5) allows States to deploy intrusive surveillance if someone may have committed an offence that is “punishable in the Member State concerned by a custodial sentence or a detention order of a maximum period of at least five years, as determined by the law of that Member State.” Article 4(5) also allows the deployment of surveillance if being used to investigate “offences listed in Article 2(2) of Framework Decision 2002/584/JHA punishable in the Member State concerned by a custodial sentence or a detention order of a maximum period of at least three years.” Crimes in the list are wide-ranging, including trafficking, terrorism, swindling, and extortion. Some Member States may have harsher custodial sentences than others, which provides them with a lower threshold to conduct spyware operations.
Certainly, there are a number of ambiguities with regard to Article 4 of the EMFA. Alongside the aforementioned, Article 4 does not examine what happens if a state uses a non-state actor to deploy spyware, leaving another loophole in the Act for states to abuse. The risks this poses to reporters and their sources impact investigative journalism, as, without whistleblowers, some stories might not come to light. Despite Article 4(3)(c) stating that Member States should ensure that journalistic sources and confidential communications are effectively protected, Article 4 leaves a number of doors open for states to misuse their powers.
Too little, too late?
The aim of strengthening media freedom across Europe is an important one. At a time when we are concerned about the state of democracy, the media is in need of being protected in order to provide citizens with accurate information. However, journalistic independence and freedom are often the first to be crushed in autocratic regimes in favour of state propaganda.
The introduction of the EMFA has noble aims. At its heart, the Act seeks to strengthen media freedom across Europe, but there is genuine concern that it does not go far enough. Providing loopholes for states to overextend their authority in some cases, the Act is unenforceable in others. Moving forward, the European Commission will need to monitor Member States’ compliance with the EMFA. Will the Commission stand up to the states that fail to comply? It remains to be seen. Either way, implementing the EMFA for its true purpose—to protect media freedom—feels like an uphill battle.
To learn more, see European Media Freedom Act: Can it Stop the Democratic Backsliding? by Gemma Horton and Antonia Assersen-Skadberg, published by the Journal of Media Law in January 2026.