ARTICLE 19, Civil Society Europe and the European Federation of Journalists express their concern on the proposed Directive on interest representation services on behalf of third countries, part of the Defense of Democracy Package, and call for its immediate withdrawal. 

The above organisations warn that the proposed Directive’s vagueness and unclarity make its scope ambiguously wide, with the potential to negatively impact the media sector and restrict media freedom in the EU. The EU should withdraw the proposed Directive and ensure a thorough human rights impact assessment of any future similar proposals that may have adverse effects on the media, as well as on freedoms of association and expression.

As analysed in Civil Society Europe’s policy brief, the proposed Directive will inevitably lead to shrinking civic space in the EU, as it will not only impose cumbersome reporting, registration, and public disclosure requirements on NGOs but will also discourage civil society actors from seeking funding opportunities outside the EU. The imposition of onerous duties on NGOs which are supported by foreign funding is hardly an effective way of dealing with legitimate concerns of foreign influence in the EU. The fight against the latter should not come at the expense of the protection of human rights, namely freedom of association, right to privacy, and freedom of expression.

The vagueness of the proposed Directive’s language for what regards the regulation of actors who perform media functions in the EU also raises concerns as to the protection of media freedoms in the Union.  Namely, Recital 25 of the proposed Directive states that, while the provision of media and audiovisual services under the European Media Freedom Act and the Audiovisual Media Service Directive is not covered, “interest representation activities carried out on behalf of third country entities within the meaning of this Directive by media service providers will be covered“. 

However, such specifications are not present in the actual text of the legislation. When disseminating advertisements as a service for entities carrying out interest representation activities on behalf of third countries,  such media service providers must be named in the registration of the entity, and the relevant costs must be included in the amount of remuneration declared by the interest representation service provider. Due to the very broad interpretation of ‘interest representation activity’ and the lack of a definition of ‘acting on behalf of a third country’, any information or inquiry activities by media with a collaboration funded from a third country (e.g. with public television) could be included under the scope of the proposed Directive and require registration. 

Similarly, the unclarity of the limits in the definition of interest representation service would pose serious questions about whether programmes and articles sponsored by third-country authorities or entities linked with third-country authorities would require registration by the producers of such programmes. Also, it is not clarified if companies managing media advertisements would be considered subcontractors, therefore, needing to provide the EIRN (the registration number in the foreign interest service providers registry) when interacting with any public authorities.

Moreover, in practice, many NGOs across the EU perform a media function when their activities are focused on informing the public on issues of public interest, be it environmental concerns, social justice, or economic inequalities. The contemporary human rights approach to journalism is to interpret it as a civic function, which can be exercised by numerous civil society actors. It is a view shared both by the Human Rights Committee and the European Court of Human Rights, which has progressively recognised that the public watchdog function, previously associated mostly with the press, is also performed by other civil society actors. Separately, many professional media may choose to register as NGOs due to a variety of regulatory and practical reasons in a given Member State. As such, the proposed Directive will inevitably require compliance with its registration and public disclosure requirements from civil society actors who perform media functions and, thus, will produce a chilling effect on journalism as well. 

As a consequence of the registration by media outlets as an interest representation service, journalists would have to provide the EIRN upon any exchanges with public authorities. In practical terms, policy makers, elected people and government representatives could be given a powerful excuse to refuse press accreditation, interviews, enquiries, etc., indicating the will not to engage with ‘foreign-funded media’. That would be a severe attack on the freedom of the press and the right of inquiry of the journalistic profession. 

We believe that protecting our democracies from malign interference via dedicated, yet vague legislation is not the right approach, both in terms of effectiveness and the failure to detect internal attempts of interference in other democratic systems. On the contrary, general legislation has the potential to address state interference in media freedom. The European Media Freedom Act covers the topic, especially by foreseeing measures to guarantee the editorial independence of public media and full transparency of the ownership of news and current affairs outlets. 

We urge policymakers to reconsider their support of this Directive and to promote a shift in the conversation towards a more holistic approach to securing our democracies while respecting and promoting fundamental rights.