No Rainbow without Rain?

On 6 December 2022, Latvian National Electronic Mass Media Council (NEPLP) revoked the broadcasting licence of the independent Russian TV channel ‘TV Rain’. This decision was fueled by the recent controversy around a recent episode of TV Rain’s live news show, where its presenter called upon the audience to share information on Russia’s military mobilisation via a designated e-mail address and expressed hope that the channel had been able to help Russian soldiers ‘with equipment or basic amenities at the front’. Following the decision to annul TV Rain’s licence, the NEPLP will also request to geo-block TV Rain’s YouTube channel, which is actively used by the media outlet to livestream its shows.

The measures taken against TV Rain in Latvia raise intricate legal questions from an EU law point of view: Is the crackdown on the anti-war Russian TV channel compatible with EU-wide rules on audiovisual media? Can the Latvian government lawfully request YouTube to make TV rain’s channel inaccessible in Latvia? This blogpost argues that EU law is powerless when confronted with possibly unjustified national restrictions against media outlets and their growing spillover into the Internet sphere. In tackling these issues, it reflects on EU legislation currently in force as well as considers recent legislative initiatives.

The Revocation of TV Rain’s Broadcasting Licence

Latvia’s move came exactly six months after the NEPLP had issued the licence to TV Rain, whose reporters had to seek refuge in the EU after being accused of violating new repressive Russian laws adopted amid the war against Ukraine. The allegedly unscripted phrase dropped by TV Rain’s correspondent provoked a public outcry in both Europe and Ukraine. In view of the shocking war atrocities committed by the Russian army in Ukraine, any calls for assistance to mobilised soldiers is seen as backstabbing Ukrainian people bravely resisting Russia’s aggression. The decision to cancel TV Rain’s licence in Latvia also sparked a complex moral dilemma: can Russian journalists in exile truly distance themselves from the struggles of Russian population and cast aside any feeling of empathy towards mobilised Russian citizens, many of which, as some show, are made to fight against their will? At the same time, many called the measures taken by Latvia overboard and politically motivated.

The decision to revoke TV Rain’s broadcasting licence is based on Article 21(3)(8) of Latvia’s Electronic Mass Media Law, which authorises the NEPLP to annul a broadcasting permit held by an electronic mass medium if it ‘endangers national security or significantly endangers public order or security’. The NEPLP admitted that, in reaching its decision, it must thoroughly assess the significance of a violation (Article 21(3¹)) as the measure constitutes a restriction on freedom of expression. However, TV Rain was found to repeatedly violate provisions of the Electronic Mass Media Law. In the last months, it allegedly failed to ensure that their programs are accompanied by a language track in Latvian (Articles 24(3) and 32(5)), provided inaccurate information by making references to the Russian army as ‘our army’ and demonstrating a map depicting Crimea as part of Russia (Article 24(4)), and, most recently, made an ‘incitement that endangers national security or significantly endangers public order or security’ (Article 26(1)(7)). Therefore, the revocation of the broadcasting licence was considered justified.

Does the NEPLP’s stance hold water from the EU law perspective? The harmonised rules on TV broadcasts are laid down in the Audiovisual Media Services (AVMS) Directive. Article 2 of the Directive enshrines the country-of-origin principle, obliging each Member States to ensure that all media service providers under its jurisdiction comply with the law of that Member State. Since TV Rain has its head office in Riga, Latvia is competent to regulate its broadcasting activities. The AVMS Directive does not provide common rules on suspending or withdrawing the licences of media services providers. Chapter III (‘Provisions applicable to all audiovisual media services’) merely approximates certain minimum requirements to media service providers. Under Article 4 of the AVMS Directive, each Member States is entitled to impose stricter rules on media service providers so long as these rules are compatible with EU law. It follows that, prima facie, Latvia had the right to introduce and enforce a legal provision allowing its media regulator to terminate licences of broadcasters whose activities threaten national security.

While the decision to annul ‘TV Rain’s broadcasting licence based on national security concerns does not run contrary to the AVMS Directive, is it compatible with EU primary law, namely the EU Charter of Fundamental Rights, which safeguards the freedom and pluralism of the media (Article 11(2))? To answer this tricky question, one must apply a threefold test envisioned in Article 52 of the Charter. Even though the limitation is clearly provided for by the Latvian law, it is ambiguous whether TV Rain could foresee that the statement made by its presenter would be considered an incitement to actions threatening national security (see, for example, Case T‑125-22, paras 149-151). Moreover, one could reasonably enquire if the revocation of a broadcasting licence meets the requirement of proportionality since it can dissuade journalists from expressing their opinion on political issues of public interest (Case T‑262/15, para 116).

Performing a balancing exercise under the Charter is always extremely challenging, and practice showed that the Charter alone cannot safeguard media freedom in the EU. For this reason, the Commission has recently tabled the proposal for the European Media Freedom Act (EMFA), which strives to strengthen protection of media pluralism and independence. Does the proposal enshrine any provisions which will preclude Member States from adopting restrictions against media service providers where they may be driven by political considerations? Article 20 of the proposed EMFA provides that ‘[a]ny legislative, regulatory or administrative measure taken by a Member State that is liable to affect the operation of media service providers in the internal market shall be duly justified and proportionate’. Such measures must also be ‘reasoned, transparent, objective and non-discriminatory’. This unambitious wording makes it difficult to imagine how the proposal goes beyond what is already guaranteed by the Charter. As also argued by Judit Bayer, the rules on national measures under the proposed EMFA are too ‘basic’ and, strikingly, do not explicitly prohibit actions resulting in indirect discrimination. As a result, one could cast doubt on the added value of the EMFA in situations when Member States impose harsh restrictions on media outlets when their presence in that Member State may not be politically desirable. Even if the measure taken against TV Rain could ultimately be justified, this loophole in the EU legal framework could be abused by authoritarian-leaning Member States to unduly restrict the freedom of the media.

Geo-blocking of TV Rain’s YouTube Channel

The NEPLP’s decision to request the geo-blocking of TV Rain’s YouTube channel is even more puzzling. Since 2000, the general EU-wide rules on information society services have been codified in the e-Commerce Directive. YouTube, which falls under the category of hosting providers, enjoys the conditional exemption from liability for storing illegal user-generated content (Article 14(1)). However, this exemption does not include injunctive relief: Member States can require providers to terminate or prevent the infringement (Articles 14(3) and 18(1)). The e-Commerce Directive has recently been amended by Digital Services Act (DSA) – a groundbreaking regulation which will apply from 17 February 2024. The DSA provides more detailed rules on orders to act against illegal content. Article 9 DSA gives a list of elements which all orders must contain. They include, inter alia, a reference to a provision of EU or national law breached by the content, a statement of reason why this content breaches it, and clear information on its location (such as a URL). However, as civil society organisations pointed out earlier, the DSA does not provide any safeguards against repressive domestic speech laws or their inappropriate reading. It remains obscure which provision of Latvian law was violated by TV Rain’s YouTube channel. The Latvian State Security Service (VDD), which started the investigation of the statements made in the controversial news show, merely stated that TV Rain could be criminally liable if it was actually collecting or transferring funds or other goods to the Russian army (Section 77² of the Latvian Criminal Law). But it does not mean that a YouTube video where a TV presenter shared an e-mail address created with the purpose of collecting information on the irregularities within Russia’s military forces and expressed willingness to help abandoned Russian soldiers can be immediately qualified as illegal content. It can hardly be considered an incitement to violence or war propaganda. However, the DSA does not prevent Member States like Latvia from issuing orders against social media platforms based on a dubious interpretation of EU or national law.

Finally, it is worrying that restrictions against media outlets are increasingly seeping into the social media environment. A similar situation occurred after the adoption of Council Regulation (EU) 2022/350 amending Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, when the Commission urged hosting providers to proactively filter all content reproducing RT’s ad Sputnik’s content (see my op-ed here). This trend is problematic since the removal or disabling of access to online content is a limitation on both media freedom as well as freedom to receive and impart information enjoyed by all Internet users. The adoption of restrictions on broadcasting rights of a media outlet cannot automatically lead to a conclusion that the content produced by this outlet shall not be available online. Any limitation on social media content must be subject to a separate analysis based on Article 52 of the Charter. However, both EU institutions and Member States appear to neglect this analysis, thus compromising effective protection of fundamental rights online.

Conclusion

The measures taken by the Latvian government against TV Rain offer a useful lens on numerous shortcomings of EU law dealing with audiovisual services and online content. Even though Latvia’s decision may not be groundless, it shows that EU law cannot effectively counter attempts to disproportionately restrict both the freedom of the media and freedom of expression. Further work is required to ensure that EU secondary legislation effectively complements and strengthens protection of media freedom guaranteed under the Charter.