This week I followed the appeal by the directors of The Malta Independent, Times of Malta, Malta Today and Lovin Malta for government to refrain from implementing the EU audiovisual media directive in a way which would ban the use of sponsorships for online shows.

Malta is already in the 81st place in the media freedom rankings. We need to promote independent media not stifle it further by cutting it’s financing. Last week I spoke to a few Maltese editors and then delved deeper into the EU directive and the draft implementing provisions submitted before the Maltese Parliament to understand better what is at stake and how best to come out of it. Here is what I found out.

First of all, we need to clarify a not irrelevant detail on EU laws. There is a fundamentally important distinction between regulations and directives. Both are adopted by the EU machinery and published in the EU official journal, but whereas the first becomes law immediately upon publication and can be used by any Żeppi or Żeża with any authority or in any court of law, the latter, i.e the Directives, are entirely dependent on their implementation by the Member States and will not become law unless and until the government adopts a Maltese law to implement the EU principle into the words of Maltese legislation.

The above distinction is not simply an effort to confuse EU affairs students, but a reflection of the nature of the EU which is meant to harmonise laws only to the extent necessary to achieve a workable EU market and which imperatively need to allow a comfortable margin for particular local circumstances to be respected while achieving EU objectives.

The smart countries in the EU, in fact, use EU directives and regulations to address local issues through the might of the EU rather than helplessly suffering EU laws as something they could not help avoiding. The EU audiovisual media directive is a case in point. There were two mammoth issues brewing in Europe some years ago, one was the takeover of commercial media websites in the east from Lithuania to Latvia and Czechia by Russian interests with the real risk of political influence that carries with it. The second, was the erosion of income to French, German and Italian tv stations from online media platforms and a lawless situation with social media platforms shunning responsibility for content posted by users. The EU directive created a safety net for Lithuania and Latvia and others to protect media freedom by enforcing EU legislation on Russian interests while giving tools to France and Germany to protect media freedom by ensuring a level playing field between the giant online media operators and the traditional TV channels.

Did the directive foresee the Maltese situation where you have all main TV stations owned by political parties in a country on the 81st place in the list of media freedom? Apparently not. If applied without adaptation, the directive’s provisions against commercial sponsorships of current affairs programmes online will further stifle media pluralism in Malta. Let’s face it, here we have a situation where a good chunk of revenue for newspapers and online portals already depends on government endorsement. Cutting off online current affairs programmes from possible sponsorship by nongovernment entities is a sure way of driving our independent media further towards dependence on public money.

The above did not find its way in the EU text. In fact, it seems we did not budge a comma at the negotiation stage in Europe. Government has a seat and a say at all levels both in the European Commission technical working groups as well as in the EU Council where our ministers can propose amendments. Yet it seems that the seat was not put to good use, either because government is comfortable with the status quo, or simply because it failed to conjugate the paragraphs of technical amendments into real life impact on our media in Malta.

So here we are now with an EU directive which is seen as an existential threat by those who are most concerned by it, the Maltese independent media. How do we get out of this situation? We have to come up with expeditious solutions as the European Commission now awaits Malta’s implementation measures.

I can see only two options. The first is for government to finally live up to all its lip service to media freedom and actually set up an independent media sponsorship scheme carrying part of the expenses of independent media. Such an initiative would be in sync with calls in the European Parliament for measures to promote investigative journalism triggered by the legacy of Daphne Caruana Galizia. Such a regime will need to be totally sealed off from political influence. If not, it would exacerbate the problem rather than helping it.

The second option, which in any case has to be considered irrespective of the first, is to use the leeway afforded in the same EU audio-visual media directive to our advantage by allowing a margin of discretion for commercial sponsorship of online media content subject to strict controls. The room for manoeuvre here is thin. However, the directive itself indicates a narrow path possibly justifying such exception by indicating that Member States may promote services of general interest. In the Maltese case where media ownership is largely in the hands of political parties, I believe that the general interest calls for more freedom to independent media investing in current affairs programmes.

Our national MPs this week discussed the draft Maltese law to implement the EU directive. As you would have guessed by now, that draft prepared by government is a copy paste exercise of the EU directive. It does not factor in the above considerations. It is not too late. We joined Europe to make it work for all sectors of society. In many cases that requires an innovative approach departing from a copy paste attitude. Malta has very particular characteristics, not found in other European territories. We must imperatively adapt Europe to fit us better. It is not too late. Let us strive to do this together on media law and on all the other challenges coming up. I will try to do my part by highlighting different possibilities.