Leading Counsel´s opinion advises the media that EU `LIBOR` Regulation would unlawful without clear media exemption

A controversial draft EU Regulation designed to restore confidence in financial benchmarks following the LIBOR and EURIBOR scandals is set to undermine press freedom and  journalists’ right to protect their sources, if MEPs fail to adopt important amendments to the proposal on 17th February.

In an Opinion obtained this week from three leading UK lawyers led by The Honourable Michael J Beloff QC the media is advised that the Draft EU Regulation would be unlawful and therefore vulnerable to challenge in the European Court, if adopted in its current form without an exemption for the media.

Clear amendments to the Draft Regulation that exempt the media have been proposed by Syed Kamall MEP within the Economic and Monetary Affairs (ECON) Committee of the European Parliament which is due to vote on the draft report on the draft Regulation from Sharon Bowles MEP on Monday, 17th February.

In line with the advice of counsel’s opinion a coalition of leading European publishing and journalists’ associations (EANA, EBP, EFJ, EMMA, ENPA and EPC) is calling on MEPs to adopt Syed Kamall’s amendments that would exempt the press, other media and journalists from the Regulation. The European Parliament Plenary vote is expected to take place on 3rd April.

Michael J Beloff QC acknowledges that the objectives of the Draft Regulation are legitimate but its scope is so wide that it catches journalism. This is because journalistic material may become a “benchmark” within the meaning of the Draft Regulation depending on how it is used. How this material is used may be outside the control of the media organisations in question, yet media organisations and journalists will be subject to licensing requirements and oversight by the financial services regulators, armed with search and seizure powers.

The European Court comprises the Court of Justice of the EU and the General Court of the EU. This would have a chilling effect on media reporting and journalistic sources.

In fact, by treating media organisations (which do not have an inherent conflict of interest)  in the same way as traditional benchmarking bodies (which may have such a conflict), the Draft Regulation discriminates against those media organisations. A summary of the legal Opinion is can be found in the pdf of this press release.

Director of the European Federation of Journalists (EFJ) Renate Schroeder said: “As the opinion correctly points out the Draft Regulation would restrict the ability of media organisations to continue the work of financial reporting. The obligation to publish sources will make it impossible to obtain useful information on a confidential basis.”

On behalf of the coalition of press and business publishers, European Publishers Council (EPC) Executive Director Angela Mills Wade said: “Our legal advice confirms our worst fears that media organisations will be subject to licensing requirements and oversight by the financial services regulators, armed with search and seizure powers. These regulators, which will not have media expertise, may impose severe financial penalties on media organisations and their parent companies. These restrictions will have a chilling effect on the exercise of free speech rights by media organisations which operate in this area.”

Creating an important precedent, an earlier vote on 30th January on the Industry, Research and Energy Committee’s Opinion prepared for the ECON Committee in advance of their own vote, included key amendments recognising the need to safeguard media freedom in line with exemptions for journalistic purposes in EU Market Abuse legislation. This followed similar discussions with the media, resulting in the agreement that in any democratic society and market economy regard must always be to the fundamental right  to receive and impart information freely without State interference, in accordance with Article 10 of the European Court of Human Rights.

For further information, including details on the proposed amendments, please contact: 

Heidi Lambert
+44 7932 141 291

or the organisations listed below: 

Catherine STARKIE 
Director Legal Affairs,EMMA
Catherine.starkie@magazinemedia.eu
+32 (0)2 536 06 02

Nikolas MOSCHAKIS 
European Policy Adviser, EPC
nikolas.moschakis@epceurope.eu
+32 (0)2 231 12 99

Sophie SCRIVE 
Deputy Executive Director, ENPA
sophie.scrive@enpa.be
+32 (0)2 551 01 90

Slobodan SIBINCIC 
Secretary General, EBP
sibincic@gvskupina.si
+386 41 661 906

Renate SCHROEDER 
Director,EFJ
renate.schroeder@ifj.org
+32 (0) 2 235 2202

Erik NYLEN 
Secretary General, EANA
erik-n@telia.com
+46 739 865272