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  Francisco Balsemão
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 Joint Media Industry and Journalists’ Position Paper on the Draft Directive on Market Abuse:

Addressing the Threat to Financial Reporting
 

 

  1. Europe’s media industry and journalists' associations do not object that journalists like all citizens should be subject to legislation, under which they can be held liable for knowingly disseminating information with the purpose of misleading markets.

 

  1. However, the current draft EU Directive on Insider Trading and Market Manipulation would criminalise journalists where they (a) inadvertently report misleading information (e.g. by quoting a company CEO) or (b) make an innocent mistake (e.g. by misattributing a quotation that moves markets or inaccurately transposing a figure in a financial statement from a listed company, even where a correction is immediately published).

 

  1. The current draft EU Directive would be detrimental to the freedom of expression and, in this respect, it does not seem to take into account fundamental principles set down in Article 10 of the European Convention on Human Rights and Article 11 of the European Charter of Fundamental Rights. We believe that the wider implications of creating a criminal offence for market abuse have not been properly assessed and that a better balance between the need to avoid market manipulation and the freedom of speech should be given greater consideration. The wording of the current draft could go too far, since it focuses more on the effects and not on the intentions or behaviour of the journalists or news disseminator. Criminal sanctions can have a chilling effect on the media: they should always be a last resort and should not be used excessively, especially when the freedom of expression is at stake.

 

  1. Further, the effect of criminalising such innocent mistakes would slow the speed and quality of information flow from news providers to markets, as journalists might be compelled to exclude information rather than risk criminal sanctions. Transparency of markets will suffer as a result and European markets would be positioned in an uncompetitive situation in the international context.

 

  1. We believe the only way to avoid the negative impact of the current draft is to introduce a “purpose test" element into the section of the Directive covering information dissemination in the media. An example of such a test exists in the UK Financial Service’s Authority’s new Code of Market Conduct whereby a person would only be subject to market abuse sanctions for disseminating misleading information when (a) he/she knows, or could reasonably be expected to know, that the information disseminated is false or misleading; and (b) he/she disseminates the information in order to create a false or misleading impression[1]. This is a key limitation to protect the legitimate activities of journalists carrying out their professional duties and one, which should be replicated in the EU legislation.

 

  1. None of the above should alter the current state of play, whereby journalists who disseminate misleading information on purpose face sanctions.

 

  1. In the light of the above we propose the following amendments to the draft Directive:

 

·        Article 1(2)(b)

 

Market manipulation shall mean:
(b) Dissemination of information through the media by any means, including the Internet, which gives, or is likely to give, false or misleading information as to the supply, demand or price of financial instruments, including the dissemination of rumours and false or misleading news, where the person who made the dissemination (i) knew or ought reasonably to have known that the information was false or misleading, and (ii) did so in order to create a false or misleading impression.

 

  • Article 6(4)

 

The scope of this article is unclear. Given the European Commission’s statements to the European publishers associations that “the intention of the proposal is not to place further burdens on journalistic work”[2], the draft Directive should be amended to either (a) clarify that Article 6(4) only applies to research analysts in regulated firms or (b) remove the requirement for public disclosure. We note the new UK regime will not subject journalists to disclosure requirements so long as they are governed by adequate self-regulatory codes of conduct.



This paper is submitted without prejudice to the individual positions of the signatory associations.

With Kind Regards,

 



 

20 November 2023


 


[1] See FSA Code of Market Conduct, Annex B Chapter 1 paragraphs 1.5.15-17 (http://www.fsa.gov.uk/pubs/policy/ps59_76/index.html)

[2] Letter from John Mogg, Director General DG Internal Market, to Francisco Balsemão, Chairman European Publishers Council.

· The PCC is a self-regulatory organisation which deals with complaints under a Code of Practice - which includes a clause relating to financial journalism - about newspapers and magazines in the UK.  It is independent of the newspaper industry and of the government. It is a signatory to this paper because the substance of the Directive could impinge on the functioning of the Code and of independent self regulation, and not as part of the wider newspaper industry.