Journalists are not happy with the European 'protection'. (Photo by Horacio Villalobos#Corbis/Getty Images)


EU leaders accused of putting media freedom at risk


The European Federation of Journalists (EFJ) claims European leaders are putting journalists ‘at risk’ through their apparent willingness to allow the deployment of spyware targeting reporters.

The accusation comes after the European Council reached an agreement on the European Media Freedom Act on June 21, legislation proposed by the European Commission that is designed to protect media freedoms and independence in the European Union.

Alongside promises to protect journalists, including in regards to suspected surveillance, there is a ‘national security’ exception to the general ban on deploying spyware in relation to media professionals without guarantees for the protection of sources.

The EFJ argues that the exception undermines all forms of protection for journalists, describing the safeguards as “empty shells”. It also points to case law under the Court of Justice of the European Union (CJEU), which makes it clear that the mere purpose of safeguarding national security cannot render EU law inapplicable and does not exempt Member States from their obligations to comply with the rule of law.

The CJEU says an exemption based on so-called national security grounds would open the door to abuse of the rules.

“It is indeed shocking and yet another strong blow to media freedom that EU Member States further water down important provisions on journalists’ protection of sources and protection from surveillance technologies,” said Maja Sever, EFJ President.

“While we were already not satisfied with the Commission’s proposal, we deplore the new exemption for the protection of national security at the expense of media freedom,” she added.

An EU official, speaking on condition of anonymity, told Brussels Signal that the current act is not a final version and the European Council will engage in further talks with the European Parliament. The official underlined the fact that the new regulation is consistent with existing EU legislation, including Article 4(2) TEU, on Member States’ sole responsibility regarding national security.

The official added the proposal “respects national competencies in this area” and underscored that there are “cumulative requirements” to be addressed when using intrusive surveillance.

The official referred to the overriding requirement of public interest, compliance with national and European laws and compliance with Article 52 (1) of the Charter as interpreted by the CJEU. That is, any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms.

“Therefore, as it set out in the mandate for negotiations with the EP, the deployment of said software should take place only exceptionally; it has to be provided for in national law and align with existing EU law and case-law, and only when other provided measures are not adequate and sufficient to obtain the information sought,” the EU official told Brussels Signal.

“The Council is now ready to start negotiations with the [European] Parliament with a robust, realistic and pragmatic mandate, having taken due note of the Member States’ suggestions and concerns.”

Earlier, the EFJ had indicated that the proposal put forth by the Council lacked provisions for upholding fundamental rights, as mandated by the Treaty on the European Union and the Charter of Fundamental Rights.

It emphasised the need for a broader scope of protection, acknowledgment of the principles of proportionality and subsidiarity, and the required implementation of a system enabling prior judicial authorisation for surveillance measures.

Media site Investigate Europe went further and said the current situation gave governments a “blank cheque” to spy on journalists.

“It is indispensable for critical and independent reporting that journalists can protect themselves and their sources from surveillance, including surveillance by state authorities,” it said.

“But in the Council of the EU, the French government demanded that article 4 be reversed. Spying on journalists and the use of spying software against them should indeed be allowed – if justified by ‘national security’,” Investigate Europe added.

Such criticism could be regarded as remarkable, given the self-proclaimed goals of EU legal intentions. The EU claims it wants to safeguard media freedom, pluralism and independence across the bloc and to introduce measures aimed at protecting journalists and media providers from political interference. It wants that while also making it easier for the media to operate across the EU’s internal borders.

The legislation also needs a majority in the European Parliament before it can become law. Many MEPs say the use of spyware should only be allowed in exceptional cases and only then for a limited time.

European parliamentarians were especially rattled by revelations resulting from the investigation into the Israeli-made spyware Pegasus and similar software. These allow operators, including governments, to monitor all information on the computers and mobile phones of their targets.

Last year, French intelligence investigators confirmed that Pegasus spyware was discovered on the phones of three journalists including a senior member of staff at the TV news station France 24.

In recent days, European Digital Rights (EDRi), a coalition comprising NGOs and champions of digital rights, urged the European Council to “rethink” its exemptions related to national security when it comes to surveillance of the press.

Chloé Berthélémy, a senior policy adviser at EDRi, voiced its concerns, stating: “The Council is venturing into perilous territory by potentially legitimising objectionable methods of surveillance targeting journalists and their informants.”