Open letter: The Council of European Union must protect journalists against spyware and surveillance in the European Media Freedom Act
Civil society and journalist associations are calling on the Council of the European Union to reconsider its current position on the European Media Freedom Act, as stated in a recent compromise text. Instead, the Council must take steps to meaningfully protect journalists and their fundamental rights.
Recently, there have been worrying developments in the draft Regulation on the European Media Freedom Act (EMFA). The Regulation, which seeks to protect journalists and media service providers from being targeted by Member States through the use of ‘spyware’, was first introduced by the European Commission in September 2022.
While the attempt to protect journalists is welcome, there are concerns about how effective the Regulation will end up being, given the recent changes being made to the draft by the Council of the European Union. The latest compromise text of 24 May and discussed by the Audiovisual and Media Working Group on 30 May poses serious risks to European Union core democratic principles and fundamental rights, notably press freedoms, freedom of expression and the protection of journalists.
Pressure to weaken the already insufficient Commission’s proposal comes from the French authorities. In a non-paper circulated in April to other delegations, the French government strongly pushed for adding a wide “national security” carve out from any protections afforded by the EMFA, in order to safeguard the prerogative of Member States in this area of competence. France absolutely dreads the scrutiny of the Court of Justice of the European Union, which “presents the risk of an extensive interpretation”of safeguards in EU law. It also advocated for the deletion of the term “spyware” in the Regulation so as to treat the deployment of such extremely intrusive tools like any other investigative means.
The Council is taking dangerous steps towards legalising unacceptable forms of surveillance against journalists and their sources. If confirmed, these changes would kill all the potential the EMFA has to stop spyware scandals in the EU.
Given these developments, civil society organisations and journalist associations all across Europe are urging the Council to reconsider its current position and to build a solid position against the intrusive surveillance and repression of journalists.
In recent years, the proliferating attacks on journalists at the hands of governments, such as the Pegasus scandal in Hungary, the Predator case in Greece or the “Catalan Gate”, make it clear that fundamental rights and the health of our democracy are at stake if we don’t regulate surveillance power of states against journalists. That’s why it’s vital to address these points in the EMFA.
To ensure that the Regulation protects journalists and their fundamental rights, the Council should:
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Eliminate the exception for “national security”
The current compromise text, instead of protecting journalists and their sources, will legalise the use of spyware against journalists. The inclusion of the new Paragraph 4 which states, “[t]his Article is without prejudice to the Member States’ responsibility for safeguarding national security,” would not just weaken safeguards but actually incentivise the use of spyware against journalists at the discretion of member states.
The Council should hear from Hungarian journalist Szabolcs Panyi, whose phone was infected by the Pegasus spyware, about the real threat this provision poses to journalism:
“… My surveillance impeded my right to protect my sources of information. I am an investigative journalist who relies heavily on information from whistleblowers. In increasingly repressive political environments, like in Hungary, where media is under government control and pressure, whistleblowers and leaks are the only way left for investigative journalists to uncover the truth. This is exactly why, under the pretext of vague and bogus national security reasoning, surveillance is used against journalists in Hungary. It has an enormous chilling effect, and could make our work impossible…”
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Restrict the list of crimes that allows repressive measures against journalists and journalistic sources, and prohibit the deployment of spyware
Under point (c) of Article 4(2), the draft Council position has massively expanded the list of crimes justifying the deployment of spyware against journalists and journalistic sources. It includes less severe offences such as “arson” or “piracy of products”.
This is deeply problematic from a fundamental rights perspective and opens the door to unacceptable and disproportionate surveillance against journalists and journalistic sources. Spyware deployment against them should be absolutely prohibited.
For other repressive measures under point (b), the text should include a proper threshold. In fact, the Council must remember that when it comes to journalists and media workers the threshold must be higher due to the crucial role they play as public watch-dogs in our democracies.
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Include strong legal safeguards to protect and respect free and independent journalistic work
The current proposal of the Council does not include any measures capable of safeguarding fundamental rights as required by the Treaty on European Union and the Charter of Fundamental Rights. To follow the fundamental standards set by European Courts, EMFA must include an effective, binding and meaningful prior authorisation by an independent judicial authority. Also, any repressive measures must be necessary, proportionate, assessed on a case-by-case basis and strictly limited to the most serious crimes.
Civil society and journalists are concerned that if the Council’s position isn’t substantially redrafted, the EMFA would legalise the silencing of critical voices, reinforcing chilling effects on civic spaces.