Civil society, journalists’ organisations urge Council to drop spyware exemption

In a joint open letter to the Council of the European Union on 19 June, 62 civil society and journalist organisations expressed their deep concern about changes the Council intends to make to the proposed European Media Freedom Act (EMFA).

Such changes, if enacted, threaten journalists’ protection against spyware and the confidentiality of their sources.

Last September, the European Commission introduced the Media Freedom Act (EMFA) to enhance protections against the state control of public and commercial media. The act covers various areas such as media concentration, public broadcasters, and online platforms and surveillance.

The Commission’s original proposal (Article 4) prohibits coercive measures against journalists to reveal their sources and monitor their communications unless “justified by an overriding requirement in the public interest.”

The proposal also adds that governments shouldn’t deploy spyware on journalists’ devices either unless the deployment is justified, “on a case-by-case basis, on the grounds of national security” or such surveillance is needed to investigate “serious crimes,” which the Commission includes as terrorism, human or weapons trafficking, exploitation of children, murder, or rape, for example.

Nevertheless, last May, Politico reported how France pushed for an “explicit and unconditional” clause in the text to safeguard member countries’ prerogatives on security and defence and for narrower immunity for journalists under the new EU-wide media rules.

🇪🇺 ECPMF joins more than 60 civil society and journalists orgs in expressing concerns over the draft Regulation on the #EMFA, and urging @EUCouncil to reconsider its position which would undermine protections of journalists against #spyware.https://t.co/68ztEKdIhy

— European Centre for Press and Media Freedom (@ECPMF) June 19, 2023

With the backing of Germany and the Netherlands, the latest compromise text published by Investigate Europe now includes a paragraph stating that Article 4 “is without prejudice to the Member States’ responsibility for safeguarding national security”.

In their letter to the Council, the group of organisations further underscore how the new text increases the list of crimes that permit surveillance against journalists and journalistic sources and eliminates legal safeguards that protect journalists against the deployment of spyware by Member States.

The signatories further urge the Council to reconsider its current position adding that “the Pegasus scandal in Hungary, the Predator case in Greece or the “Catalan Gate” are not tolerable in democratic societies”.

They further state that the Council must include the highest legal safeguards to protect journalism. They hope it takes urgent and substantial steps to appropriately address the concerns outlined in the letter.

In a statement, the Director of the European Federation of Journalists (EFJ) Renate Schroeder, said that the federation is “disturbed about the dangerous loopholes in the Council’s position, which shows a disregard for media freedom principles. The national security exception in article 4 on the protection of sources and protection from surveillance technology is a blow to media freedom.

She added that “It would put journalists even more at risk and creates in addition, a chilling effect on whistleblowers and other sources. We know too well how the defense of national security is misused to justify media freedom violations. This EMFA was supposed to generate trust. The Member States are generating mistrust,”

Sophie in’t Veld, the Dutch Liberal MEP who led the EU Parliament committee of inquiry into Pegasus and other spyware, also noted in a tweet how the EU governments’ recent changes to the draft European Media Freedom Act run counter to the work undertaken by the European Parliament.

https://twitter.com/SophieintVeld/status/1671492100754669569

Last May, the European Parliament’s Pegasus spyware committee reported how several key figures from the global spyware trade “acquired Maltese citizenship, which facilitates their operations within and from the Union”.

This hasn’t fazed the Maltese authorities, which have thus far refused to answer the Committee’s questions about the government’s use of spyware and the legislation governing its use, authorisation and supervision.