Europe’s new media freedom law set to cause problems in Malta

European Parliament and Council negotiators agreed on Friday on the European Media Freedom Act to step up protection for journalists, ensure the independence of state media, and transparency with state funding – good news for media workers but not so much for the Maltese government. 

After tense negotiations between co-legislators and battles between member states on wording, the deal was finally struck, paving the way for more protection, independence, transparency, plurality and accountability for both creators and consumers of news in all its forms across the European Union.

“First even law to protect media and journalists. No state interference, more transparency. Independent media are essential in #democracy,” said Vera Jourova, EU commissioner for values and transparency, on X (Twitter) following the agreement.

However, a number of the most salient points of the EMFA, fought for by MEPs and media freedom organisations, are in stark contrast to the status quo in Malta and could face obstacles when it comes to implementation.

Spyware

One of the most contentious parts of the law related to limiting how governments could conduct operations on journalists using spyware and other methods to access and identify their sources. 

Under Friday’s agreement, journalists and editors will not be required to disclose sources even in cases of sanctions, office searches, detainment, or through installing surveillance software on their electronic devices.

Surveillance will only be allowed by way of derogation on a case-by-case basis due to overriding reasons of public interest and following a court order.

Surveillance software can only be considered for severe crimes punishable by a custodial sentence, and the surveillance measures must be regularly reviewed. Furthermore, the subjects have the right to be informed of the surveillance and are entitled to judicial protection.

“Very pleased to see that the new Article 4.4 of the European Media Freedom Act (EMFA) negotiated this afternoon in trilogue in Brussels refers to compliance with European treaties, but the reference to the national security exception has been removed,” said head of Reporters Without Borders (RSF) Christophe Deloire on X.

Before the deal, Malta was one of seven EU member states pushing for wording that would allow the use of technology to spy on journalists in the case of a risk to “national security”, a fact that came to light following the leak of an internal memo from a council meeting.

This caused a significant outrage locally and internationally, with MEPs, civil society, journalists, and media organisations calling on Malta to withdraw its stance, especially considering Malta’s issues with media freedom and the unsolved assassination of Daphne Caruana Galizia.

Maltese MEP David Casa welcomed the agreement but called on the Maltese government to change “existing draconian surveillance laws which permit its use against all citizens,” he added, saying the ultimate decision on whom should be surveilled must not rest with any politician.

Currently, Maltese politicians can approve warrants to intercept the communications of any citizen without any judicial approval or oversight. This law would need to be overhauled to comply with the EMFA.

The matter was raised in the findings of the public inquiry into the assassination of Daphne Caruana Galizia, with a call to change the way warrants for surveillance are issued.

To date, the government has only implemented one of the 28 recommendations of the inquiry, and that one, only partially.

Public media

Another big issue for Malta will be the new rules that apply to public service media, which is meant to be an independent source of information, paid for by the state but free from the influence of any political party or business interest. 

As per the new agreement, all heads and board members of public broadcaster PBS must be appointed through a transparent and non-discriminatory process. Furthermore, dismissing them from their position before the end of their term will not be possible unless they fail to meet performance criteria, but this will be subject to possible judicial review.

This will immediately cause issues for Malta as PBS refused to make public the names of those on the editorial board and contracts related to senior staff’s employment. It is also packed full of political appointees and considered “state-controlled media”, lacking independence by foreign organisations.

It is also non-transparent about how senior staff are appointed, and questions on departures and political influence in this process also remain.

The agreed text now states that all public media funding procedures must be transparent, objective, sustainable and predictable to safeguard independence. In addition, there will be independent monitoring of the media’s independence with the reports made available to the public.

Currently, PBS refuses to give information on how it is funded, how much it pays staff, and how public money is spent on programming and online publishing. It has also consistently failed to publish reports on spending, independence, and how taxpayers’ funds are allocated.

State advertising

As per the EMFA, state funding to media will be allocated openly through a non-discriminatory procedure based on public criteria to various media. 

The state will also have to publish information each year on how much they spend on media advertising, who it was paid to, and how much was spent per media service provider.

This will be another hard pill to swallow for the Maltese government, which remains tightlipped about how much it dishes out to various media companies. In particular, it refused to fulfil Freedom of Information requests filed by The Shift to each institution, asking them to reveal how much money they spent with Malta Today and its associated entities. 

While the Data Commissioner said the data must be revealed, the government then filed 40 appeals, tying up the independent platform in expensive and time-consuming cases for over two years – a move widely condemned by international press freedom organisations, the Council of Europe and the European Parliament.

Despite the bid to stifle The Shift’s reporting, proceedings are currently all going in favour of The Shift.

Poor track record

Malta’s track record with spyware and the rights of journalists is less than impressive, with its ranking in the RSF World Press Freedom Index falling to an all-time low in 2023, a worse position than in 2017 when Caruana Galizia was murdered.

In terms of spyware, earlier this year, Malta refused to answer questions from the European Parliament’s ‘Committee of Inquiry to investigate the use of Pegasus and equivalent surveillance spyware’.

Malta completely ignoring the Committee’s questions, according to PEGA Committee Chair, Dutch MEP Jeroen Lenaers, is “unacceptable when we are asking simple, straightforward questions that any government should be able to answer. We are not asking for state secrets,” adding their refusal to fulfil their duty was a “scandal”.

As for media freedom, the assassination of Caruana Galizia is still unsolved, and the situation for journalists in the country continues to deteriorate as critical media routinely refuse comments or answers to questions, let alone interviews with members of the government.

RSF also called out the government for failing to meet the European Commission’s two-year-old recommendations on improving journalists’ safety.

“Two years later, it is clear that specific new measures to protect media personnel are still all too rare in the four priority areas analysed by RSF: progress in investigations into crimes of violence against journalists; cooperation between authorities and the media community; support services for journalists; and measures to ensure their safety while covering protests,” RSF said in a statement at the time.

The government has also been widely condemned for failing to take any action to implement the findings and recommendations of reports into journalistic safety in the wake of Caruana Galizia’s murder, being accused of stalling and conducting a box-ticking exercise.

The EMFA must now be formally approved by the Committee on Culture and Education in January and then by the Parliament Plenary and the Council in March.