EU’s Shocking Greenlighting Of Spyware Against Journalists Endangers Media Freedom

New draft legislation agreed by EU Council allows governments to use intrusive and unacceptable surveillance measures against journalists and their sources, attempting to silence them and undermining their watchdog role, Euro-Med Human Rights Monitor said in a statement today, recalling the crucial importance of media freedom, pluralism and independence to nurture active citizens and resilient democracies.

The European Council published a new draft of the European Media Freedom Act on 21 June, with some worrying developments that would pose serious risks to the European Union’s core democratic values and fundamental rights, notably respect for media freedom and pluralism and the right to freedom of expression.

Published in September 2022, the first draft of the European Media Freedom Act (EMFA) proposed a new set of rules to promote media pluralism and independence across the EU, preventing political interference in editorial decisions and ensuring transparency of media ownership.

Yet the recent meeting of the EU Council has compromised the text, allowing spyware to be placed on journalists’ phones and computers if a government thought it necessary in the interests of a vague and overly broad “national security”.

In particular Article 4 of the EMFA, on “Rights of media service providers”, would allow for a “national security” exemption from the general prohibition to deploy spyware against journalists, increase the list of crimes that permit surveillance against journalists and their sources, and eliminate legal safeguards against the use of dangerous spyware by Member States.

As part of the exemption, the list of crimes allowing invasive surveillance measures would be extended beyond terrorism or threats to national security to include 32 offences, ranging from murder or serious violence to theft, pirating music or video, and any crime that could attract a prison sentence of five years, in breach of the principle of proportionality.

Even if the draft must be agreed upon by the European Parliament before it becomes law, the new draft and its impacts are already alarming.

In the first place, proposing to give governments the power to spy on journalists’ phones and computers puts journalists’ sources at risk of identification and provides a high deterrent for “whistleblowers”, threatening the fundamental confidentiality of journalists’ sources and fostering a climate of impunity out of the fear of speaking up and being surveilled.

Secondly, through this new provision, the Council strongly incentivizes the deployment of threatening spyware based solely on Member States’ discretion, despite the numerous recent high-profile scandals involving the use of malware, such as Pegasus and Predator, to subtly surveil journalists and politicians’ communications, suppress dissent and undermine democracy.

Thirdly, the proposed legislation feeds an atmosphere of mistrust and media bashing, potentially normalising and increasing the already worrying number of threats to and attacks on journalists and other media professionals, including intimidation, arbitrary detention, unlawful surveillance, gender-based violence, harassment or discriminatory attacks, both online and offline, occurred over the past years across Europe.

Indeed, from January 2023 up to now, the Council of Europe’s Platform to promote the protection of journalism and the safety of journalists recorded 105 serious threats to media freedom, including especially 86 cases of harassment and intimidation and 71 acts having chilling effects on media freedom, as well as 70 physical attacks against journalists and 29 new cases of detention and imprisonment.

Taken together, these alerts show a concerning pattern of intimidation of journalists that requires urgent actions by Member States to uphold the essential role of a free press in democratic societies, not the contrary.

“The proposed legislation, born to allow journalists to perform their work independently all over Europe, is, on the contrary, attempting to legalise the silencing of critical voices and the shrinking of civic spaces,” said Michela Pugliese, Migration and Asylum researcher at Euro-Med Monitor, “The drafted EMFA fuels a hostile and intimidating climate for journalists, legalizing unacceptable forms of interference, obstruction and harassment in the name of a highly discretional and disturbing ‘national security’, and leading to wider implications for the rights of all European citizens, for instance, to access a plurality of sources of information permitting them to form opinions, monitor their governments and consciously exercise their right to vote”.

Indeed, the update of the EMFA was led particularly by France, which is also among the countries with the highest number of alerts posted on the Council’s Platform, especially related to France’s violence or aggressive law-enforcement actions against journalists covering protests, which is a vivid nowadays’ debate too.

It’s clear that when patterns of undue interference and harassment of independent journalism become persistent, they come with wider failings in systems of justice, the rule of law and the conduct of free and fair elections, as well as with wider restrictions on citizens’ fundamental rights that are also essential for the development of free and awoke societies.

Euro-Med Human Rights Monitor calls on the European Union institutions to negotiate and share a clear, solid and effective “European Media Freedom Act” that can thoroughly protect media freedom and pluralism across Europe, as enshrined particularly in Article 11 of the Charter of Fundamental Rights of the European Union; to urge political leaders and national authorities to refrain from intimidating, threatening or condoning violence against journalists; to act quickly and resolutely to end the assault against press freedom, so that journalists and other media actors can report without fear and European citizens can make informed decisions, engage actively in democratic processes and fight against disinformation.

ENDS

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