MEPs call for strong safeguards for journalists against spyware

Alexander Fanta || ""
Alexander Fanta
Harald Schumann || ""
Harald Schumann
17 julio 2023
A new law is meant to protect the press in Europe from snooping by governments. While EU states heavily watered down their draft with blank exceptions for “national security”, the European Parliament wants to fight for stronger protection.
When journalists cannot protect their sources, press freedom is threatened. But recently, revelations about phone hacking against journalists in Hungary, Spain and Greece were brushed aside by the authorities. To the outrage of press freedom organisations, governments claimed they acted to protect “national security”.

In order to put a stop to such surveillance measures against journalistic work, the EU Commission has proposed the European Media Freedom Act. This regulation is supposed to create a Europe-wide standard for the protection of media freedom in general and in particular of sources; it is supposed to largely prohibit the use of spyware against journalists. However, the EU Council of States has weakened these protections in its draft by including a blank exemption for “national security”, as Investigate Europe and netzpolitik.org recently revealed.

The European Parliament is now fighting back. MEPs from different political groups in the Justice and Home Affairs Committee (LIBE) are calling for broad protection measures for journalists. They do not want to completely ban the confiscation or hacking of devices. However, such measures should only be possible under judicial oversight while investigating serious crimes – and only when other options for law enforcement have been exhausted. Surveillance must not lead to the disclosure of journalistic sources, MEPs demand. An exception for “national security”, as desired by the Council, is explicitly not provided for in the MEPs’ draft.

Such an exception was to be “vehemently rejected”, emphasised MEP Birgit Sippel, a German social democrat who is a member of the responsible LIBE committee. “The ban on the use of spyware and the protection of encrypted communications are indispensable cornerstones of the position, which the EU Parliament will tirelessly defend in the negotiations with the Council.”

An open letter published by 65 fundamental rights and journalism organisations in June also warned against a blanket exemption. The use of spyware technology like Pegasus in Hungary and Spain or Predator in Greece “simply are not tolerable in democratic societies”, the NGOs wrote to the Council of EU states.

The LIBE Committee in the EU Parliament will vote on 18 July on the MEPs’ proposal. If the committee gives the green light, as expected, the text will most likely end up in the version of the bill that will then be adopted by the plenary of the European Parliament.

This, however, would almost certainly lead to a legislative fight with the Council. In the upcoming trialogue negotiations, the EU Parliament will have to agree on the final text of the law together with the EU Commission and the Council. In the Council, France, Germany, Greece and other states have privately lobbied for “national security” exceptions.

In addition, the Council’s draft text weakens the original proposal’s general prohibition of surveillance and detention of journalists to identify their sources, which includes a provision against the seizure of equipment and documents. The positions of the MEPs and the Parliament are thus diametrically opposed – strong protection of journalists on the one hand, blank exceptions on the other.

Meanwhile, time is pressing. Whether the negotiations on the media freedom law will be concluded before the EU elections in June 2024 is currently unclear. After that, there will be other majorities in parliament. Moreover, Hungary, which has fought in the Council to weaken protections for journalists, will take over the Presidency of the Council from July 2024 and thus the leading role in negotiations on new laws. Should negotiations not conclude before the elections, proper protection for journalists might have to wait well into the middle of the decade.

Alexander Fanta is a journalist with netzpolitik.org, a German digital rights news website.

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