EU Media Freedom Act and the push to use spyware on journalists

EU commissioner for internal market Thierry Breton speaks during a press conference with European Commission vice-president in charge for Values and Transparency Vera Jourova, on the Media Freedom Act at the EU headquarters in Brussel, on September 15, 2022.
(Image credit: Photo by Kenzo TRIBOUILLARD / AFP) (Photo by KENZO TRIBOUILLARD/AFP via Getty Images)

France, Italy and Greece are some of the seven countries pushing for enabling authorities to spy on journalists in case of national security, a new investigation has revealed.

First published in September last year, the EU Media Freedom Act aims to bolster the independence and pluralism of the media sector in Europe. Yet, some commentators fear that without the right wording and provisions the new law will de-facto achieve the opposite results.

Today, December 15, the EU Commission is holding what expected to be the final round of talks (trilogue) which it may seen the hardliner governments find a compromise with other members.

What is the EU Media Freedom Act (EMFA)?

As mentioned, the EU Media Freedom Act comes as an attempt to set some rules to ensure and protect media freedom and pluralism across the Union. It comes following concerns about a highly politicized media landscape. For this, it includes safeguards against political interference in editorial decisions and the use of spyware against journalists, a framework for transparency, increased protection of journalistic sources, and more.

Despite its intentions being good and well-needed, the ongoing negotiations seems to have been shaping the law with some controversial clauses which are worrying commentators.

"The EU Media Freedom Act (EMFA), though well-intended, has significant flaws," wrote digital rights advocates at Electronic Frontier Foundation on December 6, commenting on a proposed special status for big media outlets whose content cannot be removed from big tech platforms.

Another even more contentious point is then around the use of surveillance tools against journalists. Born as a way to make the practice illegal following high profile cases across Europe, some countries keep pushing for a "national security" clause (Article 4). According to Reporters without Borders, this is "dangerous provision, which would poison the law from within." 

More freedom or surveillance?

While the infamous Article 4 and the "national security" exemption is nothing new—it was added to the text in June, in fact—new revelations shed some light on those countries lobbying together to legitimize this type of state surveillance.

A joint-investigation among three EU media outlets (Investigate Europe, French non-profit Disclose and Holland-based Follow the Money) revealed that France, Greece, Italy, Cyprus, Finland, Sweden and Malta are the seven governments still pushing to allow spyware use against journalists despite the wave of criticism across the industry.

According to a document obtained by the media consortium which was written by a high-ranking German official present at the last trilogue on November 22, Italy expressed the strongest stances deeming the additional paragraph a "must and red line." France, Finland and Cyprus said to be "not very flexible" on the issue. While, Sweden, Malta and Greece agreed "with some nuances."

"Governments have no business being on journalists’ phones. We in the European Parliament have made provisions for this. It is unacceptable that member states are now trying to reintroduce this snooping paragraph through the back door," said one of the negotiators, German Green MEP Daniel Freund, to Investigate Europe.

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The biggest fear here is that such a provision will de-facto legitimize the unlawful use of Pegasus and Predator spyware against journalists, which has already occurred in Greece, Spain, Bulgaria and Hungary. These governments have all previously played the national security card to justify their actions.

Before the latest revelations, 17 European media organizations signed an open letter calling for "adopting robust wording in the final version."

They wrote: "We are deeply concerned about the chilling effect that could ensue if the final text sets conditions for disclosure of sources that fall short of international human rights standards and maintains the paragraph ‘This article is without prejudice to the Member States’ responsibility for safeguarding national security’.

"The EU has always been a stronghold of media freedom and pluralism, but today these central values are in decline. Where the rule of law is undermined, media freedom is often the first casualty."

At the time of writing, representatives of EU member states are discussing these two very distinct lines on this thorny issue. We don't know which of the two will prevail eventually, but most likely the hardliners will need to find a compromise with the other states. Whether that will be enough to truly protect media freedom and journalists' privacy in Europe is yet to be seen.

Chiara Castro
Senior Staff Writer

Chiara is a multimedia journalist committed to covering stories to help promote the rights and denounce the abuses of the digital side of life—wherever cybersecurity, markets and politics tangle up. She mainly writes news, interviews and analysis on data privacy, online censorship, digital rights, cybercrime, and security software, with a special focus on VPNs, for TechRadar Pro, TechRadar and Tom’s Guide. Got a story, tip-off or something tech-interesting to say? Reach out to chiara.castro@futurenet.com