Geneva - New draft legislation agreed by EU Council allows governments to use unacceptably intrusive surveillance methods to silence journalists and their sources and undermine their watchdog role, Euro-Med Monitor said in a statement today highlighting the crucial importance of media freedom, pluralism, and independence in nurturing active citizens and resilient democracies.

The European Council published a new draft of the European Media Freedom Act (EMFA) on 21 June, introducing worrying revisions that pose serious risks to the Union’s core democratic values and fundamental rights, notably media freedom, pluralism, and freedom of expression. First published in September 2022, the initial draft of the 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 Council meeting compromises the original goal, allowing spyware to be placed on journalists’ devices if a government deems it necessary for “n­ational security”.

The EMFA’s broadly-worded phrasing is particularly evident in Article 4, which addresses the “rights of media service providers”. Article 4 would allow for a “national security” exemption from the general prohibition on deploying spyware against journalists, increasing the number of crimes that permit surveillance against journalists and their sources, and eliminating legal safeguards against the use of dangerous spyware by Member States. As part of the exemption, the list of crimes allowing invasive surveillance 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.

   The proposed legislation, born to allow journalists to perform their work independently all over Europe, is on the contrary [now] attempting to legalise the silencing of critical voices and the shrinking of civic spaces   

Michela Pugliese, Migration and Asylum Researcher at Euro-Med Monitor

While the new draft must be agreed upon by the European Parliament before it becomes law, its impacts are already alarming. Proposing to give governments the power to spy on journalists puts sources at risk of identification and serves as a major deterrent to “whistleblowers”; threatening the fundamental confidentiality of journalists’ sources fosters a climate of impunity due to people’s fear of being surveilled or punished for speaking up.­ Despite numerous recent high-profile scandals involving malware such as Pegasus and Predator, the new provision will easily allow the Council to incentivise the deployment of threatening spyware based solely on Member States’ discretion—to secretly surveil journalists’ and politicians’ communications, suppress dissent, and undermine democracy.

The proposed legislation feeds the atmosphere of mistrust and media bashing that is increasingly pervasive across Europe. It points to the further normalisation of the already daunting number of threats to and attacks on journalists and other media professionals, including intimidation, unlawful surveillance, arbitrary detention, gender-based violence, harassment, and discriminatory attacks, both online and offline, that have occurred over the past years.

The Council of Europe’s Platform to Promote the Protection of Journalism and the Safety of Journalists has recorded 105 serious threats to media freedom since January 2023, including 86 cases of harassment and intimidation and 71 acts having “chilling effects on media freedom”, as well as 70 physical attacks on journalists and 29 new cases of detention and imprisonment. These numbers show a concerning pattern of intimidation of journalists that requires urgent action by Member States to uphold, not undermine, the essential role of a free press in democratic societies. “The proposed legislation, born to allow journalists to perform their work independently all over Europe, is on the contrary [now] 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, legalising 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,” added Pugliese. She cited the importance of citizens’ ability to access to “a plurality of sources of information permitting them to form opinions, monitor their governments and consciously exercise their right to vote”.

The latest EMFA proposal has been especially touted by France, which is one of the countries with the highest number of alerts posted on the Council’s Platform. The alerts are largely related to France’s violence or aggressive law enforcement actions against journalists covering protests, which is another vivid topic of debate nowadays. It’s clear that when patterns of undue interference and incidents of harassment of independent journalism persist, 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 essential for the development of free and awakened societies.

Euro-Med 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; and 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 disinformation.