in-cyprus 16 December 2023
The European Commission has talked with Phileleftheros to clarify its position on the proposed regulation for Media Freedom in Europe (European Media Freedom Act – EMFA), which includes provisions for monitoring journalists.
A spokesperson for the European Commission officially communicated with Phileleftheros yesterday morning to explain the rationale behind the body’s proposal in 2022 for the contentious act concerning media freedom.
As the decisive negotiations unfolded among the three institutions of the European Union, the regulation aims to strengthen media pluralism. The spokesperson said that journalists cannot be above the law. Simultaneously, it was emphasised that media professionals should not be intimidated by the threat of abusive surveillance measures.
“The reason the Commission’s proposal restricted the use of such spyware to very specific cases,” they stated.
The spokesperson continued, “Discussions with co-legislators on this significant dossier are ongoing. This is not the final agreement.”
They added, “Regarding the Commission’s proposal, the European Media Freedom Act (regulation proposal), we proposed a new set of rules to protect pluralism and independence of the media in the EU. The proposed regulation covers various areas, primarily protecting editorial independence and journalists, especially in cases of surveillance; ensuring independent media funding, for example, through stable and sufficient financing; guarantees for media pluralism; ensuring transparency in state advertising; a new right to adapt user media offerings on devices and interfaces, such as connected TVs; and, under the law on digital services, safeguards for the protection of online media content.”
Furthermore, the Commission’s representative addressed the proposals made by the body regarding the use of surveillance software. The key points of their statements include:
- The general prohibition and strict safeguards on the use of spyware.
- Member states are responsible for protecting their national security while ensuring their security services comply with EU law, including fundamental rights such as personal data protection, journalist safety, and freedom of expression.
- Any attempts by national security services to illegally access citizens’ data, including journalists, are unacceptable.
The spokesperson underlined, “The Media Freedom Act addresses the issue of monitoring journalists and using spyware against media, journalists, and their families. Journalists mustn’t be intimidated by the threat of abusive surveillance measures taken by public authorities, which could discourage their significant work in informing citizens. However, journalists are not above the law themselves. That is why the Commission’s proposal limited the use of such spyware to particular cases, especially in cases of criminal investigations for serious crimes. The proposed regulation introduced specific and stringent safeguards for cases where spyware development is considered.”
In addition, the Commission’s proposal for the EMFA also introduces another level of control by requiring member states to appoint an independent authority or entity to handle complaints in this area within three months.
In conclusion, the Commission’s representative emphasised, “For the first time in a regulation, there is an explicit provision for monitoring journalists. The proposed regulation introduces a general ban with very strict safeguards, aiming to minimise surveillance and obliging clear justifications accepted by national courts. In essence, it harmonises the 27 different national frameworks, giving a powerful oversight tool to national judges to consider EU Law provisions. It effectively creates a new obligation of protection by national authorities and, given the nature of the regulation as a legislative tool, establishes legal certainty at the European level concerning the control of the actions of national authorities.”
Next Steps
The political agreement reached is now subject to formal approval by the European Parliament and the Council. Once officially adopted and published in the Official Journal of the European Union, the Regulation will be binding in its entirety and directly applicable in all Member States after 15 months.
Background
According to the European Federation of Journalists, the story dates back to June 2023, when the European Council introduced a new exception to the general ban on deploying spyware against journalists.
It reads that the provisions on effective protection of journalistic sources “is without prejudice to the Member States’ responsibility for safeguarding national security”.
Such an exemption, which would turn in effect the protections originally afforded into empty shells, was rejected by the European Parliament. As the text was voted in October by the MEP’s states, the deployment of spyware could be only decided by an independent judge on a case-by-case basis.
At least seven EU member states are now pushing again for the “national security” exemption, which would legitimise them to spy on journalists.
The proposal was published together with a Recommendation on internal safeguards for editorial independence and ownership transparency in the media sector, which allows taking into account specificities of media regulation and self-regulation at the EU level and in the Member States.
The Act also builds on the Platform to Business Regulation, Digital Services Act (DSA) and Digital Markets Act (DMA), as well as the new Code of Practice on Disinformation. It is part of the EU’s efforts in promoting democratic participation, addressing disinformation and supporting media freedom and pluralism, as set out under the European Democracy Action Plan.
