Keys to the EU media law that sneaks espionage on journalists for “national security”

2023-09-25 22:06:08

Brussels’ intention to regulate media freedom, with measures such as making it mandatory to publish information about its owners or establishing requirements for institutional advertising, has become a battle for the right to information and freedom of expression. In practice, the ‘Media Freedom Law’ sets the bases on which journalists can be subjected to surveillance processes and the negotiation threatens to open the door to legalized espionage in pursuit of the broad concept of national security.

The EU agrees on a law to regulate digital content: “What is illegal ‘offline’ will be illegal ‘online'”

Further

The European Commission presented the Media Freedom Act (EMFA) a year ago, with the aim of guaranteeing the independence of journalistic companies. But diving into the fine print has raised alarm bells among journalists’ unions and platforms on digital rights, who consider that some points of the regulations threaten the basic principle of the profession: the protection of sources.

The proposal opens the door to forcing journalists to reveal their sources if it is justified by “an overriding reason of general interest.” This is a very wide umbrella. In the case of spyware, such as Pegasus, the regulations would support its installation “for reasons of national security” or if journalists are suspected of serious crimes (such as terrorism, human trafficking, rape, etc.).

The Council, where governments are represented, further toughened the initiative by including a clause by which all the guarantees included in the norm (prohibition of arresting, sanctioning or monitoring journalists) could disappear under the premise of the “responsibility of safeguard national security” by the Member States.

“The inclusion of this paragraph would not only weaken safeguards but would actually encourage the use of spyware against journalists at the discretion of Member States,” denounces the European Platform for Digital Rights (EDRI).

In France, which is the country that pushed the most to include this premise, there has been a case that illustrates the clash between journalism and the appeal to national security to short-circuit information with the arrest of journalist Arianne Lavrilleux for revealing that her country committed violations in a covert operation in Egypt. The exclusive has led to a criminal investigation in which she is accused of revealing “national defense secrets” protected by French law.

The case occurred in the midst of EMFA negotiations in Brussels. Digital rights platforms and journalists’ unions are putting pressure on the European Parliament to ban the possibility of spying on journalists in all cases. The European Parliament will definitively vote on its position – with a view to the subsequent negotiation with the Council and the Commission in the so-called trilogues – in the next plenary session. The text worked on by the MEPs includes more safeguards with the intention of making it more difficult for States to intrude into journalistic work.

But unions and platforms consider that it is insufficient. “The text says that the authorities can only put journalists under surveillance or detain them if they are suspected of a serious crime and that these measures should in no case lead to access to information from their sources. But it will be very difficult to apply these restrictions in practice,” argues Chloé Berthélémy, senior public policy advisor at EDRI.

“The EMFA is the first opportunity at EU level to ban spyware surveillance, even if only for a specific group. If we lose this opportunity for journalists, we will lose it for everyone else,” he concludes.

Moderate media content?

The other conflicting point of the future regulation has to do with the protection of the media with respect to illicit or inappropriate content. In general, the rule aims to prevent journalistic content from being removed. The objective is to preserve the work of journalists in countries with authoritarian tendencies, such as Poland and Hungary. The problem arises when defining what media are. The intention of the legislators is for it to be a broad concept in which it is easy to meet the requirements and the concern arises that it will be a waste of pages act-prop of the extreme right.

“To ensure that EU media are protected from large online platforms that arbitrarily suppress or restrict their content, MEPs introduce a self-declaration and verification procedure to help distinguish independent media from dishonest ones. They also propose a 24-hour negotiation window, with the participation of national regulators, before a large online platform can proceed to suspend or restrict content,” explains the European Chamber. The European Commission established that conflicts over content must be resolved “as a priority and without undue delay” and the Council also supports a similar formulation.

The 24-hour period does not convince some reporting platforms. “This exemption would allow criminals to impersonate media outlets to spread disinformation for 24 hours before the platforms can remove it,” the Computer and Communications Industry Association (CICA) points out.

At the beginning of October, the European Parliament will formally establish its position regarding the negotiations with the European Commission and the 27 that the Spanish presidency will have to lead with the aim of the new regulation being approved at the beginning of the year.