Open letter on the protection of sources
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Civil society and journalists associations urge the Council to protect journalists against
spyware and surveillance in the European Media Freedom Act (EMFA)
Dear Deputy Permanent Representatives,
We, the undersigned 80 journalists and press freedom, civil society, trade unions, digital rights
and publishers and broadcasters organisations are writing to voice our concerns on the worrying
developments related to the draft Regulation on the European Media Freedom Act (EMFA), in
particular the provisions of Article 4 (“Rights of media service providers”). The latest compromise
text of 24 May poses serious risks to European Union core democratic principles and
fundamental rights, notably press freedoms, freedom of expression and the protection of
journalists.
In particular, the latest compromise text: (a) maintains and aggravates the Commission’s
proposal which carves out a “national security” exception from the general prohibition to deploy
spyware against journalists; (b) increases the list of crimes that permit surveillance against
journalists and journalistic sources; and (c) eliminates legal safeguards that protects journalists
against the deployment of spyware by Member States.
In order to ensure that the Regulation protects journalists and their fundamental rights, the
Council must instead:
(a) Eliminate the exception for “national security”
The current compromise text, instead of protecting journalists and their sources, will legalise the
use of spyware against journalists. Specifically, the inclusion of a new paragraph 4. stating that
“[t]his Article is without prejudice to the Member States’ responsibility for safeguarding national
security”turns in effect the protections originally afforded by Article 4 into empty shells. Through
this new provision, the Council is not only weakening safeguards against the deployment of
spyware but also strongly incentivises their use based solely on Member States’ discretion.
Hungarian journalist Szabolcs Panyi adequately describes the real threat this provision poses to
journalism:
“Technical forensic analysis of my phone showed that the Pegasus spyware had been running on
my device for seven months. My surveillance impeded my right to protect my sources of
information. I am an investigative journalist who relies heavily on information from
whistleblowers. In increasingly repressive political environments, like in Hungary, where media is
under government control and pressure, whistleblowers and leaks are the only way left for
investigative journalists to uncover the truth. This is exactly why, under the pretext of vague and
bogus national security reasoning, surveillance is used against journalists in Hungary. It has an
enormous chilling effect, and could make our work impossible. EU leadership in Brussels must
realize that any EU citizen, whether a journalist or a source of a journalist, can become subject
of illegitimate surveillance if certain member states always get away with using ‘national
security’ as a free pass. This makes the EMFA even more essential in protecting the rights of
journalists and freedom of the press.”
Including the “national security” exception without fundamental rights safeguards neglects the
important case law of the Court of Justice of the European Union (CJEU). The Court has been
clear that the mere purpose of safeguarding national security cannot render EU law inapplicable
and does not exempt Member States from their obligations to comply with the rule of law.
1
(b) Restrict the list of crimes that allows repressive measures against journalists and
journalistic sources and prohibit the deployment of spyware
The draft Council position deletes the exhaustive list of crimes set by the Commission in Article
2, paragraph 17 to replace it with the list established in the European Arrest Warrant Framework
Decision conditioned by a maximum detention sentence of at least three years and with all
offences punished by maximum minimum threshold of five-year imprisonment under national
law. This has the effect to massively expand the list of crimes justifying the deployment of
spyware against journalists and journalistic sources, including less severe offences such as
“arson” or “piracy of products”. This is deeply problematic from a fundamental rights perspective.
To abide by the principle of proportionality, it is vitally important to include a proper threshold
that excludes parts of national criminal codes which do not justify intrusive measures under
Article 4(2) point (b). According to the CJEU case law only serious crime is capable of justifying a
serious interference with the fundamental rights of the individual.2
When it comes to journalists
and media workers the threshold must be higher due to the crucial role they play as public
watch-dogs in our democracies.
As assessed by the European Data Protection Supervisor (EDPS) in its preliminary remarks3
, the
level of interference of modern spyware with the right to privacy is so severe that it “in fact
deprives” the individual of this right. When the individual is a journalist or a source, it is all the
more clear that even the purpose of protecting national security cannot establish a proper
balance with the interference at stake. In a nutshell, the broad scope of the catalogue of crimes
in point (c) of Article 4(2) opens the door to unacceptable and disproportionate surveillance
against journalists and journalistic sources. If not substantially redrafted, the EMFA would
legalise the silencing of critical voices, reinforcing chilling effects on civic spaces.
(c) Include strong legal safeguards to protect and respect free and independent journalistic
work
The current proposal of the Council does not include any measures capable of safeguarding
fundamental rights as required by the Treaty on European Union and the Charter of Fundamental
Rights. The EMFA therefore should follow the fundamental standards built in the jurisprudence of
the CJEU and the European Court of Human Rights (ECtHR).4
For example, it must include an
effective, binding and meaningful prior authorisation by an independent judicial authority.
Furthermore, repressive measures under Article 4 (a) and (b) must be necessary, proportionate,
assessed on a case-by-case basis and strictly limited to the most serious crimes.
The testimony of Catalan journalist Enric Borràs Abelló, President of the Group of Journalists
Ramon Barnils and Deputy Director of ARA newspaper shows how crucial legal safeguards are in
the context of state surveillance :
“The list of personalities spied on with Pegasus and Candiru in the so-called Catalangate has, at
the moment 65 names confirmed by NGO Citizen Lab. Three of them are journalists. The
cyberespionage against the Catalan independence movement broke out more than a year ago
and since then the Spanish National Intelligence Center (CNI) has only recognized the espionage
of 18 people linked to the movement. None of them are journalists. The CNI had judicial
1 CJEU, Joined cases 511/18, C-512/18 La Quadrature du Net and others v. Premier ministre and Others (2020). Para. 99
2 Ibid. para. 140.
3 EDPS, ‘Preliminary Remarks on Modern Spyware’ (15 February 2022) https://edps.europa.eu/system/files/2022-
02/22-02-15_edps_preliminary_remarks_on_modern_spyware_en_0.pdf
4 CEDH, Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands. Also: Big Brother Watch and
other v. The United Kingdom.
authorisation to do so in the framework of the terrorism investigation of the [internet-based]
organisation called Democratic Tsunami, which called for several demonstrations in Catalonia.
The investigation of the other 47 cases perpetrated without judicial authorisation remains
without a response from national authorities. So far, there isn’t any kind of collaboration from
Spanish intelligence”.
In light of aforementioned points, the undersigned civil society and journalists’ organisations
are urging the Council to reconsider its current position and to build a solid position against the
surveillance of journalists. The Pegasus scandal in Hungary, the Predator case in Greece or the
“Catalan Gate” simply are not tolerable in democratic societies. It is the role of the Council to
make sure to include the highest legal safeguards to protect journalism. Therefore, we sincerely
hope that, in your responsible capacities, you take the urgent and substantial steps to ensure
that the concerns outlined in this letter are addressed appropriately.
We remain at your disposal should you want to further discuss how the Council can ensure that
its general approach to the EMFA enhances fundamental rights, democracy and the rule of law –
the foundations on which the European Union is based.
Sincerely,
- Access Info Europe
- Access Now
- ActiveWatch, Romania
- ApTI – Asociatia pentru Tehnologie si Internet, Romania
- Article 19
- Association of Commercial Television and Video on Demand Services in Europe (ACT)
- Association of European Journalists (AEJ), Cyprus
- Association of Professional Journalists, Albania
- Belarusian Assotiation of Journalists (BAJ), Belarus
- CFDT-Journalistes, France
- Citizen D / Državljan D, Slovenia
- Civil Liberties Union for Europe (Liberties)
- Civil Rights Defenders, Sweden
- Committee to Protect Journalists (CPJ)
- Croatian Journalists Association
- Cultural Broadcasting Archive, Austria
- Culture and Mass-Media Federation FAIR-Media Sind and Romanian Trade Union of
Journalists, Romania - Danish Union of Journalists, Denmark
- Deutsche Journalistinnen und Journalisten Union (dju) in ver.di, Germany
- Deutscher Journalisten-Verband (DJV), Germany
- Digitalcourage, Germany
- Digital Citizenship (DCO)
- Dutch Association of Journalists (NVJ), The Netherlands
- Electronic Frontier Finland (Effi ry), Finland
- Electronic Frontier Norway (EFN), Norway
- Estonian Association of Journalists, Estonia
- European Broadcasting Union (EBU)
- Eurocadres
- European Center for Not-for-Profit Law (ECNL)
- European Centre for Press and Media Freedom (ECPMF)
- European Digital Rights (EDRi)
- European Federation of Food, Agriculture and Tourism Trade Unions (EFFAT)
- European Federation of Journalists (EFJ)
- European Partnership for Democracy (EPD)
- European Publishers Council (EPC)
- European Trade Union Committee for Education (ETUCE)
- European Trade Union Confederation (ETUC)
- Federazione Nazionale Stampa, Italy
- Finnish Union of Journalists, Finland
- Flemish Association of Journalists, Belgium
- Free Press Unlimited, the Netherlands
- Gazeta Wyborcza Foundation, Poland
- Global Forum for Media Development (GFMD)
- Gong, Croatia
- Group of Journalists Ramon Barnils, Spain
- Helsinki Foundation for Human Rights, Poland
- Human Rights Monitoring Institute, Lithuania
- Hungarian Press Union, Hungary
- Independent Journalists’ Association of Serbia (NUNS), Serbia
- Independent Journalists Association of Vojvodina, Serbia
- industriAll Europe
- International Press Institute
- Internews Europe
- IT-Pol, Denmark
- Jouralismfund Europe
- Journalists’ Association of Serbia (JAS-UNS), Serbia
- Journalists’ Union of Turkey (TGS), Turkey
- La Quadrature du Net, France
- Latvian Journalist Union, Latvia
- Ligue des droits humains (LDH), Belgium
- Lithuanian Union of Journalists (LZS), Lithuania
- Media Diversity Institute
- News Media Europe
- Osservatorio Balcani Caucaso Transeuropa (OBCT)
- Ossigeno.info, Italy
- Peace Institute, Slovenia
- PEN International
- Portuguese Union of Journalists (SINJOR), Portugal
- Reporters without Borders (RSF)
- Serbian Union of Journalists (SINOS), Serbia
- Society of Journalists, Warsaw, Poland
- South East Europe Media Organisation (SEEMO)
- Statewatch, UK
- Swedish Union of Journalists, Sweden
- Syndicat national des journalistes (SNJ), France
- Syndicat national des journalistes CGT (SNJ-CGT), France
- Trade Union of Croatian Journalists, Croatia
- Trade Union of Media of Montenegro (TUMM), Montenegro
- TUC Nezavisnost, Serbia
- Wikimedia Europe