Greece’s Predatorgate – draft law on surveillance falling short of European standards must be amended, says RSF
Reporters Without Borders (RSF) urges Greece’s parliamentarians to use RSF’s recommendations to amend a proposed law on surveillance that they are due to vote on this week, amid a continuing outcry about the use of Predator spyware against journalists.
“The bill that is meant to provide Greek citizens with better protection against surveillance by the security services offers only largely cosmetic improvements that fall far short of RSF’s recommendations. Drafted in haste and in an irregular manner, this bill suffers from major defects. We regret that the Mitsotakis government has not realised the extent to which press freedom has deteriorated in Greece and has learned few lessons since the warning it received in the form of Greece’s ranking in RSF’s press freedom index seven months ago, said Pavol Szalai, the head of RSF’s European Union and Balkans desk.
Long promised by the government as a response to the so-called Predatorgate spyware scandal, the bill on suspending the confidentiality of communications, cybersecurity and the protection of citizens’ personal data was unveiled on 15 November. After being subject to a public consultation lasting only seven days, the bill is to be debated and voted on in the Greek parliament this week.
These are the issues in the bill that require the attention of legislators and problems that need fixing:
1. The proposed definition of national security (a threat to which can be used as grounds for placing communications under surveillance): the bill’s initial definition was too broad and prompted concern that any major revelation about the country’s economic or social situation could be seen as a threat to national security that justified placing journalists under surveillance.
This definition has been amended and narrowed after public consultation on the bill. However, legislators must take care to ensure that, when the bill is debated in parliament, grounds not strictly related to national defence, foreign policy or security are not reintroduced. They must do this in order to safeguard the ability of journalists to continue covering economic and societal issues.
2. The supposed increase in oversight of surveillance operations by the security services falls far short of what is required.
The bill does not provide for any independent judicial oversight over a decision to place someone under surveillance, and its implementation. The decision to place someone under surveillance is taken by two prosecutors, who do not have to justify their decision. The new version of the bill contains no improvements on this point, although it is a major defect that places the bill in direct conflict with European Court of Human Rights case law.
Furthermore, the rights of recourse or access to information for persons who have been under surveillance are not reinforced. The Greek government had, by means of a legislative amendment in March 2021, eliminated any possibility for an individual (who had been subject to surveillance for national security reasons) to be informed of this surveillance after its termination. As a result, it became absolutely impossible for the individual concerned to question the measure, denounce any possible abuses and obtain compensation. In response to the ensuing outcry, this bill was supposed to correct that violation of the right of citizens to effective remedy.
But the improvements proposed by the bill fall far short of European expectations and standards. It is not until three years after the end of the surveillance that the individual concerned can be informed. And it is a commission whose independence and impartiality are questionable that will decide whether or not the individual concerned will be informed.
Under the first version of the bill, this decision was to be taken by a panel consisting of the head of the Hellenic Authority for Communication Security and Privacy (ADAE), the head of the security service that requested the surveillance and the prosecutor who authorised it – a panel whose impartiality would have been highly questionable. In response to criticism, the panel’s composition has been revised. It would now consist of the head of the ADAE and two prosecutors.
However, this is still insufficient. A prosecutor is an official responsible for judicial investigations and prosecutions. They cannot be regarded as an independent judicial authority. It is an independent authority who should be involved in these decisions.
3. Another major flaw in the bill is the lack of special protection for journalists. As journalists have the right to protect the confidentiality of their sources, the surveillance of journalists must be the subject of specific safeguards.
4. The bill claims to provide safeguards against the use of spyware. But it only penalises the use of spyware by individuals or private sector companies. Its use by the security services is far from being regulated, as the bill limits itself to saying that a presidential decree will determine the conditions under which the state may acquire surveillance software. There is therefore no provision for judicial oversight or monitoring of the use of spyware, and the subcontracting of spying to private sector operators is also left unregulated.
Greece’s legislators must overhaul this bill and provide real safeguards against surveillance, especially for journalists. And, when doing so, they should refer to the recommendations that RSF made at the start of November, which are based above all on European Court of Human Rights case law.
Finally, the procedure used to draft the bill was irregular inasmuch as it omitted the Hellenic Communications Security and Privacy Authority (ADAE), which issued a statement deploring the fact that it had not been “duly informed, nor its opinion solicited in an institutionally appropriate manner, so that this institutional bill could be the result of a sober and scientific debate in the interest of the law.”
Greece is ranked 108th out of 180 countries in RSF's 2022 World Press Freedom Index, the lowest position of any EU member.