Surveillance of journalists on broad national security grounds would “poison EMFA from within”

The version of the European Media Freedom Act adopted by the Council of the EU on 20 June provides for a general “national security” exception concerning journalists’ protection against surveillance and for the confidentiality of their sources. Reporters Without Borders (RSF) calls on European Union member states and MEPs to reverse this exception.

The introduction by the Council of the EU of a general exception to the protection from surveillance that journalists are afforded in the European Media Freedom Act  (EMFA), on the ground of the safeguard of national security by member States, is dangerous. It gives a green light to countries such as Greece or Hungary that have used this pretext to spy on journalists.

According to article 4.4 of the Council’s version, provisions preventing the surveillance of journalists are “without prejudice to the responsibility of Member States to safeguard national security.” This addition could be regarded both as superfluous and as a provocation since, under its treaties, the EU has no competence in matters of national security.

To understand this measure, it must be placed in a broader context. Some member states are annoyed by the EU’s interpretations, especially EU Court of Justice rulings, with regard to national security. And they are now holding the EMFA hostage to an institutional quarrel that is unrelated to its purpose.

On the substance of this issue, it is important to understand that exceptions to the prohibition on violating the confidentiality of journalists' communications are only legitimate if they comply with very strict limitations. These are a particularly strong public interest, prior authorisation and continuous monitoring by a judicial authority, implementation only for the investigation of the most serious crimes, and justification of the need and proportionality of the monitoring measures.

Such safeguards were partly provided for in the initial draft, but have been watered down in the version adopted by the Council. It would allow surveillance of journalists in investigations involving 32 offences punishable by at least three years' imprisonment (including trafficking in cars or hormonal substances). In the European Commission’s original version, the possibility of such surveillance is limited to investigations involving ten serious categories of crimes, including terrorism, crimes against humanity and child pornography. The intention of member states to effectively protect journalists is therefore seriously in doubt.

“The inclusion of a general national security exception is at best a blunder and at worst a danger to journalism. It is a blank cheque for unbridled surveillance, a short step from the crudest form of police spying and an open door to abuse. And it is a political mistake, because this blow to the EMFA provides weapons to its detractors. We call on the amendment’s authors to reverse it, and we urge the European Parliament to reject this useless and dangerous provision, which would poison this law from within. That the interior ministries of established democracies could associate themselves with such rogue-state practices represents a grave precedent in the European process. The political responsibility can only fall sooner or later on the sorcerer's apprentices.

Christophe Deloire
RSF secretary-general
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