European Media Freedom Act: pros and cons for journalists

Final push for the European Media Freedom Act (EMFA), the EU law on media freedom and transparency. The European Parliament plenary adopted its position on the EMFA on 3 October with 448 votes in favour, 102 against and 75 abstentions. Negotiations with the European Council began on 18 October.

The European Commission adopted the proposed regulation on 16 September. The Commission adopted a complementary recommendation to promote internal guarantees of editorial independence alongside the new rules to protect pluralism and media independence in the EU.

The European Media Freedom Act will regulate the protection of editorial independence, requiring Member States to respect the effective editorial freedom of media service providers and to improve the protection of journalistic sources. In addition, media service providers will have to “ensure transparency of ownership through public disclosure of such information and take measures to guarantee the independence of individual editorial decisions.” No use of spyware against the media will be tolerated: the Media Freedom Act provides strong safeguards against the use of spyware against the media, journalists and their families, although there are no absolute restrictions (see Focus 1); independent public service media will be funded: where public service media exist, the funding provided should be adequate and stable “to guarantee editorial independence.” The director and the board of directors of public service media “should be appointed in a transparent, open and non-discriminatory manner;” a media pluralism test will be issued: it requires Member States to “assess the impact of media market concentration on media pluralism and editorial independence.” It also requires that any legislative, regulatory or administrative measures taken by a Member State that could affect the media be “justified and proportionate;” State advertising won’t be discriminatory: new requirements will be set for the allocation of state advertising to the media so that it is “transparent and non-discriminatory;” online media content will be protected: Building on the Digital Services Act, the Media Freedom Act will provide guarantees against the unjustified removal of media content produced to professional standards; new user right to customise media offerings will be guaranteed: the Media Freedom Act will introduce a right to customise media offerings on devices and interfaces.

After more than a year of investigations and missions to several Countries, in June 2023 the European Parliament’s Special Committee on the use of spyware formulated a series of recommendations to regulate the trade and use of this software. The non-legislative resolution, adopted by 411 votes to 97 with 37 abstentions, calls for credible investigations, legislative changes and better enforcement of existing rules to combat abuse. But this is not enough. According to recent reports by the European Investigative Collaborations Network, MEPs and other high-level decision-makers have again been targeted by ‘Predator’ spyware attacks.

The biggest problems were found in five countries: Poland, Hungary, Greece, Cyprus and Spain. In Hungary and Poland, publishers, journalists and members of civil society have been targeted, governments have dismantled oversight mechanisms, and the judiciary lacks the independence necessary to prevent abuses. The lack of “institutional and legal guarantees” has also been criticised in Greece, where spying practices have affected the upper echelons of politics and various investigative journalists.

Greek and Cyprus Governments are also urged to abolish export licences for spyware that contravene EU law. In Spain, it is unclear who authorised the use of spyware in the 47 cases recorded by the committee of inquiry: different targets, reasons for spying and perpetrators. The best-known cases involve the Madrid Government, the victim and the alleged instigator of espionage in two different circumstances. The first concerns the mobile phones of President Pedro Sánchez, Defence Minister Margarita Robles and Interior Minister Fernando Grande-Marlaska, which were infected with Pegasus, probably from Morocco. The other is the so-called Catalangate, the maxi-surveillance operation against political figures and members of civil society from the catalan independence movement, including the current president of the Generalitat de Catalunya, Pere Aragonès, and the president of the Catalan Parliament, Laura Borràs (both of whom were spied on before taking up their respective posts).

After the vote in the Parliament, the European Federation of Journalists stressed that although it was a “historic vote”, it did not “completely stop the spying” on journalists. In fact, the text accepts “as a last resort” that journalists should be monitored in the name of “national security.” The use of spyware can only be justified, MEPs argue, as a “last resort”, on a case-by-case basis and when ordered by an independent judicial authority to investigate a serious crime such as terrorism or human trafficking.

On 27 September, eighty media, journalists and human and digital rights organisations had written to MEPs to ensure that the regulation achieves its objective, including a total ban on the use of spyware against journalists. “Spyware,” they wrote, “is a powerful tool that undermines journalistic work, freedom of expression and ultimately democratic values. We urge MEPs to use the upcoming vote in plenary as an opportunity to control the use of this powerful tool and ensure that journalists are protected.”

To help uncover cases of illegal surveillance, MEPs have proposed the creation of a technology laboratory. This would be an independent research institute tasked with investigating surveillance and providing technological support in areas such as device control and forensic research.

MEPs say there are “strong indications” that the Governments of Morocco and Rwanda have also spied on high-profile EU citizens, including some Heads of State. More broadly, MEPs called for a thorough investigation of spyware export licences, stricter enforcement of EU export control rules, a joint EU-US strategy on spyware, talks with Israel and other third Countries on spyware marketing and export rules, and a guarantee that EU development aid does not fund the purchase and use of spyware.