EU Parliament wants journalists to have better protections from spyware

The European Parliament agreed on Tuesday to strengthen protections for journalists from government surveillance as part of the proposed European Media Freedoms Act.

As originally proposed last September, the law would have prohibited surveilling journalists and their families — and banned the use of spyware to target their devices — except in the cases of “an overriding requirement in the public interest" or "on grounds of national security," respectively.

In the amended version of the legislation adopted by MEPs, the legislation now includes what is effectively a blanket ban on the use of spyware inside the EU: “Spyware that grants full unlimited access to personal data, including sensitive data, on a device could affect the very essence of the right to privacy and should, therefore, under no circumstance be considered necessary and proportionate under Union law.”

Negotiations between the Council, Commission and Parliament on the final text of the law will begin later this month.

The European Media Freedoms Act was introduced following a number of incidents in which journalists appeared to have been hacked in politically charged circumstances in EU member states, including cases in Hungary, Catalonia in Spain and Greece.

It was a novel move for the European Commission, which typically takes a back seat to member states both when it comes to media regulation and to laws affecting security — generally considered a matter of sovereignty for each member.

Alongside its existing provisions establishing media plurality by tackling monopolies and state-ownership, the version of the law agreed on by MEPs also aims to protect journalistic content from arbitrary takedown decisions by online platforms.

Will the spyware provisions survive negotiations?

The European Council, the EU institution made of ministers from member states, agreed in June that it wanted to reduce the level of protections available to journalists from spyware.

The Council’s amended version of the document increased the number of circumstances in which spyware can be used against journalists, and stresses that the law doesn’t impinge on EU member states’ sovereignty over deciding what is in the interests of their national security.

Parliament’s version in contrast seeks to increase the legal protections for journalists to include their communications as well as their sources, and requires that any law enforcement action that interferes with sources must be “subject to appeal to a court.”

As the amendments state: “The protection of journalistic sources is a precondition for the protection of the fundamental right enshrined in Article 11 of the Charter and crucial for safeguarding the ‘watchdog’ role of investigative journalism in democratic societies.”

Amid concerns that EU legislation could be proposed to undermine end-to-end encryption, the MEPs also call for “the promotion and protection of anonymisation tools and end-to-end encrypted services used by media service providers and their employees needs to be encouraged at Union level.”