European Council agrees to water down protections for journalists from spyware

The European Council agreed on Wednesday to seek to reduce the level of protections provided to journalists from government surveillance and spyware in a proposed law intended to safeguard media freedoms across the bloc.

As proposed last September, the European Media Freedoms Act (EMFA) included prohibitions on surveilling journalists and their families, as well as banning 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.

The proposals were 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.

The Council’s amended version of the document increases 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.

As reported by Politico, the French government had been leading the charge to limit the scope of the protections included in the EMFA by ensuring that the law recognised it did not interfere with member states’ sole responsibility for safeguarding their own national security.

The delegates from member states Poland and Hungary, both of which have been accused of using spyware to target journalists, did not support the EMFA.

Civil society groups have complained that the practical effect of the amendment would be to remove the ability for the European Union’s Court of Justice to find against member states if they were sued for hacking into a journalist’s phone.

“France absolutely dreads the scrutiny of the Court of Justice of the European Union, which ‘presents the risk of an extensive interpretation of safeguards in EU law,” the campaign group EDRI wrote in an open letter signed by 60 civil society organizations.

The Council will have to negotiate its proposals for the law with the European Parliament (the EU’s directly elected body) and the European Commission (the EU’s executive) later this year, once the Parliament has established its own negotiating position — expected around October.

The proposed law follows numerous incidents of journalists being hacked in what appeared to be politically-charged circumstances across several EU states, including cases in Hungary, Spain and Greece.

The Spanish government has acknowledged its National Intelligence Centre used spyware to infect the phones of politicians belonging to the Esquerra Republicana de Catalunya (ERC), a party that campaigns for Catalan independence, in the wake of a banned referendum on the autonomous region’s secession.

Such targeting may be allowed within the amendments introduced by the Council, which include a sentence stressing that the law does not undermine member states' “power to safeguard other essential state functions, including ensuring the territorial integrity of the state and maintaining law and order.”

The amendment does “not just weaken safeguards but actually incentivise[s] the use of spyware against journalists at the discretion of member states,” EDRI claimed.

The letter included testimony from the Hungarian journalist Szabolcs Panyi, whose phone was infected by NSO Group’s Pegasus spyware, arguing that the Hungarian government already targets journalists “under the pretext of vague and bogus national security reasoning.”

EDRI has called for the EMFA to “include an effective, binding and meaningful prior authorisation by an independent judicial authority” before member states could target journalists.

At the time the EMFA was introduced, Věra Jourová, the European Commission's vice -president for values and transparency, acknowledged that the proposals were likely to receive resistance from the bloc’s governments.

“We have seen over the past years various forms of pressure on the media. It is high time to act,” she said. “We need to establish clear principles: no journalist should be spied on because of their job; no public media should be turned into propaganda channels.”

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