Proposed EU laws aimed at stopping governments hacking journalists’ phones and at protecting the independence and plurality of the press are in serious jeopardy, media campaigners have claimed.
“We are very depressed about the way this is going,” said Renate Schroeder, director of the European Federation of Journalists.
She and others say the European Media Freedom Act (EMFA), which is in the final stages of negotiation between member states and MEPs, has been “watered down” so much behind the scenes that its original aim, to give robust protections to the press, may not be achieved.
One campaigner warned of “dangerous” compromises that will impact all journalists in the EU including British, US and any other international correspondents working in the bloc. Concerns include future competition and the plurality of the private and public media.
Under the EU law-making process, the European parliament comes to a position on a text drafted by civil servants in the European Commission and amended by member states. But this text can be amended further in the final set of negotiations, known as trilogues, which the Spanish presidency is hoping to complete by the end of the year.
Once agreement is reached, the text is usually adopted by parliament and passed on to the statute books over a number of months.
Under article 21 of the text submitted by the European parliament, cross-border and domestic plurality of the media in any member state must be assessed before any merger or acquisition is given the go-ahead. This was designed to prevent a repeat of what happened in Hungary in 2020, when 470 outlets were merged into one group, Kesma, which is loyal to Viktor Orbán’s government.
Sources say the compromise that the European Council and parliament have agreed now relegates such assessment to a “mere possibility” and that the rules call for nothing further than an “assessment of media market concentration”.
One of the top concerns relates to the right of member states to plant spyware on journalists’ phones. In the initial stages of the drafting of the legislation, France, backed by other member states, insisted that this could be justifiable in cases of “national security”. But press rights campaigners say governments’ main interest will be identifying sources of leaks.
The text was tempered by the European parliament to force governments to publicly outline its prima facie evidence for spying on a journalist, a move that it believed would make surveillance impossible.
Journalist organisations are arguing that there is no place for spyware in the body of the law at all.
Laurent Richard, a French journalist, said: “My position is that we definitely need an entire removal of this article.” Richard founded Forbidden Stories, which along with the Guardian and other partners revealed governments’ use of Pegasus software to spy on journalists and opposition politicians.
“What is most dangerous in terms of democratic process, is when you build a regulation but you don’t have the means of controlling its use,” he added.
“As nobody is controlling the people making those decisions [to put spyware on phones], how will we discover abuses of this law?”
Richard said that even countries that champion the principles of freedom of expression cannot be trusted when it comes to the press after the detention in Paris of the journalist Ariane Lavrilleux, who reported on leaked documents alleging that French intelligence was used to target civilians in Egypt.
“We should pay attention to what happened in France. She was arrested because the French security services simply wanted to identify the source. This happened in France. So we are not talking about Hungary and Orbán or Poland here. We’re talking about one of the countries or states that was a co-founder of the EU and a global defender of human rights,” he said.
Schroeder said journalists may have “no choice” but to accept the EMFA’s spyware clauses with protections suggested by the European parliament.
Her fear is that the negotiators in the European Council and parliament are now watering down the parliament’s amendments further.
She is pressing for safeguards that will force individual member states to ensure their media regulation complies with case law amassed at the European court of human rights and the European court of justice, which protects confidential sources.
Under the current proposals, “judicial authorities would not need to refer to the case law before they made decisions”, she said, paving the way for misuse of spyware.
She is also concerned that member states are “watering down” proposed regulations to protect editorial independence; requirements that decisions in newspapers or TV bulletins are taken by “editors or editors in chief” have been changed to a vague “editorial decisions have to be guaranteed”.
“What are editorial decisions? It could be publishers or owners who make these decisions, so this is even worse than the original text.”
A spokesperson for the Spanish representation in Brussels said there was “no menace” to the rights of journalists and it was working hard to ensure they were protected.
They added: “We have had seven working meeting of seven hours each for now. You can rest assured we are nowhere near jeopardising any files.”
