On Monday, 65 press and civil rights organizations sent an open letter to the EU Council of Ministers calling for the planned media freedom law to effectively protect journalists from surveillance, for example with state Trojans. But the clamor was in vain. The body of member state government representatives on Wednesday staked out its line on the Media Freedom Act, which would allow its security agencies to spy on media representatives with spyware for reasons including "national security." This would also undermine source protection.
The relevant passage in Article 4 of the Council version now reads thus: EU countries should not be allowed to use surveillance software that interferes with fundamental rights on any device or machine used by journalists or close contacts. The particularly embattled addition says: "This article is without prejudice to the responsibility of Member States to protect national security." Other exceptions include when individuals are under investigation for crimes punishable by imprisonment for a maximum term of at least three years.
Safeguard clause "an empty shell"
The clause would legalize the use of state Trojans against journalists, civil society critics warned in advance. All that would remain of the planned safeguard clause would be "an empty shell." The further amendment to the article would have the effect of "massively expanding" the list of crimes that justify the use of spyware against journalists and their sources. This would include less serious offenses such as "arson" or "product piracy." This is "extremely problematic" from a fundamental rights perspective.
According to the Media Freedom Act, operators of very large online platforms with over 45 million users in the EU would have to provide a function that allows media service providers to identify themselves as privileged. For example, beneficiaries should be able to declare that they are editorially independent of member states and third countries and operate according to recognized standards. In the run-up, local publishers' associations pushed for an even more far-reaching "media exception," according to which Facebook, Twitter and YouTube, for example, would have to display content from media companies. The IT industry association Computer & Communications Industry Association (CCIA) was pleased that such a passage did not make it into the Council draft, which now still has to be negotiated with the EU Parliament. However, loopholes remained open. These could be exploited by malicious actors posing as the press.
