European Media Freedom Act: More red tape won’t stop governments spying on journalists

No matter how much the EU tries to prove otherwise, imagining itself as the guardian of free media, the fact is not all journalists in the EU enjoy full democratic freedom. That needs to change.

When journalists contact authoritarian politicians or oligarchs, they typically don’t count on receiving a response. However, when reaching out to EU bureaucrats or member state officials, who often pride themselves as the champions of free media, reporters can reasonably expect a reply—but that isn’t always the case.

When governments disengage from journalists, peril haunts the free press. Fortunately, once a year, the EU gets a reality check thanks to Reporters Without Borders (RSF). Given RSF research, the truth is hard to ignore: media freedom in the EU is slowly declining.

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Based on the RSF 2023-24 report, the freedom of the press in one in three EU member states  is currently “problematic”, an increase on the previous year. The remaining two thirds are ranked as “satisfactory” or “good”, although many, such as France, saw their scores drop.

Brussels recently had an opportunity to take a stand for journalism, but it failed. Despite receiving final approval, the European Media Freedom Act failed to secure comprehensive protection for journalists or safeguard freedom of speech and press in Europe. While the new law aims to prohibit governments from using spyware on journalists’ phones to uncover their sources, the reality paints a different picture.

‘Right to spy’

Before the law had even been adopted, governments of EU member states began to protest, insisting on their right to spy on reporters under the guise of national security, despite calls from lawmakers to combat the use of spyware.

Unfortunately, this pro-spying push from member states had an impact, and its influence is evident in the final version of the law. The scope of alleged crimes where governments are permitted to spy on their own citizens  was expanded, and an exemption was introduced excluding journalists from protection against spyware, authorising national governments to conduct surveillance on journalists if they deem it necessary for national security reasons.

The European Media Freedom Act (EMFA) also introduces a concept called “media privilege”. This entails media organisations declaring themselves as such on Very Large Online Platforms (VLOPs) and search engines, such as social media sites. The premise is that upon declaring themselves, these organisations would gain specific benefits or privileges. For instance, they would have the opportunity to provide a statement justifying why their content should not be removed before any action is taken by the platform. However, in the EU, new privileges typically accompany new regulations.

VLOPs fall under the EU’s new Digital Services Act (DSA), which came into effect in February. Alongside concerns about the “media privilege” concept creating an imbalance in freedom of speech, there are also broader issues associated with the DSA. The law is designed to address illegal and harmful online content across EU platforms.

Brussels shoots itself in the foot

Concerns about censorship and potential misuse have emerged from various quarters, especially in advance of last weekend’s European Parliament elections. The rapid release of election guidelines intensified doubts about the DSA’s influence on the elections. Now, with the introduction of the European Media Freedom Act, these concerns could extend to media platforms as well.

With ever-expanding regulation and bureaucracy, Brussels shoots itself in the food. The Media Act will undermine the authority and integrity of the  pre-existing Board for Media Services, which will in turn compromise transparency in the European media. Complicated bureaucracy and political tugs-of-war obscure the core issue: journalists’ rights in the EU are not as protected as they should be, and the new regulations miss the mark and, in fact, worsen the situation.

In 2023, the Mapping Media Freedom initiative documented 281 attacks targeting women journalists and media personnel across EU member and candidate nations. A Civil Liberties Union for Europe report further criticised restricted access to public interest information in several EU countries. Governments persist in denying journalists access to documents or events.

Sadly, this lack of transparency is to be expected, as the EU itself isn’t setting a shining example. Even the European Commission fails to make an effort in providing media with public records. It should come as little surprise that EU policymakers are steering in the wrong direction given how their own offices deal with journalists.

More red tape

While the EMFA offers glimpses of progress in places, it risks becoming just another Brussels brainstorm with little real-world impact. Instead of piling on more regulations and red tape, EU leaders should focus on what truly matters: ensuring journalists can ask questions without fear of government suppression of their outlets (in Eastern European cases) or exclusion from press rooms (in Western cases).

For policymakers to make a tangible difference, the EMFA needs to empower bodies like the European Public Prosecutor’s Office, Europol, and Eurojust to bolster investigations into violent crimes against journalists, as RSF also recommends.

Furthermore, the EMFA should standardise rules safeguarding journalists’ source confidentiality and implement safeguards against unwarranted surveillance. This requires governments to set aside vague national interest justifications and exemptions for spying on journalists. True protection starts from within to ensure comprehensive safeguarding overall.

The EU should remember the media sector relies on competitiveness, and its value lies in its information. Journalists do not need new theoretical “privileges” to surpass others. They need democratic legitimacy to obtain answers in the public interest. No matter how much the EU tries to prove otherwise, imagining itself as the guardian of free media, the fact is not all journalists in the EU enjoy full democratic freedom. That needs to change.

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