EU governments want to authorise the spying of journalists and their sources on vague grounds of “national security”. The European Federation of Journalists (EFJ) strongly rejects the position of the EU Council on the European Media Freedom Act (EMFA) and denounces a blow to media freedom, arguing that such legislation would put journalists and their sources even more at risk.

The Council reached today, 21 June 2023, an agreement on the much-needed European Media Freedom Act, a legislation proposed by the European Commission on 16 September 2022 with the intention to introduce safeguards against political interference, media concentration, and to protect journalists and their sources against surveillance. Since then, the EFJ has been advocating for strong and effective regulation to respond to the numerous threats posed to media freedom in the EU.

However, earlier this month, France introduced a new exception to the general ban on deploying spyware against journalists. It reads that the provisions on effective protection of journalistic sources “is without prejudice to the Member States’ responsibility for safeguarding national security”.

The EFJ had argued that such an exception would turn in effect the protections originally afforded into empty shells. It also neglects the important case law of the Court of Justice of the European Union (CJEU), which makes it clear that the mere purpose of safeguarding national security cannot render EU law inapplicable and does not exempt Member States from their obligations to comply with the rule of law.

The EFJ strongly opposes this exception, which goes against the very purpose of the legislation and would open the door to all kinds of abuse:

“We are disturbed about the dangerous loopholes in the Council’s position, which shows a disregard for media freedom principles. The national security exception in article 4 on the protection of sources and protection from surveillance technology is a blow to media freedom. It would put journalists even more at risk and creates in addition a chilling effect on whistleblowers and other sources. We know too well how the defense of national security is misused to justify media freedom violations. This EMFA was supposed to generate trust. The Member States are generating mistrust,” reacted EFJ Director Renate Schroeder.

The EFJ relies on the European Parliament to be in a position to weigh in during the trilogue negotiations and save what is at stake: journalists’ trust in EU institutions and in a European Media Freedom Act worthy of the name.

ONAuBiH presented the manual “Reporting in the colors of the rainbow spectrum: Manual for media reporting on LGBTIQ topics in Bosnia and Herzegovina”.

Based on research that included mapping the 14 most read portals in Bosnia and Herzegovina, where more than 50 articles were analyzed, the Youth Newspaper Association in Bosnia and Herzegovina (ONAuBiH) presented a manual for media reporting on LGBTIQ topics within Bosnia and Herzegovina. media discourse, but also professional guidelines and recommendations for journalists reporting on LGBTIQ topics.

Media reporting on LGBTIQ topics within Bosnia and Herzegovina was analysed. media discourse immediately before and immediately after the Parade 2022 (April 1 – September 30, 2022). Working on the research, researchers Kristina Ljevak and Jasmina Čaušević, in cooperation with the project team, extended the time scope to include the event in Banja Luka when the activists of the Procession were attacked.

The manual also presents a comparison between what preceded the visibility of the struggle for the rights of the LGBTIQ community.

“Reporting in the colors of the rainbow spectrum: Manual for media reporting on LGBTIQ issues in Bosnia and Herzegovina”, writes ONAuBiH, represents one of the results of the work of this organization’s team, which was published as part of the “All Colors of the Rainbow” project, which is implemented with the support of USAID/ INSPIRE program.

The manual is available for download online at this link.

Sixty two journalist organisations and civil society groups sign joint letter to EU Council

Independent Journalists’ Association of Serbia (IJAS) today joins a civil society and journalists organisations in voicing our concerns about proposals to weaken protections for journalists against spyware surveillance envisioned in the draft European Media Freedom Act (EMFA).

IJAS joins these groups in jointly calling on the Council of the European Union to reconsider its current position on the EMFA, as stated in a recent compromise text. Instead, the Council must take steps to meaningfully protect journalists and their fundamental rights.

Read the full letter below, which was sent on 19 June 2023

To: Deputy Permanent Representatives (COREPER I)
CC: Attachés for Culture and Audiovisual

19 June 2023

Dear Deputy Permanent Representatives,

We, the undersigned 60 civil society and journalists organisations, are writing to voice our concerns on the worrying developments related to the draft Regulation on the European Media Freedom Act (EMFA), in particular the provisions of Article 4 (“Rights of media service providers”). The latest compromise text of 24 May poses serious risks to European Union core democratic principles and fundamental rights, notably press freedoms, freedom of expression and the protection of journalists.

In particular, the latest compromise text: (a) maintains and aggravates the Commission’s proposal which carves out a “national security” exception from the general prohibition to deploy spyware against journalists; (b) increases the list of crimes that permit surveillance against journalists and journalistic sources; and (c) eliminates legal safeguards that protects journalists against the deployment of spyware by Member States.

In order to ensure that the Regulation protects journalists and their fundamental rights, the Council must instead:

(a) Eliminate the exception for “national security”

The current compromise text, instead of protecting journalists and their sources, will legalise the use of spyware against journalists. Specifically, the inclusion of a new paragraph 4. stating that “[t]his Article is without prejudice to the Member States’ responsibility for safeguarding national security” turns in effect the protections originally afforded by Article 4 into empty shells. Through this new provision, the Council is not only weakening safeguards against the deployment of spyware but also strongly incentivises their use based solely on Member States’ discretion.

Hungarian journalist Szabolcs Panyi adequately describes the real threat this provision poses to journalism:

“Technical forensic analysis of my phone showed that the Pegasus spyware had been running on my device for seven months. My surveillance impeded my right to protect my sources of information. I am an investigative journalist who relies heavily on information from whistleblowers. In increasingly repressive political environments, like in Hungary, where media is under government control and pressure, whistleblowers and leaks are the only way left for investigative journalists to uncover the truth. This is exactly why, under the pretext of vague and bogus national security reasoning, surveillance is used against journalists in Hungary. It has an enormous chilling effect, and could make our work impossible. EU leadership in Brussels must realize that any EU citizen, whether a journalist or a source of a journalist, can become subject of illegitimate surveillance if certain member states always get away with using ‘national security’ as a free pass. This makes the EMFA even more essential in protecting the rights of journalists and freedom of the press.”

Including the “national security” exception without fundamental rights safeguards neglects the important case law of the Court of Justice of the European Union (CJEU). The Court has been clear that the mere purpose of safeguarding national security cannot render EU law inapplicable and does not exempt Member States from their obligations to comply with the rule of law.

(b) Restrict the list of crimes that allows repressive measures against journalists and journalistic sources and prohibit the deployment of spyware

The draft Council position deletes the exhaustive list of crimes set by the Commission in Article 2, paragraph 17 to replace it with the list established in the European Arrest Warrant Framework Decision conditioned by a maximum detention sentence of at least three years and with all offences punished by maximum minimum threshold of five-year imprisonment under national law. This has the effect to massively expand the list of crimes justifying the deployment of spyware against journalists and journalistic sources, including less severe offences such as “arson” or “piracy of products”. This is deeply problematic from a fundamental rights perspective.

To abide by the principle of proportionality, it is vitally important to include a proper threshold that excludes parts of national criminal codes which do not justify intrusive measures under Article 4(2) point (b). According to the CJEU case law only serious crime is capable of justifying a serious interference with the fundamental rights of the individual.2 When it comes to journalists and media workers the threshold must be higher due to the crucial role they play as public watchdogs in our democracies. As assessed by the European Data Protection Supervisor (EDPS) in its preliminary remarks, the level of interference of modern spyware with the right to privacy is so severe that it “in fact deprives” the individual of this right. When the individual is a journalist or a source, it is all the more clear that even the purpose of protecting national security cannot establish a proper balance with the interference at stake. In a nutshell, the broad scope of the catalogue of crimes in point (c) of Article 4(2) opens the door to unacceptable and disproportionate surveillance against journalists and journalistic sources. If not substantially redrafted, the EMFA would legalise the silencing of critical voices, reinforcing chilling effects on civic spaces.

(c) Include strong legal safeguards to protect and respect free and independent journalistic work

The current proposal of the Council does not include any measures capable of safeguarding fundamental rights as required by the Treaty on European Union and the Charter of Fundamental Rights. The EMFA therefore should follow the fundamental standards built in the jurisprudence of the CJEU and the European Court of Human Rights (ECtHR). For example, it must include an effective, binding and meaningful prior authorisation by an independent judicial authority. Furthermore, repressive measures under Article 4 (a) and (b) must be necessary, proportionate, assessed on a case-by-case basis and strictly limited to the most serious crimes.

The testimony of Catalan journalist Enric Borràs Abelló, President of the Group of Journalists Ramon Barnils and Deputy Director of ARA newspaper shows how crucial legal safeguards are in the context of state surveillance:

“The list of personalities spied on with Pegasus and Candiru in the so-called Catalangate has at the moment 65 names confirmed by NGO Citizen Lab. Three of them are journalists. The cyberespionage against the Catalan independence movement broke out more than a year ago and since then the Spanish National Intelligence Center (CNI) has only recognized the espionage of 18 people linked to the movement. None of them are journalists. The CNI had judicial authorisation to do so in the framework of the terrorism investigation of the [internet-based] organisation called Democratic Tsunami, which called for several demonstrations in Catalonia. The investigation of the other 47 cases perpetrated without judicial authorisation remains without a response from national authorities. So far, there isn’t any kind of collaboration from Spanish intelligence”

In light of aforementioned points, the undersigned civil society and journalists’ organisations are urging the Council to reconsider its current position and to build a solid position against the surveillance of journalists. The Pegasus scandal in Hungary, the Predator case in Greece or the “Catalan Gate” simply are not tolerable in democratic societies. It is the role of the Council to make sure to include the highest legal safeguards to protect journalism. Therefore, we sincerely hope that, in your responsible capacities, you take the urgent and substantial steps to ensure that the concerns outlined in this letter are addressed appropriately.

We remain at your disposal should you want to further discuss how the Council can ensure that its general approach to the EMFA enhances fundamental rights, democracy and the rule of law – the foundations on which the European Union is based.

Sincerely,

1. Access Info Europe
2. Access Now
3. ActiveWatch, Romania
4. ApTI – Asociatia pentru Tehnologie si Internet, Romania
5. Article 19
6. Association of Professional Journalists, Albania
7. Belarusian Assotiation of Journalists (BAJ), Belarus
8. CFDT-Journalistes, France
9. Citizen D / Državljan D, Slovenia
10. Civil Liberties Union for Europe (Liberties)
11. Civil Rights Defenders, Sweden
12. Croatian Journalists Association
13. Cultural Broadcasting Archive, Austria
14. Culture and Mass-Media Federation FAIR-Media Sind and Romanian Trade Union ofJournalists, Romania
15. Danish Union of Journalists, Denmark
16. Digitalcourage, Germany
17. Digital Citizenship (DCO)
18. Dutch Association of Journalists (NVJ), The Netherlands
19. Electronic Frontier Norway (EFN), Norway
20. Estonian Association of Journalists, Estonia
21. Eurocadres
22. European Centre for Press and Media Freedom (ECPMF)
23. European Digital Rights (EDRi)
24. European Federation of Journalists (EFJ)
25. European Partnership for Democracy (EPD)
26. Federazione Nazionale Stampa, Italy
27. Finnish Union of Journalists, Finland
28. Flemish Association of Journalists, Belgium
29. Free Press Unlimited, the Netherlands
30. Gazeta Wyborcza Foundation, Poland
31. Global Forum for Media Development (GFMD)
32. Gong, Croatia
33. Group of Journalists Ramon Barnils, Spain
34. Helsinki Foundation for Human Rights, Poland
35. Human Rights Monitoring Institute, Lithuania
36. Hungarian Press Union, Hungary
37. IT-Pol, Denmark
38. Independent Journalists’ Association of Serbia (NUNS), Serbia
39. Independent Journalists Association of Vojvodina, Serbia
40. International Press Institute
41. Internews
42. Journalists’ Union of Turkey (TGS), Turkey
43. La Quadrature du Net, France
44. Latvian Journalist Union, Latvia
45. Ligue des droits humains (LDH), Belgium
46. Lithuanian Union of Journalists (LZS), Lithuania
47. Media Diversity Institute
48. Osservatorio Balcani Caucaso Transeuropa (OBCT)
49. Ossigeno.info, Italy
50. Peace Institute, Slovenia
51. Portuguese Union of Journalists (SINJOR), Portugal
52. Reporters without Borders (RSF)
53. Serbian Union of Journalists (SINOS), Serbia
54. Society of Journalists, Warsaw, Poland
55. South East Europe Media Organisation (SEEMO)
56. Statewatch, UK
57. Swedish Union of Journalists, Sweden
58. Syndicat national des journalistes CGT (SNJ-CGT), France
59. TUC Nezavisnost, Serbia
60. Trade Union of Croatian Journalists, Croatia
61. Trade Union of Media of Montenegro (TUMM), Montenegro
62. Wikimedia Europe

 Associations of citizens, journalists and the media demand that the responsible institutions urgently take concrete steps in order to fulfill the demands of the citizens’ protests. For years, we have been pointing out the destructive effect of media content that promotes violence, spreads panic, misinformation, malicious content and manipulation. This kind of media scene developed solely because the laws in this country are systematically circumvented, and the institutions (judicial, ministries, independent bodies) do not react to the violation of existing laws and accompanying subordinate legislation.

The citizens of Serbia have very clearly identified the problems and, among the demands they made after two tragic events that devastated our country, they demand from the responsible institutions, among other things: the replacement of the REM Council, the revocation of TV PINK and TV HAPPY national broadcasting licenses, the shutdown of print media and tabloids that publish fake news, falsehoods and continuously violate the journalistic code.

Bearing in mind the above-mentioned requests, associations of citizens, journalists and media call on:

1.MPs in the National Assembly of Serbia to initiate the replacement of REM Council members in accordance with Article 16 of the Law on Electronic Media;

2.The Prime Minister to, as soon as possible, in accordance with the priorities of the Media Strategy, initiate the adoption of amendments and additions under the urgent procedure to  the Law on Electronic Media, which refer to the articles of the Law that regulate:

• Authorized nominators of Council members, so that parliamentary committees of the National Assembly and the Assembly of AP Vojvodina cannot be nominators of Council members;
• Criteria and conditions that must be met by candidates for Council members;
• Election of the new composition of the REM Council immediately after the adoption of the amendments to the Law.

3.The proposers of the law to, according to Article 9 of the Law on Electronic Media (accredited universities, churches and religious communities, national councils of national minorities, associations of publishers and associations of journalists, associations of film, stage and drama artists and associations of composers in the Republic of Serbia, associations of citizens whose goals are realization of freedom of expression and protection of children) invite, in the capacity of their proposers, the members of the REM Council to submit their resignations;

4.Government representatives, public companies and all institutions founded by the state to immediately stop all forms of media funding that violate the law on any basis, including advertising, projects, public procurement, etc.;

5.The Republic Public Prosecutor’s Office to respond without exception and without delay to any form of promotion and call for violence in the media, in accordance with the powers prescribed in Article 59 of the Law on Public Information and Media;

6.Courts to decide on the lawsuit filed by associations of citizens due to the illegal decision of the REM Council to renew the national broadcasting licenses of televisions that violated the laws.

7.After the decision of the courts, the new composition of the REM Council must conduct a new round for the award of national licenses respecting the conditions prescribed by the Law and the code on the minimum conditions for the provision of media services.

This initiative, which aims to solve the current crisis within institutions, is based on the findings of international institutions, the findings of REM, domestic experts and domestic organizations that deal with the topic of the media and media regulation.

In alphabetical order:

Media Association

Association of Online Media (AOM)

Autonomous Women’s Center

Belgrade Center for Security Policy

Belgrade Center for Human Rights

BIRODI

Center for contemporary politics

Center for European policy (CEP)

CRTA

European movement in Serbia

Civic initiatives

Youth Initiative for Human Rights

Lawyers’ Committee for Human Rights YUCOM

Independent Association of Journalists of Vojvodina (NDNV)

Independent Association of Journalists of Serbia (NUNS)

New optimism movement

Partners Serbia

Business association of the Association of Local and Independent Media “Local Press”

Slavko Ćuruvija Foundation

The journalist Laura Kerolli and the camera operator Ardijan Shala from the IndeksOnline portal were assaulted physically today in Leposaviq.

While being followed and attacked by Serbian protesters, Kerolli and Shala received physical injuries.

Five cases of physical attacks against Albanian- speaking have been reported to the Association of Journalists of Kosovo only today.

The Association of Journalists of Kosovo urges fellow reporters to prioritize their well-being.

Journalist Dorentina Thaqi was hit in the head with stones by protesters who also attacked RTK and Tëvë1 cameramen. She was also attacked with stun grenades.

This is the 28th attack on media teams during the recent tensions in the country’s north, and the fourth in Leposaviq only today.

The Kosovo Journalists Association urges that the protestors be brought to justice as soon as possible, while also urging those who are in charge of peace and security, such as the Kosovo Police, the EULEX Police, and KFOR, to establish favorable conditions for reporting in these sensitive times.