EU’s media law faces crunch time on protection of journalists, board independence

EU co-legislators will discuss the thorny issue of protecting journalistic sources at the next negotiation round on the European Media Freedom Act (EMFA), but MEPs are considering postponing the agreement while several EU countries push for more independence of the board of regulators.

The EMFA is a legislative proposal to enhance the independence and pluralism of the media sector in Europe. The file is at the last phase of the legislative process, whereby the EU Commission, Council and Parliament meet in so-called ‘trilogues’ to hash out the final provisions.

The pressure is on to reach a final agreement at the political trilogue on Friday (15 December), when the only issue on the agenda will be the controversial part on protecting journalists and their sources.

On Wednesday, MEPs are set to discuss whether they are willing to compromise on Friday’s trilogue or seek a better deal under the Belgian presidency in January.

The Parliament is conflicted between those who would like to play hardball and those convinced that postponing the agreement might effectively derail the adoption of the law before the end of the legislative mandate.

At the same time, France, Germany, Poland, Austria, Portugal, Finland, Slovenia, Luxembourg and Romania are pushing for changes to the preamble of the text meant to enhance the independence of the European Board for Media Services from the Commission.

Protection of journalists

On Tuesday, at a meeting of the Audiovisual and Media Working Party, a technical body of the Council, the Spanish presidency provided print-outs of the compromise text they will propose on Friday’s trilogue.

The text, seen by Euractiv, concerns the ‘rights of media service providers’ that, while there is still some disagreement on the precise wording, should shield media outlets and editorial staff from being forced to disclose information on sources or other initiatives in this regard.

Particularly sensitive is the prohibition of deploying intrusive surveillance software on anyone with a regular or professional relationship with a media outlet or journalist, as it might result in revealing the identity of confidential sources.

The text includes a derogation to this latter part for investigating suspects in a pre-determined list of serious crimes like terrorism and murder, punishable for a maximum sentence of least three years, raised to five years for any other crime.

The conditions for this derogation are that the use of spyware should be according to EU or national law, in respect of the EU Charter of Fundamental rights, proportionate, motivated by an overriding reason of public interest, and subject to prior authorisation of a judicial or independent authority.

Notably, one of the open issues for the trilogue that the presidency reports is that MEPs want to include a prohibition for member states to delegate the deployment of spyware and other surveillance technologies to an external contractor.

While the parliamentarians want a judge or independent authority to regularly review the surveillance measures to see if they still meet the necessary conditions, member states are pushing for a simple ex-post scrutiny.

Another sticking point is that the Parliament wants the person kept under surveillance and those affected to be informed after a clear timeline, including the reasons for the wiretapping.

Most importantly, the Council wants to maintain that these provisions are “without prejudice to Member States’ responsibility for safeguarding national security.”

Civil society organisations like the European Federation of Journalists strongly oppose this measure, which is seen as a dangerous loophole running against media freedom principles.

On Wednesday, a consortium formed by Investigate Europe, Disclose and Follow the Money obtained an internal document from the German government pointing to France, Italy, Greece, Cyprus, Malta, Finland and Sweden as the countries still pushing for this broad national security exemption.

Euractiv understands that to reach an agreement with the Council, parliamentarians might have to concede on the national security exemption in exchange for stronger safeguards for journalistic protection.

Independence of the Board

The legal text on the European Board for Media Services, which is to replace the European Regulators Group for Audiovisual Media Services (ERGA), was formally closed at the previous trilogue on 29 November.

However, nine member states, including the EU’s two largest countries, are asking for refinements in the law’s preamble that should better ensure the independence of the Board from the influence of the Commission, which will provide the body’s secretariat.

The coalition of governments wants the financial and administrative guidelines of the Board to be put black-on-white in a Memorandum of Understanding (MoU) with the Commission to detail the internal financial expenditure and division of tasks.

The eight EU countries also want the MoU to indicate the conditions for national experts to be seconded to the secretariat, with an indicative number of how many these could be and the divisions of costs between the member state and the Commission.

Other requests concern limiting the Commission staff in the secretariat to administrative tasks and creating a steering group.

[Edited by Alice Taylor]

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