Malta called to withdraw support for EU law that allows spying on journalists

The Daphne Foundation has called on the Maltese government to withdraw its support for the European Media Freedom Act, currently under discussion in the EU Council which is under pressure from France and other states to allow spyware use against journalists.

European governments are still lobbying to legitimise state spying on journalists under a new law designed on paper to protect them.

Documents obtained by Investigate Europe on a European Council meeting in November show that France, Italy and Greece are among seven governments insisting on broader wording in the European Media Freedom Act (EMFA) which would permit the use of spyware if deemed necessary for “national security”.

“Malta should withdraw its support for the current proposal to legitimise the surveillance of journalists in the EU and must ensure that journalists and their sources are properly protected,” said Dr Therese Comodini Cachia, who runs the Daphne Foundation’s legal clinic for journalists.

“Safeguarding national security through surveillance could only be justified, on a case-by-case basis, on matters unrelated to journalists’ work and which do not result in access to journalists’ sources, and then only if there are relevant and sufficient reasons to substantiate the intrusion as necessary in a democratic society and as directly related to the protection of national security which is restrictively interpreted.”

A decisive ‘trilogue’ meeting with MEPs is scheduled for Friday 15 December. German Green MEP Daniel Freund, who is involved in the ongoing negotiations, said the European Parliament’s proposal would limit the use of spyware by requiring an order by an independent judge and could not cover a journalist’s sources or professional activities.

The EU Council adopted its version on 21 June, under pressure from the Macron government and ultimately with the agreement of all governments except Hungary and Poland. It included the contentious sentence to an article banning spying on journalists: “This article shall be without prejudice to the responsibility of Member States to protect national security.”

Minutes from the EU Council of Permanent Representatives meeting on 22 November show that Italy wants to retain spying powers – calling it a red line. France, Finland and Cyprus showed they were “not very flexible” on this issue. Sweden, Malta and Greece also agreed “with some nuances”, according to the document.

Comodini Cachia said by agreeing, Malta was undermining the first European law aimed at protecting media freedom.

The relevant legal clause includes the following broad derogation: “This Article is without prejudice to the Member States’ responsibility for safeguarding national security”. In other words, under the proposed law, when a member state deems its national security is threatened, surveillance becomes legal.

The legal text allows states to spy on journalists in circumstances that are undefined and does not provide safeguards against abuse.

“Even if no abuse of the proposed law occurs, in Malta journalists’ sources will not be protected by the version of the EMFA that the Maltese government supports,” Comodini Cahcia sai,d

“The Security Services Act, which covers surveillance for national security, does not specifically protect journalists’ sources, one of the ‘basic conditions for press freedom’ as determined by the European Court of Human Rights.

“Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined, and the ability of the press to provide accurate and reliable information be adversely affected.”

‘Incestuous’ phone-tapping laws should be updated – Malta judge

David Casa statement

Nationalist MEP David Casa accused the Maltese government of backing the law despite calls to introduce safeguards on telephone interception powers. “If surveillance is allowed, then it must come with the most stringent and robust safeguards that protect the crucial principle of the protection of sources and the necessity not to interfere with their investigative work,” Casa said.

“However we know all too well the abysmal track record of the current Maltese Government when it comes to respect for journalists. Government should act immediately to change the relevant law and in the meantime, it should withdraw its support for a broad text within the European Media Freedom Act that would allow for surveillance on journalists for undefined national security interests.

“It is a very flimsy excuse to wait for, and then attempt to undermine European legislation in place of actually bolstering the safeguards necessary against arbitrary government. Time and time again, the Labour Government shows how committed it is to clinging onto power irrespective of how draconian the means.”

Malta’s surveillance laws lack any form of active judicial oversight and can be approved by a mandate from the home affairs minister or the Prime Minister. “Right now in Malta politicians are able to approve warrants for the interception of citizens’ communications without judicial approval or oversight. This state of affairs is all the more worrying in the context of the rule of law collapse Malta has experienced over the last years”.

“The public inquiry into the assassination of Daphne Caruana Galizia has already indicated that it is time to change the way that warrants for surveillance are issued. This vulnerability whereby the Minister of the Interior and the Prime Minister have the power to surveil citizens must cease,” Casa said. “This is not a power that should be in the hands of a politician, but rather it should be for the judiciary alone to grant such intrusive powers and only after due consideration of legal constraints.”