In her State of the Union on 15 September 2021, Ursula von der Leyen, President of the European Commission, declared: “Media companies cannot be treated as just another business. Their independence is essential. Europe needs a law that safeguards this independence – and the Commission will deliver a Media Freedom Act in the next year.” And on 16 September 2022 the European Commission put forward a number of measures to protect freedom and pluralism in the EU by introducing its European Media Freedom Act proposal (COM2022/457).
In addition to this proposal for a Regulation establishing a common framework for media services in the internal market (European Media Freedom Act)(“EMFA”) and amending Directive 2010/13/EU, the Commission published Recommendation 2022/1634 of the same date on internal safeguards for editorial independence and ownership transparency in the media sector. The Recommendation, in the form of a (provisional) soft-law, aims to encourage internal safeguards for editorial independence of media services and media service providers. The relevant provisions of this Recommendation will cease to apply when the provisions of the EMFA become applicable.
The expectations are high, probably too high, and the goals the EMFA seeks to achieve, are very ambitious, and probably some of them too ambitious, while others are not ambitious enough. The proposed Regulation aims to provide safeguards against political interference in editorial decisions and against surveillance of media-workers. It puts a focus on the independence and stable funding of public service media as well as on the transparency of media ownership and of the allocation of state advertising. And it sets out measures to protect independence of editors and disclose conflicts of interest. Finally, the Media Freedom Act will address the issue of media concentrations and create a new independent European Board for Media Services, comprised of independent national media authorities.
Although some of the proposed measures are very controversial, such as the establishment of a new European Media Services Board, in general the initiative of the European Commission is welcomed by public broadcasters, media platforms and organisations of journalists. In a blog under the title “The democratic fightback has begun: The European Commission’s new European Media Freedom Act”, Damian Tambini (LSE) wrote that the Act will “represent a major shift in EU policy on the media, and a welcome shot in the arm for democracy across the Union. Freed of the Eurosceptic United Kingdom, during a perceived crisis of European democracy, there is widespread support for proposals to support media freedom, and the news media themselves are likely to give them full-throated support”.
Of course this EMFA proposal is only the first step, and a lot of water will first run through the rivers Seine, the Rhine and the Zenne before the European Media Freedom Act will be in a final stage of approval by the Commission, the European Parliament and the Council. There is certainly room for improvement and for strengthening the enforcement of the guarantees in order to promote and protect media pluralism, to protect journalists’ rights and to ensure editorial independence from the impact of vested commercial and political interests. While at the same some Members States, their politicians and some corporate organisations will certainly oppose this EU-initiative or will try to minimize its impact and its enforcement mechanisms.
Article 4 EMFA: Rights of media service providers
In this blog we focus on one specific issue of the EMFA proposal that certainly needs further improvement: the section regarding the protection of journalistic sources, as provided in Article 4, 2 (b) (c) and 3. The aim of this Article is “strengthening at EU level” the right of journalists and media service providers to protect their sources (recitals 16 and 17). It is our opinion that the formulation of Article 4 risks rather to be a step backwards in the protection of journalistic sources. The actual provision does not guarantee the level of protection that all EU member states should already respect with regard the protection of journalists’ sources in application of Article 10 ECHR as developed and applied in the well-established case law of the European Court of Human Rights (ECtHR) on this topic (see our blog on Becker v. Norway).
The EMFA proposal in its introduction rightly states that “effective and impartial upholding of freedom of expression across the EU, (is) protected by Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which corresponds to Article 10 of the European Convention on Human Rights”. Indeed Article 11 of the EU Charter (CFR) guarantees (at least) an equal level of protection as provided in Article 10 ECHR. The intention of the EC is to harmonize and to strengthen the projection of journalistic sources. In Recitals 16 and 17 it is explained that:
(16) Journalists and editors are the main actors in the production and provision of trustworthy media content, in particular by reporting on news or current affairs. It is essential therefore to protect journalists’ capability to collect, fact-check and analyse information, including information imparted confidentially. In particular, media service providers and journalists (including those operating in non-standard forms of employment, such as freelancers) should be able to rely on a robust protection of journalistic sources and communications, including against deployment of surveillance technologies, since without such protection sources may be deterred from assisting the media in informing the public on matters of public interest. As a result, journalists’ freedom to exercise their economic activity and fulfil their vital ‘public watchdog’ role may be undermined, thus affecting negatively access to quality media services. The protection of journalistic sources contributes to the protection of the fundamental right enshrined in Article 11 of the Charter.
(17) The protection of journalistic sources is currently regulated heterogeneously in the Member States. Some Member States provide an absolute protection against coercing journalists to disclose information that identify their source in criminal and administrative proceedings. Other Member States provide a qualified protection confined to judicial proceedings based on certain criminal charges, while others provide protection in the form of a general principle. This leads to fragmentation in the internal media market. As a result, journalists, which work increasingly on cross-border projects and provide their services to cross-border audiences, and by extension providers of media services, are likely to face barriers, legal uncertainty and uneven conditions of competition. Therefore, the protection of journalistic sources and communications needs harmonisation and further strengthening at Union level.
However, the formulation of Article 4, 2 (b) (c) and 3 EMFA is not corresponding to the protection of journalistic sources as provided in Article 10 ECHR and the case law of the ECtHR guaranteeing the right of journalists to protect their sources. The guarantees of source protection at the level of media service providers, producing and broadcasting news and journalistic content, should not be less than the guarantees of source protection that can be invoked by (individual) journalists and (employed or freelance) media-workers in application of Article 10 ECHR.
What you see is not what you get
The actual formulation of the provisions in Article 4, 2 (b) (c) and 3 of the draft EMFA (see the full text of Article 4 at the end of this blog) does not achieve the goal of harmonizing and strengthening the protection of journalistic sources. The protection of journalistic sources not only or merely contributes to the right to freedom of expression and information and media freedom under Article 11 EU CFA: protection of journalistic sources is a much stronger “basic condition” for press freedom under Article 10 ECHR. As the ECtHR already in 1996 in Goodwin v. the United Kingdom clarified, without a high level of protection of journalistic sources “the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected”.
More specifically the EMFA proposal in Article 4, 2, b does not (A) guarantee an ex ante review by a judge, a court or another independent and impartial body, and it does not (B) impose criteria of subsidiarity (no alternatives and interference must be crucial) and proportionality (no less intrusive measures available, interference in relation with seriousness of (preventing) crime) in cases where a disclosure order, sanction, search, seizure, surveillance or inspection can be justified. The EC proposal only refers to the (indeed) important condition in the case law of the ECtHR of an “overriding requirement in the public interest”, but it does not further clarify the other, including procedural requirements developed in the case law of the ECtHR on protection of journalistic sources such as in its Grand Chamber judgments in Sanoma Uitgevers B.V. v. the Netherlands and Big Brother Watch a.o. v. United Kingdom.
Additionally, (C) the prohibition on the Member State not to interfere with sources should not only be applicable “on the ground that they refuse to disclose information on their sources”, as it is formulated now in Article 4, b. This prohibition should be applicable in general, hence also in cases where the media service provider is not even aware of interception or (online) surveillance and has not refused disclosure. In other cases there has eventually not even been a (prior) request for disclosure, and hence neither a refusal for disclosure, as for instance in cases of searching the newsroom and confiscations of journalistic material, mobile phones, computers or other ICT-devices in the newsroom or home of a journalist (see Ernst ao v. Belgium, Tillack v. Belgium, Nagla v. Latvia, Standard Verlagsgesellschaft mbH v. Austria (no. 3), and Sergey Sorokin v. Russia). The EMFA should unambiguously guarantee source protection also in such circumstances, and hence not only on the ground that media service providers or their media-workers have refused to disclose information on their sources.
The EC proposal (D) also creates in Article 4, 2, c a legal basis for the deployment of spyware in any device or machine used by media service providers (or if applicable, their family members or their employees…) for reasons of national security and other serious crimes, without however securing the guarantees of source protection that should also be upheld in application of Article 10 ECHR in this context (ex ante judicial review, subsidiarity and proportionality). It is positive of course that the EC proposal adds a specific safeguard against the deployment of spyware in devices used by media service providers or journalists, and building on protections provided by Directive 2002/58/EC (the ePrivacy Directive), Directive 2016/680/EU (the Law Enforcement Directive) and Directive 2013/40/EU on attacks against information systems.
But the EC proposal should be more ambitious on this point as well, and it should create a level of protection against spyware which is an equivalent with the same guarantees as source protection in the light of searches, seizure and (bulk) surveillance (Tillack v Belgium, Nagla v. Latvia, Big Brother Watch a.o. v. United Kingdom, and Sergey Sorokin v. Russia). In its actual formulation Article 4, 3 does not guarantee such a standard of protection. In fine of Article 4,3 it is even explicitly mentioned that the guarantees of source protection will not be applicable in cases of the deployment of spyware “on the grounds of national security” of for “serious crimes investigations”, where the measures used for disclosure of sources as mentioned under Article 4, 2, b would be “inadequate and insufficient to obtain the information sought”. This provision rather opens the door for deployment of spyware and for the circumvention of the guarantees of protection of journalistic sources, under the vague and non-transparent justification of “national security” or in relation to investigations on “serious crimes”, without the guarantees of ex ante review, subsidiarity and proportionality.
Crucial conditions are missing
Importantly (E) the references both in Article 4, b and c that these interferences with the right of source protection are to be in compliance “with Article 52(1) of the Charter and other Union law” are not sufficient to achieve the required harmonization and the strengthening of the protection of journalistic sources, including with regard the deployment of spyware.
Article 52 of the EU Charter provides under “Scope of guaranteerd rights”: 1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. 2. Rights recognised by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties. 3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.
The EMFA should, as a minimum, formulate explicitly the specific conditions regarding the protection of journalistic sources under Article 10 ECHR, preferably in Article 4 itself, if not in the Recitals of the EMFA Regulation. Otherwise the implementation of the Regulation in the EU Member States risks not to achieve its pertinent goals (see Recital 16 and 17), and even risks to weaken the protection of journalistic sources. The specific protection against spyware should not have lower standards than those guaranteed for the protection of journalistic sources under Article 10 ECHR.
To be in accordance with Article 52(1) of the Charter and in compliance with other Union law and with Article 10 ECHR, in addition to the “overriding requirement in the public interest” the following cumulative conditions need to be fulfilled for the justification of actions that interfere with the protection of journalists’ sources;
- The interference is, ex ante, ordered by a judge, a court or another independent and impartial body;
- The interference is justified and crucial for the prevention, investigation or prosecution of major crime;
- The interference with journalists’ rights is prescribed by law and is proportionate;
- There are no alternatives for the public authorities to obtain the information sought.
An ex post opinion is not a procedural guarantee
Furthermore (F), Article 4, 3 instead of imposing an ex ante review by a court or other independent and impartial body, requires the Member States to organize an ex post review by an independent authority or body to handle complaints lodged by media service providers regarding source protection. But this ex post review does not guarantee source protection in accordance with Article 10 ECHR, while the EMFA proposal in Article 4, 3 states that “Media service providers shall have the right to request that authority or body to issue, within three months of the request, an opinion regarding the lawfulness of a measure referred to in paragraph 2, points (b) and (c)”.
An opinion ex post is not at all comparable with the required ex ante control and decision as guaranteed by Article 10 ECHR (Sanoma Uitgevers B.V. v. the Netherlands and Big Brother Watch a.o. v. United Kingdom). The formulation at the beginning of Article 4, 3 that such a procedure of an ex post opinion by a specific independent authority or body should be organized “without prejudice and in addition to the right of effective judicial protection guaranteed to each natural and legal person” is not at all an effective safeguard for source protection. Indeed, the components of “the right of effective judicial protection guaranteed to each natural and legal person” are not meeting the threshold of procedural safeguards and ex ante judicial review in order to protect journalistic sources in accordance with Article 10 ECHR.
In its judgment of 30 August 2022 in the case of Sergey Sorokin v. Russia (§ 46) the ECtHR, evaluating an interference with a journalist’s sources, has reiterated that
“first and foremost among the procedural safeguards is the guarantee of review by a judge or other independent and impartial decision-making body. The requisite review should be carried out by a body separate from the executive and other interested parties, invested with the power to determine whether a requirement in the public interest overriding the principle of protection of journalistic sources exists prior to the handing over of such material and to prevent unnecessary access to information capable of disclosing the sources’ identity if it does not”.
In particular, with regard to urgent orders of source disclosure the judgment clarifies (§ 47-48):
The Court is well aware that it may be impracticable for the prosecuting authorities to state elaborate reasons for urgent orders or requests. In such situations an independent review carried out at the very least prior to the access and use of obtained materials should be sufficient to determine whether any issue of confidentiality arises, and if so, whether in the particular circumstances of the case the public interest invoked by the investigating or prosecuting authorities outweighs the general public interest of source protection. It is clear, in the Court’s view, that the exercise of any independent review that only takes place subsequently to the handing over of material capable of revealing such sources would undermine the very essence of the right to confidentiality.
Given the preventive nature of such review the judge or other independent and impartial body must thus be in a position to carry out this weighing of the potential risks and respective interests prior to any disclosure and with reference to the material that it is sought to have disclosed so that the arguments of the authorities seeking the disclosure can be properly assessed. The decision to be taken should be governed by clear criteria, including whether a less intrusive measure can suffice to serve the overriding public interests established. It should be open to the judge or other authority to refuse to make a disclosure order or to make a limited or qualified order so as to protect sources from being revealed, whether or not they are specifically named in the withheld material, on the grounds that the communication of such material creates a serious risk of compromising the identity of journalist’s sources. In situations of urgency, a procedure should exist to identify and isolate, prior to the exploitation of the material by the authorities, information that could lead to the identification of sources from information that carries no such risk”.
Finally (G), Article 10 ECHR as the fundamental legal basis in Europe for the protection of journalistic sources also requires procedures or safeguards for specific circumstances of examination of electronic data and (bulk) surveillance (Big Brother Watch a.o. v. United Kingdom). Hence, the EMFA proposal should also contain such specific procedures or safeguards to address the examination of electronic data carriers containing (potential) protected information about journalists’ sources. And in order to strengthen the rights of journalists, the EMFA proposal should also guarantee a right for journalists and media service providers to use encryption in order to protect their sources and a prohibition for others to create access or circumvent the protection of the encrypted communication of journalists and media service providers.
As the way to the final text of the EMFA is still a long one, there will certainly be occasions during the legislative procedure to improve the text of Article 4 in order effectively to harmonize and strengthen the projection of journalistic sources in Europe, as a “basic condition” for press and media freedom.
Dirk Voorhoof, Human Rights Centre, Ghent University and Legal Human Academy
Article 4 EMFA proposal : Rights of media service providers
- Media service providers shall have the right to exercise their economic activities in the internal market without restrictions other than those allowed under Union law.
- Member States shall respect effective editorial freedom of media service providers. Member States, including their national regulatory authorities and bodies, shall not:
(a) interfere in or try to influence in any way, directly or indirectly, editorial policies and decisions by media service providers;
(b) detain, sanction, intercept, subject to surveillance or search and seizure, or inspect media service providers or, if applicable, their family members, their employees or their family members, or their corporate and private premises, on the ground that they refuse to disclose information on their sources, unless this is justified by an overriding requirement in the public interest, in accordance with Article 52(1) of the Charter and in compliance with other Union law;
(c) deploy spyware in any device or machine used by media service providers or, if applicable, their family members, or their employees or their family members, unless the deployment is justified, on a case-by-case basis, on grounds of national security and is in compliance with Article 52(1) of the Charter and other Union law or the deployment occurs in serious crimes investigations of one of the aforementioned persons, it is provided for under national law and is in compliance with Article 52(1) of the Charter and other Union law, and measures adopted pursuant to sub-paragraph (b) would be inadequate and insufficient to obtain the information sought.
- Without prejudice and in addition to the right to effective judicial protection guaranteed to each natural and legal person, Member States shall designate an independent authority or body to handle complaints lodged by media service providers or, if applicable, their family members, their employees or their family members, regarding breaches of paragraph 2, points (b) and (c). Media service providers shall have the right to request that authority or body to issue, within three months of the request, an opinion regarding compliance with paragraph 2, points (b) and (c).