The European Union in general builds its competence to protect journalists and media freedom within its member states based on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. These include respect for media freedom and pluralism and the right to freedom of expression. The problem is, that journalism currently is not threatened by the EU or its institutions, but by practices and sometimes by the legislation of member states – as a result of this, any criticism of this subject immediately takes the form of Union-member states debate, and also attracts elements from ongoing legal-political debates from the member states’ political spheres.
During the past years, the European Union has taken several measures to protect journalists and media freedom. The European Parliament has adopted a resolution on 25 November 2020 on strengthening media freedom, and in September 2021 the European Commission adopted the “Recommendation on the protection, safety and empowerment of journalists which aims to ensure safer working conditions for all media professionals, free from fear and intimidation, whether online or offline”.
Additionally, the Commission also proposed important new legislation on the matter:
First, a draft EU directive to protect journalists and human rights defenders from abusive court proceedings (known as the SLAPP directive). The next big step is the adoption of the European Media Freedom Act, which intends to safeguard the pluralism and independence of the media in the EU internal market. This is a proposal for a new regulation, which aims to provide safeguards against political interference in editorial decisions and against surveillance. It also covers ensuring independence and stable funding of public service media as well as on the transparency of media ownership (including allocation of state or government-financed advertising) and protecting independence of editors and disclosing conflicts of interest. Additionally, the new regulation builds on some good old fashioned EU competences, addresses the issue of media concentrations and creates a new, independent control body, the European Board for Media Services, which is to be built on existing member state media authorities.
Existing practice of European protection – the Council of Europe
The other European integration structure, the Council of Europe, and most importantly its Strasbourg-based human rights judicial body, the European Court of Human Rights (ECHR) has developed its practice related to the protection of journalists through several cases.
Article 10 of the European Convention on Human Rights (which is accepted as the human rights fundament of the law of the European Union since the adoption of the Maastricht Treaty) guarantees freedom of expression and also protects the means of transmitting information, including the confidentiality of journalistic sources. The starting position of the ECHR can be summarised as “Protection of journalistic sources is one of the basic conditions for press freedom. (…) 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.” Jurisprudence of the ECHR constantly supports this: in the case of Goodwin v. the United Kingdom (1996) it has found that an order imposed on a journalist obliging him to reveal the identity of his source is a violation of his right to freedom of expression under Article 10. In the case Voskuil v. the Netherlands (2007) the ECHR had to evaluate the situation of a journalist having been detained for more than two weeks for not disclosing his sources for articles he had written concerning a criminal investigation into arms trafficking – also finding it to be a violation of the same article. These have paved the path for a lot of other cases, mainly with the same interpretations, building a constant practice related to the matter.
To support journalists and cooperation between them and governments (when needed), the Council of Europe has created the Platform for the Protection of Journalism and Safety of Journalists, which aims to form dialogue between governments and organisations of journalists. Its main aim is to stop violations to freedom of press in the member states of the Council of Europe and to enable journalists to do their job without the risk of compromising their safety. Additionally, it is capable of developing early warning mechanisms and response capacity within the Council of Europe.
Debates during the ongoing EU legislative process – it’s just a question of competence?
While this legislation process has been subject to some criticism by many actors, arguing that some member states are willing to introduce some tools to gain more oversight over journalists’ activities, including getting power to monitor their electronic communications by surveillance methods.
Critical and independent journalism require protection of journalists and their potential sources from any surveillance, including surveillance by authorities of the member states or of the Union. Article 4 of the draft EU piece of legislation explicitly prohibits coercive measures against journalists to reveal their sources, as well as the monitoring of their communications and the use of spyware on their computers and phones. Some member states have tried to rephrase this text, giving some options to state authorities, creating a “national security exception”, gaining support among others, so that the Swedish government, chairing the Council, has added a paragraph into the draft text, stating that article 4 “is without prejudice to the Member States’ responsibility for safeguarding national security”.
This intention means a troubled relationship with the abovementioned original goals of the legislation, intending to protect journalists and the media against political control by governments and/or by owners. It is getting even more problematic when one adds this to the already existing claims about problems related to freedom of expression and rule of law with some member states, most notably in Poland and Hungary (especially claims related to the Pegasus or to the Predator spyware software). The idea of possibility of spying on journalists – justified by “national security” – opens up disturbing options and already has raised questions related to their use e.g. against journalists reporting on the Catalan independence movement in Spain.
To counterbalance these developments, the European Parliament had set up a special committee of enquiry on the subject and urged better, more exact legislation on applicable rules. At the same time, member states seemingly want to make sure that their competences in the area of national security remain unaffected – seemingly turning the situation into a good old sovereignty debate.
And we all know that sovereignty debates in the European Union usually do not end well for human rights.