Article 4 of the European Media Freedom Act : a missed opportunity? : assessing its shortcomings in protecting journalistic sources

Abstract

Article 4 of the recently approved European Media Freedom Act (EMFA) aims, first and foremost, to protect journalists as well as safeguarding their sources by prohibiting or at the very least limiting the use of state surveillance technology. Despite its apparently good intentions, there are several potential loopholes and shortcomings of this Article which are laid out in this paper. To begin with, Article 4 essentially legalises the use of spyware in EU law, albeit under exceptional circumstances. In addition, the provision permitting the retrospective authorisation of spyware opens up the possibility of journalists’ rights being violated before the intervention of the law. The Article, furthermore, affords too much discretion for EU governments to deploy spyware. To compound matters, expanding the list of “serious crimes” to offences such as intellectual property theft and piracy is disproportionate when weighed against the fundamental rights at stake. The scope, moreover, includes crimes carrying a custodial sentence of 5 years, as defined solely under national law, thus undermining the original purpose of EMFA, which is to harmonise national regulatory systems related to the media. Most concerning, however, is the loophole in this Article which fails to outlaw surveillance outsourcing to private entities. In sum, EMFA affords too much discretion for states to deploy draconian surveillance measures that ultimately threaten journalistic sources. To conclude, recommendations are elaborated to overcome the limitations and risks previously analysed.