2023: Revised EU law still allows eavesdropping on journalists

Some breathed a sigh of relief on December 15 when news broke the European Parliament and the European Council agreed to amend the draft text of a new law coming down the pipe, striking the wording that allowed governments to spy on journalists on grounds of national security. But don’t count your chickens before they’re hatched.

The controversy revolved around Article 4 in the European Media Freedom Act, which contained a loophole permitting the use of spyware on media service providers, their employees or family members where “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.”

It sent chills running down the spine of activists and people generally concerned about media freedoms as, crucially among other things, it would rip to shreds the hallowed principle of the protection of journalistic sources.

Ironically, the same legislation is being sold as safeguarding the freedom of journalists. Then again, as it so often happens with EU laws, they come with asterisks that defeat their stated purpose.

So what really changed in the latest revision? The reference to national security was removed. According to German EU lawmaker Sabine Verheyen, any surveillance, such as the use of spyware in journalists’ devices, would only be possible if there was a judicial decision and for serious crimes only.

“Not just for everything they can call national security,” she said.

But as reported by Euroactiv, the revised text of the law still allows for exceptions to eavesdropping on journalists – these relate to authorities’ investigations of a pre-determined list of serious crimes like terrorism and murder.

For authorities to spy on the media, they’d need prior authorisation by a judge or independent authority. The journalists affected will be informed after the fact and could challenge the surveillance in court.

Moreover, individual EU countries can introduce stricter or more detailed rules than those in the EU law.

Which segues well to an article run by daily Politis here two days prior to the political deal on the wording of the EU legislation. Not falling for the bait-and-switch, the newspaper commented that even if Article 4 were to be struck, Cyprus domestic law already provides for the monitoring of private communications for reasons of national security. And since the law covers everyone, it obviously also applies to journalists.

Enacted in February 2020, the law on The Protection of Confidentiality of Private Communications allows the police and the secret service to listen in on private communications for serious crimes and on national security grounds. Law enforcement had finally got their wish, having complained for years that their hands were tied because such material was inadmissible as evidence in court.

Surveillance is permitted for investigating crimes such as premeditated murder, manslaughter, terrorism, espionage, human trafficking, drug trafficking, child pornography and money laundering.

As Politis reported, since 2020 authorities have been unable to deploy this legal arsenal because their systems haven’t been hooked up to those of telecoms providers. That’s expected early next year. Once the linkup happens, the police and the secret service will get real-time access to the providers’ systems when monitoring an individual. Telecoms companies are also required to inform the chief of police or the head of the secret service whenever a suspect transfers their phone number to another provider.

Surveillance will be possible only with a court order. The police chief or the head of the secret service will file a request to the attorney-general requesting permission for the court order. The attorney-general will consider the request and approve or deny it. Once issued by a judge, a surveillance order can be valid for up to two years, with a possibility for renewal for another two.

The law does not apply to attorney-client privilege, so that remains intact.

Implementation will be monitored by a committee, which can at any time check whether authorities have violated any of the terms stipulated in a given court order. Any such violation constitutes a criminal offence, and offenders are liable to sentences of up to five years in prison, or a fine of up to €50,000, or both.

While it may sound like sufficient safeguards are in place to deter abuse, experience from around the world says otherwise. For example Christophe Bigot, a specialist in press law in France, told the Disclose website that in his country authorities seeking and obtaining a surveillance warrant from a judge amounts to a mere “formality”.

We can also think to the secret Fisa (Federal Intelligence Surveillance Act) courts in the United States, where between 1979 and 2012 judges granted federal agencies a whopping 99.97 per cent of ex parte surveillance requests.

All in all, not very reassuring – even as President Nikos Christodoulides asserted the government has “particular sensitivity to the issues of journalists” and hinted that it was his own last-minute intervention that helped ‘soften’ the text of the EU law.

Not to get too conspiratorial, but on certain occasions when speaking with someone on the phone for the Cyprus Mail, this author has heard that ‘click’ sound. And over the years, at least two persons holding senior positions in public organisations have told this author they were convinced their phones were being tapped.

This of course should come as no shock. We know it goes on. But with phone tapping now legal under the Cypriot law, it will create a chilling effect on both journalists and our sources.