On Monday 13 January, the European University Institute (EUI) organised an online discussion on the European regulation on media freedom, just a few weeks before paragraph 4 of the regulation, which prohibits state interference, comes into force on 8 February 2025.
The regulation came into force on 17 April 2024 (see EUROPE 13394/32), but will not be fully implemented starting in August 2025. Its “interpretation”, its “proper application” and “ongoing monitoring” will determine its real impact, according to Jan Erik Kermer of the EUI.
The main aim of Article 4 is to protect journalists’ sources. For example, Member States will not be able to require media service providers to disclose their sources or confidential communications, nor will they be able to detain, sanction, intercept, monitor or search media service providers or deploy intrusive surveillance software.
Only “compelling reasons of public interest”, such as “terrorism, drug trafficking, armed robbery, fraud and serious crimes as defined by national law”, can justify the use of surveillance technologies, explained Mr Kermer.
Journalists will have the right to be informed if they are subject to surveillance and will benefit from effective judicial protection in the event of a breach of Article 4, as well as “a defence managed by an independent body”.
Gaps in the text. The ninth and final paragraph of Article 4 is “the most controversial”, according to Dirk Voorhoof of Ghent University, in that it establishes, “by a back door”, the possibility of a “derogation” justified by national security, by recalling the power to preserve the essential functions of the State.
There is also, according to Mr Voorhoof, a “lack of guarantee in urgent cases that no access will be possible before examination by a judge, tribunal or independent and impartial body”.
The academic also regrets that Article 4 is “not applicable to private entities”, making it possible for “state actors to outsource surveillance to private actors”.
However, in his view, “each of these loopholes” can be neutralised by the precise application of Article 10 of the European Convention on Human Rights, the Whistleblowers Directive (see EUROPE 12212/11) and the anti-SLAPP Directive (see EUROPE 13304/5). (Original version in French by Florent Servia)