Seven European Union member states, including Malta, are pushing for governments to have the right to use spyware against journalists under the European Media Freedom Act (EMFA), which was supposed to create a framework that protects them.

Minutes from a November European Council meeting seen by The Shift show that Italy, France, Finland, Greece, Cyprus, Sweden, and Malta are all insisting on retaining a paragraph that provides a caveat to a ban on spying on journalists, stating, “This article shall be without prejudice to the responsibility of Member States to protect national security.”

According to the minutes, Italy said retaining the paragraph is a “red line”, France, Finland and Cyprus said they are “not very flexible”, while Sweden, Malta, and Greece also wanted to keep it “with some nuances”.

The EMFA is new legislation that seeks to regulate the European media landscape and ensure the protection of media freedom and journalists. It has been under negotiations for 15 months and is set to be concluded at the end of this week.

The inclusion of the paragraph by the European Council in June has been the cause of much concern in the media community, but only Portugal has openly criticised it.

A spokesperson for Portuguese representation in Brussels told Investigate Europe that they were “concerned about the future impact that this provision could have not only on the freedom of journalists to practise their profession but also on European civil society.”   

When the media platform contacted other countries, only France, Finland and Sweden replied that they wanted the national security provision included.

The EMFA needs a qualified majority of governments, equating to 65% of the EU population, to pass. With the seven hardliners, plus Hungary, which outright rejects the EMFA, they represent 36% of the population, enough to prevent it from passing. 

German Green MEP Daniel Freund commented, “Governments have no business being on journalists’ phones. We in the European Parliament have made provisions for this. It is unacceptable that member states are trying to reintroduce this snooping paragraph through the back door.”

But even politicians on the right oppose the paragraph. French right-wing politician Geoffroy Didier, who was involved in the discussions, said he had asked his government to “abandon their plan to legally spy on journalists,” adding, “This European regulation must protect pluralism, not authorise spying.”

The European Parliament presented its own draft of the act in October, proposing a limited use of spyware to be determined on a case-by-case basis. It would require an order from an independent judge and could not be used on journalist’s sources or professional activities.

Amid lobbying from the seven states and the position of parliament, a final legal text is expected to be decided on with the European Commission later this week.      

At the last moment, the German government has sought to save the law with Minister of State for Media, Claudia Roth getting her government and states to refrain from mentioning “national security” in the law. Germany’s position words the paragraph as “This article is without prejudice to the Member States’ responsibility for safeguarding the areas for which they are solely responsibe.”

If adopted, this would leave interpretation and the matter at large, in the hands of domestic courts.