Malta should not legitimise unconditional spying on journalists

13 December 2023

In violation of its obligation to implement measures to protect journalists following its own failure to prevent Daphne Caruana Galizia’s assassination, Malta is undermining the first European law aimed at protecting media freedom. The purpose of the European Media Freedom Act is to protect journalists and media institutions, including by prohibiting state surveillance of journalists, their families, and employees. Yet, Malta is supporting the inclusion of a clause authorising the surveillance of journalists in the EU in the name of national security.

The relevant legal clause includes the following broad derogation: “This Article is without prejudice to the Member States’ responsibility for safeguarding national security”. In other words, under the proposed law, when a Member State deems its national security is threatened, surveillance becomes legal. The legal text allows Member States to spy on journalists in circumstances that are undefined and does not provide safeguards against abuse.

Even if no abuse of the proposed law occurs, in Malta journalists’ sources will not be protected by the version of the EMFA that the Maltese government supports. The Security Services Act, which covers surveillance for national security, does not specifically protect journalists’ sources, one of the “basic conditions for press freedom” as determined by the European Court of Human Rights: “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.”

Dr Therese Comodini Cachia, who runs the Foundation’s legal clinic for journalists, said: “Safeguarding national security through surveillance could only be justified, on a case-by-case basis, on matters unrelated to journalists’ work and which do not result in access to journalists’ sources, and then only if there are relevant and sufficient reasons to substantiate the intrusion as necessary in a democratic society and as directly related to the protection of national security which is restrictively interpreted.”

Malta should withdraw its support for the current proposal to legitimise the surveillance of journalists in the EU and must ensure that journalists and their sources are properly protected.