European journalists were reminded today that their freedom to report is not only determined by national laws, but increasingly by European institutions. Today, after years of political battle, the European Parliament adopted the Passenger Name Record directive, the Data Protection Package, and the Trade Secrets Protection Act. The stakes were immense and the debates long and heated, leading to dissent and divisions within many political groups-and campaigns about the potential impact from journalists.
Reports this week show that journalists in the EU cannot afford to think about press freedom in purely national terms anymore. Members of the press in member states are already facing challenges, with Germany considering using the law against insulting a country's leader to bring charges against a TV comedian for allegedly insulting the Turkish president, and a photojournalist in Spain being fined €601 ($676) under the country's so-called gag lawlast week after posting a photograph of a policeman making an arrest. In France, photojournalist Maya Vidon-White has been charged under a law that bans the publishing of photos showing victims of terror attack, according to Associated Reporters Abroad.
If the laws adopted today by the European Parliament, the legislative arm of the 28-member European Union, are fully incorporated or strictly interpreted, journalists might face further restrictions.
The passage of the European Trade Secrets Protection Act was particularly controversial. Journalists and transparency activists feared that, behind an attempt to protect European companies from espionage, the EU was providing corporations with more tools to prosecute whistleblowers and investigative journalists. Last January, Members of European Parliament (MEPs) seemed to have reached a satisfactory solution and the European Commission wrote in March, "Journalists will remain free to investigate and publish news on companies' practices and business affairs, as they are today." The commission added, "The directive foresees a specific safeguard in order to preserve the freedom of expression and right to information (including a free press) as protected by the Charter of Fundamental Rights of the European Union. In addition, the draft directive expressly safeguards those who, acting in the public interest, disclose a trade secret for the purpose of revealing a misconduct, wrongdoing or illegal activity."
A few days before the final vote however, a number of MEPs and members of the press including Elise Lucet, a France2 investigative journalist whose petition against the bill gathered half a million signatures, warned of the continuing dangers for journalists and whistleblowers. "Trade secrets directive still raises doubts as to whether journalists and whistleblowers are appropriately protected," Ricardo Gutierrez, the general secretary of the European Federation of Journalists, posted on Twitter today. Martin Pigeon, of the nongovernmental organization Corporate Europe Observatory, told the BBC, "It would have potentially criminalized the release of Panama Papers." In response, Constance Le Grip, the French center-right MEP in charge of shepherding the bill through, said, "We have set out very precisely and very clearly the exemptions for both journalists and whistleblowers. The Panama Papers have nothing to do with this kind of matter."
The Data Protection Package, which includes the General Data Protection Regulation, was also adopted by a comfortable majority, but it continues to raise concerns in the freedom of expression community. Despite assurances from the commission, the so-called Right to Be Forgotten ruling, under which search engines can be ordered to de-list entries from Web searches, has been carried over under the "right to erasure" provision. "The 'right to be forgotten' is a well-intentioned mistake which stores trouble for the future," George Brock, professor of journalism at City University London, told CPJ. "Contrary to what is often claimed, the [new] regulation does not solve the problems caused by the Google Spain case of 2014 which established the right for individuals to ask major search engines, such as Google, for Internet links to be taken down if certain conditions are met. Instead of a specific remedy to an identifiable problem, the regulation is sweeping in its scope and powers and its approach to weighing free expression against privacy remains unbalanced."
The regulation continues to put a heavy onus on Internet companies, which are threatened with fines if they do not comply immediately with takedown requests. "The law still sets out a notice and takedown process that strongly encourages Internet intermediaries to delete challenged content, even if the challenge is legally groundless," Daphne Keller, director of Intermediary Liability at Stanford Law School's Center for Law and Society, warned last December.
In the wake of the terrorist attacks in Paris last November and Brussels on March 22, which have led to calls for greater surveillance powers, the Passenger Name Records directive, which had been meandering for years in the byzantine EU institutions, was also eventually adopted. "It will give national authorities sweeping access to airline passenger data" flying outside or inside of the EU, Nikolaj Nielsen wrote today in the EUObserver. While a majority of MEPs justified their vote by invoking security imperatives, a minority dissented on human rights grounds. "The [directive] is not in line with fundamental rights," German Green MEP Jan-Philipp Albrecht stated in parliament. His German Social Democratic Party colleague Birgit Sippel warned against "the mass surveillance of citizens"--a "Big Brother" temptation that journalists in the post-Snowden era view with apprehension.
Before going into effect, the bills have to be approved by the national parliaments of all 28 member states. And although few expect a reversal, there is a lot of space for interpretation. In the assessment of the final draft of the General Data Protection Regulation last December by Keller, from Stanford Law School, she promised a "gift of lifetime employment for data protection lawyers."
While the implications of the new legislation may leave European journalists angry, disappointed or uncertain, there is some solace for the press in the Council of Europe recommendations adopted yesterday by the Council of Ministers in Strasbourg. The guidelines on the protection of journalism and the safety of journalists formally encourage member states to review national legislation and practice to make sure it conforms to the European Convention on Human Rights. Member states are expected to establish effective legal safeguards and take measures to protect journalism. The guidelines condemn defamation laws and are particularly strong on impunity. Its recommendations on Internet freedom challenge member states to tailor policies to the provisions of the European Convention on Human Rights and the International Covenant on Civil and Political Rights.
It remains to be seen if these recommendations will be effective in addressing a growing number of threats against press freedom in Europe. Contrary to EU law, Council of Europe recommendations are not binding. A number of member states, including Azerbaijan, Russia and Turkey, systematically trample press freedom and suffer only the occasional moral reprimand from the Parliamentary Assembly of the Council of Europe. More liberal members do not always apply its recommendations either. The Association of European Journalists called today for a vigorous implementation.
Notwithstanding these limitations Brussels, the headquarters of the European Commission and other key EU institutions, Strasbourg, the host of the Council of Europe and of the European Court of Human Rights, and Luxembourg, the seat of the ambitious Court of Justice of the European Union, are increasingly the scenes where the battles for press freedom are won or lost.