E-evidence: A call for protection of the free and independent media in Europe
On 17 April 2018, the European Commission presented the proposal for a Regulation on European production and preservation orders for electronic evidence in criminal matters (COM(2018) 225 final). The European Commission’s proposal aims at providing judicial authorities in European Member States with a tool to request the production or preservation of electronic data stored in a different Member State via production and/or preservation orders needed for investigation and prosecution purposes in crimes identified by the proposal. The proposal would allow the competent authorities in the issuing Member State to directly approach service providers based in an EU Member State to obtain electronic evidence originating from emails, messaging apps, social networks and similar services.
ACT, the Association of Commercial Television in Europe, AER, the Association of European Radios; EBU, the European Broadcasting Union; EFJ, the European Federation of Journalists; EMMA, the European Magazine Media Association; ENPA, the European Newspaper Publishers’ Association; EPC, the European Publishers Council, NME, News Media Europe and UNI MEI Global Union would like to jointly raise their concerns on the Commission’s proposal’s serious implications it could have on media and journalists’ freedom.
While there is no reason to believe that the intention of the proposed Regulation is to undermine press and media freedom, the proposal – as presented by the European Commission – would pose an unacceptable threat for the freedom of press and media, the freedom of expression as well as the freedom of information.
It is a key task of the press and media to ensure independent reporting. In order for it to be guaranteed, the protection of journalistic research, including the protection of sources and the protection of editorial secrecy are indispensable.
However, publishers, broadcasters and journalists would be directly affected by provisions of the proposed Regulation as users of electronic services. In the digital age, journalists rely on the use of electronic communication as means to conduct journalistic research, including interacting with informants and whistleblowers as well as storing information on computers or cloud servers. We are therefore concerned that the types of data that service providers ought to hand over to issuing authorities in other Member States with limited legal remedies include subscriber data (e.g. the identity of the subscriber including its name, date of birth and address), access data (e.g. the commencement and termination of a user accessing a service), transaction data (e.g. the source and destination of messages) and even content data (e.g. texts, voice messages, videos and images).
The possibility to obtain such broad and all-encompassing data without the necessary safeguards jeopardizes press freedom and undermines editorial secrecy. In addition, the lack of protection would not only have severe damaging effects for journalists, but it could also lead to chilling effects for future informants or whistleblowers, hampering investigative journalism and press freedom in general.
Furthermore, the proposed Regulation does not include an executing Member State in the procedural steps. Therefore, the service provider would be addressed directly by the issuing authority. The service provider would be responsible to produce or preserve the requested data under significant time pressure, i.e. within 10 days of the receipt of the order, or within 6 hours in emergency cases. It is very probable that considering the tight deadline, a service provider would most likely abstain from making use of the (limited) remedies provided for in article 15 in the issuing member state – a foreign and unknown jurisdiction to the service provider.
While the draft Regulation includes some general safeguards with regard to fundamental rights, immunities and privileges, these general safeguards are not sufficient and suited to protect media freedom and the protection of sources and informants – an essential precondition for independent and investigative reporting.
The lack of explicit safeguards for the media sector and the weak legal remedies would leave journalists and publishers / media unable to protect their sources, their editorial secrecy and potentially even their databases. In fact, for persons whose data were obtained and are not subject to prosecution or investigation, the offered legal remedies (as provided for in article 17, for example) are blatantly insufficient to safeguard the protection of a free and independent press and media in Europe. This because firstly, it only provides an ex post possibility to challenge the production or preservation order. This means that the possibly sensitive data has already been issued and the potential damage is already done. Secondly, a possible complaint against a production or preservation order must be filed in the issuing Member State, which poses logistic, bureaucratic and legal challenges for journalists and publishers, especially smaller ones with limited resources.
Against this backdrop, European media outlets and journalists call on European decision makers to protect the European media sector and its contribution to democratic societies. It would be dramatic if the lack of specific safeguards would result in collateral damage and jeopardize journalists and informants alike. We therefore urge the decision makers to include specific safety measures that provide sufficient and clear protection for sources, for the work of journalists as well as for editorial secrecy.
Find more on the suggested amendments here.
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