Malta should not legitimise unconditional spying on journalists, the Daphne Caruana Galizia Foundation said on Wednesday.

The foundation, set up in memory of slain journalist Daphne Caruana Galizia, was reacting to a report by French news agency Disclose that Malta is one of seven EU member states pushing for a new EU-wide media protection law to include a clause authorising the surveillance of journalists in the name of national security.

Citing a confidential memo, Disclose said Malta, France, Italy, Finland, Greece, Cyprus and Sweden would all like that clause to be retained.

The report was also carried by Times of Malta on Tuesday.

In a statement, the Daphne Foundation said that Malta was undermining the first European law aimed at protecting media freedom, in violation of its obligation to implement measures to protect journalists following its own failure to prevent Daphne Caruana Galizia’s assassination.

"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 foundation observed.

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, the foundation said, under the proposed law, when a member state deemed its national security to be threatened, surveillance became 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 European Media Freedom Act that the Maltese government supports," the foundation warned.

It noted that Malta's Security Service 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 could 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 could be undermined, and the ability of the press to provide accurate and reliable information would be adversely affected.

Therese Comodini Cachia, who runs the foundation's legal clinic for journalists, insisted that safeguarding national security through surveillance could only be justified, on a case-by-case basis, on matters unrelated to journalists’ work and which did not result in access to journalists' sources.

”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," the foundation said. 

Casa: Malta can already spy on journalists without oversight

MEP David Casa in a separate statement also noted that ministers in Malta already have the power to approve warrants for the interception of citizens’ communications without judicial approval or oversight.

"This state of affairs is all the more worrying in the context of the rule of law collapse Malta has experienced over the last years," he said.

Casa pointed out that the public inquiry into the assassination of Daphne Caruana Galizia has indicated that it was time to change the way that warrants for surveillance were issued. 

“This is not a power that should be in the hands of a politician, but rather it should be for the judiciary alone to grant such intrusive powers and only after due consideration of legal constraints,” he said.

Casa said that when it comes to journalists, the situation was even more delicate and sensitive.

'Surveillance must come with the most stringent and robust safeguards'

“If surveillance is allowed, then it must come with the most stringent and robust safeguards that protect the crucial principle of the protection of sources and the necessity not to interfere with their investigative work."

He said that the government had an abysmal track record when it came to respect for journalists.

“Government should act immediately to change the relevant law and in the meantime, it should withdraw its support for the broad text within the European Media Freedom Act that would allow for surveillance on journalists for undefined national security interests.

“It is a very flimsy excuse to wait for, and then attempt to undermine European legislation in place of actually bolstering the safeguards necessary against arbitrary government. Time and time again, the Labour Government shows how committed it is to clinging onto power irrespective of how draconian the means," Casa said.

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