Updated 5.57pm with Malta government reaction.

Malta is one of seven EU countries that want to be able to spy on journalists for national security reasons, according to a memo leaked to the French press.

French reporting agency Disclose said that a confidential memo indicated that Malta, France, Italy, Finland, Greece, Cyprus and Sweden are pushing for a new EU-wide media protection law to retain a clause authorising the surveillance of journalists in the name of national security.

The memo was drafted by German senior officials during EU Council negotiation meetings.

"In this document drafted by German senior officials, it is learned that Italy considers maintaining the paragraph on national security (in Article 4) as “a red line”. This means it vehemently opposes its removal," the report said.

"France, Finland, and Cyprus state they are 'not very flexible' on the issue. As for Sweden, Malta, and Greece, their representatives claim to be on the same line, 'with a few nuances'."

Maltese EPP MEP David Casa said news of the Maltese government's position was "disconcerting". 

"On press freedom, the Maltese Government has a very steep hill to climb," Casa wrote on X (formerly Twitter). 

Malta government explains

A spokesman for the Malta government said when questioned that the European Media Freedom Act, as it currently stands, prohibits the use of spyware and intrusive surveillance software insofar as journalists and their sources are concerned. 'This principle is supported by Government.'

"The ongoing discussion is regarding the application of this prohibition when there are overriding (founded and in accordance with National Laws of Member States) National Security Concerns – for example, in relation to potential terror attacks," the spokesman said. 

The proposal is still subject to inter-institutional negotiations and the government will continue to engage constructively in discussions with a view to reaching an agreement on the file as soon as possible, "with a view to ensure the protection of journalists and journalistic sources," the spokesman said.

What is the issue?

The issue revolves around a new EU law, the European Media Freedom Act, that is in its final negotiation stages. 

It seeks to protect journalists and media institutions in myriad ways, including by prohibiting government surveillance on them, their families and employees.

The bone of contention, however, is a clause that would allow states to spy on journalists in exceptional circumstances.

The Council of the European Union wants this clause to read: "This Article is without prejudice to the Member States’ responsibility for safeguarding national security".

This would give governments the power to spy on journalists if they feel it is in the interest of "national security", which is not defined. 

But the EU Parliament wants that clause amended, arguing it is much too broad. National security could be used as an excuse to spy on journalists for unjustified reasons, MEPs are arguing.

The parliament is instead calling for a more restrictive clause, essentially allowing surveillance in very rare cases and under very specific circumstances.

It wants any sort of surveillance to only be deployed if it is unrelated to a journalist's work, does not result in access to journalists' sources, is justified on a case-by-case basis to prevent, investigate and prosecute a serious crime, and is ordered by an independent and impartial judicial authority.

In recent years, various EU member states caught spying on investigative journalists using spyware like Pegasus have justified that by arguing it was done for national security reasons. 

'Seven states can block any compromise'

According to Disclose, even though the seven states only represent a third of the EU population, they "can block any compromise by allying with Hungary's Viktor Orban, who rejects the entire text (deeming it too liberal for this taste)".

The website said only Portugal "dared to criticize this staunch defence of the exception in the name of national security".

The law can only be approved if it enjoys the support of a group of states that between them represent at least 65 per cent of the EU population.

Negotiations are ongoing and are expected to continue on Friday.

What has the reaction been?

The Institute of Maltese Journalists (IGM) noted "with great concern" that the proposed clause "could lead to abuse" and wrote to the Prime Minister demanding the government come clear on its position on the matter.

"This position, if reflective of Malta’s true position, is highly disturbing, unacceptable and problematic on all grounds for the IGM," it said in a statement yesterday afternoon.

"The European Media Freedom Act seeks to protect journalists and media institutions, including by prohibiting government surveillance on them, their families and employees. However, this clause allows states to spy on journalists in exceptional circumstances, which are not defined and which could lead to abuse. We expect a response from the government at the earliest," it said.

The Media Reform Initiative said it was appalled by the reports. 

"No democratic government should think in this way. But especially a government of a state found responsible for the killing of a journalist," it said.

"We support the call by the Istitut tal-Ġurnalisti Maltin to the government to explain itself and hope that the Maltese authorities can assure us it is not their policy that any law should allow them to spy on journalists." 

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