HOW TO ENSURE ACCOUNTABILITY FOR THE DECLINE IN MEDIA FREEDOM ACROSS THE EU — THE CASE FOR A VALUES AUDIT

Looking beyond the institutional framework and effective processes for holding those in power to account, the role of a free media and investigative journalism is central to transparency and accountability in a democratic society. The current European Commission has built core values such as transparency and scrutiny into its six political priorities. But how does that work out in practice, what does the Commission do to ensure media independence? Ruth Kronenburg is Executive Director of Free Press Unlimited, an organisation working to safeguard press freedom and the safety of journalists. In this article she provides insights on media freedom violations in the EU and EU pre-accession countries, and highlights some of the Commission’s key actions to give substance to its prioritising of values and transparency. She concludes that auditing what has (or has not) been done in this area would be a good way of holding those in power to account to further those values.

By Ruth Kronenburg, Free Press Unlimited*

Is the EU still a beacon of press freedom?

In its Charter of Fundamental Rights, the European Union commits to respect for media freedom and pluralism, and to upholding freedom of expression as one of the pillars of modern democratic society. The smooth functioning of democracy depends on the separation of powers between the legislative, executive and judiciary, combined with vital scrutiny by independent journalists and media outlets holding those powers accountable to the public.

The EU has traditionally been considered a beacon of press freedom. Yet independent journalism is increasingly under pressure across the Union. We at Free Press Unlimited were already aware of this — but it was confirmed in 2019 when the European Commission tasked the Media Freedom Rapid Response (MFRR) consortium of civil society organisations to monitor the state of press freedom. Free Press Unlimited is a proud member of the consortium; through which we provide emergency support to journalists and advocate for press freedom in the EU member states and pre-accession countries.

The MFRR reported almost 1 100 media freedom violations in 2023 alone (a 25 % increase compared to 2022), affecting over 1 500 journalists and media outlets and resulting in an increase in the number of support requests from journalists in distress. This signals a serious deterioration in press freedom in Europe. Physical, digital and legal attacks on journalists and media outlets are on the rise, while measures to protect journalists and hold perpetrators to account are falling short of what is needed. In the digital domain, hate speech is prevalent and advertising revenue is siphoned away from independent media by tech platforms. Some member states channel support for media towards media capture, rather than facilitating pluralism and diversity of views in the service of public scrutiny of governments.

Recent Commission initiatives

In the vision of Free Press Unlimited (see Box 1), three things are required for independent (investigative) journalism and media freedom to flourish in the EU member states: safety and protection of journalists, the prioritisation in law of independent media content, and support for media pluralism and diversity of views. It is worth stating that the Commission has made considerable efforts during its latest term (which will end this year at the European Parliament elections) to uphold media freedom. Vice-President Vĕra Jourová, the Commissioner for Values and Transparency, has launched a sizeable number of initiatives and support efforts, and opened and encouraged discussion with member states at fault. To name just a few recent initatives by the Commission:

• the MFRR, already mentioned above, is a consortium of civil society organisations that conducts fast-response missions to member states that fail to uphold the EU’s media freedom standards and values;
• the WhistleBlower Directive (adopted November 2019) offers protection for people that share information about malpractice in the service of public and corporate accountability, and is vital for investigative journalists to do their work;
• the Commission supports journalists and other media workers exiled as a result of the Russian war of aggression against Ukraine;
• with the European Parliament, the Commission moved to sanction Hungary and Poland for rule-oflaw and media freedom violations;
• the newly adopted Digital Services Act compelling platforms to ensure the fundamental rights of users are respected ;
• the EU is working on a Media Freedom Act and an ‘anti-SLAPP’ directive to tackle strategic lawsuits against public participation, both of which should be approved by Parliament before the elections.

In our view these are all commendable efforts by the Commission (in many cases also prompted by Parliament) to improve the information ecosystem. And yet the erosion of media freedom is continuing. So who is to blame, and where should auditors look for the culprits?

Many would point to the Commission and Parliament. Auditors tend to criticise money poorly spent. National politicians rail against interference from Brussels, building on the ever-popular motto: claim success as a national achievement, blame failure on ‘the EU’. But we think auditors, at EU and member state level, should look deeper, and should assess the political will (or lack of it) in the European Council and member states’ implementation or transposition of EU laws and directives. It is worth taking a closer look at a recent example of legislation from Parliament and the Commission: the antiSLAPP Directive.

Silencing independent journalism through legal intimidations

In April 2022, the Commission published a proposal for an anti-SLAPP directive, symbolically termed ‘Daphne’s Law’ after the most famous target of SLAPPs: Maltese journalist Daphne Caruana Galizia, who was murdered in 2017 after 48 libel and defamation cases were brought against her. To this day, her immediate family is still entangled in a number of these lawsuits. Free Press Unlimited has long campaigned for such a directive with a coalition of civil society organisations (known as the ‘CASE’ coalition) to curb these and similar legal attacks on investigative journalism.

An alarming trend in the past few years has been the sharp increase in legal intimidation as a tool to silence critical voices reporting on matters of public interest. This practice undermines the work of journalists and directly affects the public’s access to information. Corporations, wealthy individuals and politicians are suing journalists for defamation, slander and incorrect reporting, with the sole aim of driving them into silence. One striking example is the defamation claims brought by Grigoris Dimitriadis against Greek newspaper EFSYN and online investigative portal Reporters United because of an investigative report on Dimitriadis’ connection to a surveillance scandal. Another is the ongoing abusive lawsuit against Dutch daily Het Financieele Dagblad by businessman Willem Blijdorp, in an attempt to stop further investigative reporting.

SLAPPs are on the rise against independent journalists and their media houses when they report on facts that are inconvenient for those in power. Through the use of SLAPPs, wealthy and powerful individuals and corporations abuse the legal system to intimidate and coerce journalists, human rights defenders and civil society organisations into silence. Not only do SLAPPs seriously harm journalists both financially and psychologically, but the damage also extends to the general public, who are denied their right to information.

The new directive, as initially presented by the Commission, showed great ambition, as it contained strong minimum standards for anti-SLAPP legislation in all member states. However, negotiations among the member states have resulted in a heavily watered-down position that would fail to offer any meaningful protection to journalists and activists who hold power to account.

On 30 November 2023, the European Council and European Parliament reached a negotiated agreement on the proposed directive, which aims to deter potential claimants from engaging in SLAPPs with cross-border implications. The proposal contains several positive changes that deflect some of the Council’s attempts to dilute key safeguards. By enabling national courts to dismiss SLAPPs in an accelerated procedure early in proceedings, it maintains those guarantees. It also contains a broad concept of SLAPPs on matters with cross border implications and it aims to deter potential claimants from engaging in such practices.

However, the proposed directive falls short in deferring excessively to member states and relying on ambiguous language in relation to certain key safeguards and remedies: it would, for example, be for member states to decide whether compensation would be available to public watchdogs, or to flesh out the threshold test used to dismiss SLAPPs.

While these measures constitute an important and positive step forward, they should be considered the minimum standards needed to protect public watchdogs against SLAPPs. It is time for the EU member states to honour their commitment to press freedom by adopting strong national antiSLAPP legislation during the process of transposing the directive into national law.

Legislation watered down in the transposition process

Which brings me to another concern we have at Free Press Unlimited. In 2019, after we, WIN (Whistleblowers International Network) and Transparency International had campaigned long and hard, the Whistleblower Protection Directive was adopted. During transposition, however, unsatisfactory legislation was proposed. This was the case in Spain; and it is about to happen again in Slovakia, where a positive law on whistleblowing is being amended by the new government, causing great concern that many international press freedom organisations, including ourselves, have expressed in a letter addressed to the Slovak authorities.

The Whistleblower Protection directive is of such fundamental importance for investigative journalists because most of the political/economic scandals of the past ten years (such as Lux Leaks, Panama Papers, COVID -19 corruption cases) have at least partly been the result of whistleblowers coming forward with incriminating evidence of malpractice of harm to public interest. We need to keep a close eye on the transposition of the anti-SLAPP directive, so that it does not go the same way. This is just as true in weak democracies where the rule of law is less than perfect, or less liberal democracies such as Hungary, as it is in the western European founding member states of the EU.

An audit assessing progress on EU values could also include an assessment of what we have identified as the lukewarm mentality of many member states, and the decision-making process at the European Council. It could bring insights from fully independent auditors into what we consider a lack of progress towards stronger EU action in protecting media freedom.

What is needed?

To uphold freedom of expression as a pillar in our democracies, we need greater proliferation of rock-solid practices for the protection of journalists that shield them effectively from physical, digital and legal harm. Strengthening the public accountability role of journalists means improving the implementation of access-to-information laws and increasing the role of civil society organisations in monitoring EU policy on press freedom. Enhancing public accountability will also need increased budgets for in-country civil society watchdogs that will monitor press freedom. And finally, considering their role in the institutional accountability framework, independent watchdogs such as the ECA and its counterparts in member states are excellently placed to shed light on the progress of the values the Commission claims to be working on and standing up for, and to identify any gaps between, on the one hand, commitments made and projected achievements and, on the other, the situation for journalists on the ground and the practice of media work.

* Radin, B., Challenging the Performance Movement: Accountability, Complexity and Democratic Values, Washington, D.C., 2006 (Georgetown University Press).