08 Sep 23 | News and features, Opinion, Ruth's blog, United Kingdom
Cast your mind back to January 2023, and the “world-leading, world-first Online Safety Bill” (Rishi Sunak responding to Labour’s Alex Davies-Jones) faced a significant backbench rebellion over an executive liability clause.
When the Bill landed in the House of Lords days later, a precarious agreement between Government and rebels had passed on a vast baton of legislative issues. There was a collective sigh of relief that the upper chamber would be taking on the mantle.
The threat to encryption, or private messaging, didn’t even feature as a concern amongst legislators, let alone the government, despite the Bill introducing measures unprecedented in any western democracy.
Flash forward to September, and encryption features as the most important and urgent issue that needs addressing before the Online Safety Act receives imminent Royal Assent.
The efforts of my colleagues at Index on Censorship, partners across civil society, and the businesses that rely on encryption have all been vital in achieving this.
Confidence in the Government’s ability to grasp the full consequences and details of their legislation has waned thin. Index and others have consistently warned that Section 122 of the Act is a gateway to the unprecedented mass-surveillance of British citizens and a threat to vulnerable people up and down the country.
As Index on Censorship’s report with Matthew Ryder KC set out:
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Section 122 notices install the right to impose technologies that would intercept and scan private communications on a mass scale. The principle that the state can mandate the surveillance of millions of lawful users of private messaging apps should require a higher threshold of justification which has not been established to date.
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Ofcom could impose surveillance on all private messaging users with a notice, underpinned by significant financial penalties, with less legal protections than equivalent powers under the Invetsigatory Powers Act.
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The proposed interferences with the rights of UK citizens arising from surveillance under the Bill are unlikely to be in accordance with the law and are open to legal challenge.
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Journalists will not be properly protected from state surveillance, risking source confidentiality and endangering human rights defenders and vulnerable communities.
From raising awareness of encryption in public debate, demonstrating its real-world effects for policy makers, to highlighting the unintended legal and technological consequences of the Bill, we finally have a Government that is at least not running head first into an attack on encryption that would be unprecedented in any democracy.
But the encryption die remains far from cast. Reports in the FT and elsewhere alluded to a Government ‘u-turn’ ahead of a Ministerial statement on Wednesday (6 September) that delivered nothing of the sort.
While some in the Government are briefing that encryption will be protected, the actions of its ministers do not match up to those words.
A new report by Index on Censorship this week revealed that that Online Safety Bill has alarming consequences when put alongside the controversial Investigatory Powers Act (snooper’s charter). This access, unprecedented in any Western democracy, could provide the Home Office with entry to British citizens’ personal messages as follows:.
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Ofcom issues notice mandating the use of Accredited Technology to provide a backdoor to encrypted messages under the Online Safety Bill (section 122)
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The Home Office or security services apply for a bulk surveillance warrant on account of a matter of national security (Investigatory Powers Act) granting them access to bulk data
This is extremely concerning, not least because the window in which the Government can legislate its way out of this mess is rapidly closing. The Online Safety Bill will return to the House of Commons for the first time in eight months on Monday (11 September) for a consideration of Lords’ amendments.
This is the last and only chance the Government has to follow up words with actions. They must go beyond Wednesday’s ministerial statement and allay the concerns once and for all by amending the Bill’s Section 122 notices as well excluding use of the IPA in conjunction with the Bill.
Our report sets out how the government can get this right. We’re running out of time. We hope that the government will see sense and put down amendments to fix the backdoor in the Online Safety Bill.
06 Sep 23 | Czech Republic, France, Greece, Hungary, Italy
Sofia Mandilara really likes her job. As a reporter for the Greek news agency Amna, she is “often at the forefront of important events”, she said. “Through us, people find out what is going on in our country.” But not all that goes on in Greece is reported. This is because Amna belongs to the Greek state and is subject to the office of Prime Minister Kyriakos Mitsotakis. Anyone who reports critically on his conservative government is censored, the 38-year-old said.
A similar situation exists at the Italian state broadcaster, Rai, which plays a major role in shaping public opinion. It is increasingly under the influence of Italy’s right-wing populist government. Immediately after taking office in October 2022, Prime Minister Giorgia Meloni filled all management positions with her followers. The two previous governments did the same, but none as radically as Meloni. Prominent reporters left and even high-profile journalist and anti-Mafia author Roberto Saviano’s show was cancelled after he tangled with Meloni. Positive reports about Meloni’s government, meanwhile, account for around 70% of all political news on Rai stations, according to the media research institute Osservatorio di Pavia.
Journalists at the Journal du Dimanche, France’s leading Sunday newspaper, have also suffered a radical change of regime. In the spring, Vivendi, owned by billionaire Vincent Bolloré, got the go-ahead to buy the publishing giant Lagardère, including the JDD. Bolloré publicly denies any political interest. But as with his acquisitions of CNews in 2016 and the magazine Paris Match last year, the buy-out was followed by a sharp turn in the editorial orientation of the JDD towards the far right.
State officials who demand censorship, party functionaries who misuse public broadcasters for their propaganda and billionaires who buy media to propagate their own political interests – what was long known only in Viktor Orbán’s Hungary – is spreading across Europe. The creeping decline in media freedom and pluralism has been documented for years by the Centre for Media Freedom at the European University of Florence, an EU-funded project. There is now “an alarming level of risk to media pluralism in all European countries”, researchers wrote in their annual report in June.
This puts Europe in a “desperate situation”, said Věra Jourová, the EU Commission vice-president for values and transparency. The Czech Commissioner has personal experience of life without a free press. “I lived under communism, that was uncontrolled power – and unchallengeable power. This should not happen in any EU member state,” she said in an interview with Investigate Europe, a co-operative of journalists from different European countries. Media are “the ones who keep politicians under control. If we want the media to fulfil its important role in democracy, we have to introduce a European safety net.” That is why she is pushing to implement a landmark EU law “to protect media pluralism and independence”, which would set legally binding standards to preserve press freedom in all EU member states.
She and her colleagues introduced the bill in September 2022. Among other things, it provides that: public service media must report “impartially” and their leadership positions must be “determined in a transparent, open and non-discriminatory procedure”; the allocation of state funds to media for advertising and other purposes must be made “according to transparent, objective, proportionate and non-discriminatory criteria”; governments and media companies must ensure that the responsible “editors are free to make individual editorial decisions”; owners and managers of media companies must disclose “actual or potential conflicts of interest” that could affect reporting; and the enforcement of journalists to reveal their sources, including through the use of spyware, must be prohibited.
All of this seems self-evident for democratic states and yet it met with massive resistance from not only Hungary and Poland, but also Austria and Germany. They argued the proposal is overreaching, “with reference to the cultural sovereignty of the member states”, according to minutes from the legislative negotiations in the EU Council, obtained by Investigate Europe. The four governments wanted a directive rather than a legally binding regulation, which would allow the governments to undermine the bill.
In Germany, media supervision is the task of regional states. On their behalf, Heike Raab from the state government of Rhineland-Palatinate, led the negotiations in the EU Council. The EU was acting as a “competence hoover in an area that was expressly reserved for the member states in the treaties”, Raab argued, saying the law would be an “encroachment on publishers’ freedom” in line with the respective lobby. If publishers are no longer allowed to dictate the content of their media alone, this would “destroy the freedom of the press”, the Federal Association of Newspaper Publishers declared. The European Publishers Association claimed that the EU proposal was in fact a “media unfreedom act”. However, Raab and the publishers’ lobby failed to present any practical proposals on how to stop the attacks on editorial freedom.
Such opposition has so far proved largely unsuccessful. Although several controversial amendments to the law have been put forward (most notably when a majority of EU governments backed a change to allow the possible use of spyware in the name of national security), the key proposals of Jourová and her colleagues were adopted in June by most EU governments. If, as expected, the parliament also gives its approval at the beginning of October, the law could come into force early next year – and trigger a small revolution in the European media system. At least that is what Jourová hopes.
The direct influence on public service media by way of appointment of politically affiliated managers, as seen in Greece and Italy, for example, would not be compatible with the new law. “The state must not interfere in editorial decisions,” Jourová said. If a member state does not comply, the Commission could open proceedings against the government for violation of the EU treaties. And if the violations continue, this could “lead to very serious financial penalties from the European Court of Justice.”
Journalists themselves could also sue governments or private media owners in national courts against censorship or surveillance on their part, the Commissioner explained.
It is questionable, however, whether this can help reverse the decline of media diversity in the right-wing populist-ruled countries. The Hungarian and Polish government are already accepting the blocking of billions in payments from EU funds because they violate the principles of the rule of law with their political control of the courts. So why should they fear further rulings by EU judges?
Viktor Orbán’s regime has for years engineered a “creeping economic strangulation” of independent media in Hungary, says journalist Zsolt Kerner of the online magazine 24.hu. The government withdrew all state advertising contracts for independent media and then pressured commercial advertisers to do the same. Today, advertising revenues only go to media loyal to the government. 24.hu survived only thanks to an economically strong and independent investor. The rest either had to close or were taken over by those connected to Orbán. This would all become illegal with the planned regulation because EU law trumps national legislation. But Kerner and his colleagues “doubt whether it will do any good in our country.” After all, the government has “many good lawyers”.
“Maybe Hungary is a bit immune now,” said Commissioner Jourová. But there, too, the government will “sooner or later feel the political impact”. An “independent European media board”, including media experts from all 27 EU states, is planned under the new regulation. While the board can decide by majority vote only on assessments without legal consequences, Jourová expects that countries “which the board certifies as restricting media freedom” will “lose their international reputation, for which most governments are very sensitive.”
This could well put pressure on the right-wing nationalists in Poland, thinks Roman Imielski, deputy head of Gazeta Wyborcza, the country’s last major independent newspaper. Prime Minister Mateusz Morawiecki’s government has also turned public television and the national news agency into “a Russian-style propaganda machine” that brands all critics as “traitors to the nation and conspirators”, Imielski said. But if Poland looks bad to the US government, for example, “that puts pressure on it”, as happened when the government tried to sell the government-critical TVN station, owned by a US group, to a Polish buyer. Under pressure from Washington, the Polish president vetoed the corresponding law in 2021.
When or even if Jourová’s grand plan actually becomes law is still unknown. After the parliamentary adoption scheduled for the beginning of October, its representatives still have to agree on a common text with the Council. As mentioned, most EU governments want to reverse the planned ban on the use of surveillance software against journalists and explicitly allow it in cases of danger “to national security”. Article six, which obliges media owners to respect “editorial freedom”, is also highly controversial. Member states, including Germany, want to weaken this provision considerably by only granting this freedom “within the editorial line” set by media owners. If successful, the law would fail at a crucial point.
“The problem is not media concentration in itself, the problem is that it gets into the wrong hands,” said Gad Lerner, a columnist at the still independent Il Fatto Quotidiano, who worked for La Repubblica until it was sold. “More and more entrepreneurs with a core business in other industries are buying newspapers, TV or radio to give visibility to the politicians on whom they depend for their real business.”
“Of course, we don’t want rich people to buy media to influence politics. But we are not here to micromanage how the newsrooms should be organised,” Jourová said, pointing to the need for civil society and journalists to help push for stronger editorial freedoms.
The Greek journalist Sofia Mandilara, who works at the state news agency, has already given a starting signal for this. With the help of the trade union, she filed a public complaint against the censorship of statements critical of the government in one of her articles and – to her surprise – was allowed to write another article on the subject. Since then, “at least they always ask me when they want to change my texts,” she said with a laugh.
This is a modified version of an article that first appeared on Investigate Europe here
