Today, the European Parliament approved the trilogue agreement reached on the so-called "eEvidence" proposal. This marks the end of five years of intense negotiations between EU legislators, during which the EBU and others have repeatedly expressed their concerns about the lack of safeguards in the proposal and the risks it represented for media freedom.
Wouter Gekiere, Head of the EBU’s Brussels Office said: “While the final Regulation does not fully address our concerns, we note slight progress compared to the Commission’s Proposal. Even though a few safeguards in relation to media freedom were introduced, we fear that the final text could still be misused to get hold of confidential data belonging to journalists.”
Proposed by the European Commission in 2018, the ‘e-Evidence’ Regulation aims to ‘simplify’ access by law enforcement authorities to personal data held by private online service providers established in other Member States, by allowing such authorities to send requests directly to companies. The current framework of judicial cooperation requires them to contact their counterparts in the country where the company is established for assistance in getting the data. In simpler terms, the objective is to cut short current judicial processes.
The EBU expressed concerns over such a fast-track procedure as it could be abused to target, for instance, journalists and get access to their journalistic sources and communications. We called for efficient safeguards in the legislation. While the final text does not fully take into account our concerns, we note marginal progress, when compared to the Commission’s initial proposal.
We welcome the recognition of “rules on determination and limitation of criminal liability relating to freedom of press and freedom of expression in other media”. This ensures that the right of journalists not to disclose their sources of information must be considered when issuing or enforcing a preservation or production order.
We can also highlight the introduction of a notification procedure in the final text, although it will likely be the exception rather than the rule in the daily practice of law enforcement and judicial authorities. Due to the vague wording and the exemptions, the notification procedure offers much flexibility for the authorities of the issuing State.
In view of the above, the EBU sees the possibility that this regulation could be diverted from its primary purpose and used to get hold of confidential data belonging, for example, to journalists. We therefore recommend our Members to be vigilant.
While today’s vote marks the end of the legislative process for the eEvidence Regulation, it certainly does not mark the end of the EBU's engagement on matters relating to the protection of journalists. We remain very much involved in the issue and will advocate for efficient and ambitious protections in the EMFA and SLAPPs proposals, which are currently ongoing with the EU co-legislators.