A national security exception in the EMFA would be a very disturbing signal for press freedom

After months of discussion, article 4 on the confidentiality of sources and surveillance of journalists is the key issue remaining to be resolved in the final stretch of negotiations between the European Parliament and the Council of the EU on the EMFA. The aim is to reach an agreement by December 15.

The Parliament has proposed an ambitious protective regime, but the Council wants to include a clause stating that the EMFA’s protections for journalists are “without prejudice to the responsibility of member states to safeguard national security” (article 4-4).

Whether or not to keep this national security clause is at the heart of the debate. At first blush, it might appear to be no more than a reminder of what the EU’s treaties already state. However, the insistence of some countries in keeping this provision has raised fears that it could aim – or could be used – to sweep aside all of the article’s protections whenever a member state thinks that national security is at stake.

For this reason, the clause is strongly opposed by the Parliament and by many civil society organisations including RSF, which has called it “a blank cheque for unbridled surveillance, a short step from the crudest form of police spying and an open door to abuse.”

It would be to the Council’s advantage to accept a compromise on article 4 and agree to the guarantees as proposed by the Parliament. The inclusion of these guarantees in the absence of article 4-4’s specific reference to national security would not in any way affect the ability of member states to protect national security. This ability is already defined as an exclusively national prerogative in article 4-2 of the Treaty on European Union. Although the protective regime proposed by the Parliament could be modified in various ways, it is best able to respond to the EMFA’s declared aim to protect media freedom.