Titled like a slogan from Orwell’s 1984—”War is peace, freedom is slavery, ignorance is strength”—the EU’s ‘Media Freedom Act’ (EMFA) took effect Friday, August 8th. While the EU hailed EMFA as “a major milestone for media freedom,” the regulation restricts media freedom and paves the way for shackling free speech—quite literally.
Article 4 of the EMFA, allegedly intended to curb government surveillance, includes troubling loopholes that still allow for the use of intrusive spyware against journalists, activists, and other members of civil society.
The clause in question outlines when governments can deploy “intrusive surveillance software”—such as spyware—when justified by an “overriding reason of public interest.” Surveillance must be authorized by EU or national law, approved in advance (or, in emergencies, retroactively) by a judicial or independent authority, and used only when “no other less restrictive measure would be adequate and sufficient to obtain the information sought.”
As if that wasn’t bad enough, the regulation also allows surveillance in cases believed to involve offenses punishable by at least three to five years in prison under national law. That would not only include terrorism or organized crime but also broadly defined categories such as “racism and xenophobia.” In Germany, for example, ‘incitement to hatred’ (Volksverhetzung) can currently, in the most severe cases, carry a penalty of up to five years in prison.
While the EMFA sounds restrictive and aimed at protecting rights, it still opens the door to potential abuse. The definitions of “public interest,” “serious offence,” or what qualifies as “urgent” or “proportionate” are all subjective and could be bent by governments—or Brussels. That means spyware could be used against journalists or political opponents if the right boxes are checked—especially if national law permits it.
Although the regulation invokes the EU’s principle of proportionality, the actual thresholds remain open to interpretation. With significant discretion left to national governments, civil liberties advocates and journalism organizations fear the measure could legitimize state surveillance of journalists and whistleblowers, provided the right legal justifications are in place.
What was supposedly meant to bolster press freedom may, in practice, become a backdoor for undermining it.
