The EU's nerve-wracking disconnect on surveillance

Each time an EU government is confronted with a threat to security, it nearly always plunges into knee-jerk reactions at the risk of undermining the very freedoms its officials claim to protect.

Jean-Paul Marthoz
27 October 2015

Mona Eltahawy, The Guardian, 12 August 2011. Fair use.

Mona Eltahawy, The Guardian, 12 August 2011. Fair use.

The European Union touts itself as a model of democracy and press freedom. Such a claim to be a “city on the hill”, the very beacon of reason and decency in a troubled world, is the silver thread of its diplomacy, the pillar of its soft power projection. “The Union's action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement : democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms”, says Article 21 of the Treaty on European Union.

Consistency is a key element of an effective diplomacy. You cannot advocate for human rights and press freedom abroad if you are yourself at fault at home. Now, EU countries stack the first places in international press freedom rankings. No journalists are held behind bars according to the latest CPJ prison census, and apart from the tragic attacks against Charlie Hebdo in January 2015, they appear largely protected from the brutal violence directed against the press on other continents.

The European Union’s record, however, is far from being immaculate, both in its member states and its own institutions. In many EU countries, vestiges of the past continue to affect freedom of expression and hamper independent journalism, in total contradiction with the statements and policies of the Union. In 2014, for instance, the EU adopted Guidelines on freedom of expression online and offline meant to inspire its diplomats abroad. They included strong provisions against criminal defamation, a legal weapon which threatens journalists with prison sentences and has a chilling effect on free speech. But, according to a 2014 survey by the Vienna-based International Press Institute, 23 member states still have such laws on their books and in the past five years criminal defamation cases were brought against journalists in 14 member states. Likewise, in its 2013 guidelines on the promotion and protection of freedom of religion or belief the EU condemns blasphemy laws, yet blasphemy and insult laws exist in 19 EU countries, according to the End Blasphemy Campaign. Some member states enforce them vigorously, like in Greece where a far right Golden Dawn deputy brought a case against a blogger accused of deriding an orthodox priest popular in nationalist circles.

Such contradictions are a boon to authoritarian governments across the world. When indicted by human rights groups for their heavy-handed enforcement of criminal libel or blasphemy laws they relish guiding their European critics to their own countries’ chequered record and telling them to tone down their “finger wagging”. Like the chronicle of an outrage foretold Hungary’s policies towards refugees incubated in the EU’s past appeasement policies.

This disconnect between values and action is particularly nerve-wracking on surveillance. After Edward Snowden’s revelations in 2013, EU top officials expressed their outrage at a US surveillance system gone wild. But their own security services were doing exactly the same. “European governments have deployed systems of mass electronic surveillance to monitor journalists’ contacts with sources, intercept their communications, and in some cases, obstruct their freedom of movement, launch criminal investigations, or threaten legal actions against journalists based on unlawful electronic surveillance”, warned the Internet freedom advocacy group Center for Democracy and Technology.

Each time an EU government is confronted with a threat to security, it nearly always plunges into knee-jerk reactions at the risk of undermining the very freedoms its officials claim to protect. In the wake of urban riots in 2011, the UK’s Conservative Prime Minister, David Cameron, proposed a number of measures aimed at monitoring and preemptively silencing social media deemed to be involved in criminal activity. “Please, Britain, don’t let Mubarak inspire your response to unrest”, Egyptian independent journalist Mona Eltahawy wrote in response. Similarly after the terrorist attacks in Paris a law came into force allowing French authorities to block Internet sites suspected of advocating for terrorism, without a proper judicial review.

The EU institutions themselves do not defend forcefully enough the values they have pledged to uphold as guardians of the Treaties. When a member state, like Hungary, veers from the Charter of Fundamental Rights, “Brussels” limits itself to triggering infringement proceedings which only address technical or legal issues. Although the populist policies implemented by conservative Prime minister Viktor Orban are described by many as a determined attempt to deconstruct the liberal philosophy which underpins the European process, the EU could not find within itself the resolve to activate its rule of law mechanism which is meant to assure eveyone that once inside the Union, member states cannot backslide and jettison the commitments they have made to respect the Treaties and the Charter of Fundamental Rights.

Intimidated by member states which remain stubbornly attached to an old-fashioned concept of national sovereignty, undermined by divisions among political groups in the European Parliament, the EU did not take any robust measure which would have deterred Viktor Orban from acclaiming “illiberal democracy”. Like the chronicle of an outrage foretold Hungary’s policies towards refugees incubated in the EU’s past appeasement policies. As Portuguese socialist MEP Ana Gomes told us, “the Hungarian experience showed that by not acting fast and firmly enough on past transgressions it allowed Viktor Orban to constantly raise the stakes”. The opacity of the TTIP (Transatlantic Trade and Investment Partnership) negotiations contradicts the EU’s claims to transparency and citizen participation. 

While supporting projects in favour of press freedom inside and outside of the Union, the European Commission also finds it difficult to do the right thing when it is forced to choose between trade interests and press freedom. The draft trade secrets directive now being discussed in the European Parliament has been denounced by professional media organizations, press freedom and civil society groups as threatening the capacity of journalists to report on private corporations. France 2 producer Elise Lucet has gathered close to 500,000 signatures against a draft text which remains too vague and does not provide a clear “journalistic exception” in the public interest. The controversy over this directive draws from a growing mistrust towards an institution which despite a huge and often quite useful and informative communications machine leaves crucial areas out of reach and off limits for the press. The opacity of the TTIP (Transatlantic Trade and Investment Partnership) negotiations contradicts the EU’s claims to transparency and citizen participation. 

“The EU is not the Kremlin”, Brussels Guardian correspondent Ian Traynor told us. Undoubtedly. This means that it should be held by higher standards, in fact by the standards it has freely chosen to adopt and according to the yardstick by which it measures other states. “There has been a lot of hypocrisy in the debate (over surveillance)” Viviane Reding, then Justice Commissioner, said in January 2014. “If the EU wants to act as an example for other continents, it also has to get its own house in order.”

This is exactly what Independent journalists across the world expect from the EU. Not just statements of support and material or legal assistance but also the application by its member states of the highest standards of freedom of expression and press freedom. So that autocrats cannot justify their abuses by pointing at Hungary’s staunch party control of public media, at the UK’s “Snoopers’ Charter” or at the harshness of Italy’s criminal libel laws.

There is an acute and growing tension between the concern for safety and the protection of our freedoms. How do we handle this? Read more from the World Forum for Democracy partnership.

Stop the secrecy: Publish the NHS COVID data deals

To: Matt Hancock, Secretary of State for Health and Social Care

We’re calling on you to immediately release details of the secret NHS data deals struck with private companies, to deliver the NHS COVID-19 datastore.

We, the public, deserve to know exactly how our personal information has been traded in this ‘unprecedented’ deal with US tech giants like Google, and firms linked to Donald Trump (Palantir) and Vote Leave (Faculty AI).

The COVID-19 datastore will hold private, personal information about every single one of us who relies on the NHS. We don’t want our personal data falling into the wrong hands.

And we don’t want private companies – many with poor reputations for protecting privacy – using it for their own commercial purposes, or to undermine the NHS.

The datastore could be an important tool in tackling the pandemic. But for it to be a success, the public has to be able to trust it.

Today, we urgently call on you to publish all the data-sharing agreements, data-impact assessments, and details of how the private companies stand to profit from their involvement.

The NHS is a precious public institution. Any involvement from private companies should be open to public scrutiny and debate. We need more transparency during this pandemic – not less.

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