Iva Nenadić, Research Fellow at the CMPF

This week marks six years since the brutal murder of the investigative journalist Daphne Caruana Galizia in a car bomb attack near her home in Bidnija, Malta. The murder of a journalist in the smallest member state of the European Union profoundly shook Europe and has had a lasting impact on its image as a bastion of democratic values, human rights, and rule of law. Six years later, the Council of Europe’s Platform for the Protection of Journalism and Safety of Journalists still lists her murder as a case of impunity. Unsolved murders or other crimes against journalists that do not lead to convictions of those who ordered the execution remains a widespread problem and affects journalists, and freedom of expression more broadly, in a number of ways. It encourages self-censorship and hinders independent and investigative journalism – a key mechanism in preventing the unconstrained exercise of power. Therefore, when investigative journalism is hindered so is the democracy itself.

For a decade, the Centre for Media Pluralism and Media Freedom has been implementing the Media Pluralism Monitor (MPM) in EU member states and candidate countries to map and monitor the evolution of risks to media freedom and pluralism across the dimensions of fundamental right and protections, market conditions, political independence and social inclusiveness. One of the indicators continuously observed is the Journalistic profession, standards and protection. The indicator has expanded over time to account for evolving dimensions of threats that journalists in Europe have been facing with in light of the digital transformation, but also considering democratic backslidings that is often accompanied by growing hostility towards journalists. In 2017, when Daphne Caruana Galizia was murdered, the Monitor included a variable on killings of journalists. It was a turning point in Europe realizing that journalists are not only killed in repressive regimes, in wars, and terrorist attacks, but also in the EU, because of the investigations they conducted, which led too close to those in power. A year later, in 2018, investigative journalist Ján Kuciak and his fiancée Martina Kušnírová were murdered in Slovakia. This case also remains unsolved.

The results of the MPM2023 show that attacks or threats to the physical safety of journalists are widespread in the EU, with 22 out of 27 countries recording cases in 2022. As regards the threats to online safety of journalists, none of the analysed countries is without risk. Online threats have become a serious concern for journalists and freedom of expression as they can take many forms ranging from online harassment and abuse to illegitimate surveillance of searches and online activities, email or social media profiles, hacking and other attacks by state or non-state actors. In addition, violence against women journalists emerged as a self-standing issue and especially in the online environment with misogynistic comments and hate speech.

Paradoxically, the attacks on journalists have often been fuelled by political actors, the same ones who should be creating and protecting safe environment for journalism. According to the European Court of Human Rights’ case law, not only that the states should abstain from unduly restricting freedom of expression, but they also have positive obligations to guarantee an enabling environment for journalists (ECtHR Dink vs Turkey) and they have to put in place all the efforts to avoid impunity for crimes against. The Council of Europe in 2016 adopted the Recommendation on the Protection of Journalism and the Safety of Journalists and Other Media Actors, which was further operationalized in 2020 by an Implementation Guide including measures against impunity and hostility, and undermining the integrity of journalists by public authorities, among the key protection and prosecution pillars. In September 2021, the European Commission adopted the Recommendation on the protection, safety and empowerment of journalists with an aim of strengthening media freedom and media pluralism in the EU. All these recommendations are primarily addressed to the member states that should implement them. But what when these member states are governed by politicians who have little or no interest in protecting journalists? In fact, some may even attack journalists themselves and try to curb their investigations and writing through various mechanisms.

At the time of her assassination, Daphne Caruana Galizia was facing more than 40 civil and criminal defamation, which her family inherited and has been fighting. In fact, on the day she was murdered by car bomb, she entered her car to go to the bank for the appointment about regaining access to her money, which had been frozen in the proceedings around the defamation claim filed by the economy minister. Two years following Caruana Galizia’s murder the Council of Europe Commissioner for Human Rights Dunja Mijatović wrote a letter to the then Prime Minister of Malta recommending withdrawal of the pending, at the time around 30, posthumous civil defamation claims. Many of the claims were filed by the governing politicians in Malta, including then Prime Minister. As per the data collected by MPM, defamation remains a criminal offence in the majority of EU countries. Additionally, exorbitant claims for damages may especially have a chilling effect on freedom of expression and journalistic freedom, which has been further exacerbated by the abusive use of strategic lawsuits against public participation (SLAPPs).

A public inquiry into the assassination of Daphne Caruana Galizia has found that the state had failed to recognise risks to the reporter’s life and take reasonable steps to avoid them. Furthermore, the Board carrying out the inquiry, consisting of a retired judge, a former Chief Justice and a serving judge, noted that all the evidence in the inquiry leads to the conclusion that her murder “is inevitably linked to that which she considered as being serious scandals of maladministration, a result of the proximity between political power and big business power that led to the utter erosion within the country’s regulatory institutions”. So, when a state fails to uphold the integrity of its institutions, the rule of law, and an enabling environment for journalists as democracy watchdogs, should there be a stronger role played by the EU? In recent years we have seen both the need and the EU’s moves in this direction.

In late September 2020, the European Commission presented its first Rule of Law Report, outlining the situation and developments concerning the rule of law in member states, evaluating the justice system, the anti-corruption framework, media pluralism and freedom, and institutional checks and balances. The European Rule of Law Mechanism is designed as a process for an annual dialogue on the rule of law between the EU institutions, member states, civil society and other stakeholders. The Media Pluralism Monitor has been used as a key information source for the media pluralism and freedom angle of the reports. In 2021 a general regime of conditionality for the protection of the EU budget came into force. It created a horizontal ‘conditionality mechanism’ that made member states’ access to funds from the EU budget conditional on respect for the principles of the rule of law. It was first triggered against Hungary in response to the country’s democratic backsliding.

The EU also stepped forward in the attempt to tackle SLAPP as vexatious lawsuits set out with little or no chance of success, but usually asking for a disproportionate amount of damages so as to intimidate and silence journalists. In April 2022, it published a proposal for the Directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”). As the inter-institutional negotiations are on-going, the civil society professional associations have been advocating for legislation that is robust and ambitious enough to protect journalists. The Directive proposal is complemented with the Commission Recommendation that encourages member states to ensure that national legal frameworks provide the necessary safeguards, similar to those at EU level, to address domestic cases of SLAPPs. This includes ensuring the procedural safeguards of an early dismissal of manifestly unfounded court proceedings, charging a claimant who has initiated abusive court proceedings against public participation with bearing all the costs of the proceedings and the compensation of damages, and more consideration on the impact of the rules applicable to defamation.

Another landmark EU law – European Media Freedom Act – is in the trialogue negotiations on the final shape of the law, after the European Parliament adopted its position in early October 2023. The Media Freedom Act not only serves as a relevant step toward the functioning of the internal media market for media services but also represents a groundbreaking advancement in EU media policy, as it has triggered a public discussion on the role and the future of the media. It is a push towards EU cooperation among national regulators, public scrutiny of crucial information, and the establishment of additional EU-wide safety measures for independent journalism and editorial autonomy.

The elections for the European Parliament are approaching in 2024. Based on their outcome the balance of power in the European institutions may look different. This makes the current momentum crucial in adopting strong instruments to protect European journalism and democracy, especially when individual states fail it.