Milana Pisarić
Assistant Professor, Faculty of Law, University of Novi Sad
True journalism is the backbone of modern democracy and the backbone of the rule of law. A high degree of freedom and independence of the media enables the general public to realize its right to information, to be aware of positive development trends, but also to draw its attention to illegal, and generally negative phenomena in society and the state. The elements and criteria for evaluating media freedom and independence are recognized at the international level, and the protection of journalistic sources is of the utmost importance. Freedom of expression is the essential foundation of a democratic society, and media freedom is necessary for its healthy functioning, so the guarantees that should be provided to journalists are of particular significance. Despite this, the practice of security services following and eavesdropping on them, through optical and technical surveillance, has been present for decades. What we are witnessing today, which is made possible by technological development, is the digital surveillance.
It's no secret that police and intelligence services are expanding the depth and breadth of their surveillance over public and civic space. New technologies are radically transforming the ability to track and collect, categorize, store, analyze, cross-reference and share data. Penetration into citizens' digital privacy is an inevitable consequence of such surveillance, since most digital surveillance technologies are highly invasive of human rights and freedoms. Although these technologies are deployed under the guise of protecting a democratic society, this is often done without an adequate legal basis or democratic oversight. Of particular concern is the use of tools for digital surveillance and monitoring of persons who are not suspected of any criminal offense.
During the last few years, reports with documented cases have been released to the public that indicate that states procure and (mis)use spyware to target public figures, among them: journalists, activists, politicians, lawyers. As a consequence, political scandals followed, international and non-governmental organizations for the protection of human rights and professional associations of journalists announced, several court proceedings were initiated, a committee was formed to examine the use of this tool in the European Union...
The use of spyware by security services allow them to remotely gain access to a journalists’ mobile phone or computer, to surveil, search and seize the contents of the device, to monitor and intercept communications, to monitor their activities, connections and locations both in cyber and physical space, all of this, of course, without their knowledge and consent. The use of spyware not only endangers the human rights of journalists, but this type of behavior calls into question the international legal standards of media freedom, so one can reasonably doubt democratic values and the rule of law.
In this paper the author analyzes the legal side of using spyware to remotely search journalists' computers and monitor their communications, locations and activities, and considers the legitimacy and legality of these types of digital surveillance through the prism of media freedom established in international standards and in the practice of international courts.
Read more: M. Pisarić, „Špijunski softver protiv novinara“, Tematski zbornik radova međunarodnog značaja, VIII međunarodni naučni skup Mediji, kazneno pravo i pravosuđe, Institut za uporedno pravo, Institut za kriminološka i sociološka istraživanja, Pravosudna akademija, Beograd, 2024, str. 443-467
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