The Myth of Pegasus: journalists safety and press freedom a

modern chimaera?

Story of the abusive use of a military spyware

Noémie Krack

In Greek mythology, Pegasus was a winged divine horse who helped

accomplishing many exploits, including the monster Chimaera’s defeat. In today’s
world, Pegasus will be known as the abusive use of a spyware who contributed to
killing the chimaera that journalists could be safe and press freedom ensured. In
this blogpost, we will analyse the recent investigation disclosures, the interference
of Pegasus spyware with fundamental rights and the European Union’s recent
initiatives for journalist’s safety and press freedom.

On July 18, a peer-reviewed investigation with shocking revelations for press freedom, journalists
safety, freedom of expression and privacy rights was released. It divulged that the Pegasus spyware
was used to hack smartphones of journalists, human rights activists, academics, lawyers, State
officials, businessmen and women. Pegasus is military-grade spyware created by NSO, an Israeli firm
and initially intended to track terrorists by the military, intelligence agencies and law enforcement
officials.

The worldwide investigation was led by Forbidden Stories, a Paris-based journalism non-profit
organisation, and supported by Amnesty International and more than 80 journalists from 17 media
outlets in 10 countries (including The Guardian, Le Monde and The Washington Post). Forbidden
Stories and Amnesty reported that they had access “to a leak of more than 50,000 records of phone
numbers that NSO clients selected for surveillance”. Their analysis of the material showed that at
least 180 journalists were selected in 20 countries by at least 10 NSO clients. The clients of NSO are
diverse: from Bahrain and Saudi Arabia to Mexico, Morocco and Hungary.

Amnesty International’s Security Lab conducted analysis on devices listed to confirm the use of the
spyware. Successful infections were discovered during the key time period of journalist’s or activist’s
work. The spyware, once installed, has complete access to the device: extraction of data (material,
messages, calendar), remote recording of audio and video, activation of the GPS.
Image source and news article

Despite high precautions to secure the devices and communicate only via encrypted messaging,
journalist’s devices were infected. The chilling effect is tremendous as these communication
interferences will lead to self-censorship by considerably dissuading sources from getting in touch
with journalists and journalists to investigate and publish independent and free pieces of
information. On a more direct interference, once spied on, the targets received legal threats, were
arrested or were subject to harassment, intimidation, threats or persecution. Surveillance is
therefore also used as a means to fuel SLAPPS (Strategic lawsuit against public participation). In rare
cases, journalists were killed after being put on the list.

The global scale of the list is frightening and Agnes Callamard, secretary-general of Amnesty
International, underlined how surveillance technologies have become a weapon of choice to silence
journalists and activists.

Public safety, national security: an alibi for interference with press freedom?

Officially, States buy these technologies for motives such as public safety, national security and the
fight against terrorism which are often governed by domestic-law provisions. Human rights, with
some exceptions, are not absolute and can suffer from interference as provided by several human
rights legal frameworks: the Universal Declaration of Human Rights, the European Charter of
Fundamental Rights and the European Convention on Human Rights. The ECHR, for instance,
provides that freedom of expression and the right to respect for private and family life can be limited
where interference is prescribed by law, necessary in a democratic society and pursuing a legitimate
purpose such as national security (article 10§2 and article 8§2).
However, under the guise of public and national security, vague concepts and where rationales are
often kept out of sight, a country can use the blur definition of terrorist to target any opponent to
the regime or disturbing individuals such as journalists and human rights activists. Public safety
motives are then used to hack the phones and computers of people conducting legitimate
journalistic activities, monitoring human rights or expressing dissent or political opposition.

UN High Commissioner Michelle Bachelet reminded that “surveillance measures can only be justified
in narrowly defined circumstances when necessary and proportional to a legitimate goal” and given
their extremely deep intrusion, “their use can only ever be justified in the context of investigations
into serious crimes and grave security threats”. The ECtHR held that its case-law on Article 10 also
apply to measures taken by national authorities to maintain national security and public safety ( Faruk
Temel v. Turkey), such as a limited margin of appreciation for States to interfere with matters of
general interest (Lindon, Otchakovsky-Laurens and July v. France) or ideas challenging the existing
order (Eğitim ve Bilim Emekçileri Sendikası v. Turkey).

NO! to technology at all costs

These disclosures show once again that technology progress needs to be framed by legal and ethical
requirements, especially when it comes to surveillance.

Surveillance on journalists is not new, but a new market has emerged in the last years with spyware
companies’ development. The Forbidden Stories investigation points that companies are operating
quite freely as very few legal or financial consequences occurred for the use of their tool against
journalists and human rights activists.

Only very recently, in June 2021, leaders of two French companies, namely Amesys and Nexa
Technologies, were indicted of “complicity in acts of torture” for selling their spyware respectively to
Lybia and Egypt which led to identification, arrestation and torture of opponents to these Regimes.

Michelle Bachelet pointed that both the companies and States are responsible for avoiding harm to
human rights and take immediate actions. She also underlined the “urgent need to better regulate
the sale, transfer and use of surveillance technology and ensure strict oversight and authorisation”.
Others such as David Kaye, a former UN Special Rapporteur on freedom of expression, put forward
that a global moratorium in necessary as expressed in its 2019 Report to the UN about surveillance
and human rights.

EU action for press freedom and journalists safety

The safety of journalists and press freedom is more at stake than ever. Lately, the World Press
Freedom Index 2021 showed how press freedom in the EU is getting more heterogeneous. The
following EU countries are closing the ranking with bad scores: Poland 64, Greece 70, Malta 81,
Hungary 92 and Bulgaria 112. But countries better-ranked, such as the Netherlands (6), can also
suffer from shocking attacks to press representatives, as demonstrated by the recent murder of a
famous Dutch investigative journalist and crime reporter.

The European Commission released in December 2020 the EU Democracy Action plan. One of the
three pillars of this plan is “Strengthening media freedom and media pluralism». This pillar is
composed of several measures including a forthcoming EU recommendation on journalists safety,
key measures to promote media pluralism, the establishment of an expert group on SLAPS to assist
the Commission in the preparation of legislative proposals and policy initiatives which we could
expect in late 2021.
The Media and Audiovisual Action Plan (December 2020) contains diverse investment and policy
measures aiming to help Europe’s media to be resilient but also to remain competitive at the
European and global level. EU Commissioners Jourová and Breton are also working on designing a
Media Freedom Act to solve the EU law gaps currently preventing the EU to act to solve some media
challenges. The goal would be to build an EU legal arsenal acknowledging media not only as an
economic player but as a key pillar of our democracy. The initiative is due next year, and its exact
content and scope are still secret.

Press, yet considered a watchdog of democracy, is in desperate need of new strings to its bow to
protect itself and retaliate in case of illegitimate interference. Let us hope the EU’s initiatives will
materialize soon and will be up to the challenge.

Specific text for tweet:

Once upon a time, press freedom existed and journalists safety was
ensured? Analysis of Pegasus disclosures💥 and the recent EU🇪🇺
initiatives to ensure free press by @KrackNoemie
Bio & Twitter handle (if first submission, or update needed):

Noémie Krack holds an LL.M. in IP & ICT Law cum laude from the KU Leuven and a Master in law cum
laude with a specialization in European Law from the Université Catholique de Louvain (UCL). She is a
legal researcher at CiTiP, focusing on media law, artificial intelligence, data protection and the
challenges that technology raises for fundamental rights.

Category: Media & Telecommunication (1), Security & Crime (2)

Keywords (max. 4): Pegasus, Surveillance, Press freedom, Privacy Right

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