Forcing journalists to reveal sources would have “chilling effect” on freedom of expression

Telegraaf Media Nederland Landelijke Media BV and Others v The Netherlands [2012] ECHR, Application no. 39315/06 (22 November 2012)

Summary

The European Court of Human Rights upheld journalists’ right to protect their sources based on the freedom of expression in the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Court stressed the importance of weighing up the national interest against the need to protect journalistic sources, finding that an independent review process is of paramount importance in maintaining the right to freedom of expression under the Convention.

Facts

Two Dutch citizens, along with a publishing company, brought an action against The Netherlands in the European Court of Human Rights alleging breaches of two rights found in the Convention: the right to respect for private and family life, home and correspondence (article 8) and the right to freedom of expression (article 10).

The citizen-applicants were journalists employed by a large daily newspaper. The newspaper published a series of the journalists’ articles relating to a leak of classified information from within the Netherlands secret service (AIVD) to an Amsterdam-based criminal group. The journalists referred to two informants by code name, allegedly recruited by the AIVD to eliminate corruption in the Amsterdam police force and the Public Prosecution Service. In another article, the journalists alleged that secret information concerning AIVD’s investigations had been made available to other criminals.

Dutch police issued the newspaper with an order to surrender the documents containing State secrets concerning the operational activities of AIVD. The proceedings which followed concerned various questions of law.

Proceedings

The publishing company lodged an objection with the Regional Court of The Hague, alleging that the request to surrender the leaked documents was in breach of the Convention right to freedom of expression (article 10) which encompasses the journalistic privilege against disclosure of sources. The Regional Court dismissed the objections, stressing that the journalists were not required to identify the source (despite AIVD stating it would test the documents for fingerprints). The Supreme Court upheld this decision.

The publishing-applicant brought civil proceedings against the State, alleging that the journalists had been subject to telephone tapping and observation, presumably by AIVD agents. The applicants contended that such measures lacked legal basis. The Provisional Measures Judge found that AIVD had made use of its surveillance powers under the Intelligence and Security Services Act2002, and that such use was contrary to article 10 of the Convention.

The State appealed to the Court of Appeal of The Hague, arguing that the tension between the protection of journalistic sources and the protection of State secrets should be resolved in favour of the latter. The Court found that the use of powers of surveillance against the journalists was not per se impermissible, even though the journalists might not be targets themselves. Both parties appealed the Court of Appeal’s decision, with the Supreme Court dismissing both actions.

At the same time, the journalists were questioned as witnesses in criminal proceedings against individuals accused of divulging the State secrets in issue. Further proceedings resulted, concerning the journalists’ refusal to divulge their source.

The applicants later lodged complaints with the Public Prosecution Service, National Ombudsman and relevant Minister.

Decision

The Court considered a number of cases and domestic legislative instruments before turning its attention to relevant international materials, specifically Recommendation No R (2000) 7 on the right of journalists not to disclose their sources (as adopted in 2000 by the Committee of Ministers of the Council of Europe).

The Court asked whether AIVD’s invocation of “special powers” under section 6 of the Intelligence and Security Services Act 2002 was in accordance with the law as required by articles 8 and 10 of the Convention. In order for AIVD’s actions to be in accordance with the law, it needed a basis in domestic law and the domestic law needed to be compatible with the rule of law (it must provide a measure of legal protection against arbitrary interference by public authorities with the rights safeguarded by articles 8 and 10 of the Convention).

The Court accepted that AIVD’s purpose in seeking to identify the person who supplied the secret documents to the journalists was subordinate to its main aim, to discover and seal the leak. The Court was further prepared to accept that the possibility of being placed under surveillance was foreseeable, in the sense that the journalists must have known that the information which had fallen into their hands was classified information and that publishing such information would likely provoke an action aimed at discovering the source.

The Court, however, agreed with the applicants, finding that the law did not provide adequate protection required by journalistic sources as review after the fact could not restore the confidentiality of journalistic sources once destroyed. Essentially, the Court found it problematic that there was no independent review process by which the proposed breach of confidentiality could be assessed. Therefore, AIVD’s use of special powers (that is, its surveillance of the journalists) was contrary to articles 8 and 10 of the Convention.

Finally, the Court considered whether the order against the applicants, to surrender the original documents, was intended to identify the journalistic source. It was not disputed that the aims pursued by the interference were, at the very least, “national security” and “the prevention of crime”. The issue was whether the order was “necessary in a democratic society … [and] in the interests of national security”, as per articles 8 and 10 of the Convention. Accordingly, having regard to the importance of the protection of journalistic sources for press freedom and the “chilling effect” such an order could have on that freedom, the Court was reluctant to justify the surrender order. As withdrawal of the documents from circulation could no longer prevent the relevant information falling into the wrong hands, the Court took the view that the actual handover of the documents was not necessary and therefore any such order was a violation of article 10 of the Convention.

Commentary

The right to privacy expressed in article 8 of the Convention is reflected in section 13 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) which relevantly states that a person “has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with”.

The wording of the Convention offers stronger protection than section 13, as the Charter does not expand on the meaning of “arbitrary interference”. A General Comment of the UN Human Rights Committee has interpreted the term “arbitrary” to mean unreasonable in the circumstances. It is unclear whether a Victorian court would interpret surveillance laws which lack appropriate safeguards as “arbitrary” or “unreasonable” as did the European Court of Human Rights. This case nonetheless offers a timely restatement of international privacy and surveillance standards.

Similarly, the right to freedom of expression expounded in article 10 of the Convention is reflected in section 15 of the Charter which provides that “every person has the right to freedom of expression … [which] may be subject to lawful restrictions reasonably necessary to respect the rights and reputation of other persons or for the protection of national security, public order, public health or public morality”. Again, the Convention goes further than the Charter in protecting the freedom of expression, however the Charter does pick up on the Convention’s salient themes, namely national security, order, health, morality and reputation.

This decision can be found online at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-114439.

Emily Brott is a solicitor at King & Wood Mallesons.