Protection of Journalistic Sources: Compulsion to Disclose Information without Review by Independent Body a Breach of Right to Freedom of Expression

Sanoma Uitgevers BV v The Netherlands [2010] ECHR 1284 (14 September 2010)

Journalistic material was seized by public authorities in the course of a criminal investigation despite a confidentiality agreement between the journalists and their sources.

Article 10(2) of the European Convention of Human Rights requires that any interference with the right to freedom of expression (art 10(1)) must be ‘prescribed by law’.  The European Court of Human Rights held that this requires not only that intrusions on the right to free expression be explicitly authorized by law, but that procedural safeguards – including an assessment by an impartial and independent body – also must exist.  Furthermore, this assessment must take place prior to the exploitation of the material by the authorities.  The Court held that the quality of the Netherlands law was deficient as no statutory provision existed for judicial review before the police or the prosecution were allowed to seize journalistic materials.  The Court unanimously held that this deficiency amounted to a breach of the right to freedom of expression.

Facts

Journalists from the applicant company – a business which publishes and markets magazines – attended an illegal car race after an invitation by its organizers.  They were given the opportunity to take photographs of the race as well as of participating cars and persons on the condition that the identity of all participants would remain undisclosed.  The police and prosecuting authorities were afterwards led to suspect that one of the vehicles participating in the street race had been used as a getaway car following a ram raid the year before.

The editorial office was requested, initially by police and then by a summons issued by the Amsterdam public prosecutor, to hand over a CD-ROM with the photographs, but refused.

The editor-in-chief was threatened that the whole of the company’s premises could be sealed and searched for the full weekend, and he was temporarily arrested on suspicion of failure to comply with an official order.

The applicant’s lawyers, having the view that judicial authorization was required, requested and obtained the intervention of a duty investigating judge of the Amsterdam Regional Court.  The investigating judge noted that by law he lacked competence in the matter, but expressed the view that the needs of the criminal investigation outweighed the applicant’s company’s journalistic privilege.  He stated that he would have been prepared to give an order to seize the CD-ROM and authorize a search of the offices.  Subsequently, the applicants handed over the CD-ROM which was formally seized by the public prosecutor.  The Regional Court later lifted the order and returned the CD-ROM, but declined the applicant’s request that the information obtained be destroyed and not used.

Decision

After emphasizing that the ‘freedom to receive and impart information and ideas without interference by public authorities’ protected by art 10 of the Convention is one of the ‘cornerstones of freedom of the press’, the Court set out to decide whether there had been an ‘interference’ with a right guaranteed by art 10.  The Court held that it was not necessary and that an act of compulsion had resulted in the actual disclosure or prosecution of journalistic sources to determine whether there had been an interference with the right of journalists to maintain the confidence of these sources.  Furthermore, the Court held that the threat of a search of the applicant’s premises, ‘accompanied as it was by the arrest, for a brief period, of a journalist – was plainly a credible one; the Court must take it as seriously as it would have taken the authorities’ actions had the threat been carried out’.

After concluding that the case indeed did concern an interference with the freedom to receive and impart information as guaranteed under art 10(1), the Court examined whether the interference was permissible under art 10(2), in particular whether the interference was ‘prescribed by law’.

The Court found that a statutory basis for the interference existed in Netherlands law, but there was no statutory requirement of judicial oversight, review or control.  The Court noted that ‘the Convention not only requires that the impugned measure should have some basis in domestic law, but also refesr to the quality of the law in question’.  The Court held that the law must ‘afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Constitution’ and that ‘the law must indicate with sufficient clarity the scope of any [legal discretion granted to the executive] and the manner of its exercise’.

Quality of the law also requires that legal procedural safeguards are provided.  A review by a judge or other independent and impartial decision-making body must be guaranteed.  The review should be undertaken by ‘a body separate from the executive and other interested parties’ and carry out an independent assessment whether the interests of the criminal investigation should override the public interest in the protection of journalistic sources.

In the Netherlands, the power to issue surrender orders was at the time entrusted to the public prosecutor rather then to an independent judge which.  The Court stated:

[I]n terms of procedure…is a ‘party’ defending interests potentially incompatible with journalistic source protection and can hardly be seen as objective and impartial so as to make the necessary assessment of the various competing interests.

The Court held that it was not sufficient that an investigating judge had been involved in the case as there was a lack of legal basis for his involvement; ‘[b]eing nowhere required by law, it occurred at the sufferance of the public prosecutor […] and the investigating judge had no legal authority in [the] matter’.  The Court held that ‘such a situation is scarcely compatible with the rule of law’.  The subsequent review by the Regional Court did not change the situation, as that Court could not prevent the material being examined by police the moment it was in their possession.

The quality of the law was therefore held to be deficient.  The compulsion by the authorities to disclose information in the case was therefore not ‘prescribed by law’ as required by art 10(2) of the Convention. Having reached this conclusion, the Court did not need to ascertain whether the interference complied with the other requirements of art 10(2).

The Court unanimously held that there had been a violation of Article 10 of the Convention.

Relevance to the Victorian Charter

Freedom of expression is protected in Victoria through s 15(2) of the Victorian Charter, but may be subject to lawful restrictions in accordance with s 15(3).

This case shows that a statutory basis for interference with the right to freedom of expression should be accompanied by legal procedural safeguards, especially when dealing with issues concerning the protection of journalistic sources.

The decision is at: www.bailii.org/eu/cases/ECHR/2010/1284.html.

Susanna Hedenmark is a volunteer with the Human Rights Law Resource Centre