comparative media law ghent university comparative media law ghent university protection of...

Comparative Media LawComparative Media LawGhent UniversityGhent University

Protection of Protection of journalistic journalistic

sourcessources

SESSION 5SESSION 5

Why journalistic sources need protection? Why journalistic sources need protection?

The legal framework and the perspective ofThe legal framework and the perspective ofArticle 10 European Convention of Human Rights Article 10 European Convention of Human Rights

Journalistic sources must be Journalistic sources must be protected!protected!

To guarantee anonimity, To guarantee anonimity, confidentialityconfidentiality

No information flow without sources No information flow without sources Protection of “whistle-blowers”Protection of “whistle-blowers” Media as public watchdog Media as public watchdog Importance for investigative Importance for investigative

journalismjournalism Journalists are no instruments of Journalists are no instruments of

police or judiciary (perception!)police or judiciary (perception!) Chilling effectChilling effect

A dilemmaA dilemma

Journalist and broadcasting company Journalist and broadcasting company broadcast a television programme investigating broadcast a television programme investigating

paedophilia paedophilia Undercover – hidden camera – masking of personsUndercover – hidden camera – masking of persons

Legal perspective:Legal perspective:

The journalist should The journalist should be compelled by be compelled by court order to hand court order to hand over limited over limited specified unedited specified unedited footage and notes in footage and notes in order to help to order to help to identify a person identify a person suspected of child suspected of child abuseabuse

Journalistic perspective:Journalistic perspective:

This information This information should not be should not be revealed and should revealed and should not fall in the hands of not fall in the hands of the police, the public the police, the public prosecutor or the prosecutor or the judgejudge

Universal principle:Universal principle:

Anyone can be compelled to give assistance to Anyone can be compelled to give assistance to the truth-finding by the judiciary, to give the truth-finding by the judiciary, to give evidence that can be helpful for the court evidence that can be helpful for the court identifying persons suspected of crime, identifying persons suspected of crime, preventing crime…preventing crime…

Exceptions? Exceptions? Doctors, lawyers, priests Doctors, lawyers, priests

… duty of secrecy … duty of secrecy What about journalists?What about journalists?

Codes of ethics:Codes of ethics:

Fundamental duty for journalists to protect Fundamental duty for journalists to protect their sources!their sources!

Journalists claim a “privilege”, a right or an Journalists claim a “privilege”, a right or an exception not to be compelled to reveal their exception not to be compelled to reveal their sources, not to give evidence to the courtsources, not to give evidence to the court

See See www.media-accountability.orgwww.media-accountability.org

Protection of journalistic sources in the US:Protection of journalistic sources in the US:a First Amendment perspectivea First Amendment perspective

Case of J. Miller (NY Times) – ‘Plame-gate’Case of J. Miller (NY Times) – ‘Plame-gate’

Bill introduced in Senate: Bill introduced in Senate: “Free Flow of Information Act”“Free Flow of Information Act”

10 September 2007, October 200710 September 2007, October 2007

““To maintain the free flow of information to the public by To maintain the free flow of information to the public by providing conditions for the federally compelled disclosure providing conditions for the federally compelled disclosure of information by certain persons connected with the news of information by certain persons connected with the news mediamedia “ “

Protection of journalistic sources in Belgium:Protection of journalistic sources in Belgium:

2003: ECtHR – Ernst e.a. v. Belgium: violation of Article 10 ECHR2003: ECtHR – Ernst e.a. v. Belgium: violation of Article 10 ECHR

2004: H.M. Tillack, 2004: H.M. Tillack, SternStern, search and confiscation reporting on EU-fraude, , search and confiscation reporting on EU-fraude, Leaked report, bribery (?)Leaked report, bribery (?)Court of Cassation 1/12/2005, ECOI 4/10/2006Court of Cassation 1/12/2005, ECOI 4/10/2006Case pending before ECtHRCase pending before ECtHR

2005: Law on protection of journalistic sources2005: Law on protection of journalistic sources

2006: Constitutional Court on Law POJS2006: Constitutional Court on Law POJS

2007: Court Brussels - conviction of Belgian State for registering phone 2007: Court Brussels - conviction of Belgian State for registering phone calls of journalist reporting on anti-terror action by police/judiciary, calls of journalist reporting on anti-terror action by police/judiciary, breach of Article 10 ECHR.breach of Article 10 ECHR.

Protection of journalistic sources in France:Protection of journalistic sources in France:

- 2005, press articles reporting on doping scandal in Tour de France, 2005, press articles reporting on doping scandal in Tour de France, searches at offices of searches at offices of Le Point and L’EquipeLe Point and L’EquipeLeaks in criminal investigationLeaks in criminal investigation

- 2006, French police raided the office of daily 2006, French police raided the office of daily Midi LibreMidi Libre to look for to look for

“confidential” information about the management of the Languedoc-“confidential” information about the management of the Languedoc-Roussillon Regional Council.Roussillon Regional Council.Complaint of “violation of professional secrecy” Complaint of “violation of professional secrecy”

- Bill introduced in ParliamentBill introduced in Parliament

Protection of journalistic sources in the Netherlands:Protection of journalistic sources in the Netherlands:

- 2006: Case of “De Telegraaf”2006: Case of “De Telegraaf”

Leaks from AIVD, intelligence servicesLeaks from AIVD, intelligence servicesJournalists put in jail - ordered to reveal sourcesJournalists put in jail - ordered to reveal sourcesDecision Court Den Hague, 30 November 2006: journalisted releasedDecision Court Den Hague, 30 November 2006: journalisted releasedViolation of Art. 10 ECHR.Violation of Art. 10 ECHR.

- Proposals to introduce bill in parliamentProposals to introduce bill in parliament

Protection of journalistic sources in Germany:Protection of journalistic sources in Germany:

2007: case of “Cicero” – Constitutional Court 2007: case of “Cicero” – Constitutional Court Police search and confiscation Police search and confiscation Magazine reported on terrorist Abu Mousab Zarqawi, based Magazine reported on terrorist Abu Mousab Zarqawi, based on leaked on leaked information of federal police (Bundeskriminalamt)information of federal police (Bundeskriminalamt)

BVergGe 27 February 2007 ruled that these measures violatedBVergGe 27 February 2007 ruled that these measures violated the freedom of the press as protected by art. 5 GG.the freedom of the press as protected by art. 5 GG.

“Die Durchsuchung der Presseräume und die Anordnung der “Die Durchsuchung der Presseräume und die Anordnung der Beslagnahme (..) greift in besondere maBeslagnahme (..) greift in besondere maße in die vom ße in die vom Grundrecht der Grundrecht der Pressefreiheit umfasste Vertraulichkeit der Redaktionsarbeit, aber auch Pressefreiheit umfasste Vertraulichkeit der Redaktionsarbeit, aber auch in ein etwaiges Vertrauensverhältnis zu Informanten”in ein etwaiges Vertrauensverhältnis zu Informanten”

Protection of sources under Protection of sources under umbrella of freedom of expression?umbrella of freedom of expression?

Article 10 EConvHr contains no Article 10 EConvHr contains no reference to freedom to seek reference to freedom to seek information, nor any explicit information, nor any explicit reference to the protection of reference to the protection of journalistic sourcesjournalistic sources

(cfr. Art. 19 ICCPR)(cfr. Art. 19 ICCPR)

The Journalist’s Sources in The Journalist’s Sources in Europe?Europe?

1/ Goodwin v. UK1/ Goodwin v. UK27 March 199627 March 1996

2/ Roemen and Schmit v. Luxembourg2/ Roemen and Schmit v. Luxembourg25 February 200325 February 2003

3/ Ernst and others v. Belgium3/ Ernst and others v. Belgium15 July 200315 July 2003

Three judgments finding a Three judgments finding a violation of Article 10 Convention!violation of Article 10 Convention!

Goodwin v. UKGoodwin v. UKEuropean Court Human Rights European Court Human Rights

27 March199627 March1996

Facts

William Goodwin – “The Engineer”Confidential corporate planOrder for disclosure of sourcesJournalist refusedContempt of court (fine)

Contempt of Court (UK)Contempt of Court (UK)

Principle: Obligation to reveal information required by the judge/court

Exception: Sources of information contained in a publication

Exception on exception: If disclosure is necessary in the interest of

justice or prevention of disorder of crime

Judgment ECtHR 27 March Judgment ECtHR 27 March 19961996

Principle = protection of sources as basic condition for Principle = protection of sources as basic condition for press freedom press freedom

Court: “Court: “Without such protection sources may be Without such protection sources may be deterred from assisting the press in informing the deterred from assisting the press in informing the public on matters of public interestpublic on matters of public interest””

Article 10 guarantees journalists a right to refuse to Article 10 guarantees journalists a right to refuse to reveal their sources, unless there is “reveal their sources, unless there is “an overriding an overriding requirement in the public interestrequirement in the public interest””

Compelling order to reveal the journalist’s source Compelling order to reveal the journalist’s source in in casucasu was breach of Article 10 Convention was breach of Article 10 Convention

Roemen & Schmit v. LuxembourgRoemen & Schmit v. LuxembourgECtHR 25 February 2003ECtHR 25 February 2003

Article: “Minister W. convicted of tax Article: “Minister W. convicted of tax evasion!”evasion!”

Criminal complaint -> Investigation of Criminal complaint -> Investigation of offence of breach of confidenceoffence of breach of confidence

Inquiry in order to identify civil Inquiry in order to identify civil servant who leaked the documentsservant who leaked the documents

Searches in home and place of work Searches in home and place of work of journalist and his lawyerof journalist and his lawyer

> >

Roemen & Schmit v. Roemen & Schmit v. LuxembourgLuxembourg

Judgment ECtHR 25 February Judgment ECtHR 25 February 20032003

European Court: searches fell within the ambit of the European Court: searches fell within the ambit of the protection of journalistic sources as protected by protection of journalistic sources as protected by Article 10 ConventionArticle 10 Convention

Searches even greater treath to freedom of Searches even greater treath to freedom of expression of journalists than an order to reveal expression of journalists than an order to reveal informationinformation

Violation of Article 10 (Journalist)Violation of Article 10 (Journalist)

Violation of Article 8 (Lawyer)Violation of Article 8 (Lawyer)

Ernst and others v. BelgiumErnst and others v. BelgiumECtHR 15 July 2003ECtHR 15 July 2003

Leaks in serious criminal cases under Leaks in serious criminal cases under investigationinvestigation

Searches at newsdesks and in head offices of Searches at newsdesks and in head offices of Le Soir, Le Soir Illustré, RTBFLe Soir, Le Soir Illustré, RTBF

Searches in private homes Searches in private homes of journalists of journalists

““Fishing operation”Fishing operation”

Ernst and others v. BelgiumErnst and others v. Belgium15 July 200315 July 2003

Arguments of the Court:Arguments of the Court:

- large scale- large scale of the searches performed in 8 of the searches performed in 8 operations involving 160 police officers. operations involving 160 police officers.

- Belgian Government had not stated in what - Belgian Government had not stated in what way the way the applicantsapplicants were alleged to have were alleged to have been been involved involved in the offences concernedin the offences concerned


- Belgian Government had not taken - Belgian Government had not taken measures directly against members of measures directly against members of the State legal service who could be the State legal service who could be responsible for the leaksresponsible for the leaks


Other meansOther means could have been employed could have been employed to identify the responsible for the to identify the responsible for the breaches of confidence.breaches of confidence.

No No fair balance between the competing fair balance between the competing interestsinterests..


Regarding the Regarding the interest of democratic interest of democratic societies in ensuring and maintaining societies in ensuring and maintaining freedom of the pressfreedom of the press the means the means employed were employed were not reasonably not reasonably proportionateproportionate to the legitimate aims to the legitimate aims pursued pursued

Violation of Article 10!Violation of Article 10!

De Haes & Gijsels v. Belgium De Haes & Gijsels v. Belgium 24 February 199724 February 1997

Journalist as an “accused” Journalist as an “accused” because of defamation: because of defamation:

consider alternative evidence consider alternative evidence to journalists’ sources to journalists’ sources if available to the judiciaryif available to the judiciary

Fressoz & Roire v. France Fressoz & Roire v. France Judgment ECtHR 21 January Judgment ECtHR 21 January

19991999

The interest of the public The interest of the public being informed can outweigh being informed can outweigh the duties and responsibilities the duties and responsibilities and criminal law provisions and criminal law provisions that in principle are to be that in principle are to be respected by journalists respected by journalists (confidentiality of tax files)(confidentiality of tax files)

Journalists are not to be Journalists are not to be considered responsible for the considered responsible for the breach of professional breach of professional secrecy by otherssecrecy by others

Actual problemsActual problems Police and investigative judges are not Police and investigative judges are not

sufficiently aware of Article 10 perspectivesufficiently aware of Article 10 perspective Seizures and phone tapping, interception or Seizures and phone tapping, interception or

datacollection with regard to datacollection with regard to telecommunication/internet communicationtelecommunication/internet communication

Witnesses at trials international courtsWitnesses at trials international courts Journalist as accused (“Journalist as accused (“breach of breach of

confidenceconfidence”)”) Risks for journalists! Risks for journalists! Orders to give imagesOrders to give images

How to apply Article 10 case law > Court?How to apply Article 10 case law > Court?

Rec. 2000(7) on the right of Rec. 2000(7) on the right of journalists NOT to disclose journalists NOT to disclose

their sourcestheir sources(Com. of Ministers, COE, March (Com. of Ministers, COE, March

2000)2000)

1. Domestic law should provide the right of 1. Domestic law should provide the right of journalistsjournalistsnot to disclose information identifying a not to disclose information identifying a sourcesource

2. Equal right of other persons in 2. Equal right of other persons in professional relation with journalistsprofessional relation with journalists


their sourcestheir sources

3. Limits to the right of non-disclosure3. Limits to the right of non-disclosure- No alternatives - No alternatives (subsidiarity)(subsidiarity)- Overriding requirement in public interest- Overriding requirement in public interest (proportionality)(proportionality) a. major crimea. major crime

b. defence of accused person – major crimeb. defence of accused person – major crime



4. Legal proceedings against journalist 4. Legal proceedings against journalist (defamation)(defamation)

Alternative evidenceAlternative evidenceNot require the disclosure of Not require the disclosure of

informationinformationidentifying a source by a journalistidentifying a source by a journalist

5. Conditions concerning disclosures5. Conditions concerning disclosures (procedures, judge) (procedures, judge)



6. Interception of communication, judicial 6. Interception of communication, judicial searchsearch and seizure, surveillance of journalist and seizure, surveillance of journalist

Not circumventing the principle Not circumventing the principle

of protection of sourcesof protection of sources

7. Protection against self-incrimination7. Protection against self-incrimination

Key issues Key issues

1. Who’s a journalist or rather who can claim 1. Who’s a journalist or rather who can claim the protection of journalistic sources?the protection of journalistic sources?

2. How to decide what an overriding 2. How to decide what an overriding requirement in the public interest is? requirement in the public interest is? Criteria?Criteria?

3. Preventing circumventing measures3. Preventing circumventing measures

such as searching/confiscation/tapping!such as searching/confiscation/tapping!

4. Evidence as an accused –> alternatives!4. Evidence as an accused –> alternatives!

5. Prosecution of journalist because of offence 5. Prosecution of journalist because of offence of breach of (professional) confidence, of breach of (professional) confidence, fencing?fencing?

Specific issueSpecific issue

ECommHR - BBC v. UKECommHR - BBC v. UK

18/1/199618/1/1996“The full picture “The full picture should beshould bebefore the Court”before the Court”

Film/pictures/information with evidence Film/pictures/information with evidence of serious crime and/or identifying of serious crime and/or identifying persons involved: protection of persons involved: protection of “sources”?“sources”?

Your opinion?Your opinion?

Article 10 applicable? Article 10 applicable?

- Interference in freedom of expression?Interference in freedom of expression?- ““Protection of sources”?Protection of sources”?

-> confidentiality?-> confidentiality?- Distinction: broadcasted/publishedDistinction: broadcasted/published

or not? or not?- Criteria of subsidiarity andCriteria of subsidiarity and

proportionality?proportionality?- Problem of perception? Chilling effect?Problem of perception? Chilling effect?

Article 10 applicable? Article 10 applicable?

- ECourtHR 1 December 2005ECourtHR 1 December 2005Nordisk Film & TV SA vs. DenmarkNordisk Film & TV SA vs. Denmark

- Footages/images are no “sources”Footages/images are no “sources”- But application of art. 10 EConvHRBut application of art. 10 EConvHR- Necessary= “Major crime”, alleged serious Necessary= “Major crime”, alleged serious

offenceoffence- Order with respect of protection of Order with respect of protection of

sourcessources- Complaint manifestly inadmissableComplaint manifestly inadmissable

Order to give images Order to give images in casuin casu no violation no violation of article 10 EConvHRof article 10 EConvHR

Recent case ECtHR on POJSRecent case ECtHR on POJS

ECtHR 31 January 2006ECtHR 31 January 2006Stângu and Scutenicu v. RomaniaStângu and Scutenicu v. Romania Journalist as accused of defamation can be Journalist as accused of defamation can be expected to give evidence of factual basis of expected to give evidence of factual basis of allegation, does not necesseraly imply that they allegation, does not necesseraly imply that they have to reveal the identity of their sourceshave to reveal the identity of their sources

ECtHR ECtHR 3131 May May 20072007Šečič v. CroatiaŠečič v. Croatia

Violation of Art. 3: inhuman treatment, positive Violation of Art. 3: inhuman treatment, positive obligation of state to investigate racist attacks, obligation of state to investigate racist attacks, court should have been requested to determine court should have been requested to determine whether journalist could have been ordered to whether journalist could have been ordered to reveal identity of person.reveal identity of person.

Reports POJS in national Reports POJS in national law law

28 November 28 November 2007 2007

1. Who’s a journalist or rather who 1. Who’s a journalist or rather who can claim the protection of can claim the protection of journalistic sources?journalistic sources?

2. How to decide what an overriding 2. How to decide what an overriding requirement in the public requirement in the public interest is? Criteria for interest is? Criteria for exceptions?exceptions?

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