September 16, 2010
This guestblog is written by professor dr. Dirk Voorhoof*.
On 14 September 2010 the Grand Chamber of the European Court of Human Rights overruled an earlier finding by the Third Section Chamber in a case regarding the protection of journalistic sources. The judgment of 14 September 2010 puts the jurisprudence of the European Court back on the track and creates a new landmark judgment in international human rights law regarding press freedom, the role of media as public watchdogs and protection of journalistic sources. The Grand Chamber has re-established the protection of journalistic sources as “a cornerstone of freedom of the press, without which sources may be deterred from assisting the press in informing the public on matters of public interest”. The 17 judges of the Grand Chamber or the European Court, unanimously, have made clear that it is not up to the police or public prosecutors to compel journalists to reveal their sources, but that a decision is needed by a judge or another independent and impartial body to determine whether a requirement in the public interest overriding the principle of protection of journalistic sources exists. The judge or the independent and impartial body must be in a position to carry out the weighing of the potential risks and respective interests prior to any disclosure.
On 31 March 2009 the Chamber of the Third Section of the European Court of Human Rights (ECtHR) delivered a highly controversial judgment in the case of Sanoma Uitgevers B.V. v. the Netherlands (see also our comment on http://echrblog.blogspot.com/2009/04/protection-of-journalists-sources.html). With a 4/3 decision the Court was of the opinion that the order to hand over a CD-ROM with photographs in the possession of the editor-in-chief of a weekly magazine claiming protection of journalistic sources, did not amount to a violation of Article 10 of the European Convention of Human Rights (ECHR). The finding and motivation of the majority of the Chamber was not only strongly disapproved in the world of media and journalism, but was also firmly criticised by the dissenting judges. Inspired by the arguments of the dissenting judges, Sanoma Uitgevers B.V. requested for a referral to the Grand Chamber, this request being supported by a large number of media, NGOS advocating media freedom and professional organisations of journalists, such as the Open Society Justice Initiative, the Committee to Protect Journalists (CPJ), the Media Legal Defence Initiative, ARTICLE 19, Index on Censorship, Guardian News and Media Limited, the Associated Press, The New York Times Company, La Repubblica, Reuters, Time Inc., The Washington Post Company, the International Federation of Journalists (IFJ), the Dutch Association of Journalists (NvJ), the Dutch-Flemish Association of Investigative Journalists (VVOJ), the Media Lawyers Association, the International Press Institute (IPI), the European Newspaper Publishers Association (ENPA) and the World Association of Newspapers and News Publishers (WAN-IFRA).
On 14 September 2009 the panel of 5 Judges decided to refer the case to the Grand Chamber in application of Article 43 ECHR. By referring the case to the Grand Chamber the panel accepted that the Sanoma case indeed raised a serious question affecting the interpretation or application of Article 10 ECHR and/or concerned a serious issue of general importance (Art. 43 § 2 ECHR).
Precisely one year later, the Grand Chamber of 17 judges has now, on 14 September 2010 overruled the earlier Chamber judgment of 31 March 2009. In essence the Grand Chamber is of the opinion that the right to protect journalistic sources should be safeguarded by sufficient procedural guarantees, including the guarantee ex ante of review by a judge or other independent and impartial decision-making body, before the police or the public prosecutor have access to information capable of revealing such sources. As in the case of Sanoma Uitgevers B.V. v. The Netherlands such a guarantee was not existing, the Grand Chamber is of the opinion that “the quality of the law was deficient in that there was no procedure attended by adequate legal safeguards for the applicant company in order to enable an independent assessment as to whether the interest of the criminal investigation overrode the public interest in the protection of journalistic sources” (§ 100). The Court underlines that although the public prosecutor, like any public official, is bound by requirements of basic integrity, in terms of procedure “he or she 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” (§ 93). Emphasizing the importance of the protection of journalistic sources for press freedom in a democratic society the Grand Chamber of the ECtHR finds a violation of Article 10 ECHR (Compare with: Goodwin v. United Kingdom (no. 17488/90, 27 March 1996); Roemen and Schmit v. Luxembourg (no. 51772/99, 25 February 2003), Ernst a.o. v. Belgium (no. 33400/96, 15 July 2003), Voskuil v. The Netherlands (no. 64752/01, 22 November 2007), Tillack v. Belgium (no. 20477/05, 27 November 2007) and Financial Times Ltd. a.o. v. United Kingdom (no. 821/03, 15 December 2009))
The importance and the impact of the Grand Chamber judgment of 14 September 2010 cannot be underestimated. The Court not only expects that the Netherlands’ authorities will promptly promulgate a legal basis containing the guarantees for an ex ante decision by a judge or independent and impartial body in matters of disclosure of journalistic sources. Also other member states of the European Convention will need to prescribe by law the necessary adequate safeguards in this context. The judgment of the Grand Chamber has manifestly added an extra layer of protection for journalistic sources. There is no doubt that to be in line with the Court’s application of Article 10 ECHR in matters of protection of journalistic sources, member states shall now build in additional procedural safeguards in terms of an ex ante judicial review based on clear criteria.
Some years ago the Belgian legislature had already given a good example by promulgating that only on request of a judge journalists can be compelled to reveal their sources of information, and only if obtaining this information by the authorities can assist in the prevention of crimes that constitute a serious threat to physical integrity of one or more persons, including crimes of terrorism that offend against the physical integrity. Such a decision by a judge to reveal material containing journalistic sources is only legitimate if the requested information is of crucial importance for the prevention of these crimes and the requested information cannot be obtained in another way. The Netherlands’ authorities, but also governments and parliaments of other Council of Europe member states, can certainly be inspired by this provision of the Belgian law of 7 April 2005 regarding the protection of journalistic sources… (for more information, see D. Voorhoof (ed.), Het journalistiek bronnengeheim onthuld, Brugge, Die Keure, 2008 en www.psw.ugent.be/dv).
* The author is a professor at Ghent University and at the University of Copenhagen. He is an expert in the field of media law. The author is also a member of the Human Rights Centre of Ghent University.