Short analysis of ECtHR 31 March 2009, Sanoma Uitgevers BV v. the Netherlands.
By Dirk Voorhoof
Yesterday, the European Court of Human Rights has delivered a regrettable judgment in a case of protection of journalistic sources: ECtHR 31 March 2009, Sanoma Uitgevers BV v. the Netherlands.
With a 4/3 decision the Court (Third Section) is 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 is in casu not a violation of Article 10 of the ECHR.
Majority : Josep Casadevall, President (Andorra); Corneliu Bîrsan (Romania), Luis López Guerra (Spain), and Egbert Myjer (the Netherlands).
Minority (dissenters) : Ann Power (Ireland), Alvina Gyulumyan (Armenia) and Inete Ziemele (Latvia).
The applicant, Sanoma Uitgevers B.V., is a limited liability company, specialising in publishing and marketing magazines, incorporated under Dutch law and based in Hoofddorp (the Netherlands). Relying on Article 10 (freedom of expression), the company complained of having been compelled to hand over the CD-ROM that could reveal the identity of journalistic sources who, on the promise of anonymity, had provided information about an illegal street car race which took place in January 2002 and of which the publishing company took pictures.
The European Court starts from its established case law, holding that:
"protection of journalistic sources is one of the basic conditions for press freedom, as is recognised and reflected in various international instruments including the Committee of Ministers Recommendation (...). Without such protection, sources may be deterred from assisting the press in informing the public on matters
of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest."
The Court does not, of course, dispute that a compulsory handover of journalistic material may have a chilling effect on the exercise of journalistic freedom of expression. The Court also reiterates that the authorities are not in all cases prevented from demanding a handover of journalistic documents or information. In particular, the domestic authorities are not prevented from balancing the conflicting interests served by prosecuting the crimes concerned against those served by the protection of journalistic privilege; relevant considerations will include the nature and seriousness of the crimes in question, the precise nature and content of the information demanded, the existence of alternative possibilities to obtain the necessary information, and any restraints on the authorities' obtention and use of the materials concerned (compare Nordisk Film & TV A/S v. Denmark (dec.), no. 40485/02, ECHR 2005-XIII). Referring to the facts of the case, the Court's majority of four judges is of the opinion that:
"58. The crimes were serious in themselves, namely the removal of cash dispensers by ramming the walls of buildings in public places with a shovel loader. Not only did they result in the loss of property but they also had at least the potential to cause physical danger to the public. At a ram raid perpetrated on 1 February 2002 theAlthough the European Court expresses some hesitations regarding the way the authorities in the Netherlands acted in this case, it is of the opinion that there was no breach of Article 10:
perpetrators made use of a firearm to facilitate their crime (see paragraph 19 above). It was only after the threat of potentially lethal violence was made that the police and the public prosecutor were moved to demand from the applicant company the information which was known to be in their possession.
59. The Court is satisfied that the information contained on the CD-ROM was relevant to these crimes and, in particular, capable of identifying their perpetrators.
60. Given that the participation of the suspected vehicle in the street race only became known to the police after the race had taken place, the Court is satisfied that no reasonable alternative possibility to identify the vehicle existed at any relevant time".
"62. Finally, the Court has had regard to the extent of judicial involvement in the case. It is disquieting that the prior involvement of an independent judge is no longer a statutory requirement (..). As it was, the public prosecutor obtained the approval of the investigating judge even without being so obliged by domestic law (..); the Court considers this, as an addition to the applicant company's entitlement under statute of review post factum of the lawfulness of the seizure by the Regional Court (..), to satisfy the requirements of Article 10 in the present case.It is obvious that the majority of the Court neglects with this judgment some important principles and aspects regarding protection of journalistic sources. The three dissenting judges express their manifest disagreement with the majority of the Court and develop several pertinent arguments that should have made the Court decide in this case that there has indeed been a violation of Article 10 of the Convention (dissenting opinion of judge Power, joined by judges Gyulumyan and Ziemele). The dissenters point out that the police
63. The Court is bound to agree with the Regional Court that the actions of the police and the public prosecutors were characterised by a regrettable lack of moderation (paragraph 16 above). Even so, in the very particular circumstances of the case, the Court finds that the reasons advanced for the interference complained of were ‘relevant’ and ‘sufficient’ and ‘proportionate to the legitimate aims pursued’. There has accordingly been no violation of Article 10 of the Convention”.
"without any prior judicial assessment or authorisation, arrived at one of the applicant's editorial offices, ordered the editors to surrender all photographic and other materials required for an investigation, declined to give details as to the necessity for the demand, refused to entertain any objection based on journalistic undertakings of confidentiality, threatened, arrested and detained the editor in chief and further threatened to close and search all of the applicant company's premises for an entire weekend (§§ 10-13). What occurred in this case, (..) , is not far removed from (and in certain respects goes beyond) the type of ‘drastic measure’ previously criticised by this Court in finding a violation of Article 10 of the Convention. The absence of any statutory requirement for prior judicial involvement in a case such as this, is, (..) somewhat more than ‘disquieting’ (as the majority considers) and the actions of the police are a great deal more than ‘regrettable’ (§§ 62, 63)".The dissenters also refer to the fact that "the distinction between a journalist's ‘sources’ and his or her ‘materials’ (such as, notes, recordings, photographs) forms part of the rationale relied upon by the majority in its finding of no violation in this case (see §§ 57, 61)” and that
"(..), great caution should be exercised before the law draws too sharp a distinction between such matters. The purpose of the legal of protection of sources is founded upon an important point of principle. This protection is granted to ensure that those who (for reasons of fear or otherwise) disclose, secretly, to journalists matters that are of public interest are not discouraged from so doing by the risk that their identities may be revealed. If legal protection is to be limited, strictly, to non-disclosure of ‘sources’ then such sources may suddenly ‘shut up’, fearful that their identities will be ascertainable once the journalist to whom confidential data has been given is no longer its sole custodian. Such a risk of indirect disclosure is likely to discourage an otherwise courageous ‘source’ from bringing matters of vital interest into the public domain. (..), it is not of pivotal significance that the intention behind a given interference is to identify evidence rather than individuals. It is the fact of interference (with its attendant risk of source identification) that undermines and weakens the worth of a journalist's undertaking. Thus, this Court imposes a high threshold of ‘necessity’ before finding that such interference can be compatible with Article 10."The dissenters are of the opinion that
"because of the importance of the principle at stake, the journalist should be the last, rather than the first, means of arriving at evidence required. Where, in the public interest, a pressing social need to interfere with journalistic confidentiality is asserted then the determination of whether relevant and sufficient reasons have been adduced to substantiate that claim should be made by a competent court having ‘heard’ the competing public interest. Otherwise, the police become judges in their own cause and a fundamental right protected under Article 10 of the Convention is thereby undermined to the detriment of democracy".The dissenters come to the conclusion that the actions of the police in this case were a breach of Article 10 of the Convention. They formulate finally an important warning:
"In finding no violation, the majority merely wags a judicial finger in the direction of the Netherlands authorities but sends out a dangerous signal to police forces throughout Europe, some of whose members may, at times, be tempted to display a similar ‘regrettable lack of moderation’".This judgment indeed "will render it almost impossible for journalists to rest secure in the knowledge that, as a matter of general legal principle, their confidential sources and the materials obtained thereby are protected at law". Organisations of journalists and NGOs advocating freedom of expression and investigative journalism might consider supporting the applicant in order to request for a referral to the Grand Chamber of the European Court of Human Rights, in order to have this judgment 'overturned'.