The Grand Chamber of the European Court of Human Rights has unanimously found, in Sanoma Uitgevers BV -v- the Netherlands (application no. 38224/03), a violation of Article 10 of the European Convention on Human Rights (freedom of expression) where the seizure of documents which could identify journalists' confidential sources was not attended by sufficient safeguards.
Journalists from a motoring magazine attended an illegal street race and took photos of the participants. They had agreed with the race organizers that they could use the photos on condition that they guaranteed the participants' anonymity. The police ended the race and subsequently contacted the magazine, summoning them to surrender the photographs. When the editor refused to do so, the police arrested him on suspicion of failing to comply with an official order. They subsequently released him. The public prosecutor sought the view of an investigating judge, who stated that the needs of the criminal investigation outweighed journalistic privilege. Under protest, the magazine surrendered the photographs and the public prosecutor took seizure of them.
The Court noted that "a chilling effect will arise wherever journalists are seen to assist in the identification of anonymous sources". On the basis that the case concerned an order for compulsory surrender of journalistic material which contained information capable of identifying journalistic sources, they found an interference with Article 10. The question then arose as to whether such interference was prescribed by law and necessary in a democratic society. The Court's decision turned on the quality of the relevant law. They observed that any interference with the right to protection of sources should be attended with legal procedural safeguards, which included review by a judge or independent and impartial decision-maker. In this case the decision to seize the photographs was for the public prosecutor, who was not in an objective nor impartial position. There was no legal basis for involving the investigating judge, who had no power in respect of the order to surrender information. The quality of law was lacking and Article 10 was breached.
To view the full judgment please click here.
To view the press release please click here.
In 2009 the Irish Supreme Court considered a High Court order directing the Irish Times to answer questions designed to reveal who had leaked information from the Mahon Tribunal. The issue was whether the High Court had correctly balanced the interests of the Tribunal as against the journalists' interests in protecting their sources. The Supreme Court found they had not done so, in breach of the journalists' rights under Article 10.
To view the judgment please click here.