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SANOMA UITGEVERS B.V. v. THE NETHERLANDS - 38224/03 [2009] ECHR 994 (31 March 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/994.html
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[2009] ECHR 994
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THIRD
SECTION
CASE OF SANOMA UITGEVERS B.V. v. THE NETHERLANDS
(Application
no. 38224/03)
JUDGMENT
STRASBOURG
31 March 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Sanoma Uitgevers
B.V. v. the Netherlands,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Luis
López Guerra,
Ann Power, judges,
and
Santiago Quesada,
Section Registrar,
Having
deliberated in private on 10 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 38224/03) against the Kingdom
of the Netherlands lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a limited liability
company (besloten vennootschap met beperkte aansprakelijkheid)
incorporated under Netherlands law, Sanoma Uitgevers B.V. (“the
applicant company”), on 1 December 2003.
The
applicant company were represented initially by Ms E.Z. Perez and
later by Mr D.R. Doorenbos, both at relevant times lawyers practising
in Amsterdam. The Netherlands Government (“the Government”)
were represented by their Agents, Mr R.A.A. Böcker and Ms J.
Schukking of the Ministry for Foreign Affairs.
The
applicant company alleged, in particular, that their rights under
Article 10 had been violated as a result of their having been
compelled to give up information that would allow sources of
journalistic information to be identified.
On
23 March 2006 the President of the Third Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Factual background
The
applicant company are based in Hoofddorp. Their business is
publishing and marketing magazines, including the weekly Autoweek
which caters to those who are interested in motor cars.
The
facts of the case, as submitted by the parties and apparent from
documents available to the public, may be summarised as follows.
On
12 January 2002, an illegal street race was held in an industrial
area on the outskirts of the town of Hoorn. Journalists of Autoweek
attended this race at the invitation of its organisers. The
journalists were given the opportunity to take photographs of the
street race and of the participating cars and persons. Before they
were given permission to take photographs, the journalists were made
to guarantee the participants that the latter's identity would remain
undisclosed. The street race was ended by the police, who were
present and eventually intervened. The police did not make any
arrests.
The
applicant company intended to publish an article about illegal car
races in Autoweek no. 7/2002 of 6 February 2002. This article
would be accompanied by photographs of the car race held on 12
January 2002. These photographs would be edited in such a manner that
the participating cars and persons were unidentifiable, thus
guaranteeing the anonymity of the participants in the race. The
original photographs were stored by the applicant company on a
CD-ROM, which was kept in the editorial office of a different
magazine published by the applicant company (not Autoweek).
B. The seizure of the CD-ROM and ensuing proceedings
In
the morning of Friday 1 February 2002, a police officer contacted the
Autoweek editorial office by telephone, summoning the editors
to surrender to the police all photographic materials concerning the
street race of 12 January 2002. This police officer was informed
by the staff member whom she had called, i.e. the features chief
editor (chef reportage), that this request could not be met as
the journalists had only been given permission to take photographs of
the street race after having guaranteed the anonymity of the
participants in the race. He further told this police officer that he
thought that the press was reasonably protected against this kind of
[police] actions and advised her to contact the editorial office in
writing.
In
the afternoon on 1 February 2002, two police detectives visited the
Autoweek editorial office and, after having unsuccessfully
tried to obtain a surrender of the photographs, issued to the
Autoweek editor-in-chief a summons within the meaning of
Article 96a of the Code of Criminal Procedure (Wetboek van
Strafvordering). This summons was issued by the Amsterdam public
prosecutor and ordered the applicant company to surrender, in the
context of a criminal investigation into offences defined in Articles
310-312 of the Criminal Code (Wetboek van Strafrecht) against
an unspecified person, the photographs taken on 12 January 2002
during the illegal street race in Hoorn and all pertaining materials.
On behalf of the applicant company, the Autoweek
editor-in-chief Mr B. refused to surrender the photographs,
considering this to be contrary to the undertaking given by the
journalists to the street race participants as regards their
anonymity.
Later
that day, a telephone conversation was held between, on the one side,
two public prosecutors and, on the other, the lawyer of the applicant
company. The lawyer was told by the public prosecutors that “it
concerned a matter of life and death”. A further explanation
was not given and the lawyer's request to amend the summons was not
entertained.
The
police detectives and the public prosecutors threatened to detain
Mr B. during the weekend of 2 and 3 February for having acted in
violation of Article 184 of the Criminal Code, i.e. the offence of
failure to comply with an official order (ambtelijk bevel),
and to close and search the applicant company's premises if need be
for the entire weekend period. The latter action would entail
considerable financial damage for the applicant company as, during
that weekend, articles were to be prepared for publication on the
subject of the wedding of the Netherlands Crown Prince, due to take
place on 2 February 2002.
At
6.01 p.m. on 1 February 2002, Mr B. was arrested on suspicion of
having violated Article 184 of the Criminal Code. He was not taken to
the police station but remained on the applicant company's premises.
After the Amsterdam public prosecutor had arrived on these premises
and after Mr B. had been brought before the prosecutor, Mr B. was
released at 10 p.m.
The
applicant company then consulted their own lawyer and a second
lawyer. The latter spoke with the public prosecutors involved, after
which the duty investigating judge (rechter-commissaris) of
the Amsterdam Regional Court (arrondissementsrechtbank) was
contacted by telephone. After having spoken with one of the lawyers
assisting the applicant company, and after having been briefed by one
of the public prosecutors, the investigating judge expressed the view
that the needs of the criminal investigation outweighed the applicant
company's journalistic privilege. On 2 February 2002 at 1.20 a.m.,
the applicant company, through their lawyer, surrendered the CD-ROM
containing the photographs under protest to the public prosecutor,
who formally seized it.
On
15 April 2002 the applicant company filed a complaint under Article
552a of the Code of Criminal Procedure, seeking the lifting of the
seizure and restitution of the CD ROM, an order to the police
and prosecution department to destroy copies of the data recorded on
the CD-ROM and an injunction preventing the police and prosecution
department from taking cognisance or making use of information
obtained through the CD-ROM.
On
5 September 2002 a hearing was held before the Regional Court during
which the public prosecutor explained why the surrender of the
photographs had been necessary. The summons complained of had been
issued in the context of a criminal investigation of serious
criminals who had pulled cash dispensers out of the wall with the aid
of a shovel loader, and there was reason to believe that a car used
by participants in the street race could lead to the perpetrator(s)
of those robberies.
In
its decision of 19 September 2002 the Regional Court granted the
request to lift the seizure and to return the CD-ROM to the applicant
company as the interests of the investigation did not oppose this. It
rejected the remainder of the applicant company's complaint. It found
the seizure lawful and, on this point, considered that a
publisher/journalist could not, as such, be regarded as enjoying the
privilege of non-disclosure (verschoningsrecht) under Article
96a of the Code of Criminal Procedure. Statutorily, the persons
referred to in Article 218 of the Code of Criminal Procedure and
acknowledged as enjoying the privilege of non-disclosure were,
amongst others, public notaries, lawyers and doctors. It considered
that the right to freedom of expression, as guaranteed by Article 10
of the Convention, included the right freely to gather news (recht
van vrije nieuwsgaring) which, consequently, deserved protection
unless outweighed by another interest warranting priority. It found
that, in the instant case, the criminal investigation interest
outweighed the right to free gathering of news in that, as explained
by the public prosecutor during the hearing, the investigation at
issue did not concern the illegal street race, in which context the
undertaking of protection of sources had been given, but an
investigation into other serious offences. The Regional Court was
therefore of the opinion that the case at hand concerned a situation
in which the protection of journalistic sources should yield to
general investigation interests, the more so as the undertaking to
the journalistic source concerned the street race whereas the
investigation did not concern that race. It found established that
the data stored on the CD-ROM had been used for the investigation of
serious offences and that it had been made clear by the prosecutor
that these data were relevant to the investigation at issue as all
other investigation avenues had led to nothing. It therefore
concluded that the principles of proportionality and subsidiarity had
been complied with and that the interference had thus been justified.
The Regional Court did not find that the seizure had been rash,
although more tactful action on the part of the police and the public
prosecutor might have prevented the apparent escalation of the
matter.
The
applicant company's subsequent appeal in cassation was declared
inadmissible by the Supreme Court (Hoge Raad) on 3 June 2003.
The Supreme Court held that, as the Regional Court had accepted the
applicant company's complaint in so far as relating to the request to
lift the seizure and to return the CD-ROM, the applicant company no
longer had an interest in their appeal against the ruling of 19
September 2002. Referring to its case-law (Supreme Court, 4 October
1988, Nederlandse Jurisprudentie (Netherlands Law Reports;
“NJ”) 1989, no. 429, and Supreme Court, 9 January
1990, NJ 1990, no. 369), it held that this finding was not altered by
the circumstance that the complaint – apart from a request to
return the CD-ROM – also contained a request to order that any
print-outs or copies of the CD-ROM were to be destroyed and that data
collected with the aid of the CD-ROM could not be used, as neither
Article 55a nor any other provision of the Code of Criminal Procedure
provided for the possibility to obtain, once a seized item has been
returned, in a procedure like the present one a declaratory ruling
that the seizure or the use of the seized item was unlawful.
C. Factual information submitted by the Government
In
their observations on the admissibility and merits of the
application, the Government stated the following:
“6. To supplement the summary of the facts
appended to the Court's letter of 28 March 2006 [giving notice
of the application to the respondent Contracting Party under Rule 54
§ 2 (b) of the Rules of Court], the Government would make the
following observations
7. The order in question, issued under Article 96a of
the Dutch Code of Criminal Procedure (..., 'CCP'), requiring the
surrender for seizure of a CD-ROM containing photographs was closely
related to a criminal investigation initiated following a series of
ram raids in which cash machines were pulled from the wall with a
shovel loader. These ram raids took place on 20 September 2001, 6
November 2001 and 30 November 2001. A group of men was suspected
of perpetrating the ram raids and two members of the group ('A' and
'M') were the main suspects. A telephone conversation involving M,
tapped in the context of the investigation on 12 January 2002,
revealed that M and A had participated in an illegal street race in
Hoorn with an Audi RS4 that day. The investigation team knew that
journalists from the weekly magazine Autoweek had taken
photographs of the illegal street race.
8. On 1 February 2002 another ram raid took place.
During the incident, a bystander was threatened with a firearm. After
ramming a cash machine, the perpetrators hauled it off in a lorry,
which was followed closely by an Audi. The police, who had already
been informed of the incident, saw the lorry stop and the driver get
into an Audi, which then drove away with three people inside. The
police followed, but the Audi accelerated to over 200 kilometres per
hour and disappeared from view.
9. The police suspected that the Audi used in the
illegal street race in Hoorn on 12 January 2002 was the same
Audi observed at the ram raid on 1 February 2002. With that in mind,
the public prosecutor decided that day (1 February 2002) to issue an
order under Article 96a of the CCP in order to obtain the photographs
taken at the street race.
10. The course of events is summarised below:
24 July, 26 July and 30 November 2001:
12 January 2002:
illegal
street race in Hoorn, in which A and M participated with an Audi
RS4;
later
that day: the public prosecutor learns from a tapped conversation
that A and M took part in the street race with an Audi RS4;
1 February 2002:
new ram
raid, involving an Audi;
later
that day, at approximately 14.30: order issued under Article 96a of
the CCP.”
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW
A. Relevant domestic law
1. Relevant provisions of the Code of Criminal Procedure and the
Criminal Code
Under
Article 96a of the Code of Criminal Procedure, every civil servant
invested with investigative powers (opsporingsambtenaar) may –
in case of suspicion of an offence attracting a prison sentence of
four years or more – such as for instance the offences defined
in Articles 310-312 of the Criminal Code (theft; theft under
aggravating circumstances; robbery) – or of a number of other
specified criminal acts not relevant to the present case (Article 67
§ 1 of the Code of Criminal Procedure) – order any person
who is reasonably believed to hold an item eligible for seizure to
surrender it for that purpose. Article 96a of the Code of Criminal
Procedure entered into force on 1 February 2000. Prior to this date,
only the investigating judge was competent to issue an order to
surrender items for the purpose of seizure (former Article 105 of the
Code of Criminal Procedure).
A
failure to comply with such an order constitutes an offence as
defined in Article 184 (failure to comply with an official order) or
Article 193 (failure to make available documents) of the
Criminal Code. Pursuant to Article 96a §§ 1 and 2 of the
Code of Criminal Procedure, no such order may be given to the suspect
or to a person who, by virtue of Articles 217-219 of the Code of
Criminal Procedure, enjoys the privilege of non disclosure. Such
persons are an accused's relatives, (former) spouse and (former)
registered partner (Article 217); persons who, by virtue of their
position, profession or office, are bound to secrecy albeit that
their privilege of non-disclosure only covers matters the knowledge
of which has been entrusted to them in that capacity (Article 218;
for further details about this category, see Mulders v. the
Netherlands, no. 23231/94, Commission decision of 6 April 1995,
and Aalmoes and Others v. the Netherlands (dec.), no 16269/02,
25 November 2004), and persons who, by giving evidence, expose
themselves, their relatives to the second or third degree, their
(former) spouse or their (former) registered partner to the risk of a
criminal conviction (Article 219).
Any
interested person can lodge an objection against the seizure of an
object, the refusal to return a seized object, or the examination
(kennisneming) or use of electronic data. Such an objection is
heard in public by the Regional Court, which has the power to give
whatever orders the situation may require (Article 552a of the Code
of Criminal Procedure).
2. Relevant domestic case-law and other non-statutory materials
Until
11 November 1977, the Netherlands Supreme Court did not recognise a
journalistic privilege of non-disclosure. On that date, it handed
down a judgment in which it found that a journalist, when asked as a
witness to disclose his source, was obliged to do so unless it could
be regarded as justified in the particular circumstances of the case
that the interest of non-disclosure of a source outweighed the
interest served by such disclosure. This principle was reversed by
the Supreme Court in a landmark judgment of 10 May 1996 on the basis
of the principles set out in the Court's judgment of 27 March 1996 in
the case of Goodwin v. the United Kingdom (Reports of
Judgments and Decisions 1996 II). In this ruling, the
Supreme Court accepted that, pursuant to Article 10 of the
Convention, a journalist was in principle entitled to non-disclosure
of an information source unless, on the basis of arguments to be
presented by the party seeking disclosure of a source, the judge was
satisfied that such disclosure was necessary in a democratic society
for one or more of the legitimate aims set out in Article 10 § 2
of the Convention (NJ 1996, no. 578). In a judgment given on 2
September 2005 concerning the search of premises of a publishing
company on 3 May 1996 (Landelijk Jurisprudentie Nummer
[National Jurisprudence Number] LJN AS6926), the Supreme Court held
inter alia:
“The right of freedom of expression, as set out in
Article 10 of the Convention, encompasses also the right freely to
gather news (see, amongst others, Goodwin v. the United Kingdom,
judgment of 27 March 1996, NJ 1996, no. 577; and Roemen
and Schmit v. Luxembourg,
judgment of 25 February 2003 [ECHR
2003 IV]). An interference with the right freely to gather news
– including the interest of protection of a journalistic source
– can be justified under Article 10 § 2 in so far as the
conditions set out in that provision have been complied with. That
means in the first place that the interference must have a basis in
national law and that those national legal rules must have a certain
precision. Secondly, the interference must serve one of the aims
mentioned in Article 10 § 2. Thirdly, the interference must be
necessary in a democratic society for attaining such an aim. In this,
the principles of subsidiarity and proportionality play a role. In
that framework it must be weighed whether the interference is
necessary to serve the interest involved and therefore whether no
other, less far-reaching ways (minder
bezwarende wegen) can be followed along
which this interest can be served to a sufficient degree. Where it
concerns a criminal investigation, it must be considered whether the
interference with the right freely to gather news is proportionate to
the interest served in arriving at the truth. In that last
consideration, the gravity of the offences under investigation will
play a role.”
On
1 April 2002, in the light of the case-law developments in this area
and Recommendation No. R(2000) 7 adopted on 8 March 2000 by the
Committee of Ministers of the Council of Europe on 8 March 2000 (see
below under “Relevant international materials”), the
Board of Procurators General (College van procureurs-generaal)
adopted an Instruction within the meaning of Article 130 § 4 of
the Judiciary (Organisation) Act (Wet op de Rechterlijke
Organisatie) on the application by the Public Prosecution
Department of coercive measures in respect of journalists (Aanwijzing
toepassing dwangmiddelen bij journalisten; published in the
Official Gazette (Staatscourant) 2002, no. 46), which entered
into force on 1 April 2002 for a period of four years. This
Instruction defines who is to be considered as a “journalist”
and sets out the pertinent principles and guidelines as regards the
application of coercive measures, such as inter alia an order
under Article 96a of the Code of Criminal Procedure, in respect of a
journalist.
On
4 December 2000, the boards of the Netherlands Society of
Editors-in-Chief (Nederlands Genootschap van Hoofdredacteuren)
and the Netherlands Union of Journalists (Nederlandse Vereniging
van Journalisten) set up a commission to investigate and take
stock of problems arising in relation to the protection of
journalistic sources and seizure of journalistic materials. This
commission – which was composed of a professor of criminal law,
the secretary of the Netherlands Union of Journalists, a Regional
Court judge and an editor of a national daily newspaper –
concluded in its report of 30 October 2001, inter alia, that
specific legislation was not necessary and that by way of making
certain procedural changes – such as a preliminary assessment
procedure, where it concerns the application of coercive measures in
cases where the protection of sources is in issue – a number of
problem areas could be resolved.
Already
in 1993, Mr E. Jurgens – at the time a member of the
Netherlands Lower House of Parliament (Tweede Kamer) –
had submitted a private member's bill (initiatiefwetsvoorstel)
to amend the Code of Criminal Procedure and the Code of Civil
Procedure in order to secure the protection of journalistic sources
and the protection of journalists as regards disclosing information
held by them. On 2 March 2005, after having remained dormant, this
bill was eventually withdrawn without having been taken up in
parliament.
The
Court's judgment in the Voskuil case (Voskuil v. the
Netherlands, no. 64752/01, 22 November 2007) has prompted the
Government to introduce new legislation. A bill now pending before
Parliament proposes to add a new Article to the Code of Criminal
Procedure (Article 218a) that would vouchsafe a right to refuse to
give evidence or identify sources of information to “witnesses
to whom information has been entrusted within the framework of the
professional dissemination of news (beroepsmatige berichtgeving)
or the gathering of information for that purpose, or the
dissemination of news within the framework of participation in the
public debate as the case may be”. Such a right would be more
limited than that enjoyed by the categories enumerated in Articles
217, 218 and 219 of the Code of Criminal Procedure; it would be
subject to the finding of the investigating judge that no
disproportionate harm to an overriding public interest
(zwaarderwegend maatschappelijk belang) would result from such
refusal. However, persons covered by the proposed new Article 218a
would not be among those entitled to refuse to surrender items
eligible for seizure: the bill does not propose to include them in
the enumeration contained in Article 96 § 2 (paragraph 21
above).
B. Relevant international materials
Several
international instruments concern the protection of journalistic
sources; among others, the Resolution on Journalistic Freedoms and
Human Rights, adopted at the 4th European Ministerial Conference on
Mass Media Policy (Prague, 7-8 December 1994) and the Resolution on
the Confidentiality of Journalists' Sources by the European
Parliament (18 January 1994, Official Journal of the European
Communities No. C 44/34).
Moreover,
Recommendation No. R(2000) 7 on the right of journalists not to
disclose their sources of information was adopted by the Committee of
Ministers of the Council of Europe on 8 March 2000 and states, in so
far as relevant:
“[The Committee of Ministers] Recommends to the
governments of member States:
1. to implement in their domestic law and practice the
principles appended to this recommendation,
2. to disseminate widely this recommendation and its
appended principles, where appropriate accompanied by a translation,
and
3. to bring them in particular to the attention of
public authorities, police authorities and the judiciary as well as
to make them available to journalists, the media and their
professional organisations.
Appendix to Recommendation No. R (2000) 7
Principles concerning the right of journalists not to
disclose their sources of information
Definitions
For the purposes of this Recommendation:
a. the term 'journalist' means any natural or legal
person who is regularly or professionally engaged in the collection
and dissemination of information to the public via any means of mass
communication;
b. the term 'information' means any statement of fact,
opinion or idea in the form of text, sound and/or picture;
c. the term 'source' means any person who provides
information to a journalist;
d. the term 'information identifying a source' means, as
far as this is likely to lead to the identification of a source:
i. the name and personal data as well as voice and image
of a source,
ii. the factual circumstances of acquiring information
from a source by a journalist,
iii. the unpublished content of the information provided
by a source to a journalist, and
iv. personal data of journalists and their employers
related to their professional work.
Principle 1 (Right of non-disclosure of journalists)
Domestic law and practice in member States should
provide for explicit and clear protection of the right of journalists
not to disclose information identifying a source in accordance with
Article 10 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (hereinafter: the Convention) and the principles
established herein, which are to be considered as minimum standards
for the respect of this right.
Principle 2 (Right of non-disclosure of other
persons)
Other persons who, by their professional relations with
journalists, acquire knowledge of information identifying a source
through the collection, editorial processing or dissemination of this
information, should equally be protected under the principles
established herein.
Principle 3 (Limits to the right of non-disclosure)
a. The right of journalists not to disclose information
identifying a source must not be subject to other restrictions than
those mentioned in Article 10, paragraph 2 of the Convention. In
determining whether a legitimate interest in a disclosure falling
within the scope of Article 10, paragraph 2 of the Convention
outweighs the public interest in not disclosing information
identifying a source, competent authorities of member States shall
pay particular regard to the importance of the right of
non-disclosure and the pre-eminence given to it in the case-law of
the European Court of Human Rights, and may only order a disclosure
if, subject to paragraph b, there exists an overriding requirement in
the public interest and if circumstances are of a sufficiently vital
and serious nature.
b. The disclosure of information identifying a source
should not be deemed necessary unless it can be convincingly
established that:
i. reasonable alternative measures to the disclosure do
not exist or have been exhausted by the persons or public authorities
that seek the disclosure, and
ii. the legitimate interest in the disclosure clearly
outweighs the public interest in the non-disclosure, bearing in mind
that:
- an overriding requirement of the need for disclosure
is proved,
- the circumstances are of a sufficiently vital and
serious nature,
- the necessity of the disclosure is identified as
responding to a pressing social need, and
- member States enjoy a certain margin of appreciation
in assessing this need, but this margin goes hand in hand with the
supervision by the European Court of Human Rights.
c. The above requirements should be applied at all
stages of any proceedings where the right of non-disclosure might be
invoked.
Principle 4 (Alternative evidence to journalists'
sources)
In legal proceedings against a journalist on grounds of
an alleged infringement of the honour or reputation of a person,
authorities should consider, for the purpose of establishing the
truth or otherwise of the allegation, all evidence which is available
to them under national procedural law and may not require for that
purpose the disclosure of information identifying a source by the
journalist.
Principle 5 (Conditions concerning disclosures)
a. The motion or request for initiating any action by
competent authorities aimed at the disclosure of information
identifying a source should only be introduced by persons or public
authorities that have a direct legitimate interest in the disclosure.
b. Journalists should be informed by the competent
authorities of their right not to disclose information identifying a
source as well as of the limits of this right before a disclosure is
requested.
c. Sanctions against journalists for not disclosing
information identifying a source should only be imposed by judicial
authorities during court proceedings which allow for a hearing of the
journalists concerned in accordance with Article 6 of the Convention.
d. Journalists should have the right to have the
imposition of a sanction for not disclosing their information
identifying a source reviewed by another judicial authority.
e. Where journalists respond to a request or order to
disclose information identifying a source, the competent authorities
should consider applying measures to limit the extent of a
disclosure, for example by excluding the public from the disclosure
with due respect to Article 6 of the Convention, where relevant, and
by themselves respecting the confidentiality of such a disclosure.
Principle 6 (Interception of communication,
surveillance and judicial search and seizure)
a. The following measures should not be applied if their
purpose is to circumvent the right of journalists, under the terms of
these principles, not to disclose information identifying a source:
i. interception orders or actions concerning
communication or correspondence of journalists or their employers,
ii. surveillance orders or actions concerning
journalists, their contacts or their employers, or
iii. search or seizure orders or actions concerning the
private or business premises, belongings or correspondence of
journalists or their employers or personal data related to their
professional work.
b. Where information identifying a source has been
properly obtained by police or judicial authorities by any of the
above actions, although this might not have been the purpose of these
actions, measures should be taken to prevent the subsequent use of
this information as evidence before courts, unless the disclosure
would be justified under Principle 3.
Principle 7 (Protection against self-incrimination)
The principles established herein shall not in any way
limit national laws on the protection against self-incrimination in
criminal proceedings, and journalists should, as far as such laws
apply, enjoy such protection with regard to the disclosure of
information identifying a source.”
For
the precise application of the Recommendation, the explanatory notes
specified the meaning of certain terms. As regards the term “sources”
the following was set out:
“c. Source
17. Any person who provides information to a journalist
shall be considered as his or her 'source'. The protection of the
relationship between a journalist and a source is the goal of this
Recommendation, because of the 'potentially chilling effect' an order
of source disclosure has on the exercise of freedom of the media
(see, Eur. Court H.R., Goodwin v. the United Kingdom, 27 March 1996,
para. 39). Journalists may receive their information from all kinds
of sources. Therefore, a wide interpretation of this term is
necessary. The actual provision of information to journalists can
constitute an action on the side of the source, for example when a
source calls or writes to a journalist or sends to him or her
recorded information or pictures. Information shall also be regarded
as being 'provided' when a source remains passive and consents to the
journalist taking the information, such as the filming or recording
of information with the consent of the source.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
The
applicant company complained of a violation of Article 10 of the
Convention in that they had been compelled to hand over information
capable of revealing the identity of journalistic sources. Article 10
reads as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
The
Government denied that there had been any such violation.
A. Admissibility
The Court notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Argument before the Court
a. The applicant company
Relying
in particular on the Court's judgment in Goodwin v. the United
Kingdom, 27 March 1996, Reports of Judgments and Decisions
1996 II, the applicant company claimed to have been a victim of
an unwarranted limitation of their rights to obtain information and
protect their journalistic sources through having been compelled to
hand over the CD-ROM containing photographs that would allow persons
who had supplied information to be identified. The attendant threat
of a search of the applicant company's offices and the detention of
the editor-in-chief Mr B., if not already interferences with the
applicant company's Article 10 rights per se, compounded this
violation.
The
article in Autoweek magazine describing the illegal street
race had been published several days after the applicant company had
been forced to hand over the CD-ROM; neither the article nor the
accompanying photographs identified individuals who had actually
taken part in the street race.
In
the applicant company's submission, domestic law was deficient in
that journalists were not among the categories of persons named as
enjoying a right to refuse to give evidence. Although such a right
had been recognised to journalists by the Supreme Court's judgment of
10 May 1996, the lack of a codified basis meant that the law on this
point was ambiguous and unforeseeable.
Moreover,
Article 96a of the Code of Criminal Procedure had removed the
decision whether or not to honour a journalist's refusal to give
evidence from the investigating judge and transferred it to the
public prosecutor and the police. An important safeguard against
abuse had thereby been lost.
The
public prosecutor and the police had failed to give accurate and
detailed reasons when ordering the applicant company to hand over the
CD-ROM. Such information had been given only at the hearing of the
Amsterdam Regional Court, after the CD-ROM had been seized; even
then, it was not made apparent that the crimes in question concerned
“a matter of life and death” as alleged earlier. It could
therefore not be said that the seizure served any of the “legitimate
aims” enumerated in Article 10 § 2, and especially not the
prevention of crimes yet to be committed.
The
need for the measure complained of had not been convincingly
established. Police officers had actually attended the illegal street
race but had failed to identify the participants. The information
supplied to the applicant company had been insufficient to enable
them to make a proper assessment of the need to hand over the
information demanded. The pressure exerted – the detention of
the editor-in-chief Mr B. and the threat to close down the offices
not only of Autoweek magazine's editors, but of the editors of
other mass-circulation publications as well, for a whole week-end –
had been grossly disproportionate.
Finally,
it could not be decisive that the information sought by the police
and the prosecution authorities pertained to crimes other than the
illegal street race. It was not the information itself which enjoyed
the protection of Article 10 but its sources.
b. The Government
The
illegal street race had taken place in public; anyone present could
have taken photographs. That being so, the Government argued that no
duty of confidentiality could possibly arise and hence, no right to
claim protection of journalistic sources. The Government relied on
British Broadcasting Corporation v. the United Kingdom, no.
25798/94, Commission decision of 18 January 1996, Decisions and
Reports (DR) 84 b, pp. 129 et seq.
Moreover,
even assuming there to have been a journalistic source deserving of
protection, the promise of the journalists to keep the identity of
the participants in the street race secret pertained only to the
magazine article in Autoweek; the criminal investigation for
which the information concerned was required to be handed over was
unrelated to the street race. In fact the “duties and
responsibilities” weighing on the applicant company were such
that the applicant company ought to have warned the participants that
the promise of confidentiality covered only their participation in
the race, leaving it to them to decide whether or not to run the risk
of disclosure of their identities for other purposes.
The
Government accepted, nonetheless, that the order under Article 96a of
the Code of Criminal Procedure could be construed as an “an
interference” with the applicant company's rights under Article
10 of the Convention. In their view, however, this interference had
been justified in terms of the second paragraph of that Article.
The
legal basis for the interference in question was Article 96a of the
Code of Criminal Procedure. As applicable to journalists, this
provision had been clarified in the case-law of the Supreme Court and
in a policy rule that had been published. An interested party could
lodge a complaint which would be heard in open court. This satisfied
the requirements of accessibility and foresee ability and provided
adequate procedural safeguards.
The
aim pursued by the interference was a legitimate one, namely the
prevention of disorder or crime. In addition, it served public safety
since the crimes under investigation had been committed by
individuals who did not shrink from armed violence and were prepared
to endanger the public by driving at excessively high speeds;
moreover, the cash machines were located in busy public places.
Although
in Goodwin v. the United Kingdom, 27 March 1996, Reports of
Judgments and Decisions 1996 II, the Court had recognised
the importance of protecting journalists' sources, it remained
necessary to balance the interests involved; the right of journalists
to decline to give evidence could be overridden by an even more
compelling public interest.
The
public prosecutor had had no alternative means of connecting the Audi
car to the suspects A and M who had been observed at the scene of the
ram raids. In fact, their participation in the street race had only
become known from telephone conversations intercepted after the race
had taken place; the police attending the street race had had no
means of knowing beforehand that two of the ram-raid suspects
intended to take part.
As
regards the nature of the coercive measures applied, the Government
contrasted the present case with the cases of Ernst and Others v.
Belgium, no. 33400/96, 15 July 2003, and Roemen
and Schmit v. Luxembourg, no. 51772/99, ECHR
2003 IV, in which the applicants' offices had been searched, and
Voskuil v. the Netherlands, no. 64752/01, 22 November
2007, in which the applicant had been kept detained for seventeen
days.
At
all events, the needs of the criminal investigation into the ram
raids and attendant crimes clearly outweighed the applicant company's
journalistic interests; the public prosecutor and the investigating
judge had attempted to make this clear to the applicant company. It
could not be considered necessary for journalists to be given all the
information available in order to make for themselves an assessment
properly reserved to competent authority.
2. The Court's assessment
a. Whether there has been an “interference”
with a right guaranteed by Article 10
In
the Court's view, the illegal street race in this case cannot be
compared to a public demonstration. A demonstration, by its nature,
is intended to disseminate information and ideas; the street race was
plainly meant to take place out of sight of the public. The
Government's reference to the Commission's decision in the case of
British Broadcasting Corporation v. the United Kingdom is
therefore inapposite.
Whatever
may have been published in Autoweek after the seizure of the
CD-ROM, the Court accepts that at the time when the CD-ROM was handed
over the information stored on it was not yet known to the public
prosecutor and the police. It follows that the applicant company's
rights under Article 10 as a purveyor of information have been
made subject to an interference in the form of a “restriction”
and that Article 10 is applicable. This finding is not affected by
the presence at the street race of police officers, since they
apparently did not secure the information concerned.
b. Whether the interference was “prescribed by
law”
51. A
privilege allowing journalists to refuse to give evidence in criminal
proceedings has been recognised by domestic case-law. This privilege
is qualified, albeit that any interferences with it are explicitly
made subject to the requirements of the second paragraph of Article
10 of the Convention (see paragraph 23 above). More detailed
guidance for the police and the prosecution authorities exists in the
form of an Instruction issued by the Board of Procurators General
(see paragraph 24 above). It is true, as the applicant company
state, that there is no statutory regulation of journalists' rights
in this regard as yet; legislation of such kind has only recently
been introduced (see paragraph 27 above). For the purposes of the
present case, the Court is satisfied that the
interference complained of had a statutory basis, namely Article 96a
of the Code of Criminal Procedure.
While
it is true that, as the applicant company state, that provision did
not set out a requirement of prior judicial control, in this case the
Court must have regard to the involvement of the investigating judge
in the process (see paragraph 15 above) which would appear to have
been decisive. Notwithstanding its concerns expressed below (see
paragraph 62), the Court sees no need on this occasion to rule
on the question of statutory procedural safeguards.
c. Whether the interference pursued a “legitimate
aim”
The
Court is satisfied that the interference complained of was intended
at the very least to prevent disorder or crime. This finding is not
affected by the authorities' refusal to make detailed information
available to the applicant company when demanding the handover of the
CD-ROM.
d. Whether the interference was “necessary in a
democratic society”
i. Applicable principles
The
applicable principles are the following (see, as a recent authority,
Voskuil v. the Netherlands, no. 64752/01, §§
63-65, 22 November 2007, with further references):
(a) The
test of “necessity in a democratic society” requires the
Court to determine whether the interference complained of
corresponded to a “pressing social need”. The Contracting
States have a certain margin of appreciation in assessing whether
such a need exists, but it goes hand in hand with European
supervision, embracing both the legislation and the decisions
applying it, even those delivered by an independent court. The Court
is therefore empowered to give the final ruling on whether a
“restriction” is reconcilable with freedom of expression
as protected by Article 10.
(b) The
Court's task in exercising its supervisory function is not to take
the place of the competent domestic courts but rather to review under
Article 10 the decisions they have taken pursuant to their power of
appreciation. This does not mean that the supervision is limited to
ascertaining whether the respondent State exercised its discretion
reasonably, carefully or in good faith; what the Court has to do is
to look at the interference complained of in the light of the case as
a whole.
(c) In
particular, the Court must determine whether the reasons adduced by
the national authorities to justify the interference were “relevant
and sufficient” and whether the measure taken was
“proportionate to the legitimate aims pursued”. In doing
so, the Court has to satisfy itself that the national authorities,
basing themselves on an acceptable assessment of the relevant facts,
applied standards which were in conformity with the principles
embodied in Article 10.
(d) 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
quoted in paragraph 28 above. 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.
ii. Application of these principles
The Court notes at the outset that unlike in other
comparable cases – Ernst and Others, Roemen and
Schmit and Voskuil, referred to above – there was no
search of the applicant company's premises. It does not follow,
however, that the interference with the applicant company's rights
can be dismissed as insignificant as the Government argue. Had the
applicant company not bowed to the pressure exerted by the police and
the prosecuting authorities, not only the offices of Autoweek
magazine's editors but those of other magazines published by the
applicant company would have been closed down for a significant time;
this might well have resulted in the magazines concerned being
published correspondingly late, by which time news of current events
(see paragraph 12 above) would have been stale. News is a perishable
commodity and to delay its publication, even for a short period, may
well deprive it of all its value and interest (see, for example,
Observer and Guardian v. the United Kingdom, 26
November 1991, § 60, Series A no. 216; Sunday
Times v. the United Kingdom (no. 2), judgment of 26
November 1991, Series A no. 217, § 51; and Association
Ekin v. France, no. 39288/98, § 56, ECHR 2001-VIII).
This danger, be it recalled, is not limited to periodicals that deal
with a topical issue (cf. Alınak
v. Turkey, no. 40287/98, § 37, 29 March 2005). The
threat was plainly a credible one; the Court must take it as
seriously as it would have the authorities' actions had the threat
been carried out.
That,
however, is not sufficient for the Court to find that the
interference complained of was in itself disproportionate. The
present case is dissimilar to cases such as Ernst and Others,
Roemen and Schmit and Voskuil in important respects.
In
the present case the action complained of was not intended to
identify the applicant company's sources for prosecution. Rather, the
seizure of the CD-ROM was intended to identify a vehicle used in
crimes quite unrelated to the illegal street race. The Court does not
dispute that a compulsory handover of journalistic material may have
a chilling effect on the exercise of journalistic freedom of
expression. However, it does not follow per se that the
authorities are in all such cases prevented from demanding such
handover; whether this is the case will depend on the facts of the
case. 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).
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 the 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.
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.
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.
It
has not been stated, nor indeed is it apparent, that the authorities
made use of the information obtained for any other purpose
but to identify and prosecute the perpetrators of the ram raids. It
may therefore be concluded that the applicant company's sources
were never
put to any inconvenience over the street race.
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 (paragraph 20 above). As
it was, the public prosecutor obtained the approval of the
investigating judge even without being so obliged by domestic law
(paragraph 13 above); 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
(paragraphs 15, 16 and 22 above), to satisfy the requirements of
Article 10 in the present case.
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.
FOR THESE REASONS, THE COURT
Declares unanimously the application admissible;
Holds by four votes to three that there has been
no violation of Article 10 of the Convention.
Done in English, and notified in writing on 31 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Judge Power
joined by Judges Gyulumyan and Ziemele is annexed to this judgment.
J.C.M.
S.Q.
DISSENTING OPINION OF JUDGE POWER JOINED BY JUDGES
GYULUMYAN AND ZIEMELE
The
protection and confidentiality of journalistic sources is one of the
cornerstones of freedom of the press and is thus protected by Article
10. In view of the potentially “chilling effect” which an
order for non-voluntary 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.
To be so justified, State interference with press freedom and the
confidentiality of its sources must be strictly “necessary”,
implying the existence of a “pressing social need”.
Any restriction thereon calls for “the most careful scrutiny”
of the Court.
This
Court has never disputed that a compulsory handover of journalistic
research material may have as chilling an effect upon the exercise of
journalistic freedom of expression as may an order for source
disclosure and it considers that this matter can only be addressed,
properly, in the circumstances of a given case.
The facts of the instant case stand in marked contrast to the facts
in Nordisk Film and TV A/S v Denmark in which the Court found
that the applicant's complaint was manifestly ill-founded. In
Nordisk, a request for disclosure of journalistic materials
made by the Danish police in the context of an investigation into
sexual assaults upon children was heard before the Copenhagen City
Court, the High Court and the Supreme Court. Following a detailed
consideration of the competing public interests in issue the Court
ordered the handover of a limited number of the materials
requested but exempted from its order any recordings or notes that
would entail a risk of revealing the identity of the applicant's
sources.
By
contrast, the police in this case, without any prior judicial
assessment or authorisation, arrived at the 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, in my opinion, 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, in my view, somewhat more
than “disquieting” (as the majority considers) and the
actions of the police are a great deal more than “regrettable”
(§§ 62, 63).
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). To my
mind, 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. In my view, 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
public interest in maintaining confidentiality of press sources is
constant. Without confidential sources, journalists would be fettered
in the discharge of their important function as 'public watchdog'.
Disclosure is always contrary to the public interest and the question
for consideration in any given case is whether there is an overriding
alternative public interest, amounting to a “pressing social
need”, to which the need to keep press sources confidential
should yield. To establish that a “pressing social need”
exists, sufficient reasons for the otherwise unlawful interference
must be shown. The respondent State, to my mind, has failed,
entirely, to show that the police would not have been able to
identify the vehicle in any other way. No evidence has been adduced
to indicate that even one alternative effort was made (such as a
search of motor taxation records or ongoing surveillance of suspects
or questioning on suspicion of involvement) in order to obtain the
evidence they required. It would appear that once the police had lost
the car chase earlier in the day, their first port of call was to the
applicant company's offices with their “immoderate”
demand for the surrender of photographic and other materials. 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.
It is
telling to note that the police authorities in this case operated
under Guidelines that issued in May 1988.
Their provisions on the seizure of journalistic material might best
be described as draconian.
(“The police may, on the instructions of a public prosecutor
... or not as the case may be, arrest a journalist on suspicion of a
criminal act and seize everything he has with him on the spot.”)
With effect from 1 April 2002, some two months after the events in
this case, those provisions were replaced by a new Directive on
coercive measures by the police in respect of journalists.
This Directive contained extensive reference to this Court's case
law
and provided, inter alia, that where “the protection of
a journalist's source is at issue, the use of coercive measures must
be in accordance with Article 10 § 2”.
These facts confirm me in my view that the actions of the police in
this case were in violation of Article 10 of the Convention.
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”. To my mind the judgment 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.
