(Application no. 38224/03)
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:
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:
I. THE CIRCUMSTANCES OF THE CASE
A. Factual background
B. The seizure of the CD-ROM and ensuing proceedings
C. Factual information submitted by the Government
“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:
ram raids perpetrated;
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
2. Relevant domestic case-law and other non-statutory materials
“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.”
B. Relevant international materials
“[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
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:
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.”
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
“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.”
1. Argument before the Court
a. The applicant company
b. The Government
2. The Court's assessment
a. Whether there has been an “interference” with a right guaranteed by Article 10
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.
c. Whether the interference pursued a “legitimate aim”
d. Whether the interference was “necessary in a democratic society”
i. Applicable principles
(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
FOR THESE REASONS, THE COURT
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
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.
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.1 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”.2 Any restriction thereon calls for “the most careful scrutiny” of the Court.3
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.4 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.5 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 1988.1 Their provisions on the seizure of journalistic material might best be described as draconian.2 (“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.3 This Directive contained extensive reference to this Court's case law4 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”.5 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.
1Goodwin v. the United Kingdom, 27 March 1996, § 39, Reports of Judgments and Decisions 1996 II.
2Lingens v. Austria, 8 July 1986, §§ 39-40, Series A no. 103; Sunday Times v. the United Kingdom (no. 2), 26 November 1991, § 50, Series A no. 217.
3 Roemen and Schmit v. Luxembourg, no. 51772/99, § 46, ECHR 2003 IV; Goodwin v. the United Kingdom, 27 March 1996, §§ 39-49, Reports of Judgments and Decisions 1996 II.
4 Nordisk Film & TV A/S v. Denmark (dec.), no. 40485/02, ECHR 2005 XIII.
5 Roemen and Schmit v. Luxembourg, no. 51772/99, § 57, ECHR 2003 IV.
1 These Guidelines are cited and the relevant provisions thereof are set out in § 40 of the Court’s judgment in Voskuil v. the Netherlands, no. 64752/01, 22 November 2007.
2 Section 7 of 1988 Guidelines sets out provisions on the seizure of journalistic material and is cited in Voskuil v. the Netherlands, no. 64752/01, § 40, 22 November 2007.
3 On 1st of April 2002 The Directive on the Application of Coercive Measures to Journalists came into force; see § 41 of Voskuil.
4Voskuil v. the Netherlands, no. 64752/01, § 41, 22 November 2007.
5Voskuil v. the Netherlands, no. 64752/01, § 41, 22 November 2007.