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Comparative Media Law Ghent University

Comparative Media Law Ghent University. Protection of journalistic sources SESSION 5. Why journalistic sources need protection? The legal framework and the perspective of Article 10 European Convention of Human Rights. Journalistic sources must be protected!.

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Comparative Media Law Ghent University

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  1. Comparative Media LawGhent University Protection of journalistic sourcesSESSION 5

  2. Why journalistic sources need protection? • The legal framework and the perspective ofArticle 10 European Convention of Human Rights

  3. Journalistic sources must be protected! • To guarantee anonimity, confidentiality • No information flow without sources • Protection of “whistle-blowers” • Media as public watchdog • Importance for investigative journalism • Journalists are no instruments of police or judiciary (perception!) • Chilling effect

  4. Legal perspective: The journalist should be compelled by court order to hand over limited specified unedited footage and notes in order to help to identify a person suspected of child abuse Journalistic perspective: This information should not be revealed and should not fall in the hands of the police, the public prosecutor or the judge A dilemmaJournalist and broadcasting company broadcast a television programme investigating paedophilia Undercover – hidden camera – masking of persons

  5. Universal principle: Anyone can be compelled to give assistance to the truth-finding by the judiciary, to give evidence that can be helpful for the court identifying persons suspected of crime, preventing crime… Exceptions? Doctors, lawyers, priests … duty of secrecy What about journalists?

  6. Codes of ethics: Fundamental duty for journalists to protect their sources! Journalists claim a “privilege”, a right or an exception not to be compelled to reveal their sources, not to give evidence to the court See www.media-accountability.org

  7. Protection of journalistic sources in the US:a First Amendment perspective Case of J. Miller (NY Times) – ‘Plame-gate’ Bill introduced in Senate: “Free Flow of Information Act” 10 September 2007, October 2007 “To maintain the free flow of information to the public by providing conditions for the federally compelled disclosure of information by certain persons connected with the news media “

  8. Protection of journalistic sources in Belgium: 2003: ECtHR – Ernst e.a. v. Belgium: violation of Article 10 ECHR 2004: H.M. Tillack, Stern, search and confiscation reporting on EU-fraude, Leaked report, bribery (?)Court of Cassation 1/12/2005, ECOI 4/10/2006Case pending before ECtHR 2005: Law on protection of journalistic sources 2006: Constitutional Court on Law POJS 2007: Court Brussels - conviction of Belgian State for registering phone calls of journalist reporting on anti-terror action by police/judiciary, breach of Article 10 ECHR.

  9. Protection of journalistic sources in France: • 2005, press articles reporting on doping scandal in Tour de France, searches at offices of Le Point and L’EquipeLeaks in criminal investigation • 2006, French police raided the office of daily Midi Libre to look for “confidential” information about the management of the Languedoc-Roussillon Regional Council.Complaint of “violation of professional secrecy” • Bill introduced in Parliament

  10. Protection of journalistic sources in the Netherlands: • 2006: Case of “De Telegraaf” Leaks from AIVD, intelligence servicesJournalists put in jail - ordered to reveal sourcesDecision Court Den Hague, 30 November 2006: journalisted releasedViolation of Art. 10 ECHR. • Proposals to introduce bill in parliament

  11. Protection of journalistic sources in Germany: 2007: case of “Cicero” – Constitutional Court Police search and confiscation Magazine reported on terrorist Abu Mousab Zarqawi, based on leaked information of federal police (Bundeskriminalamt) BVergGe 27 February 2007 ruled that these measures violated the freedom of the press as protected by art. 5 GG.“Die Durchsuchung der Presseräume und die Anordnung der Beslagnahme (..) greift in besondere maße in die vom Grundrecht der Pressefreiheit umfasste Vertraulichkeit der Redaktionsarbeit, aber auch in ein etwaiges Vertrauensverhältnis zu Informanten”

  12. Protection of sources under umbrella of freedom of expression? Article 10 EConvHr contains no reference to freedom to seek information, nor any explicit reference to the protection of journalistic sources(cfr. Art. 19 ICCPR)

  13. The Journalist’s Sources in Europe? 1/ Goodwin v. UK 27 March 1996 2/ Roemen and Schmit v. Luxembourg 25 February 2003 3/ Ernst and others v. Belgium 15 July 2003Three judgments finding a violation of Article 10 Convention!

  14. Goodwin v. UKEuropean Court Human Rights 27 March1996 Facts William Goodwin – “The Engineer” Confidential corporate plan Order for disclosure of sources Journalist refused Contempt of court (fine)

  15. Contempt of Court (UK) Principle: Obligation to reveal information required by the judge/court Exception: Sources of information contained in a publication Exception on exception: If disclosure is necessary in the interest of justice or prevention of disorder of crime

  16. Judgment ECtHR 27 March 1996 Principle = protection of sources as basic condition for press freedom Court: “Without such protection sources may be deterred from assisting the press in informing the public on matters of public interest” Article 10 guarantees journalists a right to refuse to reveal their sources, unless there is “an overriding requirement in the public interest” Compelling order to reveal the journalist’s source in casu was breach of Article 10 Convention

  17. Roemen & Schmit v. LuxembourgECtHR 25 February 2003 Article: “Minister W. convicted of tax evasion!” Criminal complaint -> Investigation of offence of breach of confidence Inquiry in order to identify civil servant who leaked the documents Searches in home and place of work of journalist and his lawyer >

  18. Roemen & Schmit v. LuxembourgJudgment ECtHR 25 February 2003 European Court: searches fell within the ambit of the protection of journalistic sources as protected by Article 10 Convention Searches even greater treath to freedom of expression of journalists than an order to reveal information Violation of Article 10 (Journalist) Violation of Article 8 (Lawyer)

  19. Ernst and others v. BelgiumECtHR 15 July 2003 Leaks in serious criminal cases under investigation Searches at newsdesks and in head offices of Le Soir, Le Soir Illustré, RTBF Searches in private homes of journalists “Fishing operation”

  20. Ernst and others v. Belgium15 July 2003 Arguments of the Court: - large scale of the searches performed in 8 operations involving 160 police officers. - Belgian Government had not stated in what way the applicants were alleged to have been involved in the offences concerned

  21. Ernst and others v. Belgium15 July 2003 - Belgian Government had not taken measures directly against members of the State legal service who could be responsible for the leaks

  22. Ernst and others v. Belgium15 July 2003 Other means could have been employed to identify the responsible for the breaches of confidence. No fair balance between the competing interests.

  23. Ernst and others v. Belgium15 July 2003 Regarding the interest of democratic societies in ensuring and maintaining freedom of the press the means employed were not reasonably proportionate to the legitimate aims pursued Violation of Article 10!

  24. De Haes & Gijsels v. Belgium 24 February 1997 Journalist as an “accused” because of defamation:  consider alternative evidence to journalists’ sources if available to the judiciary

  25. Fressoz & Roire v. France Judgment ECtHR 21 January 1999 • The interest of the public being informed can outweigh the duties and responsibilities and criminal law provisions that in principle are to be respected by journalists (confidentiality of tax files) • Journalists are not to be considered responsible for the breach of professional secrecy by others

  26. Actual problems • Police and investigative judges are not sufficiently aware of Article 10 perspective • Seizures and phone tapping, interception or datacollection with regard to telecommunication/internet communication • Witnesses at trials international courts • Journalist as accused (“breach of confidence”) • Risks for journalists! • Orders to give images  How to apply Article 10 case law > Court?

  27. Rec. 2000(7) on the right of journalists NOT to disclose their sources(Com. of Ministers, COE, March 2000) 1. Domestic law should provide the right of journalistsnot to disclose information identifying a source 2. Equal right of other persons in professional relation with journalists

  28. Rec. 2000(7) on the right of journalists NOT to disclose their sources 3. Limits to the right of non-disclosure- No alternatives (subsidiarity) - Overriding requirement in public interest(proportionality)a. major crime b. defence of accused person – major crime

  29. Rec. 2000(7) on the right of journalists NOT to disclose their sources 4. Legal proceedings against journalist (defamation) Alternative evidence Not require the disclosure of information identifying a source by a journalist 5. Conditions concerning disclosures (procedures, judge)

  30. Rec. 2000(7) on the right of journalists NOT to disclose their sources 6. Interception of communication, judicial search and seizure, surveillance of journalist Not circumventing the principle of protection of sources 7. Protection against self-incrimination

  31. Key issues 1. Who’s a journalist or rather who can claim the protection of journalistic sources? 2. How to decide what an overriding requirement in the public interest is? Criteria? 3. Preventing circumventing measures such as searching/confiscation/tapping! 4. Evidence as an accused –> alternatives! 5. Prosecution of journalist because of offence of breach of (professional) confidence, fencing?

  32. Specific issue ECommHR - BBC v. UK 18/1/1996“The full picture should bebefore the Court”Film/pictures/information with evidence of serious crime and/or identifying persons involved: protection of “sources”?

  33. Your opinion?

  34. Article 10 applicable? • Interference in freedom of expression? • “Protection of sources”? -> confidentiality? • Distinction: broadcasted/published or not? • Criteria of subsidiarity and proportionality? • Problem of perception? Chilling effect?

  35. Article 10 applicable? • ECourtHR 1 December 2005Nordisk Film & TV SA vs. Denmark • Footages/images are no “sources” • But application of art. 10 EConvHR • Necessary= “Major crime”, alleged serious offence • Order with respect of protection of sources • Complaint manifestly inadmissableOrder to give images in casu no violation of article 10 EConvHR

  36. Recent case ECtHR on POJS ECtHR 31 January 2006Stângu and Scutenicu v. Romania Journalist as accused of defamation can be expected to give evidence of factual basis of allegation, does not necesseraly imply that they have to reveal the identity of their sources ECtHR 31 May 2007Šečič v. CroatiaViolation of Art. 3: inhuman treatment, positive obligation of state to investigate racist attacks, court should have been requested to determine whether journalist could have been ordered to reveal identity of person.

  37. Reports POJS in national law 28 November 2007 1. Who’s a journalist or rather who can claim the protection of journalistic sources? 2. How to decide what an overriding requirement in the public interest is? Criteria for exceptions?

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