The limits of the ECHR’s protection of journalists’ sources

Fast and Furious movie poster, via WikipediaIn my previous post, I outlined some of the international instruments which provide for the protection of journalists’ sources. The leading court decision on the issue is the judgment of the European Court of Human Rights (ECHR) in the seminal and hugely influential Goodwin v UK Application no 17488/90, [1996] ECHR 16 (27 March 1996). And in Sanoma Uitgevers BV v the Netherlands Application no 38224/03 (31 March 2009), the Court reaffirmed Goodwin but set out its limits.

Goodwin turned on the interpretation of Section 10 of the Contempt of Court Act, 1981, which provides:

No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.

In X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1 (HL), the House of Lords held that it was “in the interests of justice” to order a trainee journalist to disclose the identity of a source. However, in Goodwin the ECHR held that this infringed the journalists’ right to freedom of expression in Article 10 of the European Convention on Human Rights. The Court held:

… freedom of expression constitutes one of the essential foundations of a democratic society and … the safeguards to be afforded to the press are of particular importance … Protection of journalistic sources is one of the basic conditions for press freedom… 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.

In Sanoma Uitgevers BV v the Netherlands Application no 38224/03 (31 March 2009) (noted by the ECHR blog; see also Fonds Pascal Decroos and technovia), the Court explored the limits of this privilege. Echoing the Fast and Furious movie franchise, the case concerned illegal car races being investigated by the Dutch magazine Autoweek, published by the applicant Sanoma Uitgevers BV . The journalists took photographs and made notes, but edited the published photographs to guarantee the anonymity of the participants in the race. However, an investigating judge took the view that the necessity to identify the participants in the illegal race, who were suspects in other serious crimes, outweighed the applicant company’s journalistic privilege; the applicants therefore complied with a summons ordering the production of the CD-ROM on which the original photographs were stored; and subsequent appeals against the summons in effect failed.

The ECHR reiterated its Goodwin holding that protection of journalistic sources is one of the basic conditions for press freedom, since, without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. Nevertheless, since the seizure of the CD-ROM was intended to identify a vehicle used in serious crimes unrelated to the illegal street race, the Court held that the summons did not constitute an infringement of Article 10(1) of the European Convention on Human Rights:

… 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 …

These considerations may indeed be relevant to determining the extent of the journalists’ source privilege, but they should not be predicated upon a balancing test. Article 10(2) requires that justified restrictions upon freedom of expression must be necessary, and, as the Court put it in Handyside v United Kingdom Application no 5493/72, [1976] ECHR 5 (7 December 1976), the first Article 10 case, that adjective does not have the flexibility of such expressions as “admissible”, “ordinary”, “useful” , “reasonable” or “desirable”. As the minority judgment makes clear, the majority seems to have forgotten this stricture and instead has come perilously close to upholding the summons merely on the grounds that it was “reasonable” or “desirable”. In Goodwin, the ECHR considered that the House of Lords had deferred too much to the interests of justice, and not enough to the journalist’s Article 10 rights. The same point may be made against the majority judgment in Sanoma Uitgevers. This is not to say that Article 10(2) does not set limits upon journalists’ source privilege, rather that the requirements of Article 10(2) should be properly applied in determining such limits.

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