Journalists’ rights to protect sources has been upheld as a key element of freedom of expression in a landmark judgment by the Grand Chamber of the European Court of Human Rights, handed down yesterday.
The judgement, in the case of the magazine publisher Sanoma against the Netherlands, establishes for the first time that the right to freedom of expression implies that journalists should be able to maintain their obligations to protect the confidentiality of their sources.
The judgement comes at a time when Australian independent MP Andrew Wilkie and Victorian Attorney-General Rob Hulls have announced their intentions to initiate shield laws for journalists similar to those in New Zealand, which establish a presumption of confidentiality for sources unless disclosure is essential for investigation of serious crime.
The European finding has profound implications, effectively guaranteeing protection of sources as a necessary part of the European Convention of Human Rights, and preventing journalists from being pressured to give up their sources as part of law enforcement activities.
In Australia, such provisions would have profound implications, including in the current case in which The Australian’s reporter Cameron Stewart is expected to give evidence concerning his dealings with a Victorian police officer, Simon Artz, who is accused of having leaked information about an anti-terrorism raid.
Geoffrey Robertson QC, who represented a coalition of human rights and media organisations in the case, said yesterday “This ruling was an acid test for the court and for media freedom across Europe. It sets a high benchmark for protection of journalistic materials and will force police and prosecutors across Europe, from Russia to France, to change their practices.”
The European Court declared that law enforcement officials can no longer ask media to relinquish journalistic material unless as a matter of last resort in the investigation of a serious crime, and after having sought judicial authorisation.
The finding will force a change in law and practice across Europe, and new legislation to bring many countries in to compliance with the court’s interpretation of the Convention of Human Rights.
The case concerned Sanoma Uitgevers B.V., a Dutch magazine publishing company, which published an article on illegal car racing. The company attended the race, and took photos, having promised to doctor the images so that individuals and car registrations could not be identified.
The race was stopped by the police, who then demanded that the journalists hand over the undoctored photos.
The journalists refused to hand over the material, but were ordered to do so by the public prosecutor. The magazine’s editor-in-chief again refused, and was arrested as a result.
The photos were seized under protest, and the magazine then sought court orders to have them returned and the information taken from them destroyed.
The application was lodged with the European Court of Human Rights on December 1, 2003. In March last year, the court found that, although in principle a compulsory handover of journalistic material might have a chilling effect on the exercise of journalistic freedom of expression, the seizure of the material did not violate human rights.
On September 14, 2009, the case was referred to the Grand Chamber, which in its judgement yesterday overturned that judgement and found that orders to disclose sources potentially had a detrimental impact, not only on the source, but also on the newspaper or publication.
Such orders should not be made unless an independent judge declared that the public interest overrode the public interest in freedom of expression, and that no other methods were available to law enforcement agencies.