Case Summary and Outcome

The European Court of Human Rights found that Norway had violated Article 10 of the European Convention on Human Rights by ordering a journalist to give evidence about her contact with a source, despite the fact the source himself had come forward and identified himself. The source (Mr. X) faced prosecution for market manipulation and insider trading following the publication of an article that had been based on information supplied by him. The journalist who wrote the article refused to answer any questions about possible contact between her and Mr. X, relying on the right to protection of journalistic sources. This was the first time the European Court of Human Rights had considered a case where the source had intentionally come forward. According to the Court, a journalist’s protection of their sources could not automatically be removed by virtue of a source’s own conduct. The Court highlighted that a “chilling effect” on press freedom arises wherever journalists are seen to assist in the identification of sources.

Facts

Cecilie Langum Becker was a Norwegian journalist working for the online newspaper DN.no.  On August 25, 2017, Ms. Becker published an article containing information received in a letter from a lawyer expressing concerns about the liquidity of the Norwegian Oil Company (DNO). The letter gave the impression that several bond holders of the company were behind it. Two days after the article was published, the price of DNO stock decreased by 4.1%.

When questioned by the Financial Supervisory Authority, Mr. X confirmed that he initiated the letter that was sent to Ms. Becker and that he was the source for the article. When Ms. Becker was questioned by police, she refused to give additional information beyond the fact that she received the letter and published the article. Criminal proceedings were brought against Mr. X for market manipulation and insider trading.

During the criminal trial against Mr. X, Ms. Becker was called as a witness but refused to answer questions about her possible contacts with Mr. X in relation to the article. The prosecutor requested the Court to issue an order compelling Ms. Becker to testify. She refused, relying on Article 125 of the Code of Criminal Procedure (protection for publishers’ sources) and Article 10 of the European Convention on Human Rights. In February 2011, the City Court held that Ms. Becker had a duty to give evidence about her contacts with Mr. X in relation to the letter she had received. The City Court noted that the obligation was limited to her contact with Mr. X as a source, and did not include her communication with other possible unknown sources. Ms. Becker sought to appeal the order, however the appeal would not go forward until a decision had been reached by the City Court on Mr. X’s guilt. Mr. X was convicted in first instance to one year and six months imprisonment.

Ms. Becker’s appeal against the order to testify was rejected by the Borgarting High Court, which found that it was generally decisive whether the source was known. The applicant’s subsequent appeal to the Supreme Court was rejected by the majority, which found that the protections afforded to journalistic sources did not apply when the source had disclosed his/her role as a source. The majority reasoned that placing an obligation on the press in such circumstances would not weaken the public’s general trust in the press to protect their sources since the source would still have control over whether a journalist could be compelled to testify. The minority disagreed because if Ms. Becker had been obliged to give evidence of her contacts with Mr. X, she might also have revealed her contact with other sources. The minority also highlighted that the right belonged to the journalist rather than the source. This meant that the protection could not be dependent on the source’s motives.

During the appeal against the conviction of Mr. X, Ms. Becker was again called as a witness. She testified on several issues, but she refused to answer questions about her contacts with Mr. X. The High Court stated that “an omission to reply to such questions could constitute a ground for the imposition of a fine for an offence against the good order of court proceedings.” The Court upheld Mr. X’s conviction and ordered Ms. Becker to pay a fine of 30,000 Norwegian kroner (approximately $3,662) for an offence against the good order of court proceedings. She did not appeal this decision.

Ms. Becker filed an application to the European Court of Human Rights, arguing that the order to give evidence amounted to a violation of her right to freedom of expression. Ms. Becker argued that the order was not prescribed by law. She also argued that when complying with the order she might have disclosed other sources, and that such orders could have a “chilling effect” on journalism. She also noted that the interference was not “necessary” since her evidence was of no real significance to the proceedings. The Government argued that the court order to give evidence constituted a justified interference because of the gravity of the underlying criminal proceedings, and the lack of a “chilling effect” on journalism since Mr. X had confirmed he was the source.

Decision Overview

The European Court of Human Rights (Court) held that Norway violated Article 10 of the European Convention on Human Rights (Convention) by compelling Ms. Becker to give evidence about her contacts with Mr. X.

The Court began by noting that the parties agreed that there had been an interference, and the Court was satisfied that the interference had pursued the legitimate aim of preventing crime. The Court then examined whether the interference was prescribed by law. The Court was satisfied that the interference occurred pursuant to Article 125 of the Code of Criminal Procedure, and that in interpreting this provision the Supreme Court availed itself of case law and preparatory works to the provision. In light of this, the Court found the interference to have been prescribed by law.

The Court then focused on whether the interference was “necessary in a democratic society”. The Court initially set out general principles from its jurisprudence on the protection of journalistic sources. For instance, it recalled that a measure undermining this protection would only be justified under Article 10 of the Convention where there is an “overriding requirement in the public interest.” (Goodwin v. UK and Sanoma Uitgevers v. The Netherlands). It also noted that, in Nagla v. Latvia, the Court found that the fact that a source’s identity was known at the time of a search had not removed the applicant’s protection under Article 10 of the Convention.

The Court noted that the journalistic methods adopted by Ms. Becker had not been questioned. It also noted that she was not expressly ordered to reveal the identity of her source(s). It was limited to her contact with Mr. X. Nonetheless, the Court considered that “the possible effects of the order were […] of such a nature that the general principles developed with respect to orders of source disclosure [were] applicable to the case.” [para. 72]. The Court recognized that it had not considered a case of this nature before.  Nevertheless, the Court had previously stated that the conduct of the source can never be decisive in determining whether a disclosure order ought to be made. Instead, it would only operate as one important factor to be considered in the balancing exercise. The Court held that this principle applied to cases where a source had come forward. The Court agreed with the domestic courts that a source’s coming forward might mitigate some of the concerns intrinsic to disclosure measures, but knowledge of a source’s identity could not be decisive for the proportionality assessment.

The Court went on to state that “the circumstances with respect to both Mr. X’s motivation for presenting himself as a ‘source’ to the applicant and his coming-forward during the investigation suggest that the degree of protection under Article 10 of the Convention to be applied to the present case cannot reach the same level as that afforded to journalists who have been assisted by persons of unknown identity to inform the public about matters of public interest or matters concerning others.” [para. 76]

The Court observed that, at the time that the order was made, there was no question of further harm being caused to the Norwegian Oil Company (DNO) or its shareholders.  In the Court’s view, the necessity of the restriction under Article 10 of the Convention mainly turned on the need for Ms. Becker’s evidence during the criminal investigations and court proceedings. The necessity was also to be linked to the gravity of the offences Mr. X had been charged for. The Court concluded that Ms. Becker’s refusal to give evidence had not hindered the criminal proceedings against Mr. X. The Court opined that “[w]hile it may be true that the public perception of the principle of non-disclosure of sources would suffer no real damage in this situation, the Court considers that the circumstances in the present case were not sufficient to compel the applicant to testify.” [para. 82] The Court found the order to be unnecessary in a democratic society and, therefore, there was a violation of Article 10 of the Convention.

Concurring opinion of Judge Tsotsoria

Judge Tsotsoria agreed that there had been a violation of Article 10 of the Convention. However, she was not convinced by the line of reasoning adopted in the judgment. Judge Tsotsoria particularly took issue with some of the language adopted by the Court suggesting that a lower level of protection was to be afforded to journalists protecting sources who had come forward during investigations (paragraph 76 of the judgment). In Judge Tsotsoria’s opinion, it weakened the protection afforded to journalistic sources under Article 10 and it did not follow from the Court’s own case law. Judge Tsotsoria concluded that “we are living in the modern digital era where the legal framework of the protection of journalistic sources is under significant strain. This expands the risk of erosion, restriction and compromise in the work of journalists, with an impact on freedom of expression, the media and investigative journalism in particular. The Court has been a frontrunner and an advocate of judicial protection of journalists and their sources and in so doing it has also served as an inspiration for many other jurisdictions. The path should not be reversed.”