Case Summary and Outcome

Facts

Decision Overview

The Supreme Court had to decide if it is a violation of freedom of expression and, in particular, the confidentiality of sources, during a criminal investigation, to order that a journalist’s phone records be provided in order to investigate the possible commission of a crime by a third party.

The Court’s first discussion differentiated between monitoring and wiretapping. Wiretapping involves knowledge of the content of the calls. Monitoring only involves knowledge of the numbers from which and to which the calls are made (metadata). According to the Court, wiretapping requires a Court order in all cases and may only take place in the limited cases provided by law. Call monitoring, however, may take place even without a warrant, but only as part of criminal (not administrative or disciplinary) investigations; only against the person who is under investigation; and it should always be subject to the principle of proportionality. In the opinion of the Court, call monitoring in criminal proceedings may never be carried out against a third party who is not under investigation, because this would violate that party’s right to privacy.

According to the Court, monitoring journalists’ calls in the context of a criminal investigation against a third party not only violates the journalist’s right to privacy, but also the right to confidentiality of sources, which is an essential condition for exercising the right to freedom of expression and information. For the phone records of a journalist to be legitimately monitored, the journalist must be under criminal investigation for committing a crime, and the monitoring warrant must be strictly proportionate to the objective pursued.

The Court explained that for journalists, confidentiality of sources has a much broader scope of protection than the secrecy involved in the practice of other professions. This is the case because in journalism, the confidentiality of sources protects the right of the entire society to receive information through free and independent journalism. According to the Court, the purpose of the confidentiality of sources is not to protect the content of information but rather the identity of the source, so that people can feel safe in providing information to the media, with the certainty that their personal information will not be disclosed. This government protection is essential for society to be properly informed and for journalists to properly fulfill their role.

Given the foregoing, the Court decided to protect the journalist’s fundamental rights of freedom of expression, access to information, and confidentiality of sources, given that his phone records were monitored for the sole purpose of finding the sources of the news that he was publishing. For the Court, this interference was clearly in violation of the journalist’s right to confidentiality of sources, privacy, and freedom of expression, and affected the guarantees needed for a properly informed society.

Consequently, the Court ordered that the journalist’s phone records be disregarded in the criminal investigations conducted against the official from the Office of the Public Prosecutor. The Court explained that this does not mean that a public official may not be punished for disclosing secret information, but that this punishment may not be imposed if the right to the confidentiality of sources was violated in the process. The Court noted that in order to punish the public official, the evidence must be collected by lawful means.

Judge E. Jinesta Lobo said that any monitoring carried out against a journalist is unconstitutional even if there is a warrant, because it will always violate the right to confidentiality of sources.

Meanwhile, Judge F. Castillo Viquez joined the majority opinion but argued that, in his view, monitoring phone records in order to prevent the commission of a crime is justified and constitutes a reasonable restriction on the confidentiality of sources. However, he clarified that this is not the situation that was reviewed in the case because the crime had already been committed, and therefore there were other means to lawfully carry out the investigation.

Judge N. Hernández López joined the reservations given by Judge Castillo, but added that there must always be a Court order when journalists’ communications are monitored, given that press freedom has a special nature that must be given additional protections.

Meanwhile, Judge G. Armijo Sancho and Judge P. Rueda Leal both disagreed in their comments with the Court’s reasoning that if the journalist is the one under investigation, the monitoring of communications may be carried out without a warrant. In their view, communications may under no circumstances be monitored without a warrant, because “it is a violation of the right to privacy to allow authorities other than judicial authorities to examine the connections that may exist between individuals simply by learning that certain individuals have communicated with each other”. [par. 71].