Access to Public Information, Privacy, Data Protection and Retention
H. J. Heinz Co. of Canada Ltd. v. Canada (Attorney-General)
Closed Mixed Outcome
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The Supreme Court of Costa Rica ruled it is a violation of freedom of expression and the confidentiality of sources to order a journalist’s phone records be released as part of an investigation into the possible commission of a crime by a third party. Representatives of the Costa Rican newspaper Diario Extra filed a complaint that two investigative agencies obtained the phone records of a journalist at the newspaper in order to identify the person who was leaking confidential information to the journalist about criminal investigations. 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 other professions because such protection is essential for society to be properly informed and for journalists to properly fulfill their role. The Court ordered the elimination of all monitoring of incoming and outgoing phone calls made by or connected to the reporter, thus protecting the rights to privacy and the confidentiality of sources.
The Office of the Deputy Public Prosecutor for Organized Crime and the Judicial Investigation Agency (Organización de Investigación Judicial, OIJ) opened an investigation to discover a possible leak of information regarding two kidnapping cases under investigation in the Office of the Deputy Public Prosecutor. The investigation began by requesting from the phone company the phone records – metadata – of one of the journalists at the newspaper. This allowed them to identify the names of those individuals who had had phone contact with him. In this way, they were able to establish that an official at the OIJ who had access to secret information on these cases had had contact with the journalist.
As a result of this information, the OIJ official was investigated for possibly committing the crimes of disclosure of secrets and disclosure of confidential information, and for having provided Diario Extra with secret and confidential information. The Public Prosecutor’s Office requested a warrant from the Court to enter and search the official’s office, desk, and locker, and to seize and examine documents, in order to search for other evidence. In addition, the accused official was arrested in order to be interrogated at the Public Prosecutor’s Office. Subsequently, the Criminal Court demanded as precautionary measures an order for the OIJ official to refrain from approaching her workplace or contacting witnesses in the cases, as well as her suspension for three months.
The reporter from Diario Extra filed a complaint before the Supreme Court against the fact that his calls were monitored without a warrant. In his view, this monitoring violated his rights to freedom of expression, access to information, and confidentiality of sources. The Court protected the rights of the journalist and 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 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].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgement has a mixed outcome. On the one hand, the decision recognizes that the right to confidentiality of sources prevents intercepting communications or monitoring metadata of journalists who are not under criminal investigation. It also orders that the evidence gathered in violation of the confidentiality of sources be excluded from Court proceedings. On the other hand, the judgment allows metadata to be monitored without a warrant if the individual – the journalist – is under investigation, without providing sufficient safeguards to ensure that this rule will not lead to arbitrary behavior that undermines the confidentiality of sources. However, it is important to note that the Court made significant efforts to ensure government protection of the confidentiality of sources. For example, it stated that a criminal investigation leading to the seizure of a journalist’s metadata may under no circumstances be connected simply to the publication of information of public interest, and that any monitoring must be “proportional” to the objective that justifies.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The Supreme Court of Justice is the highest court in Costa Rica and its decisions are binding.
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