Access to Public Information, National Security, Protection of Sources, Surveillance
Electronic Privacy Information Center v. Department of Justice Criminal Division
Closed Expands Expression
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The European Court of Human Rights ruled that the Turkish magazine “Nokta” had its freedom of expression violated when the military searched its premises and seized documents and data stored in all of its 46 personal and workplace computers. The case stemmed from a 2007 publication by the magazine that relied on classified information made available to the magazine by whistleblowers. The Court addressed the issue of the protection journalistic sources of information and concluded that the government’s unannounced raid of the magazine extended beyond the military prosecutor’s office request to hand over the files provided by the whistleblower. In the Court’s view, such seizure could further deter anonymous sources from assisting the press in informing about matters of public interest that are otherwise secretly held by government authorities without any reasonable justification.
In 2007, the Turkish magazine Nokta published an article based on documents that were classified as confidential by the Chief of Staff of the armed forces. The documents revealed the introduction of a system to identify and designate journalists who were in favor of, or hostile to, the armed forces. That list was supposedly intended to be used by the army to selectively invite journalists to the events organized by the General Staff of the armed forces.
After a complaint lodged by the Chief of Staff of the armed forces, the Military Court issued an order to search of all the magazine’s premises, including electronic and paper copies of the files stored on all private and professional computers. The magazine objected to the search on the ground that it infringed the right to protect its sources. The military court, however, dismissed the objection pursuant to the Criminal Code of Turkey, which punishes the use, possession or dissemination of information whose disclosure would endanger State security.
Subsequently, the magazine’s publishing director, editors-in-chief, and two of its investigative journalists lodged an application with the European Court of Human Rights, contending that the government’s search and subsequent seizure of their documents violated their right to freedom of expression by identifying their sources of information and limiting their journalist right to received and impart information.
The right to freedom of expression under Article 10 of the European Convention on Human Rights includes “the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” As the present case concerned the disclosure of information held by the Turkish armed forces, the Court first addressed whether the content of the article contributed to a public debate. It noted that the nature of the information reflected the existing debate in the public with respect to the armed forces’ involvement in the country’s political life. The Court particularly noted that a number of organizations representing the media had already protested the army’s selective approach towards journalists, describing it as an arbitrary practice that would inherently exclude those dissenting journalists from expressing their point of views and more importantly, limiting their given right to impart information on matters of public interest that might seem at odds with the army.
The Court then addressed the issue of the protection journalist sources of information. It concluded that the government’s unannounced raid of the magazine extended beyond the military prosecutor’s office request to hand over the files provided by the whistleblower. In the Court’s view, such seizure could further deter anonymous sources from assisting the press in informing about matters of public interest that are otherwise secretly held by government authorities without any reasonable justification.
As to whether the magazine’s journalists acted responsibly in handling the confidential information, the Court stated that as a general rule a journalist must not publish information provided by a whistleblower government official until the official had exhausted administrative procedures to draw his or her superior’s attention to potentially unlawful acts evidenced in the information. In this case, however, the Court noted that the Turkish legislation at the time did not provide for such procedures and therefore, the magazine could not be criticized for disclosing the armed force’s documents without waiting for their sources to raise their concerns.
With respect to the issue of confidentiality, the Court held that generally the government is justified in not disclosing information about “the internal organisation and functioning of the armed forces.” Here, the Court ruled that the reasons brought by the government in keeping the information confidential were not justified, as it failed to show that the disclosure would have a detrimental impact. The Court also took an additional step in addressing whether maintaining public confidence in the functioning of the government, namely the armed forces in this case, outweighed the public’s right to be informed of the controversial practice of treating journalists differently. It held that the public interest in the disclosure of the information was so important in a democratic society that it outweighed the necessity of maintaining public confidence in the armed forces.
Based on the foregoing reasoning, the Court unanimously found Turkey in violation of the right to freedom of expression under Article 10 of the Convention.
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